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

The House Appropriations Committee on Thursday approved by voice vote a bill (pdf) that would provide nearly $367 million for the Equal Employment Opportunity Commission for fiscal year 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases. Specifically, the appropriations bill would give the EEOC $366,568,000 for FY 2013, $6,568,000 more than the Commission was provided in 2012 but more than $7 million below the amount requested. According to the report (pdf) accompanying the funding bill, the measure “includes language making up to $29,500,000 available for payments to State and local enforcement agencies.” In addition, the report states that the Appropriations Committee “is pleased with EEOC’s progress in reducing the backlog of private sector charges. The Committee expects the EEOC to continue to prioritize inventory reduction and to examine new ways to address the backlog and increase productivity. EEOC shall keep the Committee informed about its progress in reducing the backlog.”

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In anticipation of the April 30, 2012 implementation date for the new National Labor Relations Board representation election rule, the Board’s Office of the General Counsel has issued guidance (pdf) on the representation case procedure changes. The Board has also released a set of frequently asked questions (FAQs) on the impact of the new election procedures. Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit: ericsphotography

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On Wednesday the Equal Employment Opportunity Commission (EEOC) approved in a 4-1 vote updated enforcement guidance governing the legality of considering a job applicant’s or employee’s criminal history when making hiring or other employment decisions. Commissioner Victoria Lipnic (R) joined the Democrat Commissioners in support of the guidance, while Constance Barker (R) was the lone member to vote against the new guidance. The Commission was scheduled to address guidance on reasonable accommodations under the Americans with Disabilities Act (ADA) as well, but did not consider this topic during the April 25 meeting. Although the use of credit history for employment screening had been a topic of discussion during an earlier Commission meeting, the Commission has not issued guidance on this topic either. Given Commissioner Stuart Ishimaru’s (D) impending resignation, it is likely that any new guidance on reasonable accommodation or credit history would need to be a bipartisan effort with only four Commissioners if such guidance is issued at all anytime soon.

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In a landmark decision, the Equal Employment Opportunity Commission (EEOC) has determined that a transgender woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is viable under Title VII of the Civil Rights Act. The case, Macy v. Holder, was brought by Mia Macy, a former male police detective who contends she was denied a job as a ballistics technician with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “Agency”) on account of her decision to become a woman. The EEOC’s finding that Macy may proceed with this cause of action could have wider repercussions in the private sector.

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A measure designed to prevent the National Labor Relations Board’s new election rule from taking effect next Monday was defeated in the Senate. On Tuesday the Senate voted 45-54 in favor of a motion to proceed to a vote on S. J. Res. 36, a resolution disapproving of the Board’s rule that expedites and makes other dramatic changes to the representation election process. At least 60 votes were needed to allow the resolution to proceed to a vote. The vote was largely along party lines, with no Democrats supporting the resolution and Senator Lisa Murkowski (R-AK) the only Republican to vote against the measure.

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The same day the Government Accountability Office (GAO) released a study finding that it takes an average of nearly 8 years for the Occupational Safety and Health Administration (OSHA) to finalize safety standards, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to address why this process takes so long. HELP Committee Chairman Tom Harkin (D-IA) began the hearing by claiming that the agency “is broken” and that its rulemaking process is “mired in bureaucracy.” Citing the GAO study, Harkin noted that in the 1980s and 1990s OSHA issued 47 safety standards, but has finalized only 11 since that time. OSHA’s silica standard, he highlighted, has been in development since 1974. While hearing panelists offered different proposals to solve the rulemaking delay, most agreed that the agency needs to set priorities and focus on those rules instead of continually shifting gears and getting “mired” in its own processes.

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The Equal Employment Opportunity Commission (EEOC) intends to hold a public meeting on April 25, 2012 to discuss enforcement guidance on the legality of considering arrest and conviction records in making hiring decisions, and guidance on reasonable accommodation and undue hardship under the Americans with Disabilities Act (ADA).

The April 25 meeting will not be the first time the EEOC has considered these issues. In July 2011, the EEOC held a public meeting to discuss the use an applicant’s criminal record. Three months later the EEOC’s Office of Legal Counsel released an advisory opinion on employer use of arrest and conviction records during the hiring process. This non-binding document suggested that 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. It is expected that the EEOC will offer additional guidance on this topic during the April 25 meeting.

Similarly, in June 2011 the EEOC held a separate meeting to discuss reasonable accommodations and leaves of absence under the ADA. During that meeting the agency indicated that it would release further enforcement guidance on these ADA matters. It is anticipated that the EEOC will provide such guidance during next week’s meeting or shortly thereafter.

The meeting is scheduled to begin at 9:30 ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Those interested in attending are asked to arrive 30 minutes ahead of time due to limited seating.

Photo credit: VladKol

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During a hearing conducted on Wednesday by the House Subcommittee on Health, Employment, Labor, and Pensions, panelists – including Littler shareholder Alissa Horvitz – debated the merits of recent regulatory and enforcement initiatives established by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). According to Horvitz, while the OFCCP’s mission is a laudable one that should be supported, many in the business community are becoming frustrated with the overly burdensome requirements that the agency imposes on federal contractors. Within the past couple of years the OFCCP has instituted a number significant policy and regulatory changes. Horvitz testified (pdf) that a number of employers are terminating their contracts with the federal government while others are deciding not to become government contractors because of the onerous compliance barriers imposed.

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Following a South Carolina federal court’s finding that the National Labor Relations Board lacked the authority to promulgate its notice posting rule, the U.S. Court of Appeals for the D.C. Circuit has granted an emergency motion enjoining the Board from enforcing the rule. Last month in a separate lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW), the U.S. District Court for the District of Columbia upheld the Board’s authority to issue the rule, but struck down the rule’s enforcement provisions. The parties in the D.C. case promptly appealed the portion of the decision affirming the Board’s rule-making authority and moved to enjoin enforcement of the rule while the appeal was pending. The appellate court initially denied this motion for an injunction but reversed course in an order (pdf) issued on April 17, 2012. Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit: istockphoto

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A South Carolina federal court has ruled that the National Labor Relations Board lacked the authority to promulgate its notice-posting rule, which is scheduled to take effect on April 30, 2012. This rule mandates that all private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees. The rule includes a number of enforcement provisions that have been highly contested. Among other remedies for a posting rule violation, the Board would be permitted to toll the six month statute of limitations for an employee who files an unfair labor practice (ULP) charge. This provision would extend the statute of limitations for all unfair labor practice actions against the employer, not just those ULPs arising from the failure to post the notice. The rule would also deem an employer’s “knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue,” as well as render a failure to post the required notice a ULP in its own right. Last month, the U.S. District Court for the District of Columbia struck down the enforcement provisions of the rule, but upheld the Board’s authority to issue the rule in the first instance.  Continue reading this entry at Littler's Labor Relations Counsel.

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Equal Employment Opportunity Commission (EEOC) member Stuart Ishimaru has announced that he is resigning from the Commission this month, two months shy of when his second term is set to expire. Ishimaru was appointed to the EEOC in 2003 by former President Bush. From January 20, 2009 until April 7, 2010, Ishimaru served as the Commission’s acting chair. Commissioner Jacqueline Berrien currently holds the chairmanship position.

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Recently, the Internal Revenue Service (IRS) published Revised Audit Guidelines for use by IRS auditors in examining group health plans for COBRA compliance. The revised Guidelines incorporate changes to account for laws that have affected COBRA since the previous guidelines were developed, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Family and Medical Leave Act (FMLA). The Guidelines appear to herald a new COBRA compliance audit effort by the IRS. Continue reading this entry at Littler's Employee Benefits Counsel. 

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In a decision that can be considered a victory for employers, the U.S. Court of Appeals for the DC Circuit has denied the Secretary of Labor’s position that an employer’s failure to properly make and maintain workplace injury and illness records for the requisite five-year period under Occupational Safety and Health (OSH) Act regulations constitutes a continuing violation that tolls the six-month statute of limitations for issuing citations. The opinion in AKM LLC, d/b/a Volks Constructors v. Secretary of Labor (pdf) effectively limits the Occupational Safety and Health Administration’s (OSHA) ability to issue citations for OSH Act violations that fall outside the six-month window.

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On March 29, 2012 Sen. Tom Harkin (D-IA) introduced a bill that seeks to make substantial changes to the workplace. Like the expansive American Jobs Act Sen. Majority Leader Harry Reid (D-NV) introduced in the fall of 2011, the Rebuild America Act (S. 2252) incorporates a whole host of employment-related provisions into a single piece of legislation. While a large portion of the bill focuses on increased infrastructure, manufacturing, and educational investment, other portions address minimum wage, worker misclassification, pension protection, and paid sick leave. Key provisions of this legislation include the following:

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The Occupational Safety and Health Administration (OSHA) has announced a new National Emphasis Program (NEP) (pdf) that sets forth the policies and procedures for targeting and addressing occupational illnesses and injuries most commonly experienced in nursing and residential care facilities. As described in the NEP, these hazards include ergonomic stressors relating to resident handling; exposure to blood and other potentially infectious materials; exposure to tuberculosis; workplace violence; and slips, trips, and falls. The NEP discusses each of these areas and provides guidance to OSHA compliance staff on how best to conduct investigations to assess potential hazards. OSHA’s NEPs are designed to focus on specific hazards in a particular industry for a three-year period.

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