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

The Equal Employment Opportunity Commission (EEOC) has issued revised guidance documents for employers and disabled veterans that address how various employment laws govern veterans’ employment. According to the EEOC, the revised documents incorporate the changes made by the Americans with Disabilities Act Amendment Act (ADAAA), “which make it easier for veterans with a wide range of impairments – including those that are often not well understood – such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.” The first guidance document aimed at employers differentiates between the protections afforded to veterans with service-connected disabilities under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA); explains how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities; and provides employers with information on the applicable laws and regulations governing this topic. For example, the guidance explains that:

• Email This
• Print
• Trackbacks
• Share Link

On February 22, 2012 the Equal Employment Opportunity Commission (EEOC) voted 4-1 in favor of its 4-year strategic plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. As with the draft version of the plan released last month for public comment, the final document places a great deal of emphasis on enforcement and the targeting of systemic discrimination.

One way the new strategic plan differs from the EEOC’s prior plan, according to the agency, is how it measures its performance in reaching the following three strategic objectives: combating employment discrimination through strategic law enforcement; preventing employment discrimination through education and outreach; and delivering excellent and consistent service through a skilled and diverse workforce and effective systems. According to EEOC Commissioner Chai Feldblum during the Feb. 22 meeting, the plan “focuses less on measuring numbers for numbers’ sake, and more on measuring what we need to do in order to achieve our long-term goals.” As stated in the Message from the Commission,  the diminished reliance on specific number goals:

• Email This
• Print
• Trackbacks
• Share Link

Updated: February 23, 2012

As expected, both chambers of Congress approved the conference report to the Middle Class Tax Relief and Job Creation Act of 2012 (H.R. 3630) before adjourning for the Presidents’ Day recess. The measure extends the 2% payroll tax cut and emergency unemployment insurance benefits through December 2012, and delays the planned cut of Medicare reimbursement rates to doctors, commonly known as the “doc fix” provision. The conference report reconciled the differences between the House and Senate versions of the legislation. The House approved the changes made by the conference report in a 293-132 vote. The Senate approved the measure 60-36 shortly thereafter.

• Email This
• Print
• Trackbacks
• Share Link

On February 16, 2012, Republican members of both the House and Senate introduced resolutions (H.J. Res. 103; S.J. Res. 36) formally disapproving of the National Labor Relations Board’s recent final rule that dramatically changes representation election procedures. Rep. Phil Gingrey (R-GA) introduced the resolution in the House with 64 co-sponsors. Sen. Mike Enzi (R-WY), ranking member of the Senate Help, Education, Labor and Pensions (HELP) Committee, introduced a companion resolution with identical language in the Senate with 43 co-sponsors. The text of both measures is as follows:

• Email This
• Print
• Trackbacks
• Share Link

Three separate panels of witnesses testified at the February 15 Equal Employment Opportunity Commission (EEOC) meeting to discuss the laws that govern pregnancy- and caregiver-based employment discrimination, current charge statistics on these types of claims, and how to help employers comply with the many laws involved. Several panelists urged the Commission to update and clarify current guidance to better assist employers.

Discrimination Statistics

EEOC legal counsel Peggy Mastroianni discussed the general requirements of the Pregnancy Discrimination Act, as well as the provisions of the Americans with Disabilities Act (ADA) that may apply to pregnant workers. Mastroianni stated that the EEOC has long worked to eliminate discrimination based on sex, including discrimination based on pregnancy, relying on a combination of enforcement, policy, and outreach efforts. She noted that, more recently, the Commission has “expanded our focus to address newer forms of discrimination, including unlawful discrimination against individuals with caregiving responsibilities.” According to Mastroianni, over the past decade the EEOC and state and local Fair Employment Practices agencies (FEPAs) “have received 53,865 charges alleging pregnancy discrimination, resolved 52,396 charges, and obtained $150.5 million in monetary benefits for Charging Parties.”

• Email This
• Print
• Trackbacks
• Share Link

After an informal discussion letter the Equal Employment Opportunity Commission (EEOC) issued in November 2011 raised more questions than it answered, the agency decided to release additional guidance on when an employer potentially violates the Americans with Disabilities Act (ADA) by requiring employees to have a high school diploma. In the discussion letter, the EEOC stated that:

If an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

• Email This
• Print
• Trackbacks
• Share Link

On February 13, 2012 President Obama formally sent the nominations of Sharon Block, Terence Flynn, and Richard Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members. The three most recent Board additions were seated via recess appointment last month. The President’s decision to exercise his recess appointment power while the Senate was still holding brief pro forma sessions has generated a substantial amount of controversy, as expressed during a congressional hearing held last week. The legality of this move is currently being challenged judicially and through legislation. While Obama announced his intent to nominate Flynn in January 2011, he did not name Block and Griffin as his choices until December 14, 2011.

Given the ongoing disagreement about the validity of the recess appointments, the Senate is not likely to confirm the appointees. If the Senate were to approve their nominations, however, Block’s term would expire on December 16, 2014; Flynn’s term would last until August 27, 2015; and Griffin’s term would end on August 27, 2016.

• Email This
• Print
• Trackbacks
• Share Link

On Monday President Obama unveiled his $3.8 trillion proposed budget for fiscal year 2013. (pdf) Setting the stage for upcoming budget debates in Congress, the President’s request reveals the Administration’s policies and priorities. Notably, the budget signals that employers are facing expanded enforcement and regulatory activity by the federal agencies. Although the overall funding level suggested for the Department of Labor (DOL) is less than that provided to the agency in 2012, a number of DOL departments would receive greater amounts for 2013 in order to bolster enforcement of worker misclassification laws and whistleblowing programs, among other initiatives. According to the DOL proposed budget (pdf), the agency would receive $12 billion in discretionary funding, a slight decrease from last year’s funding level. Despite the overall drop in funding, the DOL would receive approximately $1.8 billion for worker protection agencies. Specifically, the budget would provide the Occupational Safety and Health Administration (OSHA) with $565 million; the Wage and Hour Division (WHD) with $238 million; the Office of Federal Contract Compliance Programs (OFCCP) with $106 million; the Office of Labor-Management-Standards (OLMS) with $42 million; and the Employee Benefits Security Administration (EBSA) with $183 million.

• Email This
• Print
• Trackbacks
• Share Link

As a preemptive strike against further development of a National Labor Relations Board representation election rule, Rep. Sandy Adams (R-FL) has introduced a bill that would prohibit the Board from requiring employers to provide to the union or Board employee telephone numbers or email addresses. The Keeping Employees' Emails and Phones (KEEP) Secure Act (H.R. 3991) (pdf) would add the following provision to the end of Section 9(c) of the National Labor Relations Act: “In no circumstances shall the Board require an employer to provide to the Board or to a labor organization the telephone number or email address of any employee.’’

• Email This
• Print
• Trackbacks
• Share Link

On Wednesday, February 15, 2012, the Equal Employment Opportunity Commission (EEOC) plans to hold a public meeting to discuss discrimination against pregnant workers and workers with caregiving responsibilities. According to the meeting agenda, three separate panels will address the following topics: understanding pregnancy and caregiver discrimination in today’s workplace; statutory framework and enforcement efforts; and the way forward: implications for the future.

In April 2009, the EEOC released a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. More recently, the Department of Labor issued a proposed rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA), a law that, among other provisions, extends current military caregiver leave entitlements. At this point, it is unclear whether the agency plans to update its guidance regarding either pregnancy- or caregiver-related employment discrimination.

Those wishing to attend the meeting, to be held at 9:30 a.m. in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507, are encouraged to arrive at least 30 minutes in advance due to limited seating.

Photo credit: VladKol

• Email This
• Print
• Trackbacks
• Share Link

Littler Shareholder Stefan Marculewicz was among the panelists testifying on Tuesday before the House Committee on Education and the Workforce about the legal and practical implications of the President’s decision to make recess appointments to the National Labor Relations Board (NLRB or Board) last month. On January 4, 2012, President Obama sat three new members to the NLRB, as well as a new director to lead the Consumer Financial Protection Bureau (CFPB), while the Senate was still holding periodic pro forma sessions. This move has provoked a pointed response from various sectors, inviting a lawsuit from a group of business advocacy groups, a resolution and bill condemning the appointments, and a series of congressional hearings to discuss the legitimacy of the President’s actions.

• Email This
• Print
• Trackbacks
• Share Link

On February 3, 2012, the Department of Labor (“DOL”) published final regulations setting out the fee disclosure rules for persons or entities providing services to retirement plans governed by ERISA. See Treas. Reg. §2550.408-2; 77 Fed. Reg. 023 (Feb. 3, 2012) pgs. 5632-5659. These regulations detail the disclosures that a covered service provider must furnish to a covered plan fiduciary before that fiduciary may enter into or extend contracts for services to the plan under a new prohibited transaction class exemption. The exemption was previously issued by the DOL in tandem with the regulation when issued in proposed form. Under this exemption, if the requirements of the fee disclosure regulation are not satisfied, the expenses associated with the contract or service arrangement will not be treated as exempt from ERISA’s prohibited transaction rules and may be subject to excise taxes.  Continue reading this entry at Littler's Employee Benefits Counsel. 

• Email This
• Print
• Trackbacks
• Share Link

Updated: February 21, 2012

As expected, the House of Representatives approved the conference report to the Federal Aviation Administration (FAA) funding bill that includes significant restrictions over air and railway union organizing. The House voted 248-169 in favor of the report reconciling the House and Senate versions of the FAA Modernization and Reform Act of 2012 (H.R. 658), which reauthorizes the agency’s programs and provides its funding for a four-year period.

• Email This
• Print
• Trackbacks
• Share Link

Because the Equal Employment Opportunity Commission (EEOC) received no adverse comments to a proposed rule extending certain recordkeeping and reporting requirements to entities covered by the employment discrimination provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA), the agency is adopting the proposal as final. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The EEOC issued final regulations implementing the employment provisions of GINA in November 2010.

The final recordkeeping rule “does not require the creation of any documents or impose any reporting requirements,” but rather amends current Title VII and Americans with Disabilities Act (ADA) recordkeeping regulations to add references to GINA. These recordkeeping regulations under Title VII and the ADA “require all covered entities to preserve all employment and personnel records that they make or keep for a specified period of time, and to preserve all records relevant to a Title VII or ADA charge until the charge is resolved.” The same obligations are now applicable for GINA-related charges.

The final rule becomes effective on April 3, 2012.

• Email This
• Print
• Trackbacks
• Share Link

The U.S. Department of Agriculture has withdrawn a controversial rule that would have required contactors to certify that they and their subcontractors and suppliers are in compliance with all applicable labor laws. The contracting clause, reminiscent of the Clinton Administration “blacklisting” regulation, was issued in December 2011 as both a direct final rule and a notice of proposed rulemaking. Bypassing the normal notice and comment period, the direct final rule would have taken effect on February 29 of this year. The Department simultaneously issued the proposed rule that allowed for a normal notice and comment process.

• Email This
• Print
• Trackbacks
• Share Link

Legislation introduced in the House of Representatives on Wednesday would require most publicly traded companies to report how many employees they have who work domestically by state and abroad. Introduced by Rep. Gary Peters (D-MI) and co-sponsored by Reps. Tim Bishop (D-NY) and Jerry McNerney (D-CA), the Outsourcing Accountability Act of 2012 (H.R. 3875) would amend the Securities Exchange Act to require employers to disclose:

• the total number of their employees and those of their subsidiaries who live and work in the U.S. by state;
• the total number of their employees who physically live and work abroad, broken down by country; and
• the percentage increase or decrease in the number of employees reported in the above categories from the previous year.

• Email This
• Print
• Trackbacks
• Share Link