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

The Department of Labor has released a proposed rule (pdf) that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act. Both laws enacted in 2009 entitle more employees to FMLA leave.

Military Service Member Exigency and Caregiver Leave

The FY 2010 NDAA expanded the military leave provisions (pdf) already included in the FMLA by the FY 2008 National Defense Authorization Act. The FY 2010 NDAA permits family of regular armed forces members, as well as family of Reserve and National Guard members, to take up to 12 weeks of job-protected leave in a 12-month period for a “qualifying exigency” arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. A broad range of events and activities are considered qualifying exigencies, including short-notice deployment, child care and school activities, financial and legal arrangements, rest and recuperation, post-deployment activities, counseling, and military events and related activities. Prior to the FY 2010 NDAA, exigency leave was limited to family of Reserve and National Guard members only. The proposed rule extends qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces as well, and adds the requirement that the military member must be deployed to a foreign country in order for eligible family members to take leave for a qualifying exigency. The proposal also seeks to expand from five to 15 days the amount of FMLA leave an eligible employee would be able to take to spend with the covered family member during rest and recuperation periods.

• Email This
• Print
• Trackbacks
• Share Link

In keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.

In December 2011, the National Labor Relations Board issued a final rule that will radically change representation election procedures.  Continue reading this entry at Littler's Labor Relations Counsel.

• Email This
• Print
• Trackbacks
• Share Link

In its most recent effort to draw lines on the self-described “hot topic” of the “lawfulness of employers’ social media policies and rules,” the National Labor Relations Board’s (NLRB) Office of General Counsel has taken the position that many policy provisions commonly seen in employers’ social media policies violate the National Labor Relations Act (NLRA). This most recent shot across the bow came on January 24, 2012, in the form of a report, (pdf) issued to senior regional staff, on 14 cases which, according to the General Counsel, “present emerging issues in the context of social media.” This report follows a previous General Counsel report, dated August 18, 2011, which discussed 14 prior NLRB cases involving social media issues.  Continue reading this entry at Littler's Workplace Privacy Counsel.

Photo credit:  Warchi

• Email This
• Print
• Trackbacks
• Share Link

According to the newly-released enforcement and litigation statistics, private sector employees filed a record number of charges with the Equal Employment Opportunity Commission in 2011. A total of 99,947 charges of employment discrimination were filed with the EEOC in the 12-month period ending on September 30, 2011. During this period, the EEOC filed 261 merit-based lawsuits across the U.S., an increase of 11 lawsuits over the prior year. In addition, claimants received $455.6 million in relief through agency enforcement, mediation and litigation efforts. These findings were first brought to light in the EEOC’s Fiscal Year (FY) 2011 Performance and Accountability Report (PAR) released in November 2011. The charge statistics flesh out the types of claims that were filed during the year, giving employers some indication as to which charges of discrimination are the most frequent and/or most costly to resolve. Highlights of the 2011 data include the following:

• Email This
• Print
• Trackbacks
• Share Link

Federal agencies, including the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB) have issued their regulatory plans and agendas for 2012. Issued on January 20, 2012, the agencies’ semi-annual regulatory unified agendas outline the regulatory actions that the agencies will likely propose or issue in final form during the upcoming fiscal year. The unified agendas are published in the spring and fall of each year. Although published in January, the latest documents represent the fall 2011 agendas. The fall agendas include the agencies’ regulatory plans, which set forth their statements of regulatory priorities and additional information about the most significant rule-making activities planned for the coming year. The latest agenda indicates that employers can expect aggressive regulatory activity impacting multiple aspects of the workplace in the year ahead.

• Email This
• Print
• Trackbacks
• Share Link

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a draft copy of its Strategic Plan for fiscal years 2012-2012, and is soliciting public comment before the five-year plan is finalized. The Congressionally-required strategic plan outlines the agency’s goals for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. The document discusses 13 performance benchmarks that it will use to measure how well the agency achieves its three main performance goals of (1) combating employment discrimination through strategic law enforcement; (2) preventing employment discrimination through education and outreach; and (3) delivering excellent service through effective systems, updated technology, and a skilled and diverse workforce. According to the EEOC, the revised plan “requires significant changes in the agency’s approach to fulfilling its mission. As a result, during the first 1-2 years of the plan, the agency will establish new baselines so that it can finalize the milestones and targets for its measures.”

• Email This
• Print
• Trackbacks
• Share Link

Last Friday leaders of the House and Senate reportedly came to an agreement on the terms of the Federal Aviation Administration (FAA) reauthorization bill concerning how the National Mediation Board (NMB) will conduct representation elections and issue new rules. The NMB is the independent agency that oversees union representation, collective bargaining, and dispute resolution matters in the rail and airline industries.

• Email This
• Print
• Trackbacks
• Share Link

As expected, members of the House of Representatives opposed to the President’s recent recess appointments to the National Labor Relations Board have voiced their disapproval legislatively. On January 10, 2012, Rep. Diane Black (R-TN) introduced a resolution formally condemning Obama’s controversial decision to make recess appointments while the Senate was holding periodic pro forma sessions. Although the Department of Justice issued a memorandum opinion (pdf)  sanctioning the President’s authority to make these appointments, Rep. Black claimed that “[t]hese appointments are an affront to the Constitution.” According to Black, “the appointments in question were made while the Senate was in pro forma session and the House had not consented to a Senate adjournment,” as is required under article 1, section 5, clause 4 of the U.S. Constitution.

• Email This
• Print
• Trackbacks
• Share Link

The President’s move to seat three new members to the National Labor Relations Board via recess appointment has its first official court challenge. On January 13, 2012, the National Right to Work Foundation (NRTW) along with other business advocacy groups filed a motion (pdf) in the U.S. District Court for the District of Columbia to contest the constitutionality of the President’s actions. The crux of the argument is that since the Senate was not technically in recess at the time of the appointments, the President lacked the authority to seat new Board members without the Senate’s advice and consent. When Obama made these appointments, the Senate was holding regular pro forma sessions in which the chamber convenes but conducts no substantive business. Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit:  evirgen

• Email This
• Print
• Trackbacks
• Share Link

A recent U.S. Supreme Court decision has reinforced the protections afforded to religious organizations against employment discrimination lawsuits. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (pdf) the Court unanimously held that the so-called “ministerial exception” included in the Americans with Disabilities Act (ADA) and other employment law statutes prevents a former religious school teacher who taught a full secular curriculum as well as a daily course on religion and regularly led students in prayer and worship – from bringing ADA claims against her employer, as she qualified as a ministerial employee even if the majority of her duties involved secular instruction.

• Email This
• Print
• Trackbacks
• Share Link

The Securities and Exchange Commission (SEC) has published a chart outlining when it intends to issue new rules implementing sections of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). (pdf)  Notably, within the next six months, the SEC plans to issue a final rule implementing Section 952 of the Dodd-Frank Act, which requires the SEC to adopt new disclosure rules for companies to report the use of compensation consultants and potential conflicts of interest. In addition, this section of the Act directs national securities exchanges/associations (e.g., NYSE, NASDAQ) to establish listing standards requiring publicly traded companies to have their compensation committee participants be members of the board of directors and meet a heightened standard of independence in order for their shares to continue trading on those exchanges. The SEC issued a proposed rule governing § 952 in March 2011.  According to the SEC outline, the agency also plans to adopt the listing standards within a six-month timeframe.

• Email This
• Print
• Trackbacks
• Share Link

On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board. According to the White House press release, the President will seat Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the Board via recess appointment. Anticipating that in 2012 the five-member Board would be left with just two sitting members – Chairman Mark Gaston Pearce (D) and Brian Hayes (R) – Obama nominated Block and Griffin to serve on the Board last month. The third recess appointee, Terence Flynn, was named as an NLRB candidate last year, but the Senate did not act on any of these nominations in 2011.  Continue reading this entry at Littler's Labor Relations Counsel.

• Email This
• Print
• Trackbacks
• Share Link

The Department of Labor’s Wage and Hour Division (WHD) has issued three new fact sheets on unlawful retaliation under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Fact Sheet number 77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), briefly discusses the prohibitions, coverage and enforcement issues related to section 15(a)(3) of the FLSA, which makes it a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The fact sheet explains that covered complaints may be made orally or in writing, and that most courts have concluded that the FLSA’s retaliation protections extend to internal complaints as well.

• Email This
• Print
• Trackbacks
• Share Link