Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

By Steve Friedman and Sean Brown

The Department of Labor’s Employee Benefits Security Administration (“EBSA”) recently issued final investment advice regulations (pdf) that are intended to make fiduciary investment advice more accessible for Americans who participate in 401(k)s and/or individual retirement arrangements (IRAs). When it comes to employer-sponsored plans, this new rule provides employers with the option of providing plan participants with access to investment advisors who may be current purveyors of the employer plan’s investment options.

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By Adam J. Peters

The Department of Labor’s Employee Benefits Security Administration (EBSA) issued a final rule on October 27, 2011, governing the process for filing requests for administrative exemptions from the prohibited transaction provisions under the Employee Retirement Income Security Act (ERISA). ERISA’s design includes numerous safeguards to prevent employee benefit plan fiduciaries from self-dealing or otherwise threatening the integrity of such plans. Specifically, ERISA Section 406 generally prohibits the fiduciary of an ERISA-covered benefit plan from engaging in any transaction that involves the exchange of property, goods, services, or credit between the plan and a “party in interest.” ERISA Section 408(a), however, authorizes the DOL to grant administrative exemptions for “any fiduciary or transaction, or class of fiduciaries or transactions.” Employers who are interested in applying for such exemptions will welcome new procedures designed to streamline and clarify the process. 

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On Wednesday, the House Committee on Education and the Workforce voted 23-16 along party lines to send the Workforce Democracy and Fairness Act (H.R. 3094) (pdf) to the House floor. The vote followed a lengthy markup session of the legislation that would, among other changes, effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the National Labor Relations Board from pursuing its proposed changes to representation election procedures. According to the Committee’s media advisory, this bill “restores successful labor practices and reaffirms protections workers and employers have received for decades” and “ensures employers have access to a fair election hearing and employees are able to make a fully informed decision about union representation.” Earlier this month, the Committee held a more formal hearing with invited panelists to debate the bill’s merits.

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Bipartisan legislation introduced in the Senate last week would update the Fair Labor Standards Act’s (FLSA) computer employee exemption. Section 13(a)(17) of the FLSA establishes minimum wage and overtime exemptions for computer systems analysts, computer programmers, software engineers, or other similarly skilled workers provided that these employees’ specific job duties and compensation meet certain requirements. Specifically, to qualify for a computer employee exemption under current law the employee’s “primary duty” must consist of:

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The Equal Employment Opportunity Commission's Office of Legal Counsel released an advisory opinion on employer use of arrest and conviction records during the hiring process. The non-binding letter provides some insight into the Commission's current enforcement position and suggests the Commission: (1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question. To learn more about the EEOC's advisory opinion and its potential impact on employers, please continue reading Littler's Insight,EEOC Advisory Guidance Offers Insight on the Use of Arrest and Conviction Records, by Rod Fliegel and Jennifer Mora.

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The U.S. Commission on Civil Rights (“USCCR” or “Commission”) has issued a briefing report – English Only Policies in the Workplace (pdf) – recommending that an employer’s English-only policy be deemed unlawful only if such policies are enacted to harass, embarrass, or exclude employees and/or applicants based on their national origin. The report also suggests that Congress amend Title VII of the Civil Rights Act to clarify the meaning of discrimination on the basis of national origin. This recommendation runs contrary to the Equal Employment Opportunity Commission’s (EEOC) stated guidelines on this issue, which, in fact, the briefing report advises should be withdrawn.

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According to information released by the Bureau of Labor Statistics (BLS), the number of reported cases of private sector nonfatal occupational injuries and illnesses that occurred in 2010 declined once again from the prior year, continuing an 8-year trend. The BLS reports that in 2010, 3.5 injury and illness cases per 100 equivalent full-time workers were reported, down from 3.6 per 100 in 2009. The incident rate of injuries incurred only in the private sector remained unchanged between 2009 and 2010, with 3.4 reported cases per 100 full-time employees. Illness-only cases remained relatively unchanged as well. The only private industry sector that experienced an increase in its injury and illness incidence rate was manufacturing, which the BLS attributes to a larger decline in hours worked rather than the corresponding decline in reported injury and illness cases in that sector.

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The Internal Revenue Service has released a detailed list of pension plan and other retirement-related contribution limitations for the Tax Year 2012 that were triggered by an increase in the cost-of-living index. According to the IRS announcement of the 2012 pension plan limitations, the main changes for 2012 include the following:

• The elective deferral (contribution) limit for employees who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan is increased from $16,500 to $17,000.
• The catch-up contribution limit for those aged 50 and over remains unchanged at $5,500.
• The deduction for taxpayers making contributions to a traditional IRA is phased out for singles and heads of household who are covered by a workplace retirement plan and have modified adjusted gross incomes (AGI) between $58,000 and $68,000, up from $56,000 and $66,000 in 2011. For married couples filing jointly, in which the spouse who makes the IRA contribution is covered by a workplace retirement plan, the income phase-out range is $92,000 to $112,000, up from $90,000 to $110,000. For an IRA contributor who is not covered by a workplace retirement plan and is married to someone who is covered, the deduction is phased out if the couple’s income is between $173,000 and $183,000, up from $169,000 and $179,000.
• The AGI phase-out range for taxpayers making contributions to a Roth IRA is $173,000 to $183,000 for married couples filing jointly, up from $169,000 to $179,000 in 2011. For singles and heads of household, the income phase-out range is $110,000 to $125,000, up from $107,000 to $122,000. For a married individual filing a separate return who is covered by a retirement plan at work, the phase-out range remains $0 to $10,000.
• The AGI limit for the saver’s credit (also known as the retirement savings contributions credit) for low-and moderate-income workers is $57,500 for married couples filing jointly, up from $56,500 in 2011; $43,125 for heads of household, up from $42,375; and $28,750 for married individuals filing separately and for singles, up from $28,250.

Full descriptions of the changed and unchanged adjusted limitations are set forth in the IRS announcement.  See also Littler's ASAP:  IRS Announces Pension Plan Limitations for Tax Year 2012.

Photo credit: Kameleon007

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Updated:  October 21, 2011

On October 12 the House by a 307-122 margin approved a measure that temporarily and retroactively extends the Trade Adjustment Assistance (TAA) program that was enacted as part of the 2009 stimulus package and expired in February 2011. The TAA is a federal, state-administered program created to provide benefits and services to individuals who become unemployed as a result of international trade. Such benefits include trade readjustment allowance, training, assistance with healthcare premium costs, alternative trade adjustment assistance, and job search and relocation allowances. The bill that has been approved by both houses of Congress – H.R. 2832 – extends the authorization of appropriations for the TAA through December 31, 2013.

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Rep. Lynn Woolsey (D-CA) has reintroduced legislation that would create new record-keeping requirements for employers that hire independent contractors, and impose stricter penalties for misclassification. Notably, the Employee Misclassification Prevention Act (H.R. 3178) would amend the Fair Labor Standards Act (FLSA) to require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. In addition, the measure would do the following:

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To help commemorate National Domestic Violence Awareness Month, Rep. Lynn Woolsey (D-CA) reintroduced the Domestic Violence Leave Act (H.R. 3151), legislation that would allow employees to take leave under the Family and Medical Leave Act (FMLA) to address acts of domestic violence, sexual assault and stalking aimed at themselves, a spouse (including domestic partner and same-sex spouse), parent or child.

The FMLA leave could be used to seek medical attention for injuries; obtain legal assistance or remedies; participate in a legal proceeding; attend support groups or therapy; and participate in safety planning, among other related activities held during work hours. An employee would be able to substitute paid leave for the leave provided under this bill. An employer would be entitled to seek certification that the employee is legitimately taking FMLA leave for the reasons outlined in the measure, but would be required to keep such information confidential. In lieu of such written documentation as police reports or witness statements, an employee would be able to satisfy the certification requirement by providing a written statement describing the reason for taking leave.

In a press release, Rep. Woolsey stated: “Domestic violence is a widespread problem affecting millions of people in the United States, men and women,” adding that her bill “ensures that those who have suffered abuse have the time to recover, physically and emotionally, without losing their job or forfeiting the income that supports them and their family.”

The text of this bill has already been incorporated into a more extensive leave bill – the Balancing Act of 2011 (H.R. 2346) – Rep. Woolsey introduced in June 2011. Yet another measure, the Healthy Families Act (H.R. 1876, S. 984) introduced in May 2011, would require employers to provide paid sick leave as well as paid leave for employees who are the victims of domestic violence, stalking or sexual assault.

Photo credit:  Spauln

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During a hearing conducted by the House Committee on Education and the Workforce, labor experts and lawmakers debated the merits of the recently-introduced Workforce Democracy and Fairness Act (H.R. 3094), legislation that would restore the criteria used to determine an appropriate bargaining unit and prevent the National Labor Relations Board from pursuing its proposed changes to the representation election process.

Opening the hearing, Committee Chairman John Kline (R-MN) claimed that the NLRB is “wreaking havoc on the nation’s workforce and must be stopped.” Kline first criticized the Board’s “ambush elections proposal” that would require that pre-election hearings be held within seven calendar days after a petition is filed; provide employees with as few as 10 days to make a decision regarding whether they want to join a union; postpone the resolution of voter eligibility issues until after the election; mandate that employers complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union a preliminary voter list before the pre-election hearing, and a final voter list within two days after the election is scheduled, among other significant changes. According to Kline, such “expansive changes” should be vetted legislatively. To that end, Kline introduced the Workforce Democracy and Fairness Act, claiming it would “require the NLRB to change course.” This measure would provide employers with at least 14 days to prepare for an election hearing and afford workers at least 35 days to make an informed decision regarding union representation. The bill would also “safeguard privacy” by limiting what identification and contact information an employer must provide to unions prior to an election.

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As expected, proponents of the American Jobs Act (S. 1660)  failed to garner the 60 Senate votes needed to proceed with further consideration of the jobs legislation. Democratic senators Ben Nelson (D-NE) and Jon Tester (D-MT) joined 46 Republican senators in voting against further consideration of the measure Tuesday evening. Fifty Democratic senators voted in favor of proceeding, ten votes shy of the number needed to prevent a filibuster.

Among other provisions affecting employers, the American Jobs Act would prohibit unemployment discrimination; temporarily ease payroll taxes for employers; provide incentives for hiring veterans and long-term unemployed workers; encourage employers to develop temporary work sharing positions in lieu of layoffs; extend emergency unemployment compensation; extend 100 percent business expensing of investments in certain business assets through 2012; mandate that all laborers and mechanics employed by contractors and subcontractors on projects funded directly by the bill be paid the prevailing wage rate; provide additional funding for transportation infrastructure projects; and require that all projects funded by the bill use American-produced iron, steel, and manufactured goods. The bill would be financed by a $5.6 surtax on millionaires, a change from the initial bill aimed at increasing Democratic support.

Even if this bill had been allowed to progress in the Senate, it would have faced tough opposition in the Republican-controlled House of Representatives. The Obama Administration has stated that it would be amenable to splitting the measure into smaller bills that would have a greater likelihood of passage. At this point, it is uncertain which provisions of the bill, if any, would receive support as standalone legislation.

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Legislation introduced by House Committee on Education and the Workforce Chairman John Kline (R-MN) would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the Board from pursuing its proposed changes to representation election procedures. Specifically, the Workforce Democracy and Fairness Act (H.R. 3094) seeks to return to the long-standing approach in assessing which employees belong in a proposed bargaining unit, and would establish a timeline and process for holding a hearing regarding any pre-election disputes and deciding the appropriate bargaining unit.

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The Occupational Safety and Health Administration has announced (pdf) that it intends to hold a public meeting to solicit input on preventing occupational hearing loss. Last October, OSHA issued a proposed reinterpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. The standards require employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are feasible. The proposed interpretation would have clarified that feasibility in this instance means “capable of being done” or “achievable.” Amid an outcry from many in the business community, the agency withdrew this proposed change in January 2011.

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Employers will now have until January 31, 2012 to comply with the National Labor Relations Board’s notice posting rule: Notification of Employee Rights under the National Labor Relations Act. This rule, which was slated to take effect as of November 14, 2011, mandates that all private sector employers subject to the NLRA post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizes employers for non-compliance. Last month, the NLRB made available a copy of the required poster as well as a list of frequently asked questions about the rule.  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit: sumak77

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Federal contractors will have an additional month to submit their VETS-100/VETS-100A reporting forms required under the Vietnam Era Veterans' Readjustment and Assistance Act of 1974 (VEVRAA), as amended. The Department of Labor’s Veterans' Employment & Training Service (VETS) has announced that due to continuing technical problems with the agency’s electronic filing system, contractors required to file Forms 100 and 100A will have until December 30, 2011 to report the number of their current employees and new hires who are qualified covered veterans. The normal annual reporting cycle begins August 1 and ends September 30. The agency had already extended the filing deadline by one month, but the technical problems have not been resolved as anticipated. The DOL now expects the electronic system to be operational as of November 1, 2011.

According to the announcement on the VETS website, because of these technical difficulties, “the Department will not initiate enforcement actions against contractors who submit the VETS-100/VETS-100A from November 1, 2011 through December 30, 2011. Unless a further update is given or other recognized exceptions apply, the Department may initiate enforcement actions against contractors who do not submit VETS-100/VETS-100A forms by December 30, 2011.”

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has submitted to the Office of Management and Budget (OMB) for review revised forms it uses to collect information in connection with non-construction supply and service contractor compliance reviews. Specifically, the agency intends to amend its “Scheduling Letter” (pdf) that the OFCCP sends to federal contractors selected for compliance review. This letter notifies the contractor that it will be audited and informs the contractor that it will need to provide certain information in connection with the evaluation. The changes to the actual scheduling letter, for the most part, are cosmetic. OFCCP ceased reviewing I-9 forms as part of its routine audits, and the new scheduling letter reflects that change. The scheduling letter is issued along with the standard form known as the “Itemized Listing,” (pdf) which sets forth the specific information and documentation that the contractor is required to produce, in addition to the actual affirmative action plans themselves. The OFCCP intends to make substantial changes to the Itemized Listing, however.

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