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

As expected, the House of Representatives on Wednesday approved the Workforce Democracy and Fairness Act (H.R. 3094) by a vote of 235-188, largely along party lines. This bill would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s Specialty Healthcare decision, and prevent the National Labor Relations Board from proceeding with many of its proposed changes to representation election procedures. This measure was approved the same day the NLRB held a public meeting to consider and vote on a resolution approving a handful of proposed election rule changes.

• Email This
• Print
• Trackbacks
• Share Link

We are pleased to announce a new addition to Littler’s blogroll:

Employee Benefits Counsel 

Brought to you by Littler's Employee Benefits, ERISA and Benefit Plan Litigation, and Executive Compensation practice groups, this blog covers:

• Legislative and regulatory developments in the employee benefits arena, including the topics of health care reform; plan design and administration; employee benefits litigation; and
• Executive compensation, providing insight and analysis on legal developments that warrant discussion.

During this time of significant governmental change and shifts in the strategy and style of benefits litigation, Littler's depth of experience in employee benefits, litigation, and executive compensation matters gives our attorneys a distinctly broad perspective with which to provide insight and useful analysis of the latest developments. To subscribe to receive email alerts of new blog posts, please enter your email address in the Subscribe box on the right side of the Employee Benefits Counsel blog homepage. 

Photo credit: IdeaBug Media

• Email This
• Print
• Trackbacks
• Share Link

The National Labor Relations Board has issued a new order temporarily delegating administrative authority over certain agency matters to the General Counsel (GC) and Board Chairman in the event the Board is left with fewer than three sitting members. In last year’s New Process Steel opinion, the Supreme Court held that the National Labor Relations Act requires that the Board operate with at least three members in order to exercise its full authority. When Member Craig Becker’s term expires at the end of the year, the Board will be left with Chairman Pearce (D) and Member Brian Hayes (R), assuming the Senate does not confirm additional members and the President is unable to make any recess appointments by that time. There also has been speculation that Member Hayes might resign to prevent the remaining members from finalizing contentious Board rules.  Continue reading this entry at Littler's Labor Relations Counsel.

• Email This
• Print
• Trackbacks
• Share Link

The Department of Transportation has issued a final rule banning the use of hand-held cell phones by interstate truck and bus drivers while the vehicles are in operation in order to combat distracted driving. The rule emphasizes that the prohibition applies to hand-held devices only. Hands-free devices and mobile phones with a speaker phone option and one-touch dialing are permissible so long the device is within the driver’s reach while he or she is in the normal seated position with the seat belt fastened. The rule does, however, prohibit the push-to-talk function of a mobile telephone, as this would require the driver to hold the device while driving.

• Email This
• Print
• Trackbacks
• Share Link

By Will Weissman

There are a variety of changes to federal tax laws as a result of recent legislation as well as triggers in long-existing legislation that impact employers, including repeal of withholding on payments to federal contractors, enhanced tax credits for hiring veterans, and increased federal unemployment tax rates resulting from states’ failure to repay federal loans.

Repeal of 3% Withholding on Payments to Government Contractors

On November 21, 2011, President Obama signed into law H.R. 674, the “3% Withholding Repeal and Job Creation Act,” which repeals the highly controversial 3% withholding on payments to contractors of federal, state and local governments under Internal Revenue Code section 3402(t). This provision, originally enacted in 2005, never actually went into effect because Congress kept delaying its implementation. Acknowledging the potentially devastating effect such withholding could have upon the cash flows and the operations of government contractors, Congress decided to remove the withholding requirement. This change is a significant benefit to government contractors and allows them to better plan their finances for coming years.

• Email This
• Print
• Trackbacks
• Share Link

The House of Representatives has set the stage for future debate and vote on the Workforce Democracy and Fairness Act (H.R. 3094), a bill that 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 serve as a preemptive strike against the National Labor Relations Board’s proposed changes to representation election procedures. On Friday, the House voted 239 - 167 in favor of a rule (pdf) that will, among other limitations, provide for one hour of general debate on the measure and consideration of four proffered amendments to the legislation.

• Email This
• Print
• Trackbacks
• Share Link

The National Labor Relations Board has announced that on November 30, 2011, it will vote on a portion of its controversial proposed rule that would dramatically change representation election proceedings. Among other significant revisions to the long-standing election process, the rule would require that pre-election hearings be held within seven calendar days after a petition is filed; postpone voter eligibility determinations until after the election; require employers to complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union with a preliminary voter list before the pre-election hearing. The Board stated that at the November 30 meeting the three remaining members will decide whether to adopt “a small number” of these proposed changes, although which ones were not specified.  Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit: ericsphotography

• Email This
• Print
• Trackbacks
• Share Link

On November 15, 2011, the EEOC announced the publication of the Fiscal Year (FY) 2011 Performance and Accountability Report (PAR). (pdf) The PAR measures the EEOC’s performance and financial accountability based on its Strategic Plan for FY 2007 through FY 2012. During FY 2011 the EEOC received a total of 99,947 charges -- the highest number of charges in its 46 year history. Since FY 2006, there has been a dramatic increase in the level of charge activity, except for a minor dip in FY 2009, as shown by the following:

• Email This
• Print
• Trackbacks
• Share Link

Updated:  November 21, 2011

The first portion of President Obama’s jobs package is likely to become law this week after the House unanimously approved a bill the Senate amended (H.R. 674) that contains employer tax incentives for hiring unemployed veterans. The veterans provisions are set forth in the VOW to Hire Heroes Act, added as an amendment to a previously-approved tax bill the House cleared in October. Among other job training and assistance benefits offered to veterans, the measure would provide employers with a tax credit of up to $5,600 for hiring veterans who have been unemployed for at least six months, a $2,400 credit for hiring veterans who have been unemployed for more than four weeks, but less than six months, and a credit of up to $9,600 that would increase the existing Wounded Warriors Tax Credit for employers that hire veterans with service-connected disabilities who have been unemployed for at least six months. These hiring incentives were included in the broader American Jobs Act (S. 1660) that failed to advance in the Senate last month.

• Email This
• Print
• Trackbacks
• Share Link

During a public meeting held on November 16, the Equal Employment Opportunity Commission (EEOC) voted 3-2 in favor of a draft final rule defining the parameters of the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The rule will now be sent to the Office of Management and Budget (OMB) for review, and upon approval, published in the Federal Register as a final rule. Following the vote, the Commission held a panel discussion on hiring obstacles that face disabled veterans.

EEOC Rule

The need to clarify the scope of this RFOA defense was brought about by two U.S. Supreme Court cases that addressed an employer’s defense against claims that a facially neutral employment policy or practice has a disparate impact on older workers.

• Email This
• Print
• Trackbacks
• Share Link

The Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) have updated the Memorandum of Understanding (MOU) (pdf) between the two agencies “to promote greater efficiency and coordination, and to eliminate conflict and duplication of effort.” The substantive revisions to the MOU – last edited in 1999 – clarify how discrimination complaints or charges filed with one agency are to be processed if they involve issues subject to the jurisdiction of the other.

• Email This
• Print
• Trackbacks
• Share Link

As expected, the U.S. Supreme Court has agreed to review (pdf) cases challenging the constitutionality of the Affordable Care Act. The Court accepted the appeals filed in three cases that question the validity of the healthcare reform law, and will hear more than five hours of arguments during the Court’s spring session. While the petitioners in the three cases presented a number of issues for adjudication, the Court will undertake review of the following issues only:

• Whether the Affordable Care Act’s provisions requiring virtually all individuals to obtain health insurance or pay a penalty as of 2014 –commonly referred to as the law’s individual mandate – is constitutional. Specifically, in enacting the individual mandate, did Congress exceed its enumerated powers under the Constitution?
• If the individual mandate is unconstitutional, do the remaining portions of the law still stand, or is the entire law rendered invalid because it is non-severable?
• Is the law’s expansion of the Medicaid program constitutional?
• Does the Anti-Injunction Act (AIA) bar challenges to the individual mandate?

• Email This
• Print
• Trackbacks
• Share Link

On Thursday Sen. Johnny Isakson (R-GA) introduced the Representation Fairness Restoration Act (S. 1843), a bill that would effectively revoke the National Labor Relations Board’s recent decision in Specialty Healthcare, and establish criteria for determining an appropriate bargaining unit. In Specialty Healthcare, the Board determined a petitioned-for unit will be deemed appropriate so long as that unit consists of a clearly identifiable group of employees. If an employer contends that the unit should include additional employees, it is incumbent upon the employer to show that the employees in a larger unit share an "overwhelming" community of interest with those in the petitioned-for unit. Many have argued that this decision will result in much smaller “micro” bargaining units that are easier to organize and more difficult for employers to administratively manage.

• Email This
• Print
• Trackbacks
• Share Link

The Department of Labor’s Employee Benefits Security Administration (EBSA) has launched a Consumer Assistance Web Page to answer questions for retirement and health benefit plan participants and beneficiaries, and enable them to submit electronically any complaints regarding their plans. The site includes a link whereby a viewer can request assistance from a benefits advisor. This feature will automatically direct such requests to the appropriate EBSA regional office based on the user’s ZIP code. While aimed primarily at benefit plan consumers, the site does link to various resources and tools such as fact sheets, frequently asked questions (FAQs), and other materials that may be helpful for employers and plan sponsors.

In a press release, EBSA Assistant Secretary Phyllis C. Borzi said: “Helping retirement and health plan participants find answers to questions about their benefits and providing assistance when they believe their benefits have been improperly denied is one of our most important responsibilities,” adding: “The new consumer assistance Web page and electronic inquiry/complaint process will provide quick answers to the most frequently asked questions and connect workers to experienced benefits advisers if assistance is needed.”

Photo credit: doram

• Email This
• Print
• Trackbacks
• Share Link

On Thursday the Senate voted 95-0 in favor of legislation that would provide employers with tax credits for hiring long-term unemployed and wounded veterans. These benefits were approved as an amendment (S. Amdt. 927) (pdf) to the 3% Withholding Repeal and Job Creation Act (H.R. 674) that the House of Representatives cleared in October.  Introduced by Sen. Jon Tester (D-MT), the VOW to Hire Heroes Act of 2011 amendment would provide employers with a “Returning Heroes” tax credit of up to $5,600 for hiring veterans who have been unemployed for at least six months, a $2,400 credit for hiring veterans who have been unemployed for more than four weeks, but less than six months, and a credit of up to $9,600 that would increase the existing Wounded Warriors Tax Credit for employers that hire veterans with service-connected disabilities who have been unemployed for at least six months. These credits were initially included in President Obama’s more comprehensive job stimulus bill, the American Jobs Act (S. 1660), which stalled in the Senate last month. The Senate agreed to include the VOW to Hire Heroes amendment to H.R. 674 by a vote of 94-1 before passing the entire measure.

• Email This
• Print
• Trackbacks
• Share Link

The Equal Employment Opportunity Commission (EEOC) will hold a public meeting next week to consider draft final regulations on disparate impact and reasonable factors other than age (RFOA) under the Age Discrimination in Employment Act (ADEA), and employment barriers that face disabled veterans. The meeting will take place next Wednesday, November 16, 2011, at 8:30 a.m. ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507.

According to the agency’s semiannual regulatory agenda, the EEOC intended to issue a final rule clarifying the meaning of the RFOA defense used against an ADEA claim and the disparate impact burden of proof under the ADEA by October 2011. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims are cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed to address the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC issued a new NPRM in February 2010 to address the scope of the RFOA defense. It is unclear whether the agency plans to vote on and issue the final rule to coincide with the meeting, or whether the hearing will focus on a draft version.

Another listed topic for discussion is “overcoming barriers to the employment of veterans with disabilities.” Although a detailed meeting agenda is not yet available, this portion of the event will likely involve a panel discussion.

As seating for the meeting is limited, the agency suggests arriving at least 30 minutes in advance.

• Email This
• Print
• Trackbacks
• Share Link

Anticipating that the National Labor Relations Board may be left with only two sitting members come January, the agency has issued an order (pdf) temporarily granting the General Counsel (GC) full authority over litigation matters that would otherwise require Board authorization and the ability to certify the results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act (LMRA). Currently, the Board is comprised of Chairman Mark Gaston Pearce and Members Brian Hayes and Craig Becker. Terence F. Flynn’s nomination to fill the vacant Republican seat on the Board is still pending, and Becker’s controversial recess appointment is set to expire at the end of 2011. While President Obama re-nominated Becker to serve a full term, it is virtually assured that the Senate will not confirm him. Procedural maneuvers may prevent the President from making recess appointments, leaving just two sitting members in 2012.

• Email This
• Print
• Trackbacks
• Share Link

During a hearing on the Fair Labor Standards Act (FLSA) conducted by the House’s Subcommittee on Workforce Protections, former administrator of the DOL’s Wage and Hour Division (WHD) and current Littler Shareholder Tammy McCutchen outlined how the agency’s shift in regulatory and enforcement tactics have made complying with the FLSA increasingly difficult for employers, and suggested changes. Overall, McCutchen explained that the WHD has become more punitive during this Administration, is upending practices that have been in place “for decades,” and has focused its resources on extensive and often unnecessary enforcement actions instead of helping good faith employers comply with the law.

• Email This
• Print
• Trackbacks
• Share Link

The Occupational Safety and Health Administration (OSHA) has issued interim final regulations (pdf) governing its procedures for processing retaliation/whistleblower complaints under the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley” or “SOX”). The SOX whistleblower provisions were amended by Sections 922 and 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, enacted on July 21, 2010.

Notably, Section 922(a) of Dodd-Frank amended the Securities Exchange Act to establish a new securities whistleblower incentive and protection program. The SEC has already issued final regulations governing this program. Section 922(a) of Dodd-Frank added various protections for whistleblowers, including a prohibition on discharging, demoting, suspending, threatening, harassing (directly or indirectly) or otherwise discriminating against an employee for providing information to the SEC or assisting in an investigation or judicial or administrative action relating to the information provided. Section 922(c) of Dodd-Frank extended the statutory filing period for retaliation complaints under Sarbanes-Oxley from 90 to 180 days. If a final decision is not issued within that time period, and the delay is not due to the complainant’s bad faith, he or she is entitled to bring an action against his or her employer in federal court. The regulations have been changed to reflect the Dodd-Frank revisions affording parties the right to a jury trial. This section of Dodd-Frank also prohibits the waiver of such claims by pre-dispute arbitration agreements. Section 929A expressly states that the whistleblower protection provisions in Sarbanes-Oxley apply to employees of subsidiaries and affiliates of publicly-traded companies whose financial information is included in the consolidated financial statements of such companies.

• Email This
• Print
• Trackbacks
• Share Link

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities. Continue reading this entry at Littler's Labor Relations Counsel.

• Email This
• Print
• Trackbacks
• Share Link

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule (pdf) adopting regulations that implement Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf)  Among other requirements, this E.O. mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice "in all places where notices to employees are customarily posted both physically and electronically," informing them of their rights under the National Labor Relations Act (NLRA). Covered contractors are also required to include a similar provision in subcontracts that are necessary to the performance of the government contract and in an amount in excess of $10,000. This notification rule should not be confused with the National Labor Relations Board’s final rule – Notification of Employee Rights under the National Labor Relations Act – that requires private sector employers subject to the NLRA to post a notice informing employees of their rights under the NLRA.

The final rule to be published in the November 2, 2011 edition of the Federal Register adopts without change interim regulations amending the Federal Acquisition Regulation (FAR) to apply the Department of Labor’s rule on this topic. The DOL’s rule, which was released in May 2010, prescribed the requirements for the size, form, and content of the notice, outlined the exceptions for certain types of contracts, and discussed the standards and procedures related to complaints, penalties, compliance evaluations and enforcement of the notice requirement. In June 2010, the Office of Federal Contract Compliance Programs (OFCCP) issued a directive on its procedures for conducting audits to verify that contractors are complying with the E.O.

For more information on the contractor notification requirements mandated by E.O. 13496, see Littler's ASAP: DOL Issues Final Rule on Notification by Federal Contractors of Employee Labor Law Rights.

Photo credit: blackred

• Email This
• Print
• Trackbacks
• Share Link