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

The Office of Federal Contract Compliance Programs (OFCCP) has posted on its website a set of frequently asked questions (FAQs) about the U.S. Supreme Court’s decision in Ricci v. DeStefano, the reverse discrimination case involving New Haven firefighters. In Ricci, the Court determined that the City of New Haven – by tossing the results of an exam that would have disqualified African American from receiving promotions – discriminated against non-African Americans whose scores would have qualified them for advancement. The Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” This decision has left many federal contractors – who must implement affirmative action programs – wondering whether Ricci will affect the OFCCP’s compliance reviews, and whether the decision would change the contractor’s obligations regarding the use and validation of job-related tests.

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As part of President Obama’s Open Government initiative, the Occupational Safety and Health Review Commission (OSHRC) has created a web site that provides information on the agency’s monthly case docket, chart of case activity, and briefing notices. The OSHRC is a quasi-judicial independent federal agency that presides over contests of OSHA inspection citations or penalties. The agency has also posted a link to its administrative law judge (ALJ) decisions that are pending OSHRC review.

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In tomorrow’s Federal Register, the Department of Labor’s Office of Labor-Management Standards (OLMS) will issue a notice of proposed rulemaking (NPRM) (pdf) on its plans to amend regulations under the Labor-Management Reporting and Disclosure Act (LMRDA) requiring labor organizations to file the annual financial disclosure Form T-1, (pdf) Trust Annual Report, about certain trusts in which they are interested. Unions use Form T-1 to disclose financial information about these trusts, such as assets, liabilities, receipts and disbursements. According to a summary of the NPRM, the DOL seeks to amend these regulations on the grounds that the current trust reporting requirement is overly broad and not necessary to prevent the circumvention and evasion of the Title II reporting requirements, which require labor organizations “to disclose its financial condition and operations.” In addition, the DOL considers separate trust reporting requirements as unnecessary, in part because the Department also proposes to return “subsidiary organization” reporting to the Form LM-2 reporting requirements, which it believes is necessary to satisfy the purposes of the LMRDA. Finally, the DOL takes the position that in interpreting the LMRDA’s definition of “labor organization,” the statute’s coverage does not include “intermediate bodies that are wholly composed of public sector organizations.”

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On Tuesday, the Employee Benefits Security Administration (EBSA), Internal Revenue Service (IRS) and the Department of Health and Human Services (HHS) will publish in the Federal Register interim final rules (pdf) under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (“the Act” or “MHPAEA”). These interim final regulations replace prior regulations, and make conforming changes to reflect modifications the MHPAEA made to the original Mental Health Parity Act (MHPA) of 1996 definitions and provisions regarding parity in aggregate lifetime and annual dollar limits, and incorporate new parity standards. The interim final regulations are effective as of April 5, 2010, and generally apply to group health plans and group health insurance issuers for plan years beginning on or after July 1, 2010.

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The Occupational Safety and Health Administration (OSHA) plans to withdraw its proposed rule (pdf) outlining revised PortaCount quantitative fit-testing protocols it intended to include in Part II of Appendix A of the agency’s Respiratory Protection Standard. OSHA claims the proposed protocols are not sufficiently accurate or reliable, noting that commenters to the proposed rule raised a number of valid concerns regarding the methodology used in testing the effectiveness of the protocols. Moreover, OSHA concluded that the study it used to test the protocols’ effectiveness was not conducted according to accepted experimental design practices and principles and did not properly or fully describe the fit-testing results, among other flaws. Therefore, the agency plans to re-evaluate the protocols, and may resubmit a proposed rule when the review is complete.

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The DOL’s Employee Benefits Security Administration (EBSA) has created model notices that employers can use to notify current and former health plan participants and beneficiaries of the COBRA premium reduction provided by the American Recovery and Reinvestment Act (ARRA), and extended by the 2010 Department of Defense Appropriations Act (2010 DOD Act). In general, the 2010 DOD Act extends the COBRA premium reduction eligibility period for two months until February 28, 2010, and increases the maximum period for receiving the subsidy for an additional six months (from nine to 15 months). The EBSA’s Fact Sheet explains who is now eligible for the premium reduction, the new period of coverage, and notice requirements plan administrators must provide in light of the extension. The agency has also issued a set of frequently asked questions (FAQs) on the new COBRA premium reduction extension provisions that explain the revised notice obligations. The three model notices – Updated General Notice, Premium Assistance Extension Notice, and the Updated Alternative Notice – are specifically designed for different categories of qualified beneficiaries, and contain information that helps satisfy the notice requirements of both ARRA and the 2010 DOD Act.

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The Employee Benefits Security Administration (EBSA) has issued a final rule, (pdf) to be published in tomorrow’s edition of the Federal Register, that establishes a safe harbor period during which funds received or withheld from employee paychecks as contributions to certain benefit plans will not be considered “plan assets” for ERISA or IRS purposes. An employer is required to deposit these funds into the benefit plans on the earliest date on which the contributions can reasonably be segregated from the employer’s general assets. According to the EBSA, many employers and their advisers are uncertain as to how soon they must forward employee contributions to the benefit plans in order to avoid the requirements associated with holding plan assets. To this end, the final rule creates a safe harbor to “provide a higher degree of compliance certainty with respect to when an employer has made timely deposits of participant contributions to employee benefit plans with fewer than 100 participants.” Under this rule, employers with pension or welfare benefit plans with fewer than 100 participants will be considered to have made a timely deposit to the plan if the participant contributions are deposited within 7 business days. The contributions will be considered deposited when placed in an account of the plan regardless of whether the amounts have been allocated to specific participants or participant investments.

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On Wednesday, the Equal Employment Opportunity Commission (EEOC) released its enforcement and litigation statistics for fiscal year 2009 ending on September 30. This data shows that 93,277 workplace discrimination charges were filed, the second-highest total for the agency, although down from last year’s all-time record of 95,402 charges. Private sector charges alleging disability, religion and/or national origin discrimination reached record highs, while the most frequent charges filed in 2009 alleged discrimination based on race (36%), retaliation (36%), and sex (30%). According to an EEOC press release, the “near-historic” level of total discrimination charges could be due to a number of factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.

The EEOC’s year-end data also shows that a total of 281 merit lawsuits were filed, resulting in $82.1 million in monetary relief for the plaintiffs. Total monetary relief obtained for claimants totaled $376 million, which includes benefits gained through administrative enforcement and mediation as well as through litigation.

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Employers already face concerns about how to handle employees trash-talking about them on blogs, Facebook and other social media. Now, employers must be cautious of the converse — employee endorsements of their employers’ products and services on social media websites. The Federal Trade Commission (FTC) recently issued updated guidelines aimed at protecting consumers from misleading endorsements and advertising. As these guidelines make clear, employers whose employees use social media like blogs or Facebook to comment on their employer’s products or services face potential liability, even where the employer has not authorized or ratified the employee’s remarks.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has released a fact sheet explaining how the Defense Department’s 2010 appropriations bill (“2010 DOD Act”) extends the Consolidated Omnibus Budget Reconciliation Act (COBRA) premium reduction provided by the American Recovery and Reinvestment Act (“ARRA” or “Economic Stimulus”). In general, the 2010 DOD Act extended the COBRA premium reduction eligibility period for two months until February 28, 2010 and increased the maximum period for receiving the subsidy for an additional six months (from nine to 15 months).  Among other things, the fact sheet outlines who is now eligible for the premium reduction, the new period of coverage, and notice requirements plan administrators must provide in light of the extension. The fact sheet explains that plan administrators are now required to provide notice about the changes made to the COBRA premium reduction provisions to individuals who have already been provided a COBRA election notice, unless the election notice included the updated premium reduction information. These notices must be given to assistance eligible individuals by February 17, 2010. Individuals who have been terminated on or after October 31, 2009 and will lose health coverage must be provided this notice “within the normal timeframes for providing continuation coverage notices.” Those who had reached the end of the reduced premium period before the legislation extended it to15 months must be provided this notice within 60 days of the last day they were eligible to receive COBRA premium assistance under the old rules.

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The House of Representatives has approved a massive consolidated spending bill that would provide increased funding for the Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB), among other agencies for fiscal year 2010. The Consolidated Appropriations Act (H.R. 3288) – which combines six separate spending measures – passed by a vote of 221-202 on Thursday, with no Republican members voting in its favor. Text of the conference report for this bill and joint explanatory statements can be found here.

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The Equal Employment Opportunity Commission (EEOC) has identified three proposed and four final rules that will dominate the agency’s regulatory activities for the coming year, according to its Semiannual Regulatory Agenda (pdf) released online yesterday. Of the seven regulations at issue, the EEOC’s Regulatory Plan (pdf) singles out the regulation at the final rule stage to implement the equal employment provision of the Americans with Disabilities Act Amendments Act (“ADAAA” or “ADA Amendments Act”), and the regulations defining Reasonable Factors Other than Age (RFOA) under the Age Discrimination in Employment Act (ADEA) at the proposed rule stage as the most important significant regulatory actions the agency will take.

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The Department of Homeland Security (DHS) has released its Semiannual Regulatory Agenda (pdf) for the coming year. Rules addressing the H-1B lottery process and I-9 forms are among the Agency’s regulatory priorities. According to the agency’s Fall 2009 Regulatory Plan (pdf), a subset of the Agenda which details the regulatory measures the DHS deems most important, the following actions, among others, are slated to take place within the next 12-month period:

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As we reported on November 3 and 4, the National Mediation Board's (NMB) notice of proposed rule making (NPRM) seeking to change the 75-year old process by which union votes are counted in union representation elections under the Railway Labor Act (RLA) is moving full-steam ahead. Members of Littler Mendelson's transportation industry practice group attended the NMB's December 7, 2009 open meeting regarding the NPRM. Chairman Elizabeth Dougherty, Members Harry Hoglander and Linda Puchala, General Counsel Mary Johnson, and Associate General Counsel Kate Dowling were present, and interested parties had the opportunity to present their views on the proposed change to NMB election procedures. The NMB officials did not ask or answer questions or otherwise comment on any of the presentations.

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The Department of Labor (DOL) has released its semiannual regulatory agenda (pdf), which lists all of the regulations the agency expects to have under active consideration for promulgation, proposal, or review during the coming one-year period. The DOL also published its Fall 2009 Regulatory Plan (pdf), a subset of the agenda, which details the agency’s regulatory priorities and actions deemed most important and significant. In video remarks posted on the DOL’s website, Secretary of Labor Hilda Solis stated that the agency is proposing 90 rules to the 2010 regulatory agenda, and outlined the following highlights:

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The DOL’s Employee Benefits Security Administration (EBSA) has posted on its website new guidance regarding the COBRA health insurance premium subsidy granted by the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Economic Stimulus”). Under ARRA’s COBRA provisions, the government provides certain qualifying unemployed workers with a 65 percent subsidy of their health insurance premiums for up to nine months. Those individuals who first became eligible to receive this subsidy will begin to lose their coverage starting this month.

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On Tuesday, the National Labor Relations Board (NLRB) released its year-end report detailing its summary of operations for fiscal year 2009. A copy of this report can be downloaded from the agency’s press release (pdf) on this subject. According to this report, while the agency’s caseload remained steady, union representation election petitions dropped dramatically from the previous year, while unfair labor practices increased slightly. Specifically, the total number of unfair labor practice (ULP) charges and representation petitions filed for FY 2009 came to 25,853, compared to 25,901 in FY 2008. Of the overall case intake, unfair labor practice case intake was 22,941, a 1.96 percent increase from the previous year. However, the total intake for representation cases this year equaled 2,912, a 14.4 percent decline from the previous year’s tally of 3,400. In addition, the NLRB conducted 1,690 initial representation elections in FY 2009, 395 fewer than in 2008, amounting to a nearly 19 percent decrease. The drop in petitions is likely due, at least in part, to the proposed Employee Free Choice Act (EFCA), which, if enacted as currently written, would make it substantially easier for unions to be certified as the employees’ collective bargaining representative. It is possible that unions are holding out hope for EFCA’s passage before initiating any new organizing drives.

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The Department of Labor’s Office of Federal Contract Compliance Programs’ (OFCCP) newest Corporate Scheduling Announcement Letter (CSAL) (pdf) indicates for the first time that companies could be subject to an unlimited number of compliance audits per year. The CSAL is intended as a courtesy notice to federal contractors that have at least two facilities that the OFCCP has identified for possible compliance evaluations in the coming fiscal year. The new letter states that “there will be no limit on the number of new compliance evaluations of your company’s facilities that the OFCCP will conduct during a fiscal year.” In the past, the OFCCP limited itself to initiating a yearly maximum of 25 establishment audits per employer.

According Alissa Horvitz, Co-Chair of Littler’s OFCCP Practice Group:

OFCCP is signaling that if it discovers compliance lapses or systemic discrimination at one location, it does not want to be limited in its ability to investigate whether those same concerns exist elsewhere in the company, raising the stakes for all government contractors to be proactive in evaluating their policies, practices, and records in advance of receiving the audit scheduling letter.

This entry was written by Ilyse Schuman.

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According to the Department of Labor’s Office of the Inspector General (OIG), for the six-month period ending on September 30, 2009, the OIG’s investigative work led to 214 indictments, 221 convictions, and $123.1 million in monetary accomplishments. The OIG’s Semiannual Report to Congress (pdf) is designed to evaluate the “effectiveness, efficiency, economy, and integrity of the DOL’s programs and operations,” and make legislative recommendations to achieve the agency’s goals.

As a result of its auditing activities, the OIG found fault with the DOL’s new iCert system, which is designed to identify inaccuracies in H-1B labor condition applications (LCAs) for foreign workers. The OIG determined that because there were instances of missing electronic checks, manual reviews of the LCAs by analysts are necessary. This process, however, increases the volume of applications, which the OIG claimed may result in analysts not being able to perform a 100 percent review, thus increasing the risk of LCAs being improperly certified. In addition, the OIG identified vulnerabilities and fraud in the DOL’s foreign labor certification (FLC) program.

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The Occupational Safety and Health Administration (OSHA) has released a new guidance document, Best Practices for Protecting EMS Responders During Treatment and Transport of Victims of Hazardous Substance Releases (pdf), designed to help employers protect emergency medical service (EMS) workers in situations involving the release of hazardous substances. According to a press release, the compliance guide helps employers determine the type of training and personal protective equipment (PPE) needed in emergency situations by anticipating the EMS responder's role in a worst-case scenario, identifying hazards associated with the responder's assigned duties, and developing an emergency response plan detailing safe accomplishment of those duties.

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The U.S. Department of Labor (DOL) has released an updated version of its Employment Law Guide, an online resource that outlines the major statutes and regulations administered by the DOL that affect the workplace. The Guide is a companion to FirstStep Employment Law Advisor, an interactive information tool provided by the DOL that allows employers to see which laws apply to them. The updated guide reflects changes to the federal minimum wage and addresses the enhanced military family and medical leave entitlements recently provided by the National Defense Authorization Act.  In addition, the Guide includes a section on child labor regulations in the agriculture industry and one on the Defense Base Act, which provides workers' compensation benefits to civilian employees working outside the United States on U.S. military bases or under certain contracts with the U.S.

In a statement, Labor Secretary Hilda Solis said: “Fair and safe practices in the workplace are a top priority for the Department of Labor, and we want to make it simple for both employers and workers to understand the federal policies that protect them,” adding “Our new Employment Law Guide provides updated and user-friendly information and guidance. We encourage everyone to use it.”

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On Monday, the Pension Benefit Guaranty Corporation (PBGC) issued a proposed rule that would, among other things, conform the agency’s reportable events regulation under the Employee Retirement Income Security Act (ERISA) and other PBGC regulations to the changes made by the Pension Protection Act of 2006 (PPA 2006). According to the PBGC’s overview of the proposed rule published in the Federal Register, the new regulations would do the following:

• amend the PBGC’s reportable events regulation to make the advance reporting threshold test consistent with the PPA 2006 funding rules and PBGC’s new variable rate premium rules;
• eliminate most automatic waivers and filing extensions currently available under the reportable events regulation;

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The Occupational Safety and Health Administration (OSHA) is seeking comment on its proposal to extend the Office of Management and Budget’s (OMB) approval of the information collection requirements set forth in the Personal Protective Equipment (PPE) Standard for general industry. OSHA’s information collection requirements under the general requirements for PPE include a hazard assessment of potential workplace hazards necessitating PPE, and verification that the assessment has been conducted. In addition, this standard requires that employers provide training and certification for each worker who is required to wear PPE. OSHA seeks comments on, among other things, whether these information collection requirements are necessary for the proper performance of the Agency’s functions, including whether the information is useful; whether OSHA’s estimate of the burden of the information collection requirements are accurate; the quality, utility, and clarity of the information collected; and ways to minimize the burden on employers who must comply with there requirements.

Comments must be submitted by January 22, 2010 and contain the identification number: OSHA-2009-0028. Comments sent via regular mail, hand delivery, express mail, messenger, or courier service must be provided in triplicate to the OSHA Docket Office, Docket No. OSHA-2009-0028, U.S. Department of Labor, Occupational Safety and Health Administration, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. In the alternative, comments can be made electronically to the Federal eRulemaking Portal at http://www.regulations.gov, or via fax if no longer than 10 pages to: (202) 693-1648.

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According to the Equal Employment Opportunity Commission’s (EEOC) annual report released this week, the agency received 93,277 private sector discrimination charges in 2009, the second highest number in 20 years. The Performance and Accountability Report FY 2009 (PAR) (pdf) noted that the number of private sector charges is projected to exceed 100,000 by the end of fiscal year 2010.

According to the PAR, the increase in charges is due in part to the additional statutory authority given to the agency through the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and the Lilly Ledbetter Fair Pay Act of 2009. The EEOC claims that it has already felt the effects of the ADAAA, as there was a 10.6 percent rise in the number of ADA charges filed (21,451) compared to the 19,401 ADA charges filed in FY 2008. The agency anticipates a small increase in the number of charges filed with EEOC as a result of the enactment of the Genetic Information Nondiscrimination Act of 2008 (GINA), the employment provisions of which take effect on November 21, 2009.

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Both the Department of Labor’s Employee Benefits Security Administration (EBSA) and the Pension Benefit Guaranty Corporation (PBGC) have issued final rules published in today’s Federal Register that affect employer-provided pension plans. The EBSA’s final rule (pdf) delays until May 17, 2010 the effective and applicability dates of final rules under the Employee Retirement Income Security Act (ERISA) and parallel provisions in the Internal Revenue Code (IRC) dealing with the provision of investment advice to participants and beneficiaries in individual account plans such as 401(k)s and individual retirement accounts (IRAs). The rules, which were issued during the final days of the Bush administration, would have permitted advisers affiliated with mutual funds, brokerage firms and other companies that sell investments to provide investment advice to 401(k) and IRA participants. EBSA’s Assistant Secretary Phyllis C. Borzi has already announced that the agency plans to withdraw and rework this rule, which would have gone into effect on November 18. On January 20, 2009, Chief of Staff Rahm Emanuel directed agency heads to consider delaying any rule that had not yet taken effect to give the new administration a chance to review the law and policy involved.

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The Department of Labor’s (DOL) Wage and Hour Division (WHD) has posted to its website information sheets discussing the interplay between pandemic flu preparation/response and compliance with the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Both guidance documents are in question and answer form, and address common wage, hour, and leave issues employers face when employees or their family members become sick with the H1N1 influenza virus or other pandemic flu.

Both fact sheets: Pandemic Flu and the Fair Labor Standards Act: Questions and Answers (pdf) and Pandemic Flu and the Family and Medical Leave Act: Questions and Answers (pdf) can be found here.

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The Occupational Safety and Health Administration (OSHA) has created a website that contains guidance materials for employees and employers on how to reduce exposure to the H1N1 influenza virus (“swine flu”) in the workplace. Separate fact sheets recommending additional precautions are available for employers and workers in the health care industry.

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On Monday, President Obama issued an executive order to promote the federal government’s hiring of veterans. The executive order, Employment of Veterans in the Federal Government, creates an interagency Council on Veterans Employment – chaired by the Secretary of Labor and the Secretary of Veterans Affairs – that will advise the President and the Director of the Office of Personnel Management on the veterans’ employment initiative (“Initiative”) created by the executive order, and serve as a national forum for promoting veterans’ employment opportunities in the executive branch. Under the Initiative, most federal agencies will be required to establish a Veterans Employment Program office that will be responsible for helping veterans find jobs within those agencies. In addition, these offices will be in charge of implementing veteran’s recruitment programs and training programs for veterans with disabilities, providing mandatory annual training to the agency’s human resources personnel and hiring managers, coordinating employment counseling to help match veterans’ career goals with the needs of the agency, and transitioning service members into the workforce, among other responsibilities.

According to a press release, the Initiative “underscores to federal agencies the importance of recruiting and training veterans, aims to increase the employment of veterans within the Executive Branch, and helps recently hired veterans adjust to service in a civilian capacity.”

Photo credit: Captainflash

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The Equal Employment Opportunity Commission (EEOC) has posted on its website an updated “EEO is the Law” poster (pdf) and supplement (pdf) to reflect changes made by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which goes into effect November 21, 2009. Title II of GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. The new posters also revise information in light of the Americans with Disabilities Act Amendments Act of 2008.

Employers can either print and post the new November 2009 “EEO is the Law” poster, or post the “EEO is the Law” supplement poster alongside the EEOC’s September 2002 “EEO is the Law” or the OFCCP’s August 2008 “EEO is the Law” posters. Information on how to order new posters can be found here.

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On the heels of its Tuesday announcement of a proposal to accommodate organized labor’s wishes by radically changing the way votes are cast and counted in airline and railroad union elections, the National Mediation Board (NMB) has now scheduled a meeting (pdf) on the subject to take place December 7, 2009. The stated purpose of the meeting is to supplement the comment procedure outlined in the Notice of Proposed Rulemaking by “providing another opportunity for interested persons to provide their views to the Board on this important matter.”

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On Tuesday, the National Mediation Board (NMB) published in the Federal Register a proposed rule (pdf) to amend its representation election procedure. Upsetting decades of settled policy, Members Harry Hoglander and Linda Puchala, former union officials, have launched a full-court press intended to make it easier for labor organizations to expand union membership in the air and rail industries.

Under the existing and well-settled approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. So, in effect, employees who chose not to participate are counted as “no union” votes. The proposed rule would change this policy to base the voting outcome on the majority of those who actually vote, as is the practice in non NMB-governed industries.

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The Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) has issued new guidance in the form of 25 frequently asked questions (FAQs) to help plan administrators and service providers of group health and other welfare benefit plans comply with the expanded requirements for reporting service provider fees and other compensation on Schedule C of the 2009 Form 5500 Annual Return/Report of Employee Benefit Plan. The EBSA implemented these requirements – which are effective for plan years beginning on or after January 1, 2010 – as part of a final rule published on November 16, 2007.

According to an EBSA press release, issues covered by the FAQs include the reporting of gifts, entertainment and other non-monetary compensation; compensation to hedge fund investment managers; “look-through” investment funds; mutual fund redemption fees; and ERISA fee recapture accounts.

Earlier guidance on these reporting requirements was released in July 2008.

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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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Seventy-seven bus and truck drivers are banned from operating commercial motor vehicles and 84 commercial carriers face enforcement charges as a result of the Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) first national drug and alcohol strike force. During a 10-day period in September, FMCSA safety investigators examined the drug and alcohol safety records of commercial drivers employed by bus companies, including school bus drivers, interstate passenger carriers, hazardous material transporters and general freight long-haul trucking companies. This enforcement action is the first time that the FMCSA has ever proactively looked for operators and drivers that violate the agency’s drug and alcohol regulations.

In a DOT press release, U.S. Transportation Secretary Ray LaHood said: “Violators of our drug and alcohol policies have no business driving a commercial vehicle. Programs like the drug and alcohol strike force are helping remove the most dangerous offenders from our roadways.” As a result of the strike force, the cited commercial drivers face civil penalties in addition to being prevented from operating commercial vehicles. The targeted employers are subject to charges that they unlawfully used a driver that has tested positive for illegal drugs and for not instituting a drug and alcohol program, among other violations. According to the FMCSA, among the goals of the strike force is to “identify motor carriers in violation of federal drug and alcohol testing requirements and to remove from the road commercial truck and bus drivers who jump from carrier to carrier to try and evade federal drug and alcohol testing and reporting requirements.”

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The Occupational Safety and Health Administration (OSHA) has published in today’s Federal Register an advance notice of proposed rulemaking (ANPRM) (pdf) calling for public comment, data, and other input to help the agency develop a standard to address the fire and explosion hazards associated with combustible dust. For the purposes of the ANPRM, “combustible dust” includes “all combustible particulate solids of any size, shape, or chemical composition that could present a fire or deflagration hazard when suspended in air or other oxidizing medium.”

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The Equal Employment Opportunity Commission (EEOC) has issued an updated Technical Assistance Document (TAD) – Pandemic Preparedness in the Workplace and the Americans with Disabilities Act – to address how employers may prepare their workplaces for pandemic influenza outbreaks and still remain in compliance with the Americans with Disabilities Act (ADA). The TAD was amended in response to employers’ frequently asked questions about workplace preparation for, and reaction to, outbreaks of the H1N1 virus, which has become more widespread in recent months.

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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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The Department of Justice (DOJ) has awarded $723,000 in grants to various groups nationwide to help combat immigration-related employment discrimination. These grants, administered by the DOJ’s Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), will range from $48,000 to $87,000 for each of the 12 named recipients. According to a press release, these funds will be used to assist discrimination victims; conduct seminars for workers, employers and immigration service providers; distribute educational materials in various languages; and place advertisements in local communities through both mainstream and ethnic media to educate workers and employers about their rights.

In a statement, Loretta King, Acting Assistant Attorney General for the Civil Rights Division, said: “[a]warding grants to professional and community-based organizations better enables us to educate workers and employers about their rights and responsibilities under federal immigration law,” adding, “[o]ur grant recipients, who are well known and respected in their communities, will collaborate with us to prevent immigration-related discrimination in the workplace.”

The twelve groups slated to receive DOJ funding for the immigration-related anti-discrimination initiative are: the Arizona Attorney General’s Office, Civil Rights Division; Asian Pacific American Legal Center of Southern California; Catholic Charities of Dallas; Catholic Charities, Diocese of St. Petersburg, Fla.; Colorado Legal Services; Legal Aid Foundation of Los Angeles (LAFLA); National Farm Worker Service Center; National Immigration Law Center (NILC); New York City Human Rights Commission; Texas RioGrande Legal Aid; University of Iowa; and the Washington Farm Labor Association.

Earlier this month, U.S. Attorney General Eric Holder revealed that with the increased 2010 fiscal year DOJ budget, the agency intended to substantially enlarge the Civil Rights Division and improve enforcement of antidiscrimination laws.

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The Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) has posted to its website three technical assistance documents for contractors. These guides do not create any new legal requirements, but rather are intended to serve as basic resources for contractors and subcontractors that are subject to laws enforced by the agency.

An updated version of the Technical Assistance Guide for Federal Construction Contractors (pdf) is intended only for government contractors who have construction contracts or subcontracts, including contractors who have federally assisted construction contracts. According to the OFCCP, this document is designed to help these contractors and subcontractors understand their contractual obligation to comply with the laws administered by OFCCP; understand the role of the OFCCP in enforcing federal equal employment opportunity and affirmative action laws that apply to federal contractors and subcontractors; develop written affirmative action programs where appropriate; implement the affirmative action steps that are described in the Standard Federal Equal Employment Specifications; and prepare for an OFCCP compliance evaluation.

A second guide is designed for non-construction contractors and subcontractors who are nonetheless subject to laws enforced by the OFCCP. Such entities include subcontractors who furnish supplies or services that are necessary to perform a federal contract. The Supply & Service Technical Assistance Guide (pdf) provides information on these supply and service contractors’ obligations to comply with OFCCP-enforced nondiscrimination and affirmative action laws, and discusses how to development written affirmative action plans and to prepare for a compliance evaluation.

The final compliance document now available online is a New Contractors’ Guide (pdf). According to the OFCCP, this guide is intended “to introduce new contractors to their EEO obligations, the enforcement process, and the array of resources OFCCP offers to assist contractors in meeting their obligations.”
 

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The Equal Employment Opportunity Commission (EEOC) has published in today’s Federal Register (pdf) its proposed revisions to the Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008 (ADAAA). Last week, the EEOC published on its website a question and answer guide regarding these proposed rules.

Effective January 1 of this year, the ADAAA rejected a line of U.S. Supreme Court decisions that narrowed the definition of “disability” under the ADA. The ADAAA significantly expands the scope of ADA coverage, enabling more individuals alleging disability-based employment discrimination to establish that they are disabled under the ADA. To that end, Congress directed the EEOC to revise its ADA regulations to comply with the ADAAA.

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The Equal Employment Opportunity Commission (EEOC) has published a question and answer guide addressing the proposed regulations drafted in response to the Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADAAA). On Wednesday, the EEOC approved the notice of proposed rulemaking (NPRM) by a vote of 2-1 along party lines. Text of the proposed regulations is slated for publication in the Federal Register next week, to be followed by a 60-day public comment period.

The ADAAA, which went into effect on January 1, 2009, significantly expands the definition of “disability” under the ADA, allowing more individuals to fall under the ADA’s protection. Although the ADAAA, like the ADA, defines “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, the ADAAA changes how each of these components of the definition should be interpreted. According to a Notice issued by the EEOC, the ADAAA:

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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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Labor Secretary Hilda Solis told attendees of the AFL-CIO Constitutional Convention in Pittsburgh today that she will work with the White House to “make the strongest case possible for the Employee Free Choice Act” and reiterated her position that the Department of Labor (DOL) “is once again back in the enforcement business.”  Her speech also outlined recent DOL enforcement efforts, and proposed regulations to reform the H-2A temporary agricultural worker program.

With respect to DOL enforcement, Solis announced that the agency is “adding nearly 670 additional investigators, inspectors, and other program staff, returning our worker protection efforts to a level not seen since 2001. So far, these resources has allowed the Wage and Hour Division to ensure that contractors on federal stimulus projects pay their workers the prevailing wage rates that they are entitled to.” Solis emphasized that worker safety is a chief concern, noting that since July, the Occupational Safety and Health Administration (OSHA) has completed 689 inspections and issued nearly 1,100 violations resulting in $1.6 million in fines.

Solis touched on immigration reform as well, explaining that the DOL is proposing to restructure the H-2A visa program. According to Solis, the proposed regulations “will reverse what I believe are unjust wage issues and working conditions for vulnerable U.S. and temporary foreign workers,” and “will ensure that before we import temporary workers to meet some labor shortages, U.S. workers have first dibs.”

As for the beleaguered Employee Free Choice Act (EFCA), Solis claimed that “it’s not enough to have fair wages and a safe workplace – workers also need a voice on the job!” To that end, Solis pledged to support EFCA, as well as the use of Project Labor Agreements for large federally funded projects.

President Obama is scheduled to speak at the AFL-CIO convention tomorrow.
 

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In a recent New York Times article, U.S. Attorney General Eric Holder, Jr. revealed that the Department of Justice (DOJ) intends to substantially increase the Civil Rights Division and enforcement of antidiscrimination laws. The Civil Rights Division prosecutes violations of criminal civil rights statutes and enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, and national origin. Such laws enforced by this division include the Civil Rights Act, the Americans with Disabilities Act, and the Immigration Reform and Control Act.

According to the article, the fiscal year 2010 budget requests an increase of approximately $22 million for the Civil Rights Division, up 18 percent from the prior year. The Division seeks to hire more than 50 civil rights attorneys, a significant boost to this department.

The expansion of the Civil Rights Division and its enforcement efforts is part of a greater predicted trend for this administration. Budgets for the Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC) have similarly received substantial funding increases for fiscal year 2010. Labor Secretary Hilda Solis has emphasized that stepping up enforcement of workplace laws is a top priority, particularly for the Wage and Hour Division, Office of Federal Contract Compliance Programs (OFCCP), and the Occupational Safety and Health Administration (OSHA). For example, the Wage and Hour Division – the DOL sub-agency responsible for enforcing, among other laws, federal minimum wage, overtime, and child labor requirements of the Fair Labor Standards Act (FLSA) – is expected to hire more than 200 new compliance officers for this purpose. Therefore, employers can anticipate increased scrutiny from these agencies, and should take the necessary steps to comply with workplace laws before facing an agency audit or inspection.
 

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The Department of Homeland Security (DHS) has issued a proposed rule (pdf) rescinding regulations instituting safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. The No-Match rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – provides that No-Match letters be accompanied by a set of procedures for employers to follow to address the flagged identification discrepancies and avoid a finding that they have constructive knowledge of a worker’s illegal status and thus civil and criminal liability under the Immigration Reform and Control Act of 1986. Shortly after this rule was introduced, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a lawsuit challenging, among other things, the sufficiency of the No-Match letter to put an employer on notice of a potential illegal hire. A U.S. District Court in California granted the plaintiff’s preliminary injunction blocking the rule’s enforcement. In 2008, the DHS issued a supplemental final rule clarifying certain aspects of the No-Match rule, but did not change the safe-harbor procedures. Neither the final No-Match rule nor the supplemental final rule have been enforced.

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In anticipation of a resurgence of the H1N1 (“Swine”) flu, the U.S. Department of Health and Human Services’ (HHS) Centers for Disease Control and Prevention (CDC) has issued recommendations and strategies for employers to follow in order to minimize any potential outbreak. The Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season outlines steps employers should take in advance of the flu season, strategies to employ in the event an outbreak becomes severe, and guidelines to use in determining when an employee who is absent from work with the flu should return to the job.

Recommendations include reviewing or establishing a flexible influenza pandemic plan; having an understanding of the organization’s normal seasonal absenteeism rate; instituting more flexible sick-leave and telecommuting policies, especially in the event of school or childcare closings; encouraging seasonal flu vaccinations as well as the H1N1 vaccination when it becomes available; permitting higher-risk employees to work from home; and actively screening employees who report to work if the severity of the outbreak increases. The guidance also suggests that organizations assess their essential business functions to determine the minimum level of staffing needed to remain operational, and plan accordingly.

For more information on preparing the workplace for a flu outbreak, see Littler’s ASAP:
Swine Flu: Preparing the Workplace for a Pandemic  by: Steve McCown and
Donald W. Benson.

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The Equal Employment Opportunity Commission (EEOC) has revised a portion of its Compliance Manual addressing the timeliness of filing pay discrimination claims in light of the Lilly Ledbetter Fair Pay Act, which was enacted on January 29 of this year. This law overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which required plaintiffs to file a charge of compensation discrimination within 180 days (300 in jurisdictions that have a local or state law prohibiting the same form of pay discrimination) of the discriminatory act or decision. The new law reinstates the “paycheck rule,” which allows courts to consider the receipt of a paycheck or other benefits stemming from the initial discriminatory pay decision to constitute a separate discriminatory act for statute of limitations purposes. The revised Compliance Manual reflects this shift in section 2-IV C.4, Compensation Discrimination, by stating that the period for submitting a claim of pay discrimination under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Rehabilitation Act or the Age Discrimination in Employment Act (ADEA) begins when any of the following situations occur:

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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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Pursuant to President Obama’s Executive Order (EO): Notification of Employee Rights Under Federal Labor Laws issued on January 30, 2009, the Department of Labor (DOL) has published in today’s Federal Register a proposed rule requiring government contractors and subcontractors to post notices outlining employees’ rights under the National Labor Relations Act (NLRA). The proposed rule describes what these notices should include, which entities are covered, and explains the sanctions, penalties, and other remedies that may be imposed in the event of noncompliance.

The EO required that most federal departments and agencies include in their contracts a provision requiring contractors and subcontractors to post “in conspicuous places in and about [their] plants and offices where employees covered by the [NLRA] engage in activities relating to the performance of the contract,” notice of an employee’s rights under federal labor law. The EO specifically exempts two types of federal contracts from triggering the new posting: collective bargaining agreements and purchases under the simplified acquisition threshold, currently $100,000. The proposed rule establishes standards and procedures for implementing this EO, to be codified in subchapter D, Part 471 of Volume 29 of the Code of Federal Regulations.

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After a lengthy public comment period and legal challenges, a U.S. Department of Transportation (DOT) drug testing regulation requiring employees of aviation, railroad, motor carrier, mass transit, pipeline and maritime industries who previously failed a drug test to partially disrobe and be directly observed during return-to-work and follow-up tests will go into effect August 31, 2009.  Continue reading at Littler's Workplace Privacy Counsel blog. 

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A recent order issued by the National Labor Relations Board (NLRB or Board) may herald the agency’s handling of other petitions seeking to resolve questions of union representation brought about by the UNITE HERE / Workers United split. The Board’s Order, issued July 21, 2009, affirmed the Regional Director’s decision issued July 12 dismissing the employer’s petition. Although the Board’s apparent adoption of a unified response to petitions filed in the wake of the UNITE HERE / Workers United split may provide some guidance as to how the Board will address these questions in the future, its chosen course of action avoids any discussion of whether a schism in the union occurred, and should lay the groundwork for potential federal court challenges.

In the case at issue, the employer, Royal Laundry, was faced with competing claims by UNITE HERE and the Western States Regional Joint Board (WSRJB) to represent its employees. Each union claimed to be the legitimate union representative of the bargaining unit. Prior to this, the employees had been members of Local 75 of UNITE HERE, but their executive board chose to endorse a petition to disaffiliate from UNITE HERE and join other Joint Boards and Locals to form a new union, Workers United. In the process, the local’s executive board retained its shop stewards and Joint Board staff representatives.

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Last week the Equal Employment Opportunity Commission (EEOC) issued a technical assistance document outlining an employee’s rights and obligations when presented with a severance package in exchange for a waiver of employment discrimination claims. The document, Understanding Waivers of Discrimination Claims in Employee Severance Agreements, explains in a question and answer format when a waiver of rights under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA) would be deemed valid. The document places special emphasis on waivers of rights under the ADEA by clarifying the seven factors that must be satisfied under the Older Workers Benefit Protection Act (OWBPA) for an ADEA waiver to be considered “knowing and voluntary.” The document also presents a checklist for employees in the event they are offered a severance agreement and a sample waiver form.

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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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On Tuesday, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) published in the Federal Register (pdf) a proposed rule implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6 of this year, EO 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf) declares it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, this EO states:

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On July 10, the Office of Management and Budget (OMB) sent a memorandum (pdf) to the heads of executive departments and agencies encouraging the use of Project Labor Agreements (PLAs) until a final rule implementing President Obama’s Executive Order on this subject is implemented. On February 6 of this year, Obama issued Executive Order (EO) 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf), which declared it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, the EO stated, in pertinent part:

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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 July 1, U.S. Immigration and Customs Enforcement (ICE) initiated a significant new audit initiative by issuing Notices of Inspection (“NOIs”) to 652 businesses, which is more in one day than ICE issued throughout the entire last fiscal year.  Continue reading at Littler's Global Immigration Counsel blog.

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In a public meeting held Wednesday, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to revise its Americans with Disabilities Act (ADA) regulations to conform with changes to the law made by the ADA Amendments Act of 2008 (ADAAA). The proposed revisions will now be forwarded to the Office of Management and Budget (OMB) for review before they can be formally published in the Federal Register.

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The Wage and Hour Division (WHD) of the Department of Labor (DOL) has issued an opinion letter (FMLA2009-1-A) clarifying that an employer’s internal notification policy regarding employee attendance can be enforced against an employee attempting to take leave under the Family and Medical Leave Act (FMLA) so long as compliance with the notice policy is practicable given the employee’s particular circumstances. In a previous opinion letter dated January 15, 1999 (FMLA-101) the DOL had concluded that employers’ call-in/no show policies and related disciplinary measures could not be applied so long as the employee provided notice within two business days that the leave was FMLA-related, regardless of whether such notice could have been provided sooner. To the extent that FMLA-101 created a blanket “two-day rule” for providing FMLA notice, the WHD is rescinding it.

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Within the next six months, the Equal Employment Opportunity Commission (EEOC) expects to develop and/or issue six regulations affecting workplace laws and practices. According to the agency’s spring regulatory agenda released on Monday, regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA) are expected to be issued by the end of this month. The EEOC’s proposed GINA regulations were published earlier this year.

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A number of federal agencies including the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) are requesting information in advance of a future rulemaking on group health plans. Specifically, the EBSA’s Request for Information (RFI) seeks input on questions related to the mental health parity provisions made by the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The RFI was published in the April 28, 2009 edition of the Federal Register.

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The Department of Labor (DOL) has published in today’s Federal Register its semiannual regulatory agenda. (pdf)  The agenda lists all regulations the agency expects will be under review or development until April 2010, as well as those completed within the past six months. Specifically, the document lists 13 items in the pre-rule, proposed rule, final rule, and long-term action stages, along with a brief description, review timetable, comment period, and agency contact information for each regulation. 

Of the 13 regulations, four are listed as being under section 610 review. Section 610 of the Regulatory Flexibility Act (RFA) requires each federal agency to develop a plan for the periodic review of its rules that have or will have a significant economic impact on a substantial number of small entities. Those regulations currently under such review by the Occupational Safety and Health Administration (OSHA) include the bloodborne pathogens and methylene chloride standards. Also included in this review category are the explosives and blasting standard in the pre-rule stage at the Mine Safety and Health Administration (MSHA) and the plan assets – participant contributions regulation under review by the Employee Benefits Security Administration (EBSA). 
 

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The Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) has announced that it plans to issue a notice of proposed rulemaking regarding revisions to the Labor Organization Officer and Employee Report (LM-30) financial disclosure form. Form LM-30, which had been revised in 2007, requires union officers and employees (except employees performing exclusively clerical or custodial services) to report certain financial transactions and financial interests in order to make public any actual or potential conflict between their personal financial interests and their obligations to the labor organization and its members. The proposed rulemaking will focus on the changes made by the 2007 regulatory revisions which, the agency claims, dramatically altered the old Form LM-30 and instructions that had not substantially changed in over 40 years.

The new LM-30 raised the ire of organized labor, as it imposed new requirements and expanded the form from two to nine pages. The AFL-CIO filed a lawsuit – AFL-CIO v. Chao – in the U.S. District Court for the District of Columbia to enjoin the use of the new form, alleging that the DOL lacked the authority to impose the new rule, and that the form’s expanded requirements are arbitrary and capricious. This case is still pending. The revised rule will address the scope and extent of the reporting obligations, and the questions raised by the recent litigation. Until these questions are resolved, the OLMS will accept either the old Form LM-30 or the new one for compliance purposes.

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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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The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. The document, Employer Best Practices for Workers with Caregiving Responsibilities, supplements Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, a guidance document the EEOC released on this topic in 2007. The earlier document specifically examines how federal anti-discrimination laws apply to workers with certain family caregiving obligations. The new guidance provides suggestions for best practices that an employer can proactively adopt to potentially lessen the chances of committing EEO violations against caregiving employees. Suggestions include implementing personal or sick leave policies that allow employees to use leave to care for sick family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

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On April 20, 2009, U.S. Citizenship and Immigration Services (USCIS) provided its second update regarding the H-1B cap count. USCIS has received approximately 44,000 H-1B petitions subject to the regular cap of 65,000. This represents only 1,000 additional filings since April 13th and means that new H-1B petitions may still be filed.  Continue reading at Littler's Global Immigration Counsel blog.

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The Equal Employment Opportunity Commission (EEOC) announced that it will hold a public meeting on Wednesday, April 22 to discuss discrimination against employees with caregiving responsibilities. At this meeting, the agency will release a new document, Employer Best Practices for Workers with Caregiving Responsibilities. This document will supplement formal guidance the EEOC issued on this topic in 2007.

The meeting will be held at the EEOC’s Washington, D.C. headquarters at 131 M Street, N.E. at 10 a.m. (Eastern Time). The scheduled panelists include: Cynthia Calvert, Deputy Director, The Center for WorkLife Law; Karen Minatelli, Director of Work and Family Programs, National Partnership for Women and Families; Heather Boushey, Senior Economist, Center for American Progress; and Jeff Norris, President, Equal Employment Advisory Council.
 

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On April 16, 2009, the U.S. Department of Defense announced that the effective date of the Federal Contractor E-Verify Rule will be delayed until June 30, 2009. To that end, the federal government will include the new E-Verify clause in affected contracts on or after June 30, 2009. The government will also take steps to reach out to affected contractors to bi-laterally modify existing affected contracts on or after that date. Continue reading on Littler's Global Immigration Counsel blog.

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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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The Occupational Safety and Health Administration (OSHA) has released its revised Field Operations Manual (FOM). (pdf)  According to an OSHA news release, this document, formerly known as the Field Inspection Reference Manual, “constitutes OSHA's general enforcement policy and procedures for use by the agency's field offices in conducting inspections, issuing citations and proposing penalties. It is the guiding document for OSHA's compliance officers, whose mission is to assure the safety and health of America's working men and women.”

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Yesterday the immigration community was surprised to learn that while the 20,000 H-1B numbers set aside for the advanced U.S. degree cap were nearly all accounted for, only two-thirds of the 65,000 regular H-1B cap numbers were used up. This means that the U.S. Citizenship and Immigration Services (USCIS) continues to accept applications for initial H-1B status more than a week after the H-1B filing season opened up on April 1st. This is in stark contrast to the 133,000 H-1B petitions received within the first two days of filing last year.  Continue reading on Littler's Global Immigration Counsel blog.

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The Internal Revenue Service (IRS) has issued Notice 2009-27, which provides guidance on the COBRA premium subsidy that was created under the American Recovery and Reinvestment Act of 2009 (ARRA), or stimulus package. ARRA, among other things, includes a provision that authorizes a 65 percent federal subsidy for continuing health care coverage under COBRA for employees who qualify as “assistance eligible.”

The IRS guidance provides 27 pages of detailed questions and answers on issues including who qualifies as an assistance eligible individual, what constitutes an involuntary termination for purposes of the definition of an assistance eligible individual, how to calculate a premium reduction, and which types of coverage are suitable for premium reductions, among other topics.

For more information on the IRS guidance, see Littler’s ASAP: IRS Clarifies Key Provisions of the New COBRA Subsidy by: Nancy L. Ober.

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The Department of Labor (DOL) has posted on its website expanded employer guidance on the premium Consolidated Omnibus Budget Reconciliation Act (COBRA) subsidies provided for by the American Recovery and Reinvestment Act of 2009 (ARRA), or stimulus plan. A significant portion of this Q & A guidance, FAQs For Employers About COBRA Premium Reduction Under ARRA, clarifies the new COBRA notice requirements under ARRA. ARRA requires employers and plan sponsors to notify certain current and former plan participants and their beneficiaries about the reduction in health premium costs. Earlier this month, the DOL posted on its website model notices that an employer can provide to current and former employees to comply with the ARRA notice provisions.

The expanded guidance provides a number of examples to help employers determine who should receive the full version of the general, abbreviated general and alternative notices, and who should receive the notice in connection with extended election periods. Other portions of the Q & A address more general topics concerning the COBRA subsidy, such as which plans are subject to the premium reduction provisions, and who is eligible to receive this benefit.

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The Occupational Safety and Health Administration (OSHA) has published a new guidance document on its respiratory protection standard. The document, Assigned Protection Factors for the Revised Respiratory Protection Standard, (pdf) provides employers with information for selecting respirators for employees exposed to airborne contaminants.

The Respiratory Protection standard applies to general industry, construction, longshoring, shipyard and marine terminal workplaces, and governs fit testing, medical evaluations, specific training and proper respirator use.

OSHA revised its existing Respiratory Protection standard in 2006 to add Assigned Protection Factors (APF) and Maximum Use Concentration (MUC) provisions. The APF is the workplace level of respiratory protection that a respirator or class of respirators is able to provide to workers. Employers use APF numbers to select the appropriate class of respirators to provide the necessary level of protection against airborne contaminants. According to OSHA’s Deputy Assistant Secretary of Labor Donald G. Shalhoub: “proper respirator selection prevents exposure to hazardous contaminants and is an important component of an effective respiratory protection program. . . . This guidance document serves as another useful resource for protecting the health and safety of workers at risk for respiratory illnesses.”
 

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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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