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

On Thursday morning, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 12-10 along party lines to advance the nomination of Thomas Perez to be the next Secretary of Labor. Now that Perez’s nomination has been reported favorably out of committee, it will next be considered by the full Senate.

Committee Chairman Tom Harkin (D-IA) emphasized that since the last committee hearing held to consider Perez’s nomination, there has been an “unprecedented level of disclosure” regarding Perez’s involvement in an alleged quid pro quo agreement with the City of St. Paul, Minnesota while serving in his current role as Assistant Attorney General of the Department of Justice’s Civil Rights Division. In Magner v. Gallagher, the city had challenged the use of statistics as evidence of race discrimination under the Fair Housing Act (FHA). The DOJ was reportedly concerned that the U.S. Supreme Court could strike down this practice and find that disparate impact claims are not cognizable under the FHA, so it allegedly encouraged the city to withdraw its lawsuit. In exchange, according to the accusations, the DOJ would decline to intervene in an unrelated False Claims Act (FCA) lawsuit. The FCA case at issue, United States ex rel. Newell v. City of Saint Paul, was brought by a private whistleblower charging that St. Paul violated the FCA by falsely certifying that it was using federal funds to create jobs for low income workers of all races, when the programs were allegedly focusing only on minority employment. Harkin argued that his investigation into the matter has shown that Perez’s actions were entirely “ethical and appropriate,” and expressed dismay over the delay regarding Perez’s consideration.

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On April 25, 2013, the Senate confirmed Jenny R. Yang to be a Member of the Equal Employment Opportunity Commission (EEOC) to fill the open Democratic seat. Her term will expire on July 1, 2017.

As previously discussed, Yang comes to the EEOC from private practice, where she specialized in representing employees in civil rights class actions and wage and hour collective actions. Among the priorities of the EEOC’s recently approved Strategic Enforcement Plan (SEP) are the enforcement of equal pay laws and focus on systemic cases. Yang’s skillset, therefore, aligns with these goals.

Prior to working in private practice, Yang served as a U.S. Department of Justice (DOJ) trial attorney in the employment litigation section of the DOJ’s Civil Rights Division. Yang has also worked as a New York University Community Service Fund attorney fellow at the National Employment Law Project, and as a law clerk for the U.S. District Court for the Eastern District of Pennsylvania. According to her attorney profile, Yang is the Vice Chair of the Board of Directors for the Asian Pacific American Legal Resource Center and a former Co-Chair of the National Governing Board for the National Asian Pacific American Women’s Forum. She received her law degree from New York University School of Law, and her undergraduate degree in Government from Cornell University.

Yang joins Chair Jacqueline Berrien (D), Constance S. Barker (R), Chai Feldblum (D), and Victoria A. Lipnic (R).

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By Ben Huggett

In a letter of interpretation dated February 21, 2013 (but only publicly released on April 5), the federal Occupational Safety and Health Administration (OSHA) states that, during inspections of non-union workplaces, employees can be represented by anyone selected by the employees, including outside union agents.

The new interpretation from Richard Fairfax, Deputy Assistant Secretary of OSHA, to Steve Sallman, Health and Safety Specialist with the United Steelworkers Union, asserts that OSHA's standard for Representatives of Employers and Employees allows workers at establishments without collective bargaining agreements to designate outside representatives or union agents to represent them during OSHA inspections. This ruling contradicts the plain language of OSHA's governing regulation, 29 C.F.R. § 1903.8(c), as well as longstanding agency guidance and past interpretations.

OSHA's action in allowing unions and other organizations to participate in its inspections, even where they do not formally represent a majority of employees, threatens to disrupt OSHA's primary mission by embroiling the agency in representation organization and community disputes. Moreover, it represents an unwarranted change in existing law that has not undergone appropriate notice and comment rulemaking.  Continue reading Littler's ASAP: OSHA Changes Course: Will Allow Outside Representatives, Including Union Agents, to Enter Non-Union Worksites During OSHA Inspections.

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Updated April 25, 2013

If confirmed as the next Labor Secretary, Thomas Perez said during a Senate Committee hearing his top priorities for the Department include reauthorizing the Workforce Investment Act (WIA), ensuring safe and equal opportunity workplaces, establishing pension security, and providing even-handed enforcement of wage and hour laws. Last month President Obama named Perez – who currently serves as Assistant Attorney General of the Department of Justice’s Civil Rights Division – as his choice to fill the position left vacant by Hilda Solis’s departure in January.

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By Ilyse Schuman and Michael Lotito

President Obama has announced his intent to re-name Mark Gaston Pearce as Chairman of the National Labor Relations Board (NLRB), as well as seat Harry I. Johnson, III and Philip A. Miscimarra as new members. It is likely that all three nominees will be presented to the Senate as a package. However, it remains to be seen if, and when, the Senate will act on their nominations.

According to the White House announcement, both Johnson and Miscimarra – who would fill the two Republican seats of the five-member Board – have worked as private sector labor law attorneys for a number of years. Johnson earned his undergraduate degree from Johns Hopkins University, a Master of Arts in Law and Diplomacy (M.A.L.D.) from Tufts University’s Fletcher School of Law and Diplomacy, and a law degree from Harvard Law School. Miscimarra earned his undergraduate degree from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a law degree from the University of Pennsylvania Law School.

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President Obama has officially named Thomas Perez as his nominee to replace Hilda Solis as the next Secretary of the Department of Labor. Since 2009, Perez has served as the Assistant Attorney General of the Department of Justice’s Civil Rights Division. Prior to holding this position, Perez worked as the Secretary of Maryland's Department of Labor, Licensing and Regulation. Despite the fact that the Senate promptly approved Perez’s transition to the DOJ three years ago, it is anticipated that his confirmation as Labor Secretary will face certain hurdles.

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The National Mediation Board (NMB) has made revisions to its Representation Manual (Manual) to reflect the voting process and election procedure changes made by the FAA Modernization and Reform Act of 2012 (FAA Act) and related implementing regulations, as well as to include a new requirement related to the List of Potential Eligible Voters that employers must provide the NMB. The changes to the Manual take effect as of March 25, 2013.

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By Joshua Roffman and Jade Cobb

The DOL’s Office of Federal Contract Compliance Programs (OFCCP) recently issued a final Notice rescinding its 2006 Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination (Standards) and Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination (Guidelines) regarding compensation discrimination. As discussed in the Notice, the Standards established “analytical procedures to be followed generally by OFCCP when issuing a Notice of Violation (NOV) alleging systemic compensation discrimination,” while the Guidelines provided a “methodology for contractors’ self-evaluation of their pay practices” that if followed, could provide contractors with a “safe harbor” during compliance reviews. In rescinding this guidance, the agency explained that it will no longer limit itself to one single approach that focuses exclusively on systemic discrimination, requires the use of multiple regression analyses, and mandates that employees be grouped by a “similarly situated employee group.” Other than stating that OFCCP will apply “Title VII principles” as the basis for determining whether a contractor has violated the Executive Order 11246’s ban on pay discrimination, however, the Notice, by design, provides no clear details regarding what will replace the 2006 Standards.

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In a decision that could potentially invalidate hundreds of Board decisions, the U.S. Court of Appeals for the D.C. Circuit has held that President Obama’s three recess appointments to the NLRB were unconstitutional. In the decision, Noel Canning v. NLRB, the court vacated an unfair labor practice determination on the grounds that the Board lacked a legitimate quorum when it issued its decision.

In 2010 the U.S. Supreme Court held in New Process Steel that the Board must operate with at least three sitting members. Facing the impending loss of a quorum at the Board, the President appointed Sharon Block, Richard Griffin, and Terence Flynn to the agency in January 2012 while the Senate was still holding brief pro forma sessions. This maneuver triggered an outcry from those who claimed that the appointments were invalid as the Senate was not technically in recess at the time. The D.C. Circuit Court agreed. Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit: dra_schwartz

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Shortly after the Department of Labor released its ambitious regulatory agenda, Labor Secretary Hilda Solis announced her resignation from the agency. Solis was confirmed to the post in February 2009. Under her direction, the DOL has significantly stepped up its regulatory and enforcement activities, particularly in the areas of wage and hour, worker misclassification, and whistleblower protection. Solis reportedly notified President Obama of her decision to step down on Wednesday. According to her resignation notice, Solis has decided to leave Washington to be closer to her family in California. This blog will report on any replacement nominees as soon as they are known.

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The Equal Employment Opportunity Commission (EEOC) has announced its approval of a Strategic Enforcement Plan (SEP) that establishes agency priorities and integrates all components of the EEOC's private, public, and federal sector enforcement activities. The stated purpose of the SEP is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.” Members of the Commission voted 3-1 on December 17, 2012 in favor of the SEP, a component of the EEOC’s larger Strategic Plan for 2012-2016. The final SEP includes some significant differences from the draft plan released in September, which will be discussed below.

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President Obama has nominated Linda Puchala to serve a second term as a member of the National Mediation Board (NMB). The President has also nominated Nicholas Christopher Geale to fill the vacant Republican seat on the NMB. Harry Hoglander is the current chairman of the 3-member agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively.

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The Department of Labor (DOL) has issued a proposed rule (pdf) that seeks to revise and restructure the agency’s rules of practice and procedure for conducting administrative hearings before the Office of Administrative Law Judges (OALJ), the “trial court” that presides over many employment-related claims filed with the DOL. According to the OALJ, the purpose of the changes is to “provide clarity through the use of consistent terminology, structure and formatting so that parties have clear direction when pursuing or defending against a claim.”

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To further assist employees affected by Hurricane Sandy, the Internal Revenue Service (IRS) has announced that it is easing procedural and administrative rules to allow 401(k)s and similar employer-sponsored retirement plans to more readily make loans and hardship distributions to employees and their family members who live or work in a designated disaster area. Ordinarily, laws regarding qualified employer plans impose a number of restrictions on providing loans and distributions from those plans. For example, a pension plan hardship distribution is generally included in an employee’s gross income and subject to a 10% early withdrawal tax. As more fully discussed in IRS Announcement 2012-44, (pdf) the agency is relaxing these rules in order to make emergency funds more accessible to storm victims. Continue reading this entry at Littler's Employee Benefits Counsel.

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Last week, the Consumer Financial Protection Bureau (CFPB) acknowledged that the Notice of User Responsibilities and the Summary of Rights (as well as two other forms not pertinent to employers) published by the Bureau in December 2011 contained typographical and other technical errors. The announcement is important for employers because the deadline for using the model forms issued by CFPB is January 1, 2013, and some employers and background check companies already had started to use the model forms published in December 2011. Continue reading about this development at Littler's Workplace Privacy Counsel.

Photo credit: borisyankov

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The Pension Benefit Guaranty Corporation (PBGC) has launched an enforcement pilot program under ERISA § 4062(e) that will ease financial guaranty obligations for small and financially stable businesses. Under this financial assurance section, in the event a company stops operating at a facility which results in layoffs, the company must take certain steps to ensure that the employees’ pension plans remain financially stable. Specifically, § 4062(e) requires that companies faced with this situation notify the PBGC and make additional monetary contributions to the plan or other financial assurances, such as a letter of credit guaranteeing future plan contributions.

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The Equal Employment Opportunity Commission (EEOC) has released a draft of its Strategic Enforcement Plan (SEP) for public comment. The SEP is a component of the EEOC’s larger Strategic Plan for 2012-2016, a proposal approved in February 2012 that directed the EEOC to develop a SEP that (1) establishes priorities for the EEOC and (2) integrates all components of EEOC's private, public, and federal sector enforcement. Earlier this summer the EEOC held a public meeting to solicit input on the SEP’s development.

The draft SEP identifies the following priorities for national enforcement in both the private and public sectors:

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The Office of Federal Contract Compliance Programs (OFCCP) has made available on its website two separate notices that rescind a total of 31 previously-issued agency directives. According to the OFCCP, these directives involved subject matter addressed by other guidance and resource materials and were therefore redundant, or contained outdated and thus invalid information. Notice of Rescission Number 300 (pdf) dated April 18, 2012 rescinds 18 directives, while Notice of Rescission Number 302 (pdf) dated June 14, 2012 rescinds an additional 13. The issuance dates of these 18 directives range from 1972 to 1998. As stated in the Notices, the OFCCP’s Division of Policy, Planning and Program Development began reviewing past directives for relevancy in December 2011. A complete list of the specific rescinded directives is included in the Notices.

Photo credit: borisyankov

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In keeping with the government’s increased focus on whistleblowers, the Department of Justice (DOJ) has announced (pdf) the creation of a new position dedicated exclusively to whistleblower protections. Long-time federal prosecutor Robert Storch has been named as the first Whistleblower Ombudsperson within the DOJ’s Office of the Inspector General (OIG). According to the DOJ announcement, the Whistleblower Ombudsperson will be tasked with training and educating DOJ employees about the importance of whistleblowers and the various protections afforded to them. The Ombudsperson will also be charged with making sure that whistleblower charges are thoroughly and expeditiously reviewed and addressed by the OIG; communicating with whistleblowers about the status of their complaints; monitoring retaliation claim investigations within the OIG’s jurisdiction; and serving as a liaison to other federal agencies that oversee whistleblower statutes, nongovernmental whistleblower organizations, and advocacy groups.

In a statement, DOJ Inspector General Michael Horowitz said: “Whistleblowers play a critical role in uncovering waste, fraud, abuse, and mismanagement. . . this new position will enable the OIG to continue its leadership as a strong and independent voice within the Department of Justice on whistleblower issues.”

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On August 2 President Obama nominated Jenny R. Yang to be a member of the Equal Employment Opportunity Commission (EEOC) to fill a vacant Democratic seat. According to the White House press release announcing her nomination, Yang has held various civil rights-related positions representing employees in both the private and public sectors.

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On Wednesday, July 18, 2012, the Equal Employment Opportunity Commission (EEOC) held a public meeting to solicit input as the agency finalizes its Strategic Enforcement Plan (SEP). The SEP is a component of the EEOC’s larger Strategic Plan for 2012-2016, approved on February 22, 2012, which includes three elements: (1) strategic enforcement, with increased focus on systemic discrimination claims and increased litigation of systemic cases; (2) education and outreach, including partnering with various stakeholders; and (3) improving operations, particularly focusing on quality control efforts among its offices around the country.

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On Saturday, National Labor Relations Board member Terence Flynn announced his resignation from the Board following allegations cited in an NLRB Inspector General report (pdf) that he committed ethics violations while employed by the Board, but before he assumed his Board member position. Flynn repeatedly denied such allegations. President Obama named Flynn – who had worked as Chief Counsel to NLRB member Brian Hayes – as a nominee in January 2011 and seated him via recess appointment along with nominees Sharon Block and Richard Griffin in January 2012. Facing the impending loss of a quorum at the Board, 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. The critical question as to whether these recess appointments are in fact valid remains a contested issue and will persist even after Flynn’s resignation, which is effective July 24, 2012. According to the NLRB’s announcement, Flynn has immediately recused himself from all agency business.

The remaining Board members include Chairman Mark Pearce (D), Brian Hayes (R), Sharon Block (D) and Richard Griffin (D).

Photo credit: NLRB

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The Occupational Safety and Health Administration (OSHA) has announced plans to establish a committee charged with advising and making recommendations to Department of Labor and OSHA officials regarding ways to improve the efficiency, effectiveness and transparency of OSHA’s whistleblower protection program (WPP). The WPP enforces the whistleblower provisions of twenty-one separate whistleblower statutes, including those set forth in the Occupational Safety and Health (OSH) Act, the Patient Protection and Affordable Care Act (PPACA), the Consumer Product Safety Improvement Act (CPSIA), and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank).

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Stuart Ishimaru, who stepped down as a Commissioner with the Equal Employment Opportunity Commission (EEOC) on April 30, will now serve as the director of the Office of Minority and Women Inclusion (OMWI) at the Consumer Financial Protection Bureau (CFPB). The CFPB is charged with, among other tasks, rule-making, supervision, and enforcement for federal consumer financial protection laws; promoting financial education; monitoring financial markets for new risks to consumers; and enforcing consumer finance non-discrimination laws. 

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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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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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In keeping with its plans to strengthen agency efforts to investigate and enforce whistleblower complaints, the Occupational Safety and Health Administration (OSHA) has announced that its Office of the Whistleblower Protection Program (OWPP) will now report directly to OSHA’s Office of the Assistant Secretary instead of to its Directorate of Enforcement Programs. This move is yet another signal that the agency intends to place a great deal of emphasis on enforcing the 21 whistleblower statutes over which it has jurisdiction. According to the announcement, the organizational change “represents a significantly elevated priority status for whistleblower enforcement, which now will be overseen directly by Assistant Secretary of Labor Dr. David Michaels, who heads OSHA.”

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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:

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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.

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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.

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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

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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.

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Days after a U.S. District Court judge for the D.C. Circuit suggested that the National Labor Relations Board postpone the effective date of its notice posting rule, the agency has agreed to do so. As announced in a press release, the Board:

has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

Photo credit: sumak77

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President Obama has announced that he intends to nominate Sharon Block (D) and Richard Griffin (D) to fill two vacancies on the National Labor Relations Board. When Member Craig Becker’s term expires at the end of this year, the Board will be left with only two members, Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R). As the Supreme Court decided in last year’s New Process Steel decision, the Board must operate with at least three members to exercise its full authority. In January of 2011, Obama nominated Terence Flynn (R) to fill one of the vacant slots on the five-member Board, but the Senate has not yet acted on his nomination. It is expected that the Senate will similarly take no action on the latest nominees. The possibility of the President seating Block and Griffin by recess appointment is also low, as the House will likely take steps to block his ability to do so. Continue reading this entry at Littler's Labor Relations Counsel. 

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By David Kadela

In an unprecedented development, and by a 2-1 vote, the National Labor Relations Board on November 30, 2011, approved a resolution to prepare a final rule adopting a subset of the controversial election rule amendments the Board published for comment in June 2011. The two-member majority was made up of Chairman Mark Pearce and Member Craig Becker, both of whom come from union backgrounds. The Board's lone Republican, Member Brian Hayes, voted against the resolution, criticizing the proposed amendments and the process by which they had been vetted as fundamentally flawed.

What makes this development unprecedented, and radical in the eyes of many, is that it defies a decades-old practice of the Board, regardless of the political party in the majority. Continue reading about this development here.

Photo credit: ericsphotography

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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.

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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.

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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.

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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.

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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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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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On September 27, the Senate unanimously approved the nomination of Constance Barker to serve as a member of the Equal Employment Opportunity Commission for another five-year term. First nominated by former President George W. Bush in 2008, Barker is one of two Republican members serving on the five-member Commission. Other members of the EEOC include fellow Republican Victoria Lipnic, as well as Chair Jacqueline Berrien (D), Stuart Ishimaru (D) and Chai Feldblum (D).

Barker has worked in both the public and private sectors since graduating from the University of Alabama School of Law in 1977. Her positions have included Alabama state prosecutor, part-time municipal judge, general counsel for a school system, and law firm shareholder. Barker will continue serving as a member of the EEOC until her term expires on July 1, 2016.

Photo credit:  MBPHOTO, INC.

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While Hurricane Irene churned up the East Coast this weekend, quieter, albeit significant changes were taking place at the National Labor Relations Board. Long-time Board member and Chairman Wilma Liebman’s term expired on Saturday, August 27. Fellow Democratic member Mark Gaston Pearce has been designated as the new Board Chairman. The remaining members include Brian Hayes, a Republican, and Craig Becker, a Democrat, whose recess appointment expires at the end of this year and will not likely be confirmed for a full term. The vacancy left when Republican member Peter Schaumber left the Board after his second term expired in August 2010 has yet to be filled. In January 2011, President Obama nominated Terence F. Flynn – who currently works as Hayes’ Chief Counsel – to fill that vacancy. Senate action on Flynn’s nomination, however, is still pending. The probable result of these changes will be that the Board will be left with only two acting members come January 2012.  Continue reading this entry at Littler's Labor Relations Counsel. 

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Without explanation, the White House has withdrawn its nomination of Leon Rodriguez to be the Administrator of the Department of Labor’s Wage and Hour Division (WHD). Rodriguez was nominated to fill the WHD’s top position in December 2010 after Obama’s first nominee, Lorelei Boylan, withdrew from the confirmation process in October 2009. According to information provided by the White House, Leon Rodriguez serves as Deputy Assistant Attorney General and Chief of Staff in the Civil Rights Division of the U.S. Department of Justice, where he oversees the operations of the Division and leads its work on immigration and national origin-related civil rights matters.

Photo credit: borisyankov

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Spurred by a Government Accountability Office (GAO) assessment of the Occupational Safety and Health Administration’s Whistleblower Protection Program, the agency has announced that it plans to strengthen its efforts to investigate and enforce whistleblower complaints. OSHA is charged with enforcing the whistleblower provisions contained in 21 separate statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act). According to OSHA, the GAO found “significant problems with OSHA's transparency and accountability, training for investigators and managers, and the internal communication and audit program.” To that end, OSHA commissioned an internal investigation of its Whistleblower Protection Program to examine the “national and regional program structure, operational procedures, investigative processes, budget, equipment, and personnel issues.”

As a result of this investigation, which, according to OSHA, confirmed the GAO’s assessment of the Program, OSHA plans to implement the following changes:

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new Directive updating the application and approval procedures for Functional Affirmative Action Program (FAAP) Agreements. OFCCP regulations allow federal supply and service contractors to develop affirmative action programs (AAPs) that are based on their business function or unit instead of establishments based on physical location. In order to do so, contractors must get prior OFCCP approval. In essence, the OFCCP Director must determine that “the contractor’s overall operational structure, compliance history, and proposed functional AAPs meet the criteria” set forth in the new Directive, effective June 14, 2011.

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By Peter Petesch

In a move consistent with organized labor’s push for an accelerated collective bargaining process for airlines and railroads, the National Mediation Board (NMB) announced the implementation of its expedited mediation project. (pdf) The new program is designed ostensibly to move the mediation process – whose purpose is to resolve collective bargaining disputes in the airline and railroad industries – along. In a press release, Larry Gibbons, NMB Director for Mediation, said the program was in response to a report (pdf) issued in 2010 by the Dunlop II Committee, a joint labor-management committee formed to examine the internal functions, policies and procedures of the NMB and make recommendations for procedural or policy changes. Gibbons explained that the report “...recommended, among other things, that case management strategies be developed to help address [mediation] disputes in a timely and methodical manner.” From this general recommendation in Dunlop II, the NMB developed protocols for expedited mediation. The initiative stops far short of recommendations principally from unions for explicit time limits on mediation. Yet, the initiative works to dispel the perception held by some that mediation is an endless process. Continue reading this entry at Littler’s Labor Relations Counsel.
 

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By David Goldstein

In an obscure notice published in the May 12, 2011 Federal Register, the Office of Federal Contract Compliance Programs (OFCCP) announced an intention to alter the forms it uses to collect information in connection with compliance reviews. These changes, if implemented, will substantially impact federal contractors in their record retention practices and in their responses to audit scheduling letters.

OFCCP commences its audits by first sending a “Scheduling Letter” to the selected government contractor advising it of the audit and requiring the contractor to provide certain information. The Scheduling Letter is always accompanied by a standard form known as the “Itemized Listing,” which sets forth the information and documentation that the contractor is required to produce.

The May 12 Federal Register Notice indicates that OFCCP intends to change the text of the Scheduling Letter and alter the Itemized Listing. In a supporting statement prepared by OFCCP in connection with these proposed changes – but not published in the Federal Register – OFCCP states that its revisions to the body of the Scheduling Letter are simply made for clarity. However, the agency acknowledges that its proposed changes to the itemized listing are substantive and that some of the proposed changes would be very significant. 

Continue reading at Littler's ASAP: OFCCP Looks to Overhaul Audit Procedures Through Revisions to Scheduling Letter and Itemized Listing.

Photo credit: shironosov

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The NLRB’s Office of the General Counsel has issued a new memorandum (pdf) outlining the categories of cases that must be submitted to the agency’s Division of Advice.

Acting General Counsel (GC) Lafe Solomon has indicated that the current list, which was last updated in 2007, needs to be revised on account of the new agency and court decisions, as well as policy issues that have emerged in recent years.

The revised list provides some insight into the nature of cases the GC considers to be of particular importance from a policy standpoint. It also reflects current areas of the law where the GC may be seeking to overturn existing precedent or decisions issued by the Board during the previous presidential administration.  Continue reading this entry at Littler's Labor Relations Counsel.

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By Patricia Haim

The Social Security Administration (SSA) has announced that after a four year halt, it will resume sending Social Security “no-match” letters to employers. (SSA has continued to send letters to employees’ home addresses if the name and/or social security number on an employer’s W-2 form does not match the information on SSA’s database.)

This new round of no-match letters, formally referred to as “Decentralized Correspondence” (DECOR), informs employers that the information on an employee’s 2010 W-2 wage and tax statement does not match the name and/or Social Security number on file with the SSA, or lacks a SSN entirely. According to the SSA, the purpose of these letters is to obtain corrected information to help the SSA identify the worker to whom the earnings belong and to post the corrected amounts to the employee’s earnings record. SSA will not be sending out no-match letters to employers for the 2007 through 2009 tax years.

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Early Saturday morning, the House of Representatives approved by a 235-189 margin the Full-Year Continuing Appropriations Act (H.R. 1) – otherwise known as the Continuing Resolution (CR) – that would fund the federal government through September 30, 2011. For days the House debated more than 150 of the nearly 600 proposed amendments to the legislation, including several that would deny funds to various agencies to implement the new health care reform law.  Continue reading this entry at Littler's Healthcare Employment Counsel. 

Photo credit: Bartek Szewczyk

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The DOL’s Office of Labor Management Standards (OLMS) has announced the initiation of its Persuader Reporting Orientation Program (PROP). According to the agency, this program is “designed to provide compliance assistance to employers and labor relations consultants that are likely to enter into reportable agreements or arrangements pursuant to LMRDA section 203.” Specifically, under this initiative, the OLMS compiles contact information of employers and their attorneys based on representation petitions filed with the NLRB. The OLMS will then use this information to send an orientation letter to the employers and to their representatives in the NLRB proceeding “informing them of their potential reporting obligations under the LMRDA, where to locate the reporting forms and instructions, and how to contact OLMS to ask questions or receive additional information.”  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit: style-photographs

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The DOL’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive outlining Active Case Enforcement (ACE) procedures for conducting Supply & Service (S&S) compliance evaluations. In December 2010, the agency issued a directive to discontinue the former ACE process that had been in place since 2003. According to the agency, the former system was “primarily an abbreviated desk audit process” to expedite the closing of S&S contract compliance evaluations where there existed no evidence of systemic discrimination. The agency claimed that the former process “eroded” its enforcement authority and was of “limited utility.” According to the new directive, the updated ACE process “will more effectively utilize [the OFCCP’s] resources and strengthen its enforcement efforts.”

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Although it is considered a long-shot attempt, President Obama is trying once again to seat controversial nominee Craig Becker to the National Labor Relations Board for a full term. First nominated in July 2009 and seated via recess appointment in April 2010, Becker, who served as Associate General Counsel to both the SEIU and the AFL-CIO, has not tread an easy path to the NLRB and faces certain opposition in light of Obama’s latest move.  Continue reading this entry at Littler’s Labor Relations Counsel.

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President Obama has nominated Terence F. Flynn to be a member of the NLRB. As expected, Obama has also named Lafe E. Solomon to be the agency’s General Counsel (GC). Solomon has been serving as acting GC since former GC Ronald Meisburg stepped down in June eight weeks shy of the end of his term. Since both nominations have been forwarded to the Senate for confirmation, it is expected that the two nominees will be voted on as a package deal.

Flynn currently works as Chief Counsel to the lone Republican NLRB member Brian Hayes, having served in the same capacity for former Republican member Peter Schaumber. Schaumber left the Board in August after his second term expired. Prior to his position at the NLRB, Flynn worked in private practice. If the Senate confirms Flynn, the NLRB will once again be operating with a full five-member Board.

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On Wednesday the Senate officially confirmed the nominations of several members of the Equal Employment Opportunity Commission who had been placed with the EEOC via recess appointment in March 2010. The individuals and their terms are as follows:

• Jacqueline Berrian, who President Obama had appointed to be the agency’s chair, will serve until July 1, 2014.
• Chai Feldblum will serve as an EEOC Commissioner until July 1, 2013.
• Victoria Lipnic will serve as an EEOC Commissioner until July 1, 2015.
• P. David Lopez will serve as General Counsel for a term of four years.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive discontinuing the agency’s Active Case Management (ACM) procedures. Instituted in July 2003, the ACM process was “primarily an abbreviated desk audit process” to expedite the closing of supply and service (S&S) contract compliance evaluations where there existed no evidence of systemic discrimination. The agency considered cases with fewer than 10 potential victims to fall under this category. According to the directive, absent such evidence of widespread discrimination, full desk audits were to be performed only once out of every 25 such cases, and onsite evaluations only once out of every 50th review. The OFCCP claims in the directive that the ACM has caused the agency to “narrow the focus of its enforcement efforts” and has “eroded” its enforcement authority, thereby prompting its revocation.

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The U.S. Department of Labor informed Congress yesterday that the President intends to nominate Leon Rodriguez as Administrator of the Wage and Hour Division.

The top job at DOL’s Wage & Hour Division has been vacant during the Obama Administration. The President’s first nominee, Lorelei Boylan, withdrew from the confirmation process in October 2009. Ms. Boylan’s confirmation was stalled because of the controversy over the nomination of Solicitor of Labor Patricia Smith (confirmed on February 4, 2010); Ms. Boylan worked for Ms. Smith at the New York Department of Labor.  Continue reading this entry at Littler's Wage & Hour Counsel.

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President Obama has announced that he plans to nominate Thomas M. Beck (R) to be a member of the National Mediation Board (NMB). The NMB is an independent federal agency tasked with facilitating labor-management relations in the airline and railroad industries. Specifically, the NMB manages the dispute resolution process involving collective bargaining disputes in this transportation sector. If confirmed, Beck is expected to replace fellow Republican Elizabeth Dougherty, whose term expired on June 30. Also serving on the three-member NMB is Chairman Harry Hoglander (D) and Member Linda Puchala (D).  Continue reading this entry at Littler's Labor Relations Counsel. 

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After serving eight years on the National Labor Relations Board (NLRB or “Board”), Member Peter C. Schaumber (R) has left the agency now that his second term has expired. Notably, for 27 months Schaumber served as one of only two members of the Board, issuing rulings in approximately 600 unfair labor practice cases during that period. The U.S. Supreme Court in New Process Steal v. NLRB  recently invalidated those decisions, holding that the Board must operate with at least three acting members. Of this decision, Schaumber stated: “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”

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On Tuesday, the Senate officially confirmed (pdf) the nominations of Mark Hayes and Brian Pearce to be members of the National Labor Relations Board (NLRB). The two were included in a package of more than 60 nominees confirmed by voice vote. President Obama previously gave recess appointments to Pearce and Craig Becker, whose nomination failed to advance in the Senate. Controversial nominee Craig Becker, whose recess appointment expires at the end of 2011, was not among those nominees confirmed today. With the addition of Hayes, the Republican nominee, the current composition of the Board and the duration of the members’ terms are as follows:

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Ronald Meisburg, General Counsel (GC) to the National Labor Relations Board (NLRB), plans to leave the Board eight weeks shy of the end of his term in order to enter private practice. A former management-side lawyer, Meisburg was seated via recess appointment as a Board member in 2004, and as General Counsel in 2006. Meisburg, after the Senate confirmed his nomination in August 2006, was to serve as GC until August 14, 2010. His vacancy will allow President Obama to appoint his own choice to fill this position, which has been held by a Republican since 2001. In March, Obama used the recess appointment process to seat Democrats Craig Becker and Mark Pearce as NLRB members.  Republican nominee Brian Hayes was not similarly seated, and has yet to receive a Senate confirmation. The sole remaining Republican member, Peter Carey Schaumber, will complete his term on August 27, 2010.

Although a significant amount of controversy surrounded Obama’s choice of former union general counsel Becker as an NLRB member, the general counsel pick could be equally contentious, given the enforcement power that accompanies the position. The NLRB traditionally makes changes to labor law through its rulings and the general counsel determines which cases are put before the NLRB. Therefore, which cases the general counsel chooses to pursue are a critical component with regard to what issues the NLRB will have an opportunity to decide. The selection of the person who determines which cases will be considered is likely to be as controversial as the selection of individuals who ultimately will decide those cases. At this point, however, there is no clear front-runner as Meisburg’s replacement. In a letter to NLRB employees, Meisburg announced that Deputy General Counsel John Higgins will take over any new cases presented to the Board.

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On Tuesday, Victoria Lipnic was sworn in as a member of the Equal Employment Opportunity Commission (EEOC), making the five-member Commission complete for the first time in nearly two years. EEOC Chair Jacqueline Berrien and Commissioner Chai Feldblum were sworn in earlier this month, joining current members Stuart Ishimaru and Constance Barker. Lipnic, the Republican nominee to the EEOC, was one of 15 recess appointments President Obama made over the spring legislative recess.

Before her appointment to the EEOC, Lipnic practiced management-side labor and employment law. Prior to entering private practice, Lipnic served as the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009, where she oversaw the Employment Standards Administration (ESA). Lipnic has also worked as Workforce Policy Counsel to the Republican members of the House Committee on Education and Labor, and as labor and employment in-house counsel for the U.S. Postal Service. During the Reagan administration, Lipnic served as a special assistant for business liaison to U.S. Secretary of Commerce Malcolm Baldrige.

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The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) moved a step closer to full capacity this week when Craig Becker and Mark Pearce were sworn in as NLRB members, and Jacqueline A. Berrien and Chai Feldblum assumed their positions as Chair and Commissioner, respectively, at the EEOC. These individuals were among the 15 recess appointments made over the recent legislative break.

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Despite increasing opposition, President Obama on Saturday announced his appointment of 15 individuals to various federal agencies, including the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). Among those appointed was Craig Becker, the controversial NLRB Democratic nominee. Also given a recess appointment to the NLRB was the other Democratic nominee, Mark Pearce. However, the President did not give a recess appointment to the Republican nominee, Brian Hayes. On Thursday, Republican Senators sent a letter to Obama urging him not to do so. Randel K. Johnson, the U.S. Chamber of Commerce Senior Vice President of Labor, Immigration, and Employee Benefits, said of Becker’s appointment: “The business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.” Becker has been widely criticized for advocating admittedly “provocative” positions in this academic writings. During a hearing, Becker tried to distance himself from these statements, such as his belief that a new body of representation election rules should be created to limit employer involvement, including the holding of so-called “captive audience” meetings. Many lawmakers and business interests continue to question, however, whether Becker can be impartial as a member of the Board. Becker’s term will now last until the end of 2011, unless the Senate appoints him to a full term.

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In its first Administrator Interpretation Letter, the Wage and Hour Division of the U.S. Department of Labor (DOL) announced on Wednesday that mortgage loan officers do not qualify as bona fide administrative employees under section 13(a)(1) of the Fair Labor Standards Act (FLSA). In reversing its prior stance on the issue, the DOL withdrew two opinion letters issued on September 8, 2006 and February 16, 2001, in which it previously had found that loan officers were exempt administrative employees.  Continue reading at Littler's Wage & Hour Counsel blog.

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It is becoming increasingly likely that controversial National Labor Relations Board (NLRB) nominee Craig Becker will be appointed as a Board member over the upcoming Congressional recess. According to an article in the Atlantic Online, “labor allies of the White House have been given strong indications that such an appointment is highly likely.” Specifically, reports abound that Sen. Tom Harkin (D-IA) has confirmed that President Obama will make the appointment soon. Earlier this month, Labor Secretary Hilda Solis hinted at this possibility during the American Federation of Labor & Congress of Industrial Organization's (AFL-CIO) annual meeting.

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According to a report by the Associated Press, Labor Secretary Hilda Solis hinted during the AFL-CIO annual meeting that President Obama would institute controversial nominee Craig Becker as a member of the National Labor Relations Board (NLRB) by means of a recess appointment, possibly during the Easter recess. On February 9, the Senate failed to pass a cloture motion on his nomination, fueling speculation that Obama would appoint Becker – who currently serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the AFL-CIO – during the President’s Day recess. According to the AP story, Solis told AFL-CIO members that they would be “very pleased” with how the stalled nomination issue would be resolved. The Senate is set to adjourn for the Easter recess from March 29 through April 9.

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Last week, the Senate confirmed the nomination of Cynthia L. Attwood to be a member of the Occupational Safety and Health Review Commission (OSHRC). The OSHRC is the independent federal agency responsible for adjudicating contests of citations or penalties resulting from an Occupational Safety and Health Administration (OSHA) workplace inspection. The agency, which functions as an administrative court, is also charged with establishing procedures for conducting hearings, receiving evidence, and rendering decisions.

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On Tuesday, the Senate rejected advancing the nomination of Craig Becker to serve as a member of the National Labor Relations Board (NLRB). Becker’s proponents failed to garner the 60 votes needed to limit debate over his nomination and allow a confirmation vote to occur. The 52-33 vote took place less than a week after the Senate Health, Education, Labor and Pensions (HELP) Committee approved Becker’s nomination by a party-line 13-10 margin.

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Due to the massive snowstorm that hit the Washington, D.C. area over the weekend, the cloture vote on Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB) has been rescheduled to Tuesday at 5:00 pm. At least 60 votes are needed to lift the blanket hold Sen. Richard Shelby (R-Ala.) put on his nomination, among others, and effectively limit debate. Unless Becker can garner the requisite 60 votes – made more difficult now that Scott Brown has been sworn in as the Senate’s 41st Republican – it is expected that those opposed to Becker will filibuster to prevent a confirmation vote.

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By a party-line vote of 60-37, the Senate has confirmed the nomination of Patricia Smith to be the U.S. Solicitor of Labor. The Senate Health, Education, Labor and Pensions (HELP) Committee had approved her nomination on October 7, but controversy arose when Sen. Mike Enzi (R-Wyo.) accused Smith of making inconsistent statements during her confirmation hearing in May 2009. At issue was Smith’s testimony regarding the New York Wage Watch program, an initiative based on the Neighborhood Watch program that purportedly exposes businesses that violate wage and hour law. Smith is currently the Commissioner of the New York State Department of Labor (DOL), and unveiled the Wage Watch program last year. During her confirmation hearing, Smith denied that outside groups were involved in creating the program, an assertion that has come under fire. Sen. Enzi, Smith’s most vocal critic, has accused her of being a “trusted ally of organized labor and even allows them to participate heavily in the formulation of her agency's initiatives.” Smith later claimed that she “misspoke” about the timeline of various advocacy group and union involvement in the Wage Watch program. The alleged conflicting testimony threatened to derail Smith’s nomination, but the Senate voted 60-32 to end debate on her nomination on Monday, clearing the way for her confirmation.

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On Thursday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 13-10 along party lines in favor of Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB). This vote follows a contentious hearing over Becker’s nomination that was held on Tuesday. It was widely believed that once the HELP Committee cleared Becker’s nomination, it would be sent quickly to the Senate floor for a final vote before Republican Scott Brown was sworn in as senator, an event originally scheduled for next Thursday. This plan might be derailed, however, as it was announced yesterday that Brown could be sworn in as early as 5:00 pm today, raising the chances that Senate Republicans will be able to stop Becker’s confirmation.

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On Wednesday, President Obama re-submitted to the Senate his nomination of controversial candidate Craig Becker to be a member of the National Labor Relations Board (NLRB). Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April, and officially nominated him in July.  The Senate Health, Education, Labor and Pensions Committee approved Becker’s nomination – as well as those of Mark Pearce and Brian Hayes – in October.  The belief was that all three nominations would be presented to the Senate as a package, a move that many Republican lawmakers and members of the business community opposed, as doing so would limit the Senate’s ability to evaluate Becker on an individual basis. Becker’s divisive views regarding an employer’s role during a representation election campaign as well as the fear that he would be willing to use Board decisions to effectively institute elements of the proposed Employee Free Choice Act were likely factors causing Sen. John McCain (R-Ariz.) to put a hold on Becker’s nomination. Before the holiday recess, the Senate returned his nomination to the White House for reconsideration.

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Although there has been no official White House announcement, The New York Times has reported that President Obama plans to re-nominate Craig Becker to be a member of the National Labor Relations Board (NLRB). On December 24, the Senate returned Becker’s controversial nomination to the President for reconsideration.  The choice of Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, has been heavily criticized by members of Congress as well as by business advocates. Becker supports passage of the Employee Free Choice Act (EFCA), and has opined that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”

If Obama sends his nomination back to the Senate, the confirmation process would begin again, and, presumably, face the same opposition as it did last year.

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Before the Senate adjourned for the holiday break, it returned to the President for reconsideration (pdf) the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). President Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April.  Becker was officially nominated in July.

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By a vote of 57-35, the Senate approved the nearly $447 billion omnibus appropriations bill on Sunday. The House of Representatives passed this combination of six separate federal funding bills last Thursday.  The Consolidated Appropriations Act (H.R. 3288) will provide agencies including the Department of Labor (DOL), National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC) with a substantial increase in funds for fiscal year 2010. Specifically, the bill provides $13.3 billion in discretionary funding to the DOL, $1.6 billion of which is allocated to worker safety and health initiatives. The NLRB is slated to receive $283.4 million, and the EEOC $367 million. The practical implication of this spending measure is that the affected agencies will now have the financial resources to carry out their stated plans to hire more personnel and boost their enforcement efforts. The DOL alone intends to use the funding to hire more than 600 new full-time enforcement and compliance employees at the Employment Benefits Security Administration (EBSA), Employment Standards Administration (ESA), the Occupational Safety and Health Administration (OSHA), and the Mine Safety and Health Administration (MSHA).

President Obama is expected to sign this bill into law.
 

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Yesterday, the Senate Committee on Health, Education, Labor and Pensions (HELP) approved the nominations of Jacqueline Berrien to head the Equal Employment Opportunity Commission (EEOC), and Victoria Lipnic and Chai Feldblum to be EEOC Members. The HELP Committee also approved the nomination of P. David Lopez to be the EEOC’s General Counsel.

In a statement (pdf), HELP Committee Chairman Sen. Tom Harkin (D-Iowa) said: “At this time of challenge, Americans need committed, capable public servants working full time on their behalf,” adding, “These nominees will serve Americans by protecting workers from discrimination, facilitating public service and preserving our rich national traditions in the humanities. I am pleased to move their nominations forward.”

If the Senate confirms all three EEOC members, the remaining two seats of the five-member Commission will be filled by current Acting Chairman Stuart Ishimaru and Constance Barker, the sole Republican EEOC member. Acting Vice Chair Christine Griffin has already been confirmed to serve as the deputy director of the Office of Personnel Management (OPM). Once her successor is confirmed, she will leave the EEOC for her new position at the OPM.

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On Thursday, the Senate confirmed the nomination of David Michaels to serve as the Assistant Secretary of the Department of Labor’s Occupational Safety and Health Administration (OSHA). President Obama named Michaels as his pick in July. The Senate Health, Education, Labor and Pensions (HELP) Committee approved his nomination on November 18.

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Secretary of Labor Hilda Solis has issued four orders detailing the authority of the four sub-agencies within the Department of Labor’s (DOL) Employment Standards Administration (ESA) that are now standalone agencies as a result of the ESA’s November 8 dissolution.  The four orders (Secretary’s Order 7-2009, 8-2009, 9-2009, and 10-2009) describe the delegation of authority and assignment of responsibilities to the directors of the Office of Federal Contract Compliance Programs (OFCCP), Office of Labor-Management Standards (OLMS), Wage and Hour Division (WHD), and the Office of Workers’ Compensation Programs (OWCP), respectively. Prior to November 8, these four entities had been under the ESA’s organizational umbrella. The directors of these agencies now report directly to the Secretary of Labor.

All four orders, published in today’s Federal Register and effective as of November 8, cancel the Secretary’s Order 1-2008 regarding the ESA. All existing DOL orders, directives, policies and guidance that reference this earlier Order are now amended to refer to one of the four new standalone entities, as appropriate.

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President Obama has announced his intent to nominate Cynthia Attwood to be a member of the Occupational Safety and Health Review Commission (OSHRC). The OSHRC is the independent federal agency responsible for adjudicating contests of citations or penalties resulting from an Occupational Safety and Health Administration (OSHA) workplace inspection. The agency, which functions as an administrative court, is also charged with establishing procedures for conducting hearings, receiving evidence, and rendering decisions.

According to a White House press release on her nomination, Attwood served for eight years as an Attorney Advisor for the Department of Labor's (DOL) Administrative Review Board, and then for three years as an Administrative Appeals Judge on this Board. In addition, Attwood spent more than 10 years in the Senior Executive Service at the DOL, both as the Associate Solicitor for Occupational Safety and Health and as the Associate Solicitor for Mine Safety and Health. After receiving her law degree from the University of Minnesota, Attwood began her career as a civil rights litigator at the Department of Justice.

Photo credit: dra_schwartz

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On Tuesday, President Obama submitted to the Senate the nomination of Republican Victoria Lipnic to be a Commissioner of the Equal Employment Opportunity Commission (EEOC). Lipnic currently practices management-side labor and employment law. Before entering private practice, Lipnic served as the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009, where she oversaw the Employment Standards Administration (ESA). Lipnic has also worked as Workforce Policy Counsel to the Republican members of the House Committee on Education and Labor, and as labor and employment in-house counsel for the U.S. Postal Service. During the Reagan administration, Lipnic served as a special assistant for business liaison to U.S. Secretary of Commerce Malcolm Baldrige.

Earlier this year, Obama nominated Democrats Jacqueline Berrien to serve as the agency’s Chair, and Chai Feldblum to be an EEOC member. It is likely that all three nominees will be considered as a package. Current members Acting Chairman Stuart Ishimaru and Acting Vice Chair Christine Griffin are both Democrats, while Commissioner Constance Barker is the lone Republican serving on the five-seat Commission. Republican Naomi Earp, who served as EEOC Chair during the Bush Administration, resigned in the spring. Acting Vice Chair Griffin – who has been confirmed to serve as the deputy director of the Office of Personnel Management – is allowed to remain on the Commission until a successor is approved. If Lipnic’s nomination is confirmed, she will serve as EEOC Commissioner until July 1, 2015.
 

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Last week the Senate confirmed the nominations of Joseph A. Main to be the assistant labor secretary for the Department of Labor’s Mine Safety and Health Administration (MSHA), and William E. Spriggs to serve as the DOL’s assistant labor secretary for policy.

Main began his career as a coal miner in 1967, and soon after began working in various local union positions for the United Mine Workers of America (UMWA). According to a White House press release, Main started working for the UMWA’s safety division in 1976. Main was appointed Administrator of the UMWA’s Occupational Health and Safety department in 1982, and held that position for 22 years. In this capacity, Main testified in 2000 before the House of Representatives’ Sub-Committee on Workforce Protections, calling for increased MSHA inspections and scrutiny of worksites and mine operators, and improved health and safety standards to protect miners.

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Last Thursday President Obama announced has his intent to nominate P. David Lopez to serve as general counsel of the Equal Employment Opportunity Commission (EEOC). According to a White House press release, Lopez has worked at the EEOC for 13 years both in the field and at the agency’s headquarters. Lopez presently serves as a supervisory trial attorney with the EEOC’s Phoenix District Office. Prior to working for the EEOC, Lopez worked at the Civil Rights Division, Employment Litigation Section, at the U.S. Department of Justice from 1991 to 1994, and was an associate in a private law practice from 1988-1991. Lopez earned his law degree from Harvard Law School in 1988, and his undergraduate degree in Political Science from Arizona State University in 1985, magna cum laude.

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Despite a great deal of protest from several Republicans and the business community, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 15 to 8 to approve the nominations of Craig Becker, Mark Pearce, and Brian Hayes to be members of the National Labor Relations Board (NLRB). President Obama named Pearce and Becker, both Democrats and widely considered pro-labor, as nominees on April 24 of this year. Hayes, a Republican and Senate committee staff member, was selected on July 9. Now that these nominations have cleared the HELP committee, they will be sent to the Senate floor as a package for final approval.

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The Department of Labor (DOL) has confirmed that Lorelei Boylan has withdrawn her nomination for Administrator of the agency’s Wage and Hour Division (WHD) for family reasons. The WHD is a sub-agency within the DOL’s Employment Standards Administration (ESA) responsible for enforcing federal labor laws concerning, among other topics, minimum wage, overtime pay, recordkeeping, youth employment and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts. President Obama named Boylan as his choice to lead the WHD on April 14, 2009. The WHD is expected to ramp up its enforcement efforts in the coming months, so whoever President Obama nominates in her stead will be charged with hiring and training new compliance officers, among other responsibilities.

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Patricia Shiu took the helm of the Office of Federal Contract Compliance Programs (OFCCP) this week. The OFCCP is the DOL sub-agency charged with administering and enforcing three laws that prohibit discrimination and require federal contractors and subcontractors to implement affirmative action plans. Shiu was named as the new OFCCP director in August.  Her current position within the DOL does not require a Senate confirmation. However, when the DOL’s Employment Standards Administration (ESA) – the umbrella agency within the DOL that encompasses the OFCCP along with three other sub agencies – is abolished, Shiu will report directly to the Secretary of Labor. Had Shiu taken her job after the dissolution of the ESA, she would likely have had to face a formal Senate confirmation process. At this point, it is unclear what title Shiu will hold after the ESA’s dissolution.

Prior to taking the job at the OFCCP, Shiu served as the Vice President for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. Shiu has also worked as the director of the Society’s Work and Family Project, and lobbied for the passage of California’s Family Rights Act and its regulations. In 1993, former U.S. Secretary of Education Richard Riley appointed Shiu to the Department of Education’s Civil Rights Reviewing Authority. In addition, Shiu is a former member of NELA’s Executive Board, and served as one of its vice presidents.

Shiu’s advocacy of family leave and employment anti-discrimination issues makes it likely that she will champion the pending Paycheck Fairness Act (H.R. 12, S. 182), which, among other things, would reinstate the OFCCP’s discarded Equal Opportunity survey. The EO survey allowed the agency to gather certain employment information from federal contractors and subcontractors related to their Affirmative Action Programs, personnel activity and compensation. The legislation also provides the OFCCP with additional investigative methodologies to use in performing compensation analysis. As head of the OFCCP, Shiu will also be responsible for hiring and training a projected 200 new compliance officers.
 

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On Monday President Obama announced his intent to nominate Chai Feldblum to serve as one of the five members of the Equal Employment Opportunity Commission (EEOC).  Yesterday, her nomination was sent to the Senate for confirmation. Feldblum is currently a professor at the Georgetown University Law Center, where she has taught since 1991. According to her faculty bio, Feldblum was instrumental in drafting and negotiating the Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008. She also helped draft and negotiate the Employment Nondiscrimination Act (ENDA) and various medical privacy bills and regulations. In addition, Feldblum is the Director of Georgetown Law Center’s Federal Legislation and Administrative Clinic, and is co-director of Workplace Flexibility 2010, an initiative aimed to advance a national policy on workplace flexibility. Feldblum has written a number of articles and books advocating disability and gay rights, and has on several occasions testified before Congress to promote the ADA Restoration Act of 2007, the ADA Amendments Act of 2008, and employment flexibility to benefit older workers, among other workplace issues.

Feldblum earned her undergraduate degree from Barnard College, and her law degree from Harvard Law School. Feldblum has clerked for Judge Frank M. Coffin on the First Circuit Court of Appeals and for Justice Harry A. Blackmun on the U.S. Supreme Court.

If confirmed by the Senate, Feldblum would be the third Democrat to sit on the EEOC panel. Acting Chairman Stuart Ishimaru and Acting Vice Chair Christine Griffin are both Democrats, while Commissioner Constance Barker is currently the lone Republican serving on the Commission. Republican Naomi Earp, who served as EEOC Chair during the Bush Administration, resigned in the Spring. In July, President Obama nominated Democrat Jacqueline Berrien to serve as the new EEOC Chair.  Acting Vice Chair Griffin – who has been confirmed to serve as the deputy director of the Office of Personnel Management – is allowed to remain on the Commission until a successor is approved.

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On Friday the Senate confirmed the nomination of Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. In addition to establishing immigration-related policies and services, the USCIS adjudicates the petitions and applications of potential immigrants and guest workers.

President Obama announced his nomination of Cuban-born Mayorkas in April. In July, the Senate Judiciary Committee approved the nomination. In his testimony before the Judiciary Committee, Mayorkas listed as one of his first priorities if confirmed as USCIS Director: “ . . to strive to improve the Agency's fraud prevention and detection operations, increase collaboration with U.S. Immigration & Customs Enforcement (ICE) and other law enforcement agencies to respond to fraud, and improve the efficiency and accuracy of the E-Verify system.”

Mayorkas is currently a litigation partner in a private law firm. Prior to entering private practice, Mayorkas served as the U.S. Attorney for the Central District of California.  At the age of 39, Mayorkas became the youngest U.S. Attorney in the country.  Mayorkas earned his undergraduate degree at the University of California, Berkeley in 1981, and his law degree from Loyola University in 1985.
 

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The Obama Administration has selected Patricia A. Shiu, a public interest employment lawyer, to head the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is the DOL sub-agency charged with administering and enforcing three laws that prohibit discrimination and require federal contractors and subcontractors to implement affirmative action plans.

Shiu is currently the Vice President for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. According to biographical information posted by the National Employment Law Association (NELA), Shiu joined the Employment Law Center in 1983, and has focused on employment discrimination and family and medical leave cases. She has also served as the director of the Society’s Work and Family Project, and lobbied for the passage of California’s Family Rights Act and its regulations. In 1993, former U.S. Secretary of Education Richard Riley appointed Shiu to the Department of Education’s Civil Rights Reviewing Authority. In addition, Shiu is a former member of NELA’s Executive Board, and served as one of its vice presidents.

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On Tuesday President Obama announced his intent to nominate David Michaels as the assistant secretary of the Occupational Safety and Health Administration (OSHA). Michaels, an epidemiologist, is currently a research professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services, where he also directs the Department’s doctoral program.

Prior to working at George Washington University, Michaels was nominated by former President Clinton to serve as Assistant Secretary of Energy for Environment, Safety and Health. His responsibilities included protecting the health and safety of workers, neighboring communities and the environment surrounding the nation’s nuclear weapons facilities. In that position, according to his biography posted on George Washington University’s website, Michaels “was the chief architect of the historic initiative to compensate workers in the nuclear weapons complex who developed cancer or lung disease as a result of exposure to radiation, beryllium and other hazards. Since its enactment in 2000, The Energy Employees Occupational Illness Compensation Program has provided more than $4.5 billion in benefits to sick workers and their families.” In addition, Michaels oversaw the promulgation of the Chronic Beryllium Disease Prevention and Nuclear Safety Management rules.

Michaels has written a book and a number of articles on workplace safety standards and contaminants, including Doubt is Their Product: How Industry's Assault on Science Threatens Your Health, Selected Science: An Industry Campaign To Undermine An OSHA Hexavalent Chromium Standard, Scientific Evidence and the Regulatory System: Manufacturing Uncertainty and the Demise of the Formal Regulatory System (pdf), Beryllium's Public Relations Problem: Protecting Workers When There Is No Safe Exposure Level (pdf), and Manufacturing Uncertainty: Contested Science And The Protection Of The Public's Health And Environment (pdf).

Michaels earned his undergraduate degree in History at the City College of New York, and his Master of Public Health degree in Epidemiology and doctoral degree in Sociomedical Sciences at Columbia University.

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The Senate on Friday confirmed by voice vote the nomination of Harry Hoglander to be a Member of the National Mediation Board (NMB). The three-member NMB is the independent federal agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively.

Hoglander has been a member of the NMB since August 6, 2002, and has twice served as its chairman. A former commercial airline and U.S. Air Force pilot, Hoglander also served as the executive vice-president of the Airline Pilots Association. In addition, Hoglander is an attorney and member of the Florida Bar Association who worked as a legislative specialist for Rep. John Tierney (D-Mass.) on matters concerning transportation, labor, defense and veterans affairs. Hoglander’s term is set to expire on July 1, 2011.
 

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President Obama has announced his intent to nominate Jacqueline Berrien as Chair of the Equal Employment Opportunity Commission (EEOC). Berrien currently serves as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF). According to the White House press release on her nomination, Berrien worked as a Program Officer in the Ford Foundation’s Peace and Social Justice Program from 2001 to 2004. Before that, Berrien was an assistant counsel with LDF and directed the Fund’s voting rights and political participation work. According to biographical information provided by the NAACP, as assistant counsel Berrien represented African-American voters in proceedings before the U.S. Supreme Court, the U.S. Courts of Appeals and the U.S. District Courts. Prior to working for the LDF, Berriern was a staff attorney with the Lawyers' Committee for Civil Rights and the American Civil Liberties Union. Additionally, Berrien has taught in trial advocacy programs at Fordham and Harvard law schools and served on the adjunct faculty of New York Law School. After graduating law school, Berrien clerked for the Honorable U.W. Clemon, the first African-American appointed to the U.S. District Court in Birmingham, Alabama.

Berrien earned her law degree from Harvard Law School, where she served as a General Editor of the Harvard Civil Rights-Civil Liberties Law Review, and received her undergraduate degree from Oberlin College.

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President Obama has announced his nomination of Brian E. Hayes, Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), to be a Member of the National Labor Relations Board (NLRB or Board). If confirmed, Hayes would join current member Peter Schaumber as the second Republican to serve on the five-member Board. Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the opposing party. In April, Obama named Democrats Craig Becker and Mark Pearce as his other picks to fill the three vacant seats. Current NLRB Chairman Wilma Liebman is also a Democrat. On July 9, the White House sent the nominations of Becker, Pearce and Hayes to the Senate for confirmation.

According to information provided by the White House announcement, before serving as a Senate staffer, Hayes worked for 25 years in private practice as a management-side labor and employment attorney. Prior to entering the private sector, Hayes clerked for the Chief Judge of the National Labor Relations Board and then as Counsel to the Chairman of the NLRB. While working in private practice, Hayes taught classes in Labor Law, Collective Bargaining, Arbitration and Employment Litigation at Western New England Law School. Has earned his undergraduate degree at Boston College and his law degree from Georgetown University Law Center.

It is not yet clear when confirmation proceedings will occur, or whether the three pending nominees will be considered as a package or individually.

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The Employment Standards Administration (or “ESA” in DOL-speak) is not well-known outside the Beltway and the community of wage and hour practitioners. ESA is an umbrella organization responsible for management and oversight of four subordinate agencies:

• The Wage and Hour Division (“WHD”)
• The Office of Federal Contract Compliance Programs (“OFCCP”)
• The Office of Labor-Management Standards (“OLMS”), and
• The Office of Workers' Compensation Programs (“OWCP”)

The Assistant Secretary of ESA and the Administrator of the Wage and Hour Division are both positions whose incumbents must be nominated by the President and confirmed by the Senate. The Directors of the OFCCP, OLMS and OWCP are appointed by the Secretary of Labor.

On July 8, 2009, Acting Assistant Secretary of ESA, Shelby Hallmark, announced that the ESA will be abolished in November, with the leaders of the four agencies – WHD, OFCCP, OLMS and OWCP reporting directly to the Secretary of Labor.  Continue reading at Littler's Wage & Hour Counsel blog.

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On Monday, President Obama announced his intent to nominate George H. Cohen to serve as the director of the Federal Mediation and Conciliation Service (FMCS), the independent federal agency charged with, among other things, handling the arbitration and mediation of labor disputes and contract negotiations. If the Employee Free Choice Act passes with its current first contract interest arbitration provisions intact, Cohen presumably would be charged with implementing those provisions as well.

According to biographical information published by the Peggy Browning Fund, a nonprofit corporation dedicated to educating law students and providing work experience in the area of workers' rights, Cohen practiced for 40 years as a well-respected union-side labor lawyer. During this period, he argued five cases before the U.S. Supreme Court involving matters ranging from collective bargaining to workplace safety.

Before being named as Obama’s pick for FMCS Director, Cohen worked as a mediator, and currently is a member of the Mediation Panel of the U.S. Circuit Court of Appeals for the D.C. Circuit. Prior to working in the private sector, Cohen served as an attorney advisor and appellate attorney for the National Labor Relations Board, and – according to the aforementioned bio – is credited with “help[ing] shape the progressive, union and worker friendly agenda of the ‘Kennedy Board.’” Cohen has also served as the Union Co-Chair of the first American Bar Association (ABA) Committee on Sports and Entertainment Law and the first ABA Committee on the Occupational Safety and Health Law. Additionally, Cohen has taught the Art of Collective Bargaining among other labor-related courses as an adjunct professor at Georgetown Law School.

Cohen received his undergraduate and law degrees from Cornell University and its Law School, and an LLM degree from Georgetown Law.

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As anticipated, the Senate on Friday confirmed the nomination of Jane Oates as assistant secretary for the Department of Labor’s (DOL) Employment and Training Administration (ETA). The ETA is the DOL’s sub-agency tasked with administering federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. The Senate approved the nomination by voice vote, as is typical for most nominees once he or she has been approved by the applicable Senate committee. Earlier this month, the Senate Committee on Health, Education, Labor and Pensions sanctioned Oates’s nomination to head the ETA. Oates currently is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine.

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The Senate Committee on Health, Education, Labor, and Pensions (HELP) has approved the nomination of Jane Oates to serve as the assistant secretary of the Department of Labor’s Employment and Training Administration (ETA). The ETA is the DOL’s sub-agency tasked with administering federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. Currently, Oates is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine. Prior to this position, Oates served as the senior policy advisor on higher education, national service, adult literacy, education research and workforce issues to Sen. Edward Kennedy (D-Mass.) on the U.S. Senate Committee on Health, Education, Labor and Pensions.

In other agency news, President Obama recently announced his intent to nominate Harry Hoglander to serve on the National Medication Board (NMB) for a third term. The three-member NMB is the agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively. Hoglander has been a member of the NMB since August 6, 2002, and has twice served as its chairman. A former commercial airline and U.S. Air Force pilot, Hoglander also served as the executive vice-president of the Airline Pilots Association. In addition, Hoglander is an attorney who worked as a legislative specialist for Rep. John Tierney (D-Mass.) for matters concerning transportation, labor, defense and veterans affairs. 

This entry has been revised to reflect the following correction:

Correction:  June 18, 2009

The Washington D.C. Employment Law Update blog entry posted June 12 provided incorrect information regarding the nomination of Jane Oates to serve as the assistant secretary of the Department of Labor's Employment and Training Administration (ETA).  Oates's nomination has been approved by the Senate HELP Committee; the Senate has not yet confirmed her nomination.

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Last week, the Senate confirmed President Obama’s nominations for three important administration positions. Seth Harris has been approved to serve as deputy secretary of the Department of Labor (DOL), the second-highest position within the DOL. Harris is a former law professor and DOL policy aide for the Clinton administration, and has written a number of articles in favor of flexible work arrangements.

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Labor advocate and founding executive director of the American Rights at Work (ARW) Mary Beth Maxwell is joining the Department of Labor (DOL) as a senior advisor to Secretary of Labor Hilda Solis. According to an ARW press release, Maxwell will work with the White House Task Force on Middle Class Working Families, the Obama Administration’s new initiative aimed at “restoring labor standards, improving workplace safety, enhancing work and family balance, protecting retirement security, and helping protect middle- and working-class incomes.”

Maxwell has been a vocal advocate of the beleaguered Employee Free Choice Act (EFCA), and was widely rumored to be Obama’s pick to serve as Secretary of Labor. Maxwell is most known for her work at the ARW, a nonprofit advocacy organization begun in 2003 whose mission is to “promote the freedom of workers to join a union and bargain collectively.” Solis herself has ties to the ARW, having once served as the organization’s treasurer and board member. Prior to working at the ARW, Maxwell served as National Field Director for Jobs with Justice, an organization affiliated with the Service Employees International Union with which Secretary Solis is closely aligned. Her other positions have included acting as Deputy Field Director for NARAL, directing the pro-choice organization’s electoral, legislative, media, and fundraising training programs for local affiliates. Maxwell has also worked as Field Director for the United States Student Association.
 

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President Obama has announced his intent to nominate Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS). The USCIS is the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. To that end, the USCIS adjudicates, among other things, the petitions and applications of potential immigrants and guest workers.

Born in Cuba, Mayorkas is currently a litigation partner in a private law firm. Prior to entering private practice, Mayorkas served as the U.S. Attorney for the Central District of California, where – at the age of 39 – he began as the youngest U.S. Attorney in the country. In this position, Mayorkas prosecuted a wide variety of cases, including those involving public corruption, investment fraud, civil rights violations, high-tech and computer-related crime, organized crime, environmental crime, and international money laundering. In addition, the National Law Journal has named Mayorkas as one of the "50 Most Influential Minority Lawyers in America."

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President Obama has announced his plans to nominate Craig Becker and Mark Pearce as board members of the National Labor Relations Board (NLRB or Board). The five-member Board serves as a quasi-judicial body in deciding cases under the National Labor Relations Act (NLRA). Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the other party. Becker and Pearce, along with Chairwoman Liebman, would constitute the three Democratic-selected seats. Assuming President Obama follows precedent, only one Republican Board seat will remain vacant. When and how that seat will be filled is not clear.

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President Obama has picked Thomasina Rogers as his nominee for Chair of the Occupational Safety and Health Review Commission (“OSHRC” or “Review Commission”). The OSHRC is a quasi-judicial independent federal agency created to decide contests of citations or penalties resulting from Occupational Safety and Health Administration (OSHA) workplace inspections. As Chair, Rogers would be in charge of the administrative operations of the Review Commission, as well as participate with other commissioners in case adjudication.

Rogers was appointed to the Review Commission in 1998 by former President Bill Clinton, and served as Chair from 1999-2002. She was reappointed in April 2003. In 1994, Rogers served as a chair of the Administrative Conference of the U.S. until its dissolution at the end of 1995. In addition, Rogers served for seven years in the Federal Government's Senior Executive Service (SES). While at the SES, Rogers worked as legal counsel to the Equal Employment Opportunity Commission (EEOC), where she had primary responsibility for managing the development of the Americans With Disabilities Act (ADA) employment regulations.

Rogers is a graduate of Northwestern University and Columbia University School of Law.

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President Obama has chosen Lorelei Boylan as his nominee for Administrator of the Department of Labor’s Wage and Hour Division. The Wage and Hour Division (WHD) is a sub-agency within the Department of Labor’s (DOL) Employment Standards Administration (ESA) responsible for enforcing federal labor laws concerning, among other topics, minimum wage, overtime pay, recordkeeping, youth employment and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts.

Boylan currently serves as the Director of Strategic Enforcement at the New York State Department of Labor, Labor Standards Division. According to a White House press release, Boylan supervises the Apparel Industry/Fair Wages Task Force, a state-wide specialized unit charged with investigating low-wage industries for wage and hour violations. Prior to heading the Task Force, Boylan spearheaded the Bureau of Immigrant Workers’ Rights, a newly formed division of New York’s DOL, where she developed policies to assist those with limited English proficiency. Prior to working for New York’s DOL, Boylan practiced law as an Assistant Attorney General in the New York State Attorney General’s Office. She was hired under the Honor’s Program to represent the State in defensive and affirmative litigation. In this capacity, Boylan investigated businesses for violations of state and federal labor laws and represented the Department of Health in New York State Supreme Court and the New York Court of Appeals. Before becoming a lawyer, Boylan worked for several years for a global monitoring company, counseling firms on compliance with state and federal labor laws, OSHA, immigration and tax laws.

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U.S. Labor Secretary Hilda Solis has appointed Jordan Barab as deputy assistant secretary for the Occupational Safety and Health Administration (OSHA). Barab will also serve as acting assistant secretary for OSHA as of April 13.

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President Obama has chosen Jane Oates as his nominee for assistant secretary of the Department of Labor’s Employment and Training Administration (ETA).  The ETA is the DOL’s sub-agency tasked with administering federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. The ETA provides these services primarily through state and local workforce development systems.

Currently, Oates is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine. Oates also serves on the State Employment and Training Commission (SETC), the State Commission on Adult Literacy and Education, New Jersey High School Redesign Task Force, the Public Sector Work Group and chairs the State Educators Health Benefits Commission and the Governor’s Schools Board of Overseers. Before taking her current position in 2006, Oates served as the senior policy advisor on higher education, national service, adult literacy, education research and workforce issues to Sen. Edward Kennedy (D-Mass.) on the U.S. Senate Committee on Health, Education, Labor and Pensions.

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President Obama has selected J. Randolph “Randy” Babbitt, former president of the Air Line Pilots Association (ALPA), to lead the Federal Aviation Administration (FAA).  A former pilot, Babbitt served as President and CEO of US ALPA, the world’s largest professional airline pilots’ union representing more than 50,000 pilots in the United States and Canada. Babbitt currently is a partner of Oliver Wyman Group, a worldwide aviation consulting firm.

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The following summarizes some federal agency happenings this week:

Phyllis Borzi is Tapped to Serve as Assistant Secretary of DOL’s EBSA

President Obama has nominated Phyllis C. Borzi to serve as the Assistant Secretary of Labor for the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA). The EBSA is the organization within the DOL whose mission it is to educate and assist the 150 million Americans covered by more than 679,000 private retirement plans, 2.5 million health plans, and similar numbers of other welfare benefit plans; as well as plan sponsors and members of the employee benefits community.

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President Obama has picked Kathleen Martinez to be the Assistant Secretary for Disability Employment Policy (ODEP). The ODEP is a sub-cabinet level policy agency in the Department of Labor that coordinates efforts to develop and implement policies and practices for the hiring of people with disabilities in both the public and private sectors.

Blind since birth, Martinez has specialized in promoting disability rights throughout her career. She is currently the executive director of the World Institute on Disability (WID). In this position she has been instrumental in producing the international webzine DisabilityWorld (www.disabilityworld.org) in English and Spanish. Martinez also directs Proyecto Visión, the WID’s National Technical Assistance Center, to increase employment opportunities for Latinos with disabilities in the United States.

In 2002, Martinez was appointed by former President Bush as one of fifteen members of the National Council on Disability, an independent federal agency responsible for advising the President and Congress on disability policy. In 2005, Martinez was appointed as one of eight public members on the State Department’s Committee on Disability and Foreign Policy
 

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President Obama has chosen Joseph Szabo to head the Federal Railroad Administration (FRA). The FRA is the agency within the U.S. Department of Transportation charged with, among other things, promulgating and enforcing rail safety regulations, conducting research into equipment design and operating practices, and consolidating government support of rail transportation activities.

Szabo, a fifth-generation railroad worker, is currently the state legislative director in Illinois for the United Transportation Union (UTU), the nation’s largest rail union. In 1984 Szabo was elected as secretary/treasurer of UTU Local 1290, and eventually became the local’s delegate and legislative representative. He worked his way up the union ladder to become vice chairman of the UTU Illinois legislative board in 1991, and was eventually elected to serve as the union’s state director in 1996. In 2006, Szabo was appointed a vice president of the Illinois AFL-CIO, and in October 2008 was elected to a four-year term. Since January 15, 2009, Szabo has worked on an interim assignment in the UTU’s National Legislative Office in Washington, D.C., serving as Alternate National Legislative Director.

In response to Obama’s nomination of Szabo, UTU International President Mike Futhey stated that Szabo is “the first FRA administrator to come out of the ranks of rail labor. It is a validation that this Obama administration is a friend of organized labor.”
 

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President Obama has nominated T. Michael Kerr to serve as the assistant secretary for administration and management at the Department of Labor (DOL), and M. Patricia Smith as DOL solicitor.

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President Obama has nominated Linda Puchala to hold a seat on the National Mediation Board (NMB). The three-member NMB is the agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively. Puchala would take the seat currently held by Bush-appointee and NMB Chair Read Van de Water.

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President Obama has announced his intention to nominate John Morton to be the Assistant Secretary for Immigration and Customs Enforcement (ICE), and U.S. Department of Homeland Security Secretary Janet Napolitano named Esther Olavarria as Deputy Assistant Secretary for Policy. 

Secretary Napolitano said:

John Morton and Esther Olavarria are tremendous additions to our Homeland Security team. Both have demonstrated an extraordinary commitment to public service and both will be able and effective partners as we tackle the very complex issues surrounding immigration and securing of our borders.

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President Obama has selected academic and former Department of Labor (DOL) policy aide Seth Harris to serve in the second-highest position within the DOL. If confirmed as deputy secretary, Harris will be yet another alum from the Clinton era to join the new administration.

Prior to his nomination, Harris served as an agency working group leader on President Obama’s transition team. Harris was selected as a transition team member while working as a professor and director of the Labor and Employment Law Program at New York Law School. Harris spent nearly seven years serving under the Clinton administration as a senior advisor on policy, legal management, and strategy issues for two U.S. Secretaries of Labor.

While a law professor, Harris wrote a number of articles critical of the Department of Labor under the Bush administration. In particular, Harris criticized Labor Department regulations that were perceived as expanding the white-collar exemptions from the overtime requirements of the Fair Labor Standards Act. A strong proponent of flexible work arrangements, Harris is currently a member of the National Advisory Commission on Workplace Flexibility. In addition, Harris is a senior fellow of the Life Without Limits Project of the United Cerebral Palsy Association.

Harris holds degrees from the Cornell University’s School of Industrial & Labor Relations, and New York University School of Law. 

Correction: June 25, 2009

The Washington D.C. Employment Law Update blog entry posted February 25, 2009 stated that Seth Harris taught at the New York University School of Law.  The current entry correctly reflects that Harris was a professor at New York Law School. 

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The massive,1,122-page omnibus bill (H.R. 1105) introduced by House Democrats on Monday would provide significant funding increases for government agencies dealing with labor and employment issues. (pdf)  This $410 billion spending measure consists of nine fiscal 2009 appropriations bills that would spread a considerable amount of funds throughout several domestic agencies.

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After a nearly two-month delay, Rep. Hilda Solis (D-CA) has been confirmed as the next U.S. Secretary of Labor. Her nomination was supported by a Senate vote of 80-17. The Senate Health, Education, Labor and Pensions (HELP) Committee had already voted to approve her nomination by voice vote on the evening of Wednesday, February 11. Only two Republican Senators – Pat Roberts (R-KS) and Tom Coburn (R-OK) – opposed her nomination at the time. The HELP confirmation cleared the way for a vote on her nomination before the entire Senate this afternoon. Before Congress adjourned for the President’s Day recess, Senate Majority Leader Harry Reid (D-NV) had filed a motion to invoke cloture on her nomination. This cloture vote – which had been slated to occur this morning – would have staved off further objections to her nomination so long as Democrats could garner at least 60 votes in her favor. At the eleventh hour, however, Reid decided to forgo this procedural test vote and move right to a full confirmation vote.

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President Obama has named Stuart J. Ishimaru to serve as acting chairman of the Equal Employment Opportunity Commission (EEOC). Ishimaru, who was appointed to the EEOC in 2003 by former President Bush, is the senior Democratic member of the agency. Christine M. Griffin, a Democrat who has been a member of the EEOC since 2006, was named as acting vice chairman.

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President Obama has designated Wilma B. Liebman as the Chairman of the National Labor Relations Board (NLRB). As an ardent supporter of unions and a vocal critic of right to work laws and recent NLRB decisions promoting an employee’s ability to reject unionization, Liebman will surely take the NLRB in a new direction – and one that is not necessarily favorable to employers.

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In a surprise move, President-elect Obama has chosen dark-horse candidate Rep. Hilda Solis (D-CA) as Labor Secretary. Solis’ selection will no doubt appease organized labor, which chose her to defeat pro-free trade incumbent Democratic Congressman Matthew Martinez (D-CA) in a primary challenge in 2000, and which contributed heavily to her re-elections since.

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The Center for American Progress Action Fund, a powerful, pro-labor think tank, recently released a report criticizing the Department of Labor (DOL) for failing to enforce worker protection laws, and outlining ways in which the incoming administration can implement changes in an expedited manner without resorting to legislation or lengthy rule-making. The report, Five Strategies for the Obama Administration to Enforce Workers’ Rights at the Department of Labor, details five methods for revamping the DOL immediately. These recommendations include:

1. Using increased civil and criminal employer penalties to create a culture of accountability;
2. Increasing enforcement staff and using partnerships with community organizations, industry associations, state worker-protection agencies, and labor unions to assist under-funded enforcement divisions with industry monitoring;
3. Targeting high-violation sectors with strategic initiatives;
4. Using thorough record-keeping to drive enforcement priorities, enhance public accountability, and improved performance evaluation; and
5. Strengthening immigrant protections to improve job quality for all workers.

It is expected that these recommendations will be taken seriously by the next administration. John Podesta, former White House Chief of Staff to President Clinton and Co-Chair of Obama’s transition team, is the Founder and President of the Center for American Progress. As a high-ranking member of the transition team, Podesta will be instrumental in selecting the next Secretary of the DOL, as well as filling other critical vacancies in this agency. In fact, it would not be at all surprising if one or more such vacancies were filled by a member or affiliate of this think tank. For example, Tom Daschle – who was recently named as the next Secretary of the Department of Health and Human Services – is a Distinguished Senior Fellow of the Center for American Progress. Thus, expect the new leaders at the DOL – who could be mined from the think tank itself – to give serious consideration and possibly fully implement one or more of these strategies.
 

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Obama’s transition team has named the Agency Review Team leads for, among others, the Education and Labor Team and the Justice and Civil Rights Team. These individuals will review how agencies integral to labor and employment law and enforcement are operating, determine the direction the new administration will want these agencies to take, and identify key administrative candidates for presidential appointment. Since many of the team leaders are former Clinton Administration officials and/or have close ties with organized labor, it is expected that the Obama Administration will likely favor a marked increase in business and employee regulation and oversight. Additionally, it is expected that agencies charged with workplace oversight and employee protections will receive increased funding and thus an enhanced ability to enforce workplace laws.

This blog will track agency appointments of import, including those slated to fill the following positions:

• Two Commissioner openings on the Equal Employment Opportunity Commission;
• Three vacant seats, including the Chair, on the National Labor Relations Board;
• Secretary of the Department of Labor;
• Leaders of the following components of the Department of Labor:
  • Employment Standards Administration
    •  Wage and Hour Division
    •  Office of Federal Contract Compliance Programs
  • Occupational Health and Safety Administration

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If there was any doubt regarding the influence organized labor may exert in the Obama Administration, the selection of Patrick Gaspard as Director of the Office of Political Affairs should lay those doubts to rest.

Prior to serving as the Associate Director of Personnel for the new administration’s transition team, Gaspard served as the Executive Vice President of Politics and Legislation for Local 1199 of the Service Employees International Union (SEIU), a very large and influential labor organization. Gaspard’s union loyalties will no doubt have some bearing on his roll as Political Director, a position criticized by many as being unnecessary and/or a propagator of party divisiveness.

Partisanship notwithstanding, Gaspard’s appointment may be a harbinger of things to come. Top vacancies need to be filled in the National Labor Relations Board (NLRB), Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC), and organized labor is demanding that these posts be filled by supporters of labor. John Wilhelm, co-President of UNITE-HERE said in a leaked September memo:

We should have only one demand of an Obama administration: that the President of the United States publicly, repeatedly, and strenuously advocate that workers have unions, because unions are necessary to build a good America; that he apply that advocacy to specific worker fights and not just general statements; and that he put people on the [National Labor Relations Board] and in his cabinet who share that view and are committed to implementing it.

If these positions are seeded with strong proponents of organized labor, expect much stronger employee protections and employer regulations within the coming years. As it currently stands, Ellen Moran, a former official with the AFL-CIO, has been named as Obama’s Director of Communications. In addition, Duane Woerth, former President of the Air Line Pilots Association, is rumored to be in the running to lead the Federal Aviation Administration (FAA). Moreover, several labor officials or those with strong labor ties are being discussed as candidates for Secretary of Labor, including AFL-CIO Vice President Linda Chavez-Thompson and Mary Beth Maxwell, the Executive Director of American Rights at Work, a labor advocacy group.
 

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