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

The U.S Court of Appeals for the D.C. Circuit recently struck down the National Labor Relations Board’s August 2011 Notice Posting Rule, which would have required employers to conspicuously display a notice informing employees of their rights under the National Labor Relations Act (the “Act”). In National Association of Manufacturers, et al. v. NLRB, the court invalidated the rule because it found all three of the rule’s enforcement mechanisms unlawful. A majority of the court also found that the rule exceeded the Board’s rulemaking authority as delegated by Congress. To learn more about the decision, please continue reading at Littler's Labor Relations Counsel.

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The Occupational Safety and Health Administration (OSHA) has issued an interim final rule and request for comments implementing the whistleblower provisions of the Affordable Care Act (ACA). OSHA enforces the whistleblower provisions in 22 statutes, including § 1558 of the ACA. This ACA provision added § 18C to the Fair Labor Standards Act (FLSA) that expressly prohibits an employer from retaliating against an employee for, among other things, receiving a federal tax credit or subsidy to purchase insurance through the employer or a future health insurance exchange; reporting a potential violation of ACA’s consumer protection provisions, such as the prohibition on denying health coverage to individuals with pre-existing conditions and imposing lifetime limits on coverage; and assisting or participating in a proceeding under this whistleblower law. The interim final rule sets forth the procedures and timeframes for handling retaliation complaints under §18C, including the agency’s investigation, hearing, and appeals procedures.

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By Casey Kurtz & Mark T. Phillis

The Department of Labor has released a final rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The final rule also revises certain existing regulatory provisions, and removes the FMLA optional-use forms from the appendices of the FMLA regulations. The rule will become final 30 days after publication in the Federal Register.

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The Occupational Safety and Health Administration (OSHA) has issued an interim final rule and request for comments on regulations implementing the whistleblower protection provisions set forth in the Seaman’s Protection Act (SPA) as amended by Section 611 of the Coast Guard Authorization Act of 2010. Section 611 gave OSHA the authority to administer the SPA’s whistleblower protections. OSHA enforces the whistleblower provisions in 22 statutes, including the SPA. The whistleblower provisions in the SPA protect a seaman from retaliation because the seaman has “engaged in protected activity pertaining to compliance with maritime safety laws and accompanying regulations.”

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By Philip L. Gordon

At approximately one-half the length of War and Peace, the recently published Omnibus Final Rule, (pdf) which modifies the HIPAA Privacy, Security and Enforcement Rules and implements the HIPAA Breach Notification Rule, can overwhelm in-house employment, benefits, and privacy counsel as well as human resources and benefits professionals trying to discern the Rule’s practical implications for employers who sponsor HIPAA-covered plans, which are “covered entities” under HIPAA. Like most HIPAA-related guidance, the Omnibus Final Rule tends to focus on health care providers, with only a small portion of the ample regulatory commentary aimed at the employer community. Moreover, a detailed reading of the Omnibus Final Rule reveals dozens of technical changes with little or no practical impact on employers and numerous granular modifications that may be relevant to employers, if at all, only with limited frequency. Continue reading this entry at Littler's Workplace Privacy Counsel.

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The Department of Health and Human Services (HHS) on Thursday issued its much-anticipated final omnibus rule (pdf) governing privacy for health information. This extensive rule spanning more than 500 pages comprises four final privacy-related regulations. Among other significant changes, the rule modifies the privacy, security, and enforcement regulations implementing the Health Insurance Portability and Accountability Act (HIPAA) to incorporate amendments made by the Health Information Technology for Economic and Clinical Health (HITECH) Act that provided increased protections for an individual’s health information. The new rule also amends HIPAA to address new privacy protections granted under Title I of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits most health plans from using or disclosing genetic information for underwriting purposes. In addition, the rule modifies the HIPAA Enforcement Rule to include the increased and tiered civil money penalty structure provided by the HITECH Act, and establishes final regulations for the HITECH Act’s Breach Notification for Unsecured Protected Health Information rule.

Littler will be providing an in-depth analysis of the new rule and how it will impact both employer sponsors of group health plans and health care providers.

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On December 21, 2012, federal agencies released their long-awaited unified agendas and regulatory plans for 2012. Agencies ordinarily release unified agendas in the spring and fall of each year. These agendas outline the regulatory actions that the agencies will likely propose or issue in final form during the upcoming fiscal year. With their fall unified agendas, agencies publish their regulatory plans as well, which identify their regulatory priorities and describe the most important significant regulatory actions that they intend to take in the coming months. For 2012, agencies likely held off on releasing details about their regulatory priorities so as not to stir up controversy during an election year. As a result, many of the target dates for rulemaking goals are outdated. The items listed in the 2012 unified agendas and regulatory priorities can, however, be used as indicia of the issues agencies intend to tackle in 2013. The following highlights some of these priorities by agency:

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Federal service contracts and solicitations made on or after January 18, 2013 will need to comply with regulations implementing Executive Order (E.O.) 13495, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Obama on January 30, 2009. This E.O. requires that any federal service contracts covered by the Service Contract Act (SCA) above the simplified acquisition threshold (currently $150,000) and solicitations for such contracts include a clause requiring contractors and their subcontractors to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. The right of first refusal clause does not apply to managerial or supervisory employees. Contractors found in violation of the E.O. and its implementing regulations could be barred from future federal contracts for up to three years.

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The National Mediation Board (NMB) has issued its final rule (pdf) implementing the changes to NMB procedures regarding run-off elections, “showing of interest” thresholds for representation elections, and the agency’s rulemaking authority that were included in the FAA Modernization and Reform Act of 2012 (FAA Act), signed into law on February 14, 2012. Notably, the FAA Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures.

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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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On December 3, 2012, the U.S. Department of Transportation's (DOT) Office of Drug and Alcohol Policy Compliance issued a Notice to address the recent passage of state initiatives purporting to legalize marijuana use for recreational purposes. The Notice states that DOT “want[ed] to make it perfectly clear that the state initiatives will have no bearing on the [DOT’s] regulated drug testing program . . . [which] does not authorize the use of Schedule I drugs, including marijuana, for any reason." Continue reading about the Notice at Littler’s Workplace Privacy Counsel.

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Now that the election-generated dust has settled, employers are left wondering how the results will impact their operations in the coming four years. In many respects, not much has changed as result of the 2012 elections. The House of Representatives is still controlled by Republicans, and the Senate by Democrats, albeit by a slightly larger margin. Federal agencies will continue to pursue their agendas with their current political appointees. While a more detailed analysis of the election’s implications can be found here, the following is a brief overview of what employers can expect on the legislative/regulatory front.

Legislation

Given that it was an election year and Republicans held a majority in the House of Representatives, few labor- and employment-related bills were enacted this year, and none that were ground-breaking. Although union and employee-friendly bills could advance during the next legislative term, they will still face expected opposition in the House. Measures that stalled in the 112th Congress such as the Employment Nondiscrimination Act (ENDA), Paycheck Fairness Act, Protecting Older Workers Against Discrimination Act (POWADA), and the Robert C. Byrd Mine and Workplace Safety and Health Act will likely remain stalled in the next session. Still, unless Democrats are able to regain a significant number of seats in the House of Representatives during the 2014 midterm elections, few significant labor and employment bills are expected to be enacted during this time. There has been some speculation, however, that comprehensive immigration reform could be the President’s next legislative priority.

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Another Department of Transportation (DOT) hours-of-service (HOS) regulation is under consideration, according to an announcement (pdf) to be published in the Oct. 18, 2012 edition of the Federal Register. Specifically, the DOT’s Federal Motor Carrier Safety Administration (FMCSA) is eyeing changes to current HOS requirements governing drivers of passenger-carrying commercial motor vehicles (“motorcoaches”) in order to reduce the number of fatigue-related crashes. In December 2011, the DOT and FMCSA issued final rules establishing rest periods and work hours for commercial passenger airline pilots and commercial truck drivers, respectively.

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By Sean Brown

On July 30, 2012, the U.S. Department of Labor (DOL) issued Field Assistance Bulletin (FAB) 2012-02R, which contains several revised FAQs providing guidance on issues related to final regulations for participant-level retirement plan fee disclosure, superseding an earlier set of FAQs released in FAB 2012-02 on May 7, 2012.

The original FAB provided that investment alternatives available through a brokerage window, self-directed brokerage account, or similar arrangement could be designated investment alternatives for purposes of the participant-level fee disclosure rules if a significant number of participants invested in the alternative. This would have required plans to monitor the investment selections of each individual participating in the brokerage window to determine whether the selections met the significant number threshold. Continue reading this entry at Littler's Employee Benefits Counsel.

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After fixing a typographical error in the bill, on Thursday the House of Representatives voted 245-172 in favor of a bill that would prevent agencies from taking any significant regulatory action until the unemployment rate is 6% or lower. The bill had incorrectly referred to “employment” rather than “unemployment” rate. The Regulatory Freeze for Jobs Act of 2012 (H.R. 4078) defines “regulatory action” as “any substantive action by an agency that promulgates or is expected to lead to the promulgation of a final rule or regulation, including a notice of inquiry, an advance notice of proposed rulemaking, and a notice of proposed rulemaking.” A regulatory action deemed “significant” under the bill is one:

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The Occupational Safety and Health Administration (OSHA) has issued a final rule (pdf) implementing the whistleblower provisions of the Surface Transportation Assistance Act (STAA). OSHA is charged with enforcing the whistleblower provisions in 21 separate statutes, including §31105 of the STAA, which, among other things, makes it unlawful to discharge or otherwise discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because that employee has filed (or is believed to have filed or is about to file) a complaint regarding a violation of commercial motor vehicle (CMV) safety or security laws or regulations; refuses to operate a vehicle in violation of regulations, standards, or orders related to commercial motor vehicle security; refuses to operate a vehicle because he or she has a reasonable apprehension of serious injury to himself or herself or the public due to the vehicle’s hazardous security condition; accurately reports hours of duty; cooperates with federal or local investigators regarding CMV safety or security; or provides information to federal or local regulatory or law enforcement agency about any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with CMV transportation.

The final rule incorporates the amendments made to the STAA by the 9/11 Commission Act of 2007 (9/11 Commission Act), which strengthened the STAA’s whistleblower provisions. The rule also finalizes changes to the procedures for handling whistleblower complaints under the STAA to make them more consistent with other OSHA whistleblower regulations.

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The Occupational Safety and Health Administration (OSHA) has issued a final rule implementing the whistleblower provisions of the Consumer Product Safety Improvement Act of 2008 (CPSIA).  OSHA is charged with enforcing the whistleblower provisions in 21 separate statutes, including Section 219 of the CPSIA. Section 219 of this statute prevents manufacturers, private labelers, distributors, and retailers from firing or otherwise discriminating against an employee who provides information to the employer or federal or state government official relating the employer’s violation (or perceived violation) of the CPSIA or related regulations or standards. The employee is also afforded such protections if he or she testifies in a proceeding regarding the violation, assists in such a proceeding, or objects or refuses to participate in an activity that he or she reasonably believes would violate the CPSIA.

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The Securities and Exchange Commission (SEC) has adopted a final rule (pdf) implementing Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”), (pdf) which directs national securities exchanges/associations (e.g., NYSE, NASDAQ) to establish listing standards for public company boards of directors and compensation advisers. In general, these standards will require that compensation committee participants be members of the board of directors and meet a heightened standard of independence in order for the company’s shares to continue trading on those exchanges. The rule also amends proxy disclosure rules to include disclosures about the use of compensation consultants – including fees paid to such consultants – and conflicts of interest.

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The Occupational Safety and Health Administration (OSHA) has issued a direct final rule and request for comments (pdf) on the agency’s update of its Personal Protective Equipment (PPE) standards related to head protection. Specifically, OSHA is issuing the direct final rule to revise the PPE head protection requirements of its general industry, shipyard employment, longshoring, and marine terminals standards to conform those standards to the requirements recognized in the 2009 edition of the American National Standard for Industrial Head Protection. The rule also updates the PPE head protection requirements for the construction industry “to bring the construction standard up to date and to ensure consistency across OSHA standards.” The agency is simultaneously issuing a substantively identical proposed rule. (pdf) In the event the agency does not receive any significant adverse comments on this proposal or the direct final rule, it will publish a Federal Register notice confirming the effective date of the direct final rule and withdrawing this companion proposed rule.

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By Ilyse Schuman and Peter Petesch

On Tuesday, the National Mediation Board (NMB) held a public hearing to discuss the agency’s proposed rule that would implement the changes to existing representation dispute and election procedures in the railroad and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Issued on May 15, 2012, the proposed rule would amend NMB regulations regarding run-off elections, showing of interest thresholds for representation elections, and the NMB’s rulemaking proceedings to reflect the changes the FAA Act made to the Railway Labor Act (RLA).

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The Department of Labor (DOL) has released an updated Retrospective Review Progress Report (pdf) that includes revised target completion dates for certain agency rulemaking efforts. The report was created in response to Executive Order (E.O.) 13563 – Improving Regulation and Regulatory Review – which aims to improve regulation and regulatory review of rules that could potentially hinder job growth and creation. Issued in January 2011, E.O. 13563 directs agencies to, among other things, “periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed.” Last month, President Obama issued E.O. 13610 – Identifying and Reducing Regulatory Burdens – that builds upon the prior E.O. by focusing on ways to reduce the costs and obligations of federal regulation. 

Among other proposals, the DOL is considering the following rulemaking activities:

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The National Mediation Board (NMB) has announced that it will hold at least one day of public hearings to discuss the agency’s proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Issued on May 15, 2012, the proposed rule would amend NMB regulations regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to reflect the changes the FAA Act made to the Railway Labor Act (RLA).

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By Stefan Marculewicz

In light of yesterday’s federal court decision finding that the NLRB lacked a quorum necessary to issue the controversial new representation election rule, the Board has decided to suspend the rule’s implementation. The Board’s Acting General Counsel has similarly withdrawn guidance released last month governing the representation case procedure changes, which had taken effect on April 30, 2012.

According to the NLRB’s announcement, an estimated 150 election petitions have already been filed under the new procedures. The announcement states that “Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.”

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The National Mediation Board (NMB) has issued a proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Signed into law on February 14, 2012, the FAA Act included significant restrictions over airline and railway union organizing. Specifically, the Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures. To this end, the proposed rule published in the May 15, 2012 edition of the Federal Register would make changes to existing NMB rules regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to conform to the FAA Act provisions. Continue reading this entry at Littler's Labor Relations Counsel.

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In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. Continue reading this entry at Littler's Labor Relations Counsel. 

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On May 10, 2012, President Obama issued a new Executive Order (E.O.) – Identifying and Reducing Regulatory Burdens – that aims to reduce the costs and obligations of federal regulation. E.O. 13610 builds upon E.O. 13563 – Improving Regulation and Regulatory Review -- issued in January 2011. Among other things, the earlier E.O. requires agencies to establish retrospective review plans to determine whether previously-issued rules should be “modified, streamlined, expanded, or repealed.” The goals of the latest E.O. are “to promote public participation in retrospective review, to modernize our regulatory system, and to institutionalize regular assessment of significant regulations.”

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The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a proposed rule that would amend the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 13495, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Obama on January 30, 2009. Generally, this E.O. requires that any federal service contracts covered by the Service Contract Act (SCA) above the simplified acquisition threshold (currently $150,000) and solicitations for such contracts include a clause requiring contractors and their subcontractors – with certain listed exclusions – to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. In August 2011, the Department of Labor issued final regulations outlining the applicable sanctions and remedies in the event a contractor is found in violation of this E.O. The new proposed rule published in the May 3, 2012 edition of the Federal Register would add subpart 22.12 and a new clause to the FAR to incorporate the language and intent of EO 13495 and the DOL’s implementing regulations. The proposal does not, however, address the investigative methods, available reviews, or enforcement mechanisms established by the DOL regulations “except as necessary to ensure that contracting officers and contractors, including subcontractors, are aware of their requirements and responsibilities.”

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

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

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

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

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

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

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

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The Equal Employment Opportunity Commission (EEOC) has released its final rule (pdf) amending its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases. The changes were spurred by the 2005 U.S. Supreme Court decision Smith v. City of Jackson, in which the Court held that disparate impact claims are cognizable under the ADEA and that an employer could use RFOA as a defense against such a claim. Three years later in Meacham v. Knolls Atomic Power Lab the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case. The final rule seeks to clarify the scope of the RFOA defense in this context.

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The same day the House Judiciary Committee approved a measure that would place a moratorium on significant regulatory actions until the unemployment rate drops to 6 percent, an official with the Office of Management and Budget (OMB) issued a new directive to federal agencies to take steps to ensure their rules are not unduly burdensome for employers.

On March 20 the House committee voted 15-13 along party lines in favor of the Regulatory Freeze for Jobs Act of 2012 (H.R. 4078), a bill that would prohibit federal agencies from undertaking any significant regulatory action until the unemployment rate is equal to or less than 6 percent. The bill defines “significant regulatory action” as any regulatory action that is likely to result in a rule or guidance that may:

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A number of lawmakers at Wednesday’s hearing on the Department of Labor’s budget request for Fiscal Year 2013 conducted by the House Committee on Education and the Workforce raised concerns with the DOL’s proposed budget agenda. Last week, the Senate Appropriations Subcommittee held a similar hearing. Once again Labor Secretary Hilda Solis responded to questions about how the agency would spend the $12 billion in discretionary funds that the President’s 2013 proposed budget allocates to the DOL. House members asked Solis, among other topics, about the Employee Benefits Security Administration’s (EBSA) proposal to amend the definition of “fiduciary”; the Occupational Safety and Health Administration’s (OSHA) recently-issued final and proposed regulations; and the Wage and Hour Division’s (WHD) proposal to extend Fair Labor Standards Act (FLSA) protections to home care workers.

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On Tuesday members of the House Committee on Education and the Workforce’s Subcommittee on Workforce Protections heard competing testimony about the merits of the Department of Labor’s proposed rule that would extend minimum wage and overtime requirements to many home care workers. This proposal would amend the Fair Labor Standards Act’s (FLSA) companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to care givers employed by the individual, family or household using the services only. While proponents of the rule discussed the need to update the Wage and Hour Division (WHD) regulations to address the needs of this changing industry sector, others criticized the impact the rule would have on the quality and availability of elder home care, challenged the legality of changing the FLSA’s exemption, and questioned the thoroughness of the WHD’s economic analysis of the potential costs involved.

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The Occupational Safety and Health Administration (OSHA) has issued its much-anticipated final rule (pdf) revising the agency’s Hazard Communication Standard (HCS) to better align it with the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals. Although the genesis of the revision was to harmonize the HCS with the United Nations’ system, the final rule makes additional significant changes to current requirements. Notably, OSHA creates a new category for so-called “hazards not otherwise classified.” Among other significant changes, the revised rule amends the criteria for classification of chemicals according to their health and physical hazards; revises labeling requirements, establishes a specific format for safety data sheets; and makes related revisions to definitions of terms used in the standard and employee safety training requirements.

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On Wednesday the Senate Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies conducted a hearing to discuss the Department of Labor’s fiscal year 2013 budget request. The $3.8 trillion proposed budget would distribute $12 billion in discretionary funds to the DOL, an amount slightly below last year’s funding level. The proposal would, however, provide additional funds to various DOL sub-agencies to boost a number of DOL programs, including $14 million to the Wage and Hour Division (WHD) to combat worker misclassification; $6.4 million to the WHD to bolster its enforcement of the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), particularly in the area of overtime violations; and an additional $5 million to the Occupational Safety and Health Administration (OSHA) for enforcement of the 21 whistleblower statutes over which OSHA has jurisdiction.

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According to a recently-released Field Assistance Bulletin, the Department of Labor’s Wage and Hour Division (WHD) has advised its staff to uniformly enforce a rule that became effective on May 5, 2011 governing ownership of employee tips under the Fair Labor Standards Act (FLSA).  In many states employers are permitted to take a “tip credit,” or pay employees less than the minimum wage so long as the employees receive sufficient tip income to make up the difference. The new WHD tip rule stipulates, among other things, that tips are the property of the employee regardless of whether the employer has taken a tip credit under section 3(m) of the FLSA, (pdf) and that an employer is prohibited from using an employee’s tips for any reason other than as a tip credit or in furtherance of a legitimate tip pool. The bulletin sent to WHD regional administrators and district directors emphasizes that this rule will be enforced in all states, even the nine states under the jurisdiction of the Ninth Circuit.

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

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

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

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

The final rule becomes effective on April 3, 2012.

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

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

Military Service Member Exigency and Caregiver Leave

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

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

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

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

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

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

Photo credit:  evirgen

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

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Anticipating the loss of a quorum next week, the National Labor Relations Board has issued a final rule (pdf) revising its representation case certification process. Specifically, the Board is amending its rule requiring the automatic impoundment of representation election ballots when a party files a request for review.  Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit:  istockphoto

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A day after the Department of Transportation issued final flight duty and rest requirements for commercial passenger airline pilots, the DOT’s Federal Motor Carrier Safety Administration (FMCSA) on December 22 released a final rule (pdf) establishing new hours of service (HOS) regulations for commercial truck drivers. Like the pilot rest rule, the truck driver HOS regulations were revised to combat fatigue-related accidents. The main changes to the HOS requirements are as follows:

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On December 21 the Federal Aviation Administration (FAA) issued its long-awaited final rule (pdf) governing rest periods and work hours for commercial airline pilots. In sum, the rule mandates that pilots work fewer hours and be provided with longer rest breaks between flights. Commercial passenger airline operators will have two years to make potentially significant changes to their pilots’ work schedules. The rule does not apply to cargo-only flights.

The impetus for this rule was the February 2009 fatigue-related crash of Colgan Air 3407 in Buffalo, New York. In response, Congress included provisions in the Airline Safety and Federal Aviation Administration Extension Act of 2010 that directed the FAA to establish regulations to address pilot fatigue. To that end, the FAA’s rule requires the following, as outlined in an FAA fact sheet:

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The same day the National Labor Relations Board (NLRB) released its final rule that radically alters union representation election procedures, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, announced his intention to challenge the rule under the Congressional Review Act (CRA). Pursuant to this law, the House or Senate can introduce a joint resolution of disapproval to prevent an agency from enforcing a rule.

According to Enzi:

The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law. I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. It is disappointing that union advocates believe their best chance to succeed, when it comes to union elections, is to ensure that only one side of the story is able to get out. Instead of using backdoor political maneuvers to boost anemic union memberships and smother our nation’s struggling economy, this Administration should help America regain its strong financial footing.

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During oral argument in a lawsuit challenging the National Labor Relations Board’s notice posting rule, presiding judge Amy Berman Jackson of the U.S. District Court for the D.C. Circuit suggested that the agency postpone the rule’s January 31, 2012 implementation date. The rule at issue – Notification of Employee Rights under the National Labor Relations Act – mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance.  Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit: dra_schwartz

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Both the House and Senate have passed a massive fiscal year 2012 appropriations package (pdf) that would allocate $14.5 billion for the Department of Labor and $278 million for the National Labor Relations Board, but includes a number of restrictions on this funding. The appropriations package is comprised of three separate bills, one of which is a consolidated measure that provides funding for a number of federal agencies, including the DOL and NLRB, for FY 2012.

Under the terms of the appropriations package, the DOL would receive $145.4 million more in FY 2012 than it received in 2011, although the boost in funding was largely due to a provision that fully funds Job Corps in the current fiscal year. According to a detailed summary (pdf) of the bill, without this provision, the DOL is actually receiving $545.6 million less than it received last year, and $942.2 million below the President’s funding request. The NLRB would receive $4 million less than it received last year, and an amount $8.9 million below the President’s budget request.

The funds come with strings attached. Essentially, the measure would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas. Specifically, provisions in the bill would accomplish the following:

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On December 15, 2011, the Department of Labor’s Wage and Hour Division (WHD) issued its much-anticipated proposed rule (pdf) that could make more than a million domestic caregivers eligible to receive minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). According to the WHD, the home healthcare industry has changed since the FLSA regulations governing home care employees were enacted more than 35 years ago. To that end, the proposal seeks to revise the FLSA’s companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to care givers employed by the individual, family or household using the services only. Third-party employers, including in-home staffing agencies, would not be entitled to claim the exemption even if the worker is jointly employed by the third party and the family/household.

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Multiple Employer Welfare Arrangements (MEWAs) are typically utilized by smaller employers as an alternative to other traditional forms of health insurance. In 2010, the Affordable Care Act amended ERISA to address certain perceived regulatory issues with respect to MEWAs. On Monday, December 5, 2011, the Department of Labor published proposed rules and regulations that clarify these changes to ERISA. The changes concern (1) the Secretary of Labor’s ability to issue “cease and desist” and “summary seizure” orders, and (2) the reporting and disclosure requirements for MEWAs.

Employers participating in MEWAs may wish to provide comments to the Department of Labor, as they may be impacted by these regulatory changes.  Continue reading this entry at Littler's Employee Benefits Counsel.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued its long-awaited proposed rule (pdf) amending the nondiscrimination and affirmative action requirements regarding individuals with disabilities for federal contractors and subcontractors. Specifically, the rule revises the regulations that implement Section 503 of the Rehabilitation Act of 1973, as amended. Section 503 requires most federal contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities, and prohibits discrimination against them. According to the notice to be published in the December 9 edition of the Federal Register, the proposed regulations would strengthen these affirmative action requirements, describe the specific actions a contractor must take to satisfy its obligations, increase the contractor’s data collection obligations, and establish specific utilization benchmarks to help measure the effectiveness of the contractor’s affirmative action efforts. In addition, the proposal revises the nondiscrimination provisions to conform to changes made by the ADA Amendments Act (ADAAA) of 2008.

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On December 7 the House of Representatives passed the latest bill targeting regulations that have significant adverse economic impacts on businesses. Approved by a 241-184 vote, the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2011 (H.R. 10) would require congressional approval of any major rulemaking effort, defined in the bill as a rule or interim final rule that has or will likely result in an annual economic impact of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or U.S. competitiveness. Under current law, a rule will automatically take and remain in effect unless Congress passes and the President signs a joint resolution disapproving the rule.

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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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The Department of Agriculture’s Office of Procurement and Property Management has issued a direct final rule that would require its contractors to attest that they and their subcontractors, to the best of their knowledge, are in compliance with all applicable labor laws, and report any violations to their contracting officer. Specifically, the rule would add a subpart and clause entitled “Labor Law Violations” to the Agriculture Acquisition Regulation (AGAR) providing the language that must be included in all UDSA solicitations and contracts exceeding the simplified acquisition threshold (currently $150,000). If adopted, the provision would read as follows:

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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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The Department of Transportation has issued a final rule banning the use of hand-held cell phones by interstate truck and bus drivers while the vehicles are in operation in order to combat distracted driving. The rule emphasizes that the prohibition applies to hand-held devices only. Hands-free devices and mobile phones with a speaker phone option and one-touch dialing are permissible so long the device is within the driver’s reach while he or she is in the normal seated position with the seat belt fastened. The rule does, however, prohibit the push-to-talk function of a mobile telephone, as this would require the driver to hold the device while driving.

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The National Labor Relations Board has announced that on November 30, 2011, it will vote on a portion of its controversial proposed rule that would dramatically change representation election proceedings. Among other significant revisions to the long-standing election process, the rule would require that pre-election hearings be held within seven calendar days after a petition is filed; postpone voter eligibility determinations until after the election; require employers to complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union with a preliminary voter list before the pre-election hearing. The Board stated that at the November 30 meeting the three remaining members will decide whether to adopt “a small number” of these proposed changes, although which ones were not specified.  Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit: ericsphotography

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During a public meeting held on November 16, the Equal Employment Opportunity Commission (EEOC) voted 3-2 in favor of a draft final rule defining the parameters of the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The rule will now be sent to the Office of Management and Budget (OMB) for review, and upon approval, published in the Federal Register as a final rule. Following the vote, the Commission held a panel discussion on hiring obstacles that face disabled veterans.

EEOC Rule

The need to clarify the scope of this RFOA defense was brought about by two U.S. Supreme Court cases that addressed an employer’s defense against claims that a facially neutral employment policy or practice has a disparate impact on older workers.

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The Equal Employment Opportunity Commission (EEOC) will hold a public meeting next week to consider draft final regulations on disparate impact and reasonable factors other than age (RFOA) under the Age Discrimination in Employment Act (ADEA), and employment barriers that face disabled veterans. The meeting will take place next Wednesday, November 16, 2011, at 8:30 a.m. ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507.

According to the agency’s semiannual regulatory agenda, the EEOC intended to issue a final rule clarifying the meaning of the RFOA defense used against an ADEA claim and the disparate impact burden of proof under the ADEA by October 2011. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims are cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed to address the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC issued a new NPRM in February 2010 to address the scope of the RFOA defense. It is unclear whether the agency plans to vote on and issue the final rule to coincide with the meeting, or whether the hearing will focus on a draft version.

Another listed topic for discussion is “overcoming barriers to the employment of veterans with disabilities.” Although a detailed meeting agenda is not yet available, this portion of the event will likely involve a panel discussion.

As seating for the meeting is limited, the agency suggests arriving at least 30 minutes in advance.

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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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The Occupational Safety and Health Administration (OSHA) has issued interim final regulations (pdf) governing its procedures for processing retaliation/whistleblower complaints under the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley” or “SOX”). The SOX whistleblower provisions were amended by Sections 922 and 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, enacted on July 21, 2010.

Notably, Section 922(a) of Dodd-Frank amended the Securities Exchange Act to establish a new securities whistleblower incentive and protection program. The SEC has already issued final regulations governing this program. Section 922(a) of Dodd-Frank added various protections for whistleblowers, including a prohibition on discharging, demoting, suspending, threatening, harassing (directly or indirectly) or otherwise discriminating against an employee for providing information to the SEC or assisting in an investigation or judicial or administrative action relating to the information provided. Section 922(c) of Dodd-Frank extended the statutory filing period for retaliation complaints under Sarbanes-Oxley from 90 to 180 days. If a final decision is not issued within that time period, and the delay is not due to the complainant’s bad faith, he or she is entitled to bring an action against his or her employer in federal court. The regulations have been changed to reflect the Dodd-Frank revisions affording parties the right to a jury trial. This section of Dodd-Frank also prohibits the waiver of such claims by pre-dispute arbitration agreements. Section 929A expressly states that the whistleblower protection provisions in Sarbanes-Oxley apply to employees of subsidiaries and affiliates of publicly-traded companies whose financial information is included in the consolidated financial statements of such companies.

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The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities. Continue reading this entry at Littler's Labor Relations Counsel.

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The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule (pdf) adopting regulations that implement Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf)  Among other requirements, this E.O. mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice "in all places where notices to employees are customarily posted both physically and electronically," informing them of their rights under the National Labor Relations Act (NLRA). Covered contractors are also required to include a similar provision in subcontracts that are necessary to the performance of the government contract and in an amount in excess of $10,000. This notification rule should not be confused with the National Labor Relations Board’s final rule – Notification of Employee Rights under the National Labor Relations Act – that requires private sector employers subject to the NLRA to post a notice informing employees of their rights under the NLRA.

The final rule to be published in the November 2, 2011 edition of the Federal Register adopts without change interim regulations amending the Federal Acquisition Regulation (FAR) to apply the Department of Labor’s rule on this topic. The DOL’s rule, which was released in May 2010, prescribed the requirements for the size, form, and content of the notice, outlined the exceptions for certain types of contracts, and discussed the standards and procedures related to complaints, penalties, compliance evaluations and enforcement of the notice requirement. In June 2010, the Office of Federal Contract Compliance Programs (OFCCP) issued a directive on its procedures for conducting audits to verify that contractors are complying with the E.O.

For more information on the contractor notification requirements mandated by E.O. 13496, see Littler's ASAP: DOL Issues Final Rule on Notification by Federal Contractors of Employee Labor Law Rights.

Photo credit: blackred

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By Steve Friedman and Sean Brown

The Department of Labor’s Employee Benefits Security Administration (“EBSA”) recently issued final investment advice regulations (pdf) that are intended to make fiduciary investment advice more accessible for Americans who participate in 401(k)s and/or individual retirement arrangements (IRAs). When it comes to employer-sponsored plans, this new rule provides employers with the option of providing plan participants with access to investment advisors who may be current purveyors of the employer plan’s investment options.

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By Adam J. Peters

The Department of Labor’s Employee Benefits Security Administration (EBSA) issued a final rule on October 27, 2011, governing the process for filing requests for administrative exemptions from the prohibited transaction provisions under the Employee Retirement Income Security Act (ERISA). ERISA’s design includes numerous safeguards to prevent employee benefit plan fiduciaries from self-dealing or otherwise threatening the integrity of such plans. Specifically, ERISA Section 406 generally prohibits the fiduciary of an ERISA-covered benefit plan from engaging in any transaction that involves the exchange of property, goods, services, or credit between the plan and a “party in interest.” ERISA Section 408(a), however, authorizes the DOL to grant administrative exemptions for “any fiduciary or transaction, or class of fiduciaries or transactions.” Employers who are interested in applying for such exemptions will welcome new procedures designed to streamline and clarify the process. 

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On Wednesday, the House Committee on Education and the Workforce voted 23-16 along party lines to send the Workforce Democracy and Fairness Act (H.R. 3094) (pdf) to the House floor. The vote followed a lengthy markup session of the legislation that would, among other changes, effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the National Labor Relations Board from pursuing its proposed changes to representation election procedures. According to the Committee’s media advisory, this bill “restores successful labor practices and reaffirms protections workers and employers have received for decades” and “ensures employers have access to a fair election hearing and employees are able to make a fully informed decision about union representation.” Earlier this month, the Committee held a more formal hearing with invited panelists to debate the bill’s merits.

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During a hearing conducted by the House Committee on Education and the Workforce, labor experts and lawmakers debated the merits of the recently-introduced Workforce Democracy and Fairness Act (H.R. 3094), legislation that would restore the criteria used to determine an appropriate bargaining unit and prevent the National Labor Relations Board from pursuing its proposed changes to the representation election process.

Opening the hearing, Committee Chairman John Kline (R-MN) claimed that the NLRB is “wreaking havoc on the nation’s workforce and must be stopped.” Kline first criticized the Board’s “ambush elections proposal” that would require that pre-election hearings be held within seven calendar days after a petition is filed; provide employees with as few as 10 days to make a decision regarding whether they want to join a union; postpone the resolution of voter eligibility issues until after the election; mandate that employers complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union a preliminary voter list before the pre-election hearing, and a final voter list within two days after the election is scheduled, among other significant changes. According to Kline, such “expansive changes” should be vetted legislatively. To that end, Kline introduced the Workforce Democracy and Fairness Act, claiming it would “require the NLRB to change course.” This measure would provide employers with at least 14 days to prepare for an election hearing and afford workers at least 35 days to make an informed decision regarding union representation. The bill would also “safeguard privacy” by limiting what identification and contact information an employer must provide to unions prior to an election.

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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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Lawmakers are taking another approach in an attempt to curb recent agency decisions and rulemaking considered unduly burdensome for businesses. On Thursday, Rep. Dennis Rehberg (R-MT) introduced (H.R. 3070), a bill that would appropriate funds for the Departments of Labor (DOL), National Labor Relations Board (NLRB), and other related agencies for fiscal year 2012. This nearly 150-page bill contains many provisions that not only reduce the amount these agencies would receive in comparison to prior years, but also would place a number of conditions on the receipt of such funds. In essence, the legislation would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas.

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The Occupational Safety and Health Administration (OSHA) has agreed to reopen the comment period to allow for further input on its proposed changes to certain recordkeeping and reporting requirements. In June, the agency proposed to revise the current rule, which requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees. The proposed rule would require an employer to report to OSHA, within eight hours, all work-related fatalities and all work related in-patient hospitalizations; and within 24 hours, all work-related amputations. The proposal would also amend Appendix A to Subpart B of the agency’s Injury and Illness Recording and Reporting regulation by updating the list of low-risk industries that are partially exempt from the rule’s requirements. Industries considered “low risk” are those with an average Days Away, Restricted, or Transferred (DART) rate at or below 75 percent of the national average DART rate. The proposed rule seeks to amend the list of low-risk industries listed in Appendix A by replacing the current list with one based on the updated North American Industry Classification System (NAICS) data, which relies on DART rates based on recent information compiled by the Bureau of Labor Statistics (BLS).

The initial comment period closed on September 20, 2011. In response to a request by the National Automobile Dealers Association, the agency will reopen this proposal for additional comment until October 20, 2011. All comments must include the docket number: OSHA-2010-0019 or the regulatory information number (RIN) 1218-AC50. Comments may be submitted electronically through the federal eRulemaking portal, or via fax if fewer than 10 pages to: (202) 693-1648. Alternatively, comments may be sent by mail or hand-delivery to: OSHA Docket Office, Docket Number OSHA-2010-0019, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.

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During a hearing conducted by the House Committee on Education and the Workforce to address perceived union favoritism by the National Labor Relations Board, a number of witnesses and members of Congress primarily criticized the Board’s recent decisions and regulatory activity. Lawmakers focused their inquiries on the Board’s decision in Specialty Healthcare, in which the Board adopted a new standard for determining appropriate bargaining units, the agency’s proposed expedited election rule, and its final Notification of Employee Rights Under the National Labor Relations Act posting rule. According to Committee Chairman Rep. John Kline (R-MN), the current labor Board “is especially active,” and it is incumbent upon Congress to provide the Board with continued checks and legislative oversight.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has decided to re-propose a rule that would more broadly define who constitutes a “fiduciary” for the purposes of rendering investment advice under the Employee Retirement Income Security Act (ERISA). The initial proposed rule released in October 2010 has generated a substantial amount of controversy regarding its potential impact on the relationship between retirement savers and plan sponsors. In an attempt to explain the proposal, the EBSA conducted a series of public meetings and issued fact sheets on the proposed changes. After these actions failed to stem criticism of the proposal, lawmakers held a hearing in July 2011 to discuss its implications. During that hearing, witnesses criticized the agency for failing to properly consider the possible costs and fees associated with the rule and its potential impact on the IRA market, while others claimed that the rule would increase risks associated with providing advice. Still others raised the possibility that long-standing business practices in the financial services industry would suddenly be considered prohibited transactions under the rule, and that the DOL’s exemptions approach to address this problem is insufficient. A number of hearing panelists urged the EBSA to re-propose the rule.

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The National Labor Relations Board has made available for download a copy of the Employee Rights poster required under the Board’s new rule: Notification of Employee Rights under the National Labor Relations Act. This final rule, issued on August 25, 2011 and effective November 14, 2011, mandates that 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. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The agency has also posted to its website a list of Frequently Asked Questions regarding the notification requirement.  Continue reading this entry at Littler's Labor Relations Counsel.

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The new Commodity Futures Trading Commission (CFTC) rule implementing whistleblower and bounty hunter provisions established under the Dodd-Frank Wall Street Reform and Consumer Protection Act is scheduled to take effect on October 24, 2011. Section 748 of the 2010 Dodd-Frank Act amends the Commodity Exchange Act (CEA) by, among other things, creating a “Commodity Whistleblower Incentives and Protection” program that rewards whistleblowers who contribute original information that leads the agency to recover monetary sanctions of $1,000,000 or more with 10-30% of any amount recovered. The provisions also prohibit employers from discharging, demoting, suspending, threatening, harassing (directly or indirectly) or otherwise discriminating against an employee for: (1) providing information to CFTC in accordance with the commodity whistleblower incentive program; or (2) assisting in an investigation or judicial or administrative action relating to the information provided. The Dodd-Frank Act creates a similar program under the Securities and Exchange Act.

The final rule has garnered significant criticism from business advocates for its failure to require employees to first avail themselves of their organization’s internal reporting process. Instead, the rule states that the CFTC would factor into the consideration of any award amount whether the employee first reported potential misconduct internally. A bill has been introduced that would require employees to first report potential misconduct through the company’s internal reporting system before being eligible to cash in on the monetary rewards offered under the CFTC and SEC whistleblower bounty programs.

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Updated: October 13, 2011

A week after the National Labor Relations Board issued its final rule requiring all private sector employers subject to the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, Rep. Benjamin Quayle (R-AZ) introduced a bill to repeal it. The Employee Workplace Freedom Act (H.R. 2833) would rescind this rule as well as prohibit the NLRB from promulgating or enforcing “any rule that requires employers to post notices relating to” the NLRA.

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When the House of Representatives returns from its August recess it plans to take up a number of bills designed to repeal various labor- and employment-related regulations and agency actions. According to a memorandum issued by House Majority Leader Eric Cantor (R-VA), their regulatory relief agenda will include repeal of specific regulations, as well as fundamental and structural reform of the rule-making system. One of the first bills the House will consider the week of September 12 is the Protecting Jobs From Government Interference Act (H.R. 2587), legislation that would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer its operations under any circumstance. The House Committee on Education and the Workforce narrowly approved this bill on July 21, 2011.

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On August 25, 2011, the National Labor Relations Board issued a final rule entitled Notification of Employee Rights under the National Labor Relations Act. The rule mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The rule was published in the Federal Register on August 30, 2011 and will be effective 75 days later, on November 14, 2011. For more information on this rule and employer requirements, continue reading Littler’s ASAP: NLRB Issues Final Rule Requiring Employers to Post a Notice Informing Employees of Their Rights Under the NLRA by Gavin Appleby and Tracy Stott Pyles.

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The Department of Labor’s Wage and Hour Division (WHD) has issued its final rule (pdf) implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Obama on January 30, 2009. This Order requires that any federal service contracts covered by the Service Contract Act (SCA) above the simplified acquisition threshold (currently $150,000) and solicitations for such contracts include a clause requiring contractors and their subcontractors to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. The right of first refusal clause does not apply to managerial or supervisory employees. Any new contractor cannot advertise employment openings until the right of first refusal has been exercised by the existing employees. Unlike a similar Executive Order issued by former President Clinton, there are no exemptions for the U.S. Postal Service, NASA, military, and Veterans Administration. Contractors found in violation of the Order and its implementing regulations could be barred from future federal contracts for up to three years. The effective date of this rule will be published in the Federal Register once the Federal Acquisition Regulatory Council (FARC) issues its own regulations on this Executive Order.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued an advance notice of proposed rulemaking (ANPRM) (pdf) to solicit public input on the agency’s development and implementation of a new compensation data collection tool. According to the agency’s summary of this ANPRM, to be published in the August 10, 2011 edition of the Federal Register, “[p]ossible uses for the collected data include generating insight into potential problems of compensation discrimination at the establishment level that warrant further review or evaluation by OFCCP or contractor self-audit.” The agency further states that the data provided could be used “to conduct analyses at the establishment level, as well as to identify and analyze industry trends, Federal contractors’ compensation practices and potential equal employment-related issues.” The agency claims that the tool would likely be used “primarily as a screening tool” that would enable the agency to “effectively and efficiently identify supply and service contractors whose compensation data indicates that further investigation is necessary” as well as be used to “identify contractors for compensation focused reviews as well as full compliance reviews.”

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On August 4, 2011, the Commodity Futures Trading Commission (CFTC) approved its Final Rule implementing the whistleblower and bounty hunter provisions applicable to the Commodity Exchange Act (CEA) under Section 748 the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). The Final Rule establishes a “Commodity Whistleblower Incentives and Protection” program nearly identical to the whistleblower incentive and protection program created under Section 922 of the Dodd-Frank Act, which provides financial incentives for employees to report violations of federal securities laws.

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The House Subcommittee on Health, Employment, Labor, and Pensions conducted a hearing on Tuesday to discuss the Department of Labor’s proposed rule that would redefine who constitutes a “fiduciary” under the Employee Retirement Income Security Act (ERISA). By November 2011, the DOL’s Employee Benefits Security Administration (EBSA) plans to issue a final rule that more broadly defines who constitutes a retirement plan fiduciary for the purposes of rendering investment advice under ERISA. The proposed fiduciary rule was issued in October 2010. During a recent web chat to discuss the agency’s regulatory agenda, EBSA Assistant Secretary Phyllis Borzi said that this fiduciary rule:

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As one of the final speakers concluding two days of public meetings to discuss the NLRB’s proposed changes to its election procedures, Littler attorney David Kadela stated that the proposed changes “would unduly and severely cut into the time that employers have to communicate with employees during election campaigns, and establish unnecessary procedural requirements that would stack the deck against and increase the burdens upon employers.” Kadela joined more than 60 other participants in the two-day event, many of whom articulated the same profound faults with the proposed expedited election procedures. Although a number of union supporters were on hand to speak in favor of the proposed rule, members of the business community and their representatives urged the Board to reconsider its proposal, which was even the subject of a recent Congressional hearing. Continue reading this entry at Littler's Labor Relations Counsel.

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During a web chat to discuss the Employee Benefits Security Administration’s (EBSA) extensive regulatory agenda, EBSA Assistant Secretary Phyllis Borzi fielded a number of questions about the agency’s plan to broaden the definition of “fiduciary,” and issue a final rule on fiduciary-level fee disclosures under section 408(b)(2) of ERISA, among other topics.

The first rule – which Borzi said will be published by the end of the year or shortly thereafter – would more broadly define who constitutes a plan “fiduciary” for the purposes of rendering investment advice. According to Borzi:

This initiative is intended to assure retirement security for workers in all jobs regardless of income level by ensuring that financial advisers and similar persons are required to meet ERISA’s standards of fiduciary responsibility when providing investment advice. Taking into account significant changes in both the financial industry and the expectations of plan officials and participants who receive investment advice, the proposed amendments would change a thirty-five year old rule that we believe inappropriately limits the types of investment advice relationships that give rise to fiduciary duties.

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The DOL’s Employee Benefits Security Administration (EBSA) has issued a final rule (pdf) that extends the compliance dates for two of its rules related to retirement plan fee disclosures. Specifically, the final rule pushes back the applicability date of the fiduciary-level fee disclosure rule issued on July 16, 2010 until April 1, 2012. This rule sets forth enhanced disclosures that certain pension plan service providers must give to plan fiduciaries as part of a “reasonable” contract or arrangement for services under section 408(b)(2) of ERISA.

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Much to the frustration of many seeking more information about the Department of Labor’s regulatory agenda during the Wage and Hour Division’s (WHD) online chat held on Wednesday, WHD Deputy Administrator Nancy Leppink provided few concrete answers. Leppink did note that the agency still plans to release its long-awaited Right to Know proposed rule by the end of October 2011. This proposal would expand the recordkeeping regulations under the Fair Labor Standards Act (FLSA) to “increase transparency.” Although several participants sought details about this proposal, including why such a rule is needed in the first place, Leppink responded:

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During a web chat to discuss the Office of Federal Compliance Programs’ (OFCCP) regulatory agenda, OFCCP Director Patricia Shiu touted the agency’s recent accomplishments and fielded a number of questions about various OFCCP regulations and other initiatives. The agency has been considerably more active on the enforcement and regulatory front this year. In fact, Shiu claimed that in comparison to the same time period last year, the agency completed 44 financial conciliation agreements that include $5.66 million in awards and 657 job offers for 8,090 individuals in the first 6 months of Fiscal Year 2011, representing a 25 percent increase in agreements and more than double the amount in monetary awards.

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Deputy Assistant Secretary for the Occupational Safety and Health Administration Jordan Barab was on hand Monday to answer questions online regarding the agency’s regulatory agenda. The Department of Labor recently released its semiannual regulatory agenda, which included a number of significant workplace safety and health initiatives. OSHA’s agenda is an ambitious one, with eight proposals in the preliminary stages, five at the proposed rule level, and 14 regulations at the final stage of development. The agency is in the initial process of developing standards to address such hazards as infectious diseases, combustible dust, bloodborne pathogens, occupational exposure to beryllium, and occupational exposure to food favoring containing diacetyl and diacetyl substitutes. OSHA is also proposing rules that would reinstate the musculoskeletal disorder (MSD) column to the injury and illness reporting log, revise the agency’s injury and illness reporting system, and protect against occupational exposure to crystalline silica, among other measures. Regulations at the final rule stage include those designed to address hazard communication, and procedures to handle whistleblowing and retaliation complaints under various statutes governed by OSHA.

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During a web chat run by the Office of Labor Management Standards (OLMS) to discuss the agency’s regulatory agenda, OLMS Director John Lund fielded several questions – but provided few concrete answers – regarding the OLMS’s proposal to narrow the scope of the “advice” exemption under the Labor-Management Reporting and Disclosure Act (LMRDA). This proposal would also expand what constitutes reportable “persuader activities” under the LMRDA, and subject employers and their advisors – including their attorneys – to new reporting requirements. Currently, employers are required to report information regarding persuader agreements with consultants on the Form LM-10, while consultants are required to report related information on the Form LM-20. Narrowing the “advice” exemption and expanding the definition of “persuader activities” would necessarily expand the reporting required on these forms.  Continue reading this entry at Littler's Labor Relations Counsel.

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According to the Department of Labor’s and Equal Opportunity Commission’s Spring 2011 Semiannual Regulatory Agendas, employers can expect significant new and continued rulemaking activity in the coming months.

Department of Labor

In addition to the labor-management and occupational safety and health regulatory initiatives the Department of Labor plans to undertake over the next 6 to 12 month, the agency’s complete semiannual regulatory agenda indicates that the Employee Benefits Security Administration (EBSA), Wage and Hour Division (WHD), and the Office of Federal Contract Compliance Programs (OFCCP) also plan to issue a number of final and proposed rules over the course of 2011. Some of the highlights of the approximately 80 rules at the pre-, proposed, long-term and final rule stages include the following:

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By Stefan Marculewicz

On Thursday, July 7, 2011, the House Committee on Education and the Workforce held a hearing – Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice – during which the National Labor Relations Board’s proposed changes to pre- and post-representation election case procedures came under fire. Last month, the NLRB issued a proposal that would dramatically change long-standing election procedures. Among other things, the proposed rule would substantially shorten the time between the filing of an election petition and the election itself, limit issues that can be resolved during a pre-election hearing, and give employers as few as five business days to prepare a comprehensive position statement to present to the NLRB. As stated in a committee press release, “taken together, the NLRB’s proposed changes will restrict an employer’s ability to communicate with his or her employees and hinder a worker’s right to make a fully informed decision in a union election.” The Board announced that it would conduct limited public hearings on this issue later this month.  Continue reading this entry at Littler’s Labor Relations Counsel.

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To help the public understand the specifics of Department of Labor’s semiannual regulatory agenda and solicit input on its contents, the agency plans to hold a series of free web chats next week. The following is a schedule of web chats to be conducted by the various DOL subagencies:

Monday, July 11

• Office of Labor-Management Standards: 1 to 2 p.m. EDT
• Occupational Safety and Health Administration: 2:30 to 3:30 p.m. EDT

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According to the Department of Labor’s semiannual regulatory agenda, (pdf) over the next 10 months the agency plans to develop and implement regulations affecting labor-management relations and occupational safety and health. The agenda – which is published twice a year – outlines all of the regulations the agency expects to actively review, develop or promulgate between April 2011 and April 2012. The Department announced that its agencies “have carefully assessed their available resources and what they can accomplish in the next 12 months and have adjusted their agendas accordingly.”

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The Occupational Safety and Health Administration will hold a series of stakeholder meetings on July 29, 2011 to gather information on how best to limit occupational exposure to infectious diseases. According to a notice (pdf) to be published in the Federal Register, the agency is considering the development of a program standard to limit exposure to infectious agents for workers who provide direct patient care or perform tasks other than direct patient care, but are nonetheless exposed to infectious diseases. As discussed in the notice, the latter category might include such tasks as providing patient support services such as housekeeping, food delivery, or facility maintenance; handling, transporting, receiving or processing infectious items or waste; maintaining, servicing or repairing medical equipment that is contaminated with infectious agents; conducting autopsies; performing mortuary services; and performing tasks in laboratories that could result in occupational exposure to diseases.

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The Department of Defense (DoD) will issue a final rule (pdf) that extends the existing restrictions on a contractor’s use of mandatory arbitration agreements in certain instances. Currently, a provision in the DoD and Full-Year Continuing Appropriations Act bans contractors or subcontractors at any tier that receive funds appropriated by the Act for a contract in excess of $1 million from enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” This restriction does not apply to a contractor’s or subcontractor’s agreement with employees or independent contractors that cannot be enforced in the U.S., nor does it apply to the acquisition of commercial items, including commercially available off-the-shelf items. The Secretary of Defense is permitted to waive the applicability of this prohibition to a particular contract or subcontract in the interest of national security.

The final rule extends the arbitration restrictions to large contracts awarded with funds provided under the DoD appropriations act for the year 2011 and subsequent DoD appropriations acts. A final rule implementing these restrictions for funds awarded by the 2010 DoD Appropriations Act was issued in December 2010. The final rule states that: “Since DoD anticipates that this will be an ongoing requirement, this rule applies to use of all subsequent fiscal year funds appropriated or otherwise made available under subsequent DoD appropriations acts.” If the restriction is removed at a future date, DoD notes that it will amend the Defense Federal Acquisition Regulations accordingly.

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The National Labor Relations Board has announced (pdf) that it will hold one or more public meetings to discuss the controversial proposed changes to the Board’s representation election process. According to the notice to be published in the June 27 edition of the Federal Register, the topics of discussion are limited to issues raised by the proposed rule and suggestions for improving the election process. These meetings are in addition to the solicitation of formal written comments as outlined in the Federal Register.  Continue reading this entry at Littler's Labor Relations Counsel. 

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By Jeffrey C. Kauffman

DOL estimates new interpretative standards will triple the number of LM-10 Employer Reports filed annually and predicts a twelve-fold increase in LM-20 Reports required from firms engaged in “persuader activities” as newly defined.

If the DOL proposals take effect, employers (and their advisors, including legal counsel) will have to treat activities that have not been reportable for the past 50 years as now subject to reporting requirements. The ambiguity of the new regulatory standards, coupled with potential criminal sanctions for willful non-reporting, potentially could result in substantial interference with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union campaigns, and have a chilling effect on employer free speech during such campaigns.  Continue reading this entry at Littler's Labor Relations Counsel. 

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The Occupational Safety and Health Administration is proposing to amend certain recordkeeping and reporting requirements by updating the list of low-risk industries that are partially exempt from these requirements, and mandating that employers report all instances of work-related fatalities and in-patient hospitalizations to the agency within eight hours, and amputations within 24 hours.

Appendix A to Subpart B of OSHA’s Injury and Illness Recording and Reporting regulation lists the industries that are partially exempt from maintaining records of occupational injuries and illnesses. Currently, these exempt industries are considered low-risk based on the Standard Industrial Classification (SIC) system. These lower hazard industries are those industries with an average Days Away, Restricted, or Transferred (DART) rate at or below 75 percent of the national average DART rate. As explained in the proposed rule, in 1997 the North American Industry Classification System (NAICS) was introduced to classify establishments by industry. OSHA began converting the SIC codes to NAICS codes in 2001. The proposed rule would update the list of low-risk industries in Appendix A by replacing the current list with one based on the updated NAICS data, which uses DART rates based on recent information compiled by the Bureau of Labor Statistics (BLS).

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By Stefan Marculewicz

In a move decried by the business community and even National Labor Relations Board Member Brian Hayes, the NLRB has issued a proposed rule (pdf) that would dramatically change pre- and post-representation election case procedures. It is predicted that the results of this proposed rulemaking will substantially expedite the election process and thereby deny workers the ability to fully exercise their right to make an informed and well-reasoned decision whether to join or not to join a labor union. In the words of Member Hayes in his strongly-worded dissent, (pdf) the proposed rulemaking “substantially limit[s] the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct.” Summing up his criticisms of the proposed changes, Hayes claims:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation. 

Continue reading this entry at Littler's Labor Relations Counsel. 

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The Equal Employment Opportunity Commission (EEOC) has issued a proposal to extend its recordkeeping requirements under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to employers covered by the employment discrimination provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The EEOC issued final regulations implementing the employment provisions of GINA in November 2010.

The agency’s proposed rule, published in the June 2 edition of the Federal Register, seeks to amend its current Title VII and ADA recordkeeping regulations to add references to GINA. According to the EEOC, the proposal does not request the creation of additional documents nor does it impose any reporting requirements under GINA, “but merely require[s] employers to maintain the records that they do create,” although the agency reserves the right in the future to issue reporting regulations “as may be necessary to accomplish the purposes of GINA.”

Comments on this proposal are due on or before August 1, 2011, and may be submitted through the federal eRulemaking portal, or by mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 6NE03F, Washington, DC 20507. Written comments of six or fewer pages may be faxed to the Executive Secretariat at (202) 663-4114.

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The DOL’s Employee Benefits Security Administration (EBSA) has issued a notice (pdf) of its proposal to extend the applicability date of two fee disclosure rules in order to ensure that plan sponsors have enough time to comply with the rule requirements. Specifically, the EBSA is proposing to push back the applicability dates of the fiduciary-level fee disclosure rule issued on July 16, 2010 and the transition rule included in the participant-level fee disclosure regulation  issued on October 20, 2010.

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By Amy E. Mendenhall

The Securities and Exchange Commission (SEC) has issued its final rule (pdf) implementing the securities whistleblower incentives and protection program contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or “Financial Reform” Act). The Dodd Frank Act, signed into law in July of 2010, created sweeping new federal whistleblower protections for employees. Among other things, the Dodd-Frank Act created an incentive program to encourage individuals to report Securities Exchange Act of 1934 (“Exchange Act”) violations and prohibits retaliation against those who blow the whistle on securities-related violations.

Section 922 of the Act provides monetary rewards to those who voluntarily contribute original information that leads the SEC to recover monetary sanctions of $1,000,000 or more in criminal and civil proceedings in federal court or through administrative action. Whistleblowers may be eligible for amounts between 10% and 30% of the monetary sanctions that are collected, based on the original information provided by the whistleblower.

Final regulations adopted on Wednesday by the SEC clarify and expand upon several aspects of both the whistleblower “bounty” provision and anti-retaliation provisions. Perhaps the most significant and highly anticipated aspect of the new rules is their treatment of internal complaints. When the SEC issued its proposed rule in September 2010, many in the business community expressed concern that the incentive program encouraged employees to circumvent internal compliance and reporting procedures. Although the SEC did not issue a rule requiring that employees first report violations through their company’s internal channels in order to qualify for the award, it did attempt to address these concerns by creating incentives for employees to do so.

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The Occupational Safety and Health Administration has announced (pdf) that it will reopen the public record and solicit limited comments on the proposed rule that would restore a column to the Form 300 Injury and Illness Log that employers would have to check if an incident they already have recorded under existing rules involves a musculoskeletal disorder (MSD) injury. The proposed rule, which was issued in January 2010, would also require employers to record these MSD totals on the OSHA Form 300A Annual Summary.

After temporarily withdrawing this controversial proposal in January of this year, the agency announced its plans to conduct a series of telephone conferences to allow small businesses to provide information about their experiences in recording work-related MSDs and how they believe the proposed rule would impact them. A summary of the comments made at the teleconferences, held on April 11 & 12, can be found here.

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By Jaime L. Wasserstrom

On Thursday May 12, the Federal Aviation Administration (FAA) released a 671-page supplemental Notice of Proposed Rulemaking (“SNPRM”), (pdf) which proposes enhanced qualification, training, and evaluation requirements for all air carrier crewmembers and dispatchers, in response to congressional and public concerns raised following the 2009 crash of regional carrier Colgan Air in Buffalo, NY. The SNPRM – which was mandated by Congress in the Airline Safety and Federal Aviation Administration Extension Act of 2010 – revises training rule proposals first issued in January 2009 and opens a 60-day public comment period, which closes on July 19, 2011.

The FAA has highlighted that “[t]his proposal will make U.S. pilots and other crewmembers even better-equipped to handle any emergency they may encounter.” In fact, these changes would provide the most significant changes to air carrier training in approximately 20 years. Most significantly, the proposal would require “real world” training, requiring all members of a flight crew to demonstrate, not just learn, critical skills. These critical skills include responding to flying scenarios based on actual events, and, for pilots, participating in ground and flight training to learn how to recognize and recover from stalls and aircraft upsets. Like the original proposal, the supplemental notice would require the use of pilot flight simulation training devices.

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The Occupational Safety and Health Administration (OSHA) has announced that on May 13, 2011, it will hold an expert forum to identify the agency’s regulatory options for protecting workers from combustible dust hazards. According to a press release, matters to be discussed include “identifying regulatory options that can minimize the costs to small- and medium-sized businesses of reducing or preventing combustible dust hazards, while protecting workers from these hazards.” Members of the forum will include representatives from various industries, academia, research groups, insurance-underwriter organizations, labor, and the government.

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On April 15, 2011, United States Citizenship and Immigration Services (USCIS) published a final rule (pdf), effective May 16, 2011, governing the types of acceptable identity and employment authorization documents and receipts that an employee may present to an employer when completing Form I-9. The final rule adopts without change an interim rule (pdf) that was published on December 17, 2008, and has been in effect since April 3, 2009.  Continue reading this entry at Littler's Global Immigration Counsel. 

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The Office of Federal Contract Compliance Programs (OFCCP) is proposing to amend its regulations regarding a contractor’s and subcontractor’s affirmative action and nondiscrimination obligations towards protected veterans under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). This law prohibits employment discrimination against specified categories of veterans by federal government contractors and subcontractors, and mandates that each covered contractor and subcontractor take affirmative action to hire and promote veterans. According to a summary included in the notice of proposed rulemaking, (pdf) the intended regulatory changes would strengthen these affirmative action provisions, describe specific actions a contractor must take to satisfy its obligations, increase the contractor’s data collection obligations, and require the contractor to establish hiring benchmarks to assist in measuring the effectiveness of its affirmative action efforts.

The proposal addresses two sets of VEVRAA regulations. Those found at 41 CFR part 60-250 generally apply to government contracts of $25,000 or more entered into before December 1, 2003. The regulations found at 41 CFR part 60-300 apply to government contracts entered into on or after December 1, 2003. The threshold amount to trigger coverage by the affirmative action plan (AAP) requirements for this group is a single contract of $100,000 or more, entered into on or after December 1, 2003. Because of the extensive changes to these regulations, the OFCCP is proposing to rescind part 60-250 in its entirety, as the agency assumes that few, if any, unmodified contracts entered into before December 1, 2003 for $25,000 or more currently exist. The agency seeks comment, however, to determine if any such contracts are still, in fact, in effect.

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A new proposed rule would impose additional reporting requirements on federal service contractors. Issued by the Department of Defense (DoD), General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA), the proposal (pdf) would amend the Federal Acquisition Regulation (FAR) to require service contractors for federal agencies other than the DoD that are covered by the Federal Activities Inventory Reform (FAIR) Act of 1998 to report the following information for each covered contract by October 31 of each year:

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The Securities and Exchange Commission (SEC) has recently issued proposed rules with other agencies to implement various sections of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010  dealing with incentive-based compensation arrangements for covered financial institutions and listing standards for compensation committees and advisers.

Incentive-Based Compensation Arrangements

The first proposal (pdf) would require brokers, dealers or investment advisers with assets of at least $1 billion to design their incentive compensation arrangements to take risk into account. Section 956 of the Dodd-Frank requires that federal regulators prohibit incentive-based payment arrangements, or any feature of any such arrangement, at a covered financial institution that the agencies determine encourages inappropriate risks by a financial institution by providing excessive compensation or that could lead to material financial loss. Generally, as discussed in a press release, the proposal would require that these incentive compensation arrangements “appropriately balance risk and financial rewards, be compatible with effective controls and risk management, and be supported by strong corporate governance.” Such measures imposed by the proposal include:

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By Kimberly Yates

On April 5, 2011, the Wage and Hour Division of the U.S. Department of Labor published its final amendments to regulations interpreting the Fair Labor Standards Act of 1938 (FLSA) and the Portal-to-Portal Act of 1947.

The new regulations provide specific guidance pertaining to ownership of employee tips, a description of permissible tip pooling arrangements, and clarification of the required notice to a tipped employee concerning an employer’s intent to utilize the FLSA’s tip credit. The DOL explains the amendments were driven by a need to revise regulations that are out of date as a result of “subsequent legislation.” The final amendments to the regulations, which differ in some significant respects from those the DOL originally proposed in 2008, will be effective May 5, 2011.  Continue reading this entry at Littler's Wage & Hour Counsel. 

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The Department of Labor’s Employee Benefits Security Administration (EBSA) is considering whether and how to modify its current standards governing the electronic distribution of employee benefit plan disclosures, such as quarterly account statements, to plan participants and beneficiaries as required under the Employee Retirement Income Security Act (ERISA). Current standards mandate that plan administrators use delivery methods that are reasonably calculated to ensure actual receipt of such information. Under certain circumstances, the electronic transmission of plan documents is permissible. According to the EBSA, research suggests that public access and use of electronic media has increased substantially since the 2002 regulations allowing electronic distribution of plan disclosures were implemented. Therefore, the agency is issuing a request for information (RFI) (pdf) “to solicit views, suggestions and comments from plan participants and beneficiaries, employers and other plan sponsors, plan administrators, plan service providers, health insurance issuers, and members of the financial community, as well as the general public on whether, and possibly how, to expand or modify” the EBSA’s current electronic disclosure practices.

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The EBSA has posted on its website a fact sheet on the definition of “fiduciary” under the Employee Retirement Income Security Act (ERISA). The agency defines a plan fiduciary “to include anyone who gives investment advice for a fee or other compensation with respect to any moneys or other property of a plan, or has any authority or responsibility to do so.” ERISA imposes certain disclosure requirements and standards of conduct on those considered retirement plan fiduciaries. The fact sheet includes background on the term, developments to retirement plans that have caused the agency to reevaluate its definition of fiduciary, and an overview of its proposed rule to revise this definition. Specifically, the EBSA is in the process of drafting a final rule on proposed changes to the definition of fiduciary that would result in a broader range of individuals who provide investment advice to be deemed a fiduciary under ERISA.

Additionally, the EBSA has released complete transcripts from the public hearings the agency held to address when a person is deemed a fiduciary by reason of giving investment advice for a fee under ERISA. Comments on the March 1, 2011 (pdf) and March 2, 2011 hearings (pdf) can be submitted electronically to e-ORI@dol.gov with subject line: Public Hearing on Definition of Fiduciary, or in written form to: EBSA's Office of Regulations and Interpretations, Attn: Public Hearing on Definition of Fiduciary, Room N-5655, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC, 20210. All comments on the information presented at the hearings must be submitted on or before April 12, 2011.

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By Ilyse Schuman and Barry Hartstein

The Equal Employment Opportunity Commission (EEOC) has released its long-awaited final rule (pdf) implementing the equal employment provisions of the Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of “disability”, enabling more individuals to be covered by the ADA. As discussed in the final rule, the ADAAA retains the basic definition of disability contained in the ADA, which considers an individual disabled if he or she (a) has an impairment that substantially limits one or more major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. The ADAAA, however, expands the interpretation of these elements making it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.’” To that end, the final rule revises the prior ADA regulations, and includes new interpretive guidance as an appendix to the rule.

These regulations, which take effect 60 days after their publication in the March 25, 2011 edition of the Federal Register, apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.

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The Department of Labor has launched an online tool to enable the public to provide input on ways to improve the DOL’s regulatory review process in general and existing regulations in particular. This web initiative is part of the DOL’s efforts to comply with President Obama’s recent Executive Order directing federal agencies to develop plans to review existing significant regulations to determine whether they could be made more effective and/or less burdensome on employers.

Commenters are asked to identify the particular regulation or reporting requirement at issue and provide legal citation(s) where available. The DOL also asks that commenters provide, “in as much detail as possible, an explanation of why a regulation or reporting requirement should be modified, streamlined, expanded, or repealed, as well as specific suggestions of ways the Department can better achieve its regulatory objectives.” All comments must be received by the end of the month. More information on this process can be found here.

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In anticipation of developing regulations to implement the new automatic enrollment provisions of the Fair Labor Standards Act (FLSA) established by the Affordable Care Act, the Department of Labor’s Employee Benefits Security Administration (EBSA) plans to hold a public forum to solicit views and share information on the new requirement. The new provision included in the health care reform law adds Section 18A to the FLSA, which requires employers with more than 200 full-time employees to automatically enroll new hires – subject to any applicable waiting periods – in one of the employer’s health benefit plans, and to continue the enrollment of current employees in the plan. The new section also requires employers to provide adequate notice and opportunity for an employee to opt out of such coverage. Affected employers are not required to abide by the new enrollment mandate until final rules on this obligation are issued and effective.  Continue reading this entry at Littler's Healthcare Employment Counsel.

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The Equal Employment Opportunity Commission (EEOC) is soliciting public input as it plans to review its significant regulations. The anticipated review is in response to a recent executive order (Executive Order 13563) (pdf) that directs federal agencies to consider the burden of regulation on business and job creation. Specifically, the Executive Order calls upon agencies to develop “a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether such regulations should be modified, streamlined, expanded or repealed to make the agency's regulatory program more effective and/or less burdensome in achieving its regulatory objectives.”

To that end, the EEOC asks for suggestions on how it should design its plan for reviewing its significant regulations. Such input might include the factors it should use to select rules for review, or whether the review should focus on particular types of regulations. With respect to specific regulations, the EEOC is interested in what should be included in the agency’s initial list of regulations for review over the next two years. The EEOC is interested in why the particular regulation should be modified, streamlined, expanded, or repealed; any available data on the costs and benefits of the regulation; and how the EEOC can better achieve the regulation’s objective. The request for public comments represents an important opportunity for employers to communicate their comments, concerns and suggestions for improving the EEOC’s regulatory program. Comments must be submitted electronically to Public.Comments.RegulatoryReview@eeoc.gov on or before March 22, 2011. A complete list of the agency’s regulations can be found here.

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United States Citizenship and Immigration Services (USCIS) has announced a proposed rule designed to decrease administrative and employer costs associated with the H-1B petition process. Under the proposed rule, employers would electronically register with USCIS during an enrollment period of at least two weeks in March of each year, prior to the April 1 filing period start date. Participating employers would file a single registration for each prospective H-1B worker they seek to hire (i.e., multiple prospective H-1B workers could not be listed on a single registration). Unlike current requirements, procuring a Labor Condition Application (LCA) prior to filing a petition would not be required.  Continue reading this entry at Littler's Global Immigration Counsel.

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On Wednesday, the full House Committee on Education and the Workforce held a hearing to discuss the policies and priorities of the Department of Labor. Earlier in the week, the agency released its 2012 budget request, which seeks $12.8 billion in discretionary budget authority and 17,848 full-time equivalent employees (FTE). Although the proposal would reduce the Department’s overall discretionary spending by 5% from current levels, the budget would increase funding for the agencies charged with regulating and enforcing worker protections. Several divisions within the DOL – the Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Employee Benefits Security Administration (EBSA), and the Office of Federal Contract Compliance Programs (OFCCP) – would each receive additional funding under a budget that allocates a total of $1.8 billion for DOL’s worker protection agencies. Given President Obama’s plan to freeze all non-security discretionary spending and DOL’s overall discretionary budget reduction, the increase in resources for worker protection demonstrates the Administration’s continued commitment to enhancing the regulation and enforcement of labor and employment laws. For a complete analysis of the DOL’s budget request, see Littler’s ASAP: U.S. Department of Labor's 2012 Budget Shows Increasing Resources Toward Regulation and Enforcement of Employment Laws.

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On Tuesday, the House Subcommittee on Workforce Protections held a hearing –
Investigating OSHA's Regulatory Agenda and Its Impact on Job Creation – to examine recent regulatory actions taken by the agency and discuss ways to improve the rulemaking process. Subcommittee Chairman Tim Walberg (R-MI) stated that both employers and employees have a “shared goal” of creating a safe workplace, but argued that OSHA has “become an administration focused more on punishment than prevention.” 

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The House Subcommittee on Health, Employment, Labor and Pensions held a hearing on Friday to discuss emerging trends at the National Labor Relations Board. Panelists examined several recent Board decisions and General Counsel initiatives that have sparked controversy in recent months and offered differing opinions as to whether the agency has acted within the scope of its authority. In his opening statement, Subcommittee Chairman David P. Roe (R-TN) set the tone of the hearing, claiming that “the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach.”  Continue reading this entry at Littler’s Labor Relations Counsel.

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The DOL’s Employee Benefits Security Administration (EBSA) has announced that it is pushing back the applicability date of the new benefit plan disclosure rule from July 16, 2011 to January 1, 2012. First published on July 16, 2010, the interim rule requires certain service providers to employee pension benefit plans to disclose information that would enable plan fiduciaries to better assess the reasonableness of the fees being charged for plan services and to target potential conflicts of interest. The requirements now apply to plan contracts or arrangements for services in existence on or after January 1, 2012. According to the DOL’s press release, the purpose of the change is to give plans and their service providers sufficient time to comply with a final rule, which has yet to be issued. The EBSA’s Assistant Secretary Phyllis C. Borzi states that:

The department intended to have final rules in place sufficiently in advance of the July 16 applicability date to avoid compliance problems for both plans and their service providers.  Given the need to ensure a careful review of all the valuable input we received on the interim final rule, including suggestions for a summary document to further assist plan fiduciaries in their review of furnished information, we now believe plans and plan service providers would benefit from an extension of the rules applicability date.

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On Thursday, the House Committee on Oversight and Government Reform held a hearing to discuss how regulations impact employers and job creation. Several business owners, advocates, and academics provided input on the benefits and detriments of current and proposed regulations, taking particular aim at recent proposals developed by the Occupational Safety and Health Administration (OSHA). The hearing coincided with the release of a report – Assessing Regulatory Impediments to Job Creation (pdf) – issued by the Committee. Findings of this report include the following:

• According to one study, small firms bear a regulatory cost of $10,585 per employee whereas large firms with more than 500 employees incur a cost of $7,755 per employee to comply with federal regulations.
• The manufacturing industry is hit the hardest by regulatory costs, with per firm costs at $688,944 – half a million dollars greater than the national average cost for all industries.
• Small manufacturers bear a proportionally larger regulatory burden with an estimated cost of $26,316 per employee – more than double the burden that is faced by larger manufacturers.
• While the Department of Labor has pulled back on two of its most controversial proposals, OSHA noise standards and OSHA Form 300 Musculoskeletal Disorders (MSD) reporting requirements, job creators expressed significant concern for the OSHA Combustible Dust Management rule, proposed changes in OSHA Consultation Agreements, and OSHA’s Injury & Illness Prevention Program (“I2P2”).

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The Securities and Exchange Commission (SEC) has adopted a final rule (pdf) governing shareholder approval of executive compensation and “golden parachute” compensation arrangements required under the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among other things, the Dodd-Frank Act requires public companies subject to the federal proxy rules to provide their shareholders with a non-binding “say-on-pay” vote on executive compensation and a separate non-binding vote on how often such votes should occur. In addition, shareholders are entitled to an advisory vote on compensation arrangements and understandings in connection with merger transactions, commonly referred to as golden parachutes.

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The Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has issued a proposed rule that would require certain motor carriers operating commercial motor vehicles (CMVs) in interstate commerce to use electronic on-board recorders (EOBRs) to document their drivers’ hours of service (HOS). EOBRs are devices attached to commercial vehicles that automatically record the number of hours drivers spend operating the vehicle. As discussed in a press release, the proposal “would also relieve interstate motor carriers from retaining certain HOS supporting documents, such as delivery and toll receipts, which are currently used to verify the total number of hours drivers spend operating the vehicle.” The proposal also lists the supporting documents that all motor carriers currently required to maintain Records of Duty Status (RODS) logbooks would still be required to obtain and keep.

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The Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has announced that it will hold a public listening session to solicit comments and information on its recently-proposed rule to amend the hours of service requirements for drivers of property-carrying commercial motor vehicles (CMVs). The session will be held on February 17, 2011 from 10:00 a.m. until 5:00 p.m. EST at the Crowne Plaza Washington National Airport, 1480 Crystal Drive, Arlington, VA 22202. The session will end sooner if all participants who intend to provide input have done so. In conjunction with this listening session, the FMCSA will hold an online comment and question forum. The agency will post information on how to participate online and via telephone here.

According to the summary to be published in Monday’s edition of the Federal Register, the FMCSA seeks information as to what factors, issues, and data it should consider as it analyzes responses to its proposed rule. A list of specific questions the agency seeks responses to can be found in the Federal Register notice. 
 

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The Occupational Safety and Health Administration (OSHA) has announced that it is temporarily withdrawing its proposal to restore a column to the OSHA Injury and Illness (Form 300) Log that employers would use to record work-related musculoskeletal disorders (MSD). The agency issued a proposed rule to amend its recordkeeping requirements to include the MSD column last January. According to the announcement, OSHA is doing so in order to “seek greater input from small businesses on the impact of the proposal . . ."  While expressing concern that MSD “remain the leading cause of workplace injury and illness in this country,” OSHA’s Assistant Secretary of Labor David Michaels acknowledged that the proposal “has raised concern among small businesses, so OSHA is facilitating an active dialogue between the agency and the small business community." To that end, Michaels said OSHA and the U.S. Small Business Administration's Office of Advocacy will hold a public meeting to solicit further comment on the proposal.

This notice comes on the heels of yet another OSHA proposed rule withdrawal. Last week, the agency announced that it was rescinding its proposed interpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards because of concern voiced by the business community. Both withdrawals follow President Obama’s recent executive order and memoranda to federal agencies directing rulemakers to consider how regulations impact small businesses and economic development.

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The Occupational Safety and Health Administration (OSHA) has announced that it is withdrawing its proposed interpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. The agency proposed this change in October 2010. The standards require employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are feasible. The proposed interpretation would have clarified that feasibility in this instance means “capable of being done” or “achievable.”

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On Tuesday President Obama signed an Executive Order (EO) designed to improve regulation and regulatory review of rules that potentially hamper economic growth and job creation. The issuance of this EO, which supplements a 1993 EO governing contemporary regulatory review, is widely viewed as an outreach gesture to the business community. Notably, the EO directs federal agencies developing regulations to “use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” In essence, the EO brings greater attention to the potential cost and burden of new regulations to businesses. According to a fact sheet on the President’s regulatory strategy, the “President requires Federal agencies to design cost-effective, evidence-based regulations that are compatible with economic growth, job creation, and competitiveness.”

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The Occupational Safety and Health Administration (OSHA) will issue a final rule (pdf) that outlines the procedures for handling retaliation complaints under the whistleblower provisions of six environmental statutes and Section 211 of the Energy Reorganization Act (ERA) of 1974, as amended. OSHA is responsible for enforcing the whistleblower provisions of 20 separate statutes. The stated purpose of the final rule is to make the employee protection provisions “as consistent as possible with the more recently promulgated procedures for handling retaliation complaints under other whistleblower provisions administered by [OSHA].”

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During Friday’s online chat to discuss the Office of Federal Contract Compliance Programs’ (OFCCP) regulatory agenda, Director Patricia Shiu spent a significant amount of time fielding questions about possible changes to the agency’s compensation data analysis methods. Recently, the agency issued a proposed rescission of its interpretive standards and voluntary guidelines regarding the analysis of compensation data. Shiu acknowledged that the agency is “taking a much stronger approach to enforcement on compensation discrimination, as part of our effort to, once and for all, end the wage gap between men and women.” To that end, the agency plans to publish next month an advance notice of proposed rulemaking (ANPRM) to solicit public comments about developing a new compensation tool to help the OFCCP better collect data about wages. In addition, the OFCCP will hold a series of stakeholder meetings to gather information regarding ways to analyze compensation.

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On Friday, John Lund, Director of the Office of Labor-Management Standards (OLMS), conducted an online chat to discuss the agency’s upcoming regulatory activities. Lund noted, for example, that by July 2011, the agency plans to issue a final rule on Form LM-30, the Labor Organization Officer and Employee Report required under the Labor-Management Reporting and Disclosure Act (LMRDA), “to identify potential conflicts of interest between the labor organization officials and their labor organizations.” A proposed rule to revise this disclosure form was published in August 2010.  Continue reading this entry at Littler's Labor Relations Counsel. 

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Despite the flurry of questions posed to the Deputy Administrator of the Wage and Hour Division (WHD) during Thursday’s live web chat on the WHD’s regulatory agenda, Nancy Leppink kept her responses vague and noted that many regulatory proposals were still under development and therefore not ripe for discussion. For example, many chat participants sought clarification and insight regarding the agency’s intent to propose regulations that would modify the “companionship services” exemption under the Fair Labor Standards Act (FLSA), thereby subjecting many home care workers to the Act’s minimum wage and overtime requirements. Leppink said that the notice of proposed rulemaking (NPRM) on this topic is not scheduled to be issued until October, and therefore any in-depth response would be premature.

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During OSHA’s live web chat, which was held on Wednesday, Assistant Secretary of Labor David Michaels reiterated that the agency intends to publish five new final rules in 2011. The new standards include those addressing: Hazard Communication and Standards Improvement; Confined Spaces in Construction; General Working Conditions for Shipyards; and Electric Power Transmission. Michaels also said the agency intends to publish final rules for several whistleblower regulations. In addition, OSHA plans to publish a proposed rule for crystalline silica this Spring.

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During the DOL’s Employee Benefits Security Administration’s (EBSA) live web chat held on Tuesday, EBSA Assistant Secretary Phyllis Borzi responded to questions aimed at the pension and welfare benefit initiatives contained in the DOL’s Semiannual Regulatory Agenda, as well as the interim final regulations outlining the procedures for internal and external review of adverse health benefit claims decisions.  Borzi noted that in the coming months the EBSA will focus on completing its work in pension and welfare plan transparency initiatives.  In particular, the agency plans to finalize the interim final rule relating to reasonable contracts and arrangements under section 408(b)(2) of ERISA. The EBSA will also consider whether and to what extent similar fee and compensation disclosure requirements will be applied to service relationships in the welfare plan context.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is proposing to rescind guidance materials addressing compensation discrimination that would ultimately give the agency more leeway in finding federal contractors and subcontractors liable for pay disparities. According to the agency, the first guidance document at issue – Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to Systemic Compensation Discrimination (Standards) (pdf) – has limited the OFCCP’s ability to “effectively investigate, analyze and identify compensation discrimination.” As for the second document up for rescission – Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 with respect to Systemic Compensation Discrimination (Voluntary Guidelines) (pdf) – the OFCCP claims that it has been “largely unused” by federal contractors and is not an effective enforcement strategy.

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The Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has released a proposed rule amending the hours of service requirements for drivers of property-carrying commercial motor vehicles (CMVs). As discussed in a news release, the proposal would keep the “34-hour restart” provision allowing drivers to restart the clock on their weekly 60 or 70 hours by taking at least 34 consecutive hours off-duty, but that period would have to include two consecutive off-duty periods from midnight to 6:00 a.m. Drivers would be allowed to use this restart only once during a seven-day period.

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The Department of Labor has scheduled a series of web chats to discuss various portions of its 2011 regulatory agenda. The agenda, which was released on Monday, indicates that the DOL plans to take action on more than 80 labor and employment-related regulations over the course of the upcoming year. The web Q&A sessions will be broken down by DOL subagency, and will take place as follows:

• Employee Benefits Security Administration (EBSA) - Tuesday, January 4, 2 p.m. ET
• Occupational Safety and Health Administration (OSHA) - Wednesday, January 5, 2:30 p.m. ET
• Employment and Training Administration (ETA) - Thursday, January 6, 12 p.m. ET
• Wage and Hour Division (WHD) - Thursday, January 6, 2 p.m. ET
• Office of Labor-Management Standards (OLMS) - Friday, January 7, 12 p.m. ET
• Office of Contract Compliance Programs (OFCCP) - Friday, January 7, 1:30 p.m. ET

Pre-registration is not required. More information on the various regulations under consideration can be found here.

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On December 22, 2010, the National Labor Relations Board published a proposed rule (pdf) that would require all private sector employers covered by the National Labor Relations Act to post a notice informing employees of their NLRA rights. This requirement would be imposed on all employers covered by the NLRA even if there is no union in place. The notice would be similar in form and content to the notice (pdf) the Department of Labor recently approved for use by federal contractors. As stated in a fact sheet, (pdf) the purpose of the proposed rule is “to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.” Unlike the rule for federal contractors, this proposed rule would apply to the vast majority of private sector employers and would create significant compliance obligations, along with serious potential non-compliance liability, on most employers.  Continue reading this entry at Littler’s Labor Relations Counsel.

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According to the Equal Employment Opportunity’s (EEOC) Semiannual Regulatory Plan and Agenda, a final rule implementing the employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA) will be issued within in the next two weeks. The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of disability, enabling more individuals to be covered by the ADA. In September 2009, the EEOC issued proposed regulations to reflect that the expanded ADA definition of disability should be interpreted broadly. The EEOC’s regulatory agenda, which lists all of the rules under active consideration for the upcoming year as well as those rules enacted within the past six months, states that a finial ADAAA rule will be issued before the year is out.

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In the next year, the Department of Labor (DOL) intends to issue 35 proposed rules and 25 final rules, consider drafting 13 new rules, and initiate 8 long-term actions. As outlined in the agency’s Semiannual Regulatory Agenda, nearly half of such regulatory activities will be undertaken by the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA). The sheer volume of possible regulatory activity is in keeping with the DOL’s renewed focus on rulemaking and enforcement. A complete list of the agency’s Fall 2010 Rule List can be found here. Highlights of the DOL’s intended regulatory activity include the following:

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On Monday the Department of Labor (DOL) will publish its Semiannual Regulatory Plan (pdf) in the Federal Register. The Regulatory Plan is a subset of the DOL’s regulatory agenda and contains a statement of the DOL’s regulatory priorities and actions it considers to be the most important and significant. The full DOL regulatory agenda will be made available on Monday and will be posted on www.reginfo.gov. The regulatory agenda lists the regulations the DOL expects to have under active development at any stage for the upcoming one-year period, as well as those actions completed within the past six months. The DOL’s regulatory agenda indicates that the Occupational Safety and Health Administration (OSHA) will be very active. Specifically, OSHA is taking steps to develop rules governing occupational exposure to beryllium and food flavorings containing diacetyl and diacetyl substitutes. OSHA will also undertake a routine review of its Bloodborne Pathogen Standard to assess whether there is still a need for such a standard. At the proposed rule stage, OSHA has developed possible regulations governing occupational exposure to crystalline silica.

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The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) will issue an interim rule (pdf) that adopts the Department of Labor’s final rule implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf) The DOL issued its final rule on this EO last May. The EO at issue mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA), and revokes a Bush-era EO that had required federal contractors to post a notice (commonly known as “Beck” notices) to their employees informing them that they were not required to join or maintain membership in a labor union, and that those who were not union members – but were nonetheless required to pay dues or fees pursuant to a union security agreement – could object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment.  Continue reading this entry at Littler’s Labor Relations Counsel.

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The U.S. Department of Defense (DoD) will issue a final rule (pdf) implementing section 8116 of the DoD Appropriations Act for Fiscal Year 2010, which restricts a contractor’s use of mandatory arbitration agreements in certain instances. Specifically, section 8116 bans contractors or subcontractors at any tier that receive funds appropriated by the Act for a contract in excess of $1 million from enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” After June 17, 2010, contractors are required to certify compliance by their subcontractors. The Secretary of Defense is permitted to waive the applicability of this prohibition to a particular contract or subcontract in the interest of national security. Additionally, the arbitration limitations do not apply to a contractor’s or subcontractor’s agreement with employees or independent contractors that cannot be enforced in the U.S., nor do they apply to the acquisition of commercial items, including commercially available off-the-shelf items.

The final rule adopts the interim rule issued in May 2010 with certain minor changes. Specifically, the final rule further explains the DoD waiver process and the conditions under which the DoD’s waiver authority will be exercised. The DoD’s waiver determination will “set forth the grounds for the waiver with specificity, state any alternatives considered, and explain why each of the alternatives would not avoid harm to national security interests.” The final rule is effective as of the date of publication in the Federal Register, which is scheduled for December 8, 2010.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a proposed rule that creates additional retirement plan disclosure requirements related to target date retirement funds (TDFs) and other similar investments offered in 401(k)-type pension plans. As discussed in an EBSA fact sheet, while TDFs are designed to be convenient vehicles for individuals to save for retirement, they are “not managed according to uniform strategies,” and are therefore subject to varying degrees of risk and investment results over time. The proposed rule seeks to provide individuals participants with more information about TDFs so that they can better evaluate them and assess their investment plans. Specifically, the proposal would amend two existing regulations – the qualified default investment alternative regulation and the participant-level disclosure regulation – to require plan fiduciaries to provide the following, among other information, to all participants and beneficiaries in participant-directed individual account plans:

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The Employee Benefits Security Administration (EBSA) will publish a proposed rule (pdf) that implements the annual funding notice requirement for all defined benefit plans. The Pension Protection Act of 2006 (PPA) amended the Employee Retirement Income Security Act (ERISA) to require that administrators of all defined benefit plans, not just multiemployer plans, provide an annual funding notice to the Pension Benefit Guaranty Corporation (PBGC), plan participants and beneficiaries, labor organization representing participants or beneficiaries, and, in the case of a multiemployer plan, each employer that has an obligation to contribute to the plan. This funding notice must include the plan’s funding target attainment percentage, a statement of the value of the plan’s assets and liabilities and a description of how the plan’s assets are invested as of specific dates, a description of the benefits under the plan that are eligible to be guaranteed by the PBGC, and other information relevant to the plan’s funded status. The proposed regulation outlines the scope of an administrator’s obligations in providing this notice and details the content requirements of the notice itself. In addition, the proposed rule’s appendix contains two model notices (one for single employer plans and one for multiemployer plans) for plan administrators to use. According to a summary to be published in the Federal Register, this proposed rule will affect plan administrators, participants and beneficiaries of defined benefit pension plans; labor organizations representing participants and beneficiaries; and contributing employers of multiemployer plans.

Comments on this proposal are due within 60 days of publication, which is scheduled for November 18, 2010. All comments must contain the regulatory identification number: RIN 1210–AB18, and may be submitted via the federal eRulemaking portal or by email: e-ORI@dol.gov (include RIN 1210-AB18 in the subject line of the message). Alternatively, written comments may be sent to: Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210, Attention: Annual Funding Notice for Defined Benefit Plans.

Photo credit: Kirby Hamilton

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The Equal Employment Opportunity Commission (EEOC) has posted on its website two new guidance documents on the recently published final rule implementing the employment provisions of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The first guidance document provides background information on the Title II rule, while the second focuses on questions that might arise for small businesses.  Both guidance materials are presented in question and answer format, and clarify many of the provisions contained in the final rule.

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Nearly a year after the employment provisions of the Genetic Information Nondiscrimination Act (GINA) took effect, the Equal Employment Opportunity Commission (EEOC) has issued a final rule (pdf) implementing these sections. Title II of GINA – which took effect on November 21, 2009 – prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information. Title II also prohibits retaliation against employees who complain about genetic discrimination. According to the EEOC, the final rule implements the various provisions of Title II consistent with Congress’s intent, provides some additional clarification of those provisions, and explains in greater detail the sections where Congress incorporated by reference provisions from other statutes. The final rule becomes effective 60 days after its publication in the Federal Register, which is scheduled for November 9, 2010.

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The Securities and Exchange Commission (SEC) has issued its proposed rule (pdf) implementing the securities whistleblower incentives and protection program contained in the newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or “Financial Reform” Act). The Dodd-Frank Act contains sweeping new provisions that create new federal whistleblower protections for employees. These enhanced protections, among other things, create a new incentive program to encourage individuals to report Securities Exchange Act of 1934 (“Exchange Act”) violations, and prohibit retaliation against an individual who takes advantage of this program.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a proposed rule that would change the definition of “fiduciary” under the Employee Retirement Income Security Act (ERISA) to include a broader range of individuals who provide investment advice. According to a summary of the proposed rule published in the October 22, 2010 edition of the Federal Register, the proposed rule “amends a thirty-five year old rule that may inappropriately limit the types of investment advice relationships that give rise to fiduciary duties on the part of the investment advisor.” The rule is designed to limit conflicts of interest and self-dealing “by giving a broader and clearer understanding of when persons providing such advice are subject to ERISA’s fiduciary standards.” The definition change would impact sponsors, fiduciaries, participants, and beneficiaries of pension plans and individual retirement accounts, as well as providers of investment and investment advice related services to such plans and accounts.

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The Securities and Exchange Commission (SEC) has released proposed regulations implementing some of the executive compensation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or “the Act”).  While the Act, which was signed into law on July 21, 2010, focuses on overhauling the financial services industry, it also includes a number of broad executive compensation provisions that apply beyond this sector. Among other things, Section 951 of the Act provides for a “say-on-pay” shareholder advisory vote on executive compensation and golden parachutes. The proposed regulations – Reporting Of Proxy Votes On Executive Compensation And Other Matters (pdf) and Shareholder Approval Of Executive Compensation And Golden Parachute Compensation (pdf) – address these provisions.

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The Occupational Safety and Health Administration (OSHA) is proposing an official interpretation (pdf) of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. As explained in a summary to be published in tomorrow’s edition of the Federal Register, the above OSHA standards require employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are feasible. Although feasibility encompasses both economic and technological considerations, OSHA explains that the instant interpretation addresses economic feasibility only. The agency seeks to clarify that “feasible” in this instance means “capable of being done” or “achievable.” OSHA states that it intends to revise its enforcement policy to reflect this clarification.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a final rule (pdf) that requires retirement plan sponsors and fiduciaries to disclose certain plan and investment-related information, including that related to fees and expenses, to participants and beneficiaries in participant-directed individual account plans, such as 401(k)s. As explained in a news release, the rule is intended to “ensure that all workers who direct their plan investments have access to the information they need to make informed decisions regarding the investment of their retirement savings, including fee and expense information. Under the rule, workers will receive this information in a format that enables them to meaningfully compare the investment options under their plans.” This rule will impact plan sponsors, fiduciaries, participants and beneficiaries of participant-directed individual account plans, as well as providers of services to such plans.

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On Thursday, the Senate, by a 43 to 56 vote, failed to approve the resolution (S. J. Res. 30) introduced by Sen. Johnny Isakson (R-GA) that sought to reverse the new National Mediation Board (NMB) election rule (pdf) that upended more than 75 years of established procedure. Such a resolution of disapproval, submitted under the Congressional Review Act, allows Congress to overturn rules issued by administrative agencies. Had the Senate approved the resolution, it would still have required the President’s signature or veto.  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit:  MBPHOTO, Inc.

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The Federal Aviation Administration (FAA) has released its much-anticipated proposed regulations (pdf) governing rest rules for commercial airline pilots. Spurred by the February 2009 fatigue-related crash of Colgan Air 3407 in Buffalo, New York, these rules impose a number of new requirements on airlines to address flight operation and rest time. The rules are also in response to the recently-enacted Airline Safety and Federal Aviation Administration Extension Act of 2010, which directed the FAA to establish regulations to address pilot fatigue by August 1, 2011. In a statement, FAA Administrator Randy Babbitt said: “I know firsthand that fighting fatigue is a serious issue, and it is the joint responsibility of both the airline and the pilot,” adding, “After years of debate, the aviation community is moving forward to give pilots the tools they need to manage fatigue and fly safely.”

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has published a proposed rule (pdf) that would update the filing and processing procedures related to the prohibited transaction exemption under the Employee Retirement Income Security Act (ERISA). ERISA contains a number of statutory safeguards to prevent benefit plan fiduciaries from self-dealing or engaging in other types of conduct that would threaten the integrity of the employee benefit plans. It also sets forth certain exemptions to these rules to accommodate customary business practices. As stated in a press release, the proposed rule streamlines the existing procedures related to the exemption process, clarifies the types of information and documentation required to submit a complete filing, expands the methods for transmitting filings to include electronic submissions, and makes the exemptions more understandable for participants and other interested parties.

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The Occupational Safety and Health Administration (OSHA) will issue three interim final rules that outline the procedures for handling retaliation complaints under the whistleblower provisions of the Surface Transportation Assistance Act (STAA), National Transit Systems Security Act (NTSSA), Federal Railroad Safety Act (FRSA), and the Consumer Product Safety Improvement Act (CPSIA). OSHA enforces the anti-retaliation provisions of 19 separate statutes, including the four mentioned above. The new rules governing the NTSSA and the FRSA, (pdf) the STAA, (pdf) and the CPSIA (pdf) seek to establish and/or clarify and improve the procedures and time frames for handling retaliation complaints under these laws. In general, the complaint procedures outlined in each set of rules are consistent with one another. The similarities among the rules include the following:

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The Department of Labor’s Office of Labor-Management Standards (OLMS) has published a proposed rule (pdf) to modify union disclosure Form LM-30 and its instructions. The Labor-Management Reporting and Disclosure Act (LMRDA) requires labor organization officers and employees and their spouses and minor children to publicly disclose certain financial interests held, income received, and transactions engaged in to prevent any conflicts of interest. Such disclosures are made on the Form LM-30, (pdf) which was last amended in 2007.  According to the OLMS, these changes “left unresolved fundamental questions about the reporting obligations of union officials, questions raising policy and legal issues warranting reexamination by the Department.” Therefore, on March 19, 2009, the OLMS issued a non-enforcement policy that allowed affected parties to file either the 2007 or previous LM-30 form while it sought input as to whether and how to amend the form yet again. The agency claims that the proposed changes published in the August 10 edition of the Federal Register address “the complexity of the form and its instructions, as well as the scope and extent of the LM-30 reporting obligations.”

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The Pension Benefit Guaranty Corporation (PBGC) will issue a proposed rule (pdf) that seeks to provide guidance on the applicability and enforcement of section 4062(e) of the Employee Retirement Income Security Act (ERISA). This section contains special rules that apply when “an employer ceases operations at a facility in any location and, as a result of such cessation of operations, more than 20 percent of the total number of his employees who are participants under a plan established and maintained by him are separated from employment.” In this event, the employer that maintains the single-employer pension plan is subject to certain reporting requirements and liability. The PBGC seeks to amend its regulations to provide guidance as to what constitutes a section 4062(e) event in the first instance, revise the reporting requirements of such an event to the PBGC, and explain the determination and satisfaction of liability as a result of such an event.

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The Department of Labor has withdrawn its proposed rule defining “welfare benefit plan” under the Employee Retirement Income Security Act (ERISA). The rule, which intended to address the impact of state health care plans on ERISA-covered welfare plans, had been proposed before the Patient Protection and Affordable Care Act (“Affordable Care Act”) was signed into law on March 23, 2010. In light of the Affordable Care Act’s enactment, the DOL intends to review “whether and to what extent further regulation in this area is necessary or appropriate in light of a national health care reform program.”

Photo credit: borisyankov

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The Occupational Safety and Health Administration (OSHA) has issued new regulations (pdf) addressing the safety of cranes and derricks in the construction industry. The rule updates and specifies industry work practices regarding the use of cranes and derricks, and also “addresses advances in the designs of cranes and derricks, related hazards, and the qualifications of employees needed to operate them safely.” According to an OSHA press release, approximately 267,000 construction, crane rental and crane certification establishments employing about 4.8 million workers will be affected by the rule.

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The U.S. Department of Health and Human Services (HHS) published on July 14, 2010, a voluminous Notice of Proposed Rulemaking (NPRM), containing dozens of proposed amendments to three sets of Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations: the Privacy Rule; the Security Rule; and the Enforcement Rule. The proposed amendments are directed principally at implementing the Health Information Technology for Economic and Clinical Health Act (HITECH Act), which amended HIPAA and went into effect on February 17, 2010. A careful review of the NPRM for its impact on employers who sponsor HIPAA-covered plans reveals that, if the proposed changes were adopted, employers would be required to revise their business associate agreements, their HIPAA notice of privacy practices, and their policies for responding to access requests. The NPRM also provides employers with a roadmap for avoiding civil monetary penalties. To learn more about the NPRM and its implications for employers, please continue reading Littler's ASAP, What Do Employers with HIPAA-Covered Health Plans Really Need to Know About Recently Proposed Revisions to HIPAA Regulations?, by Philip L. Gordon.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will issue an Advance Notice of Proposed Rulemaking (ANPRM) (pdf) to invite public comments as to how the agency can strengthen the affirmative action requirements relating to Section 503 of the Rehabilitation Act. As discussed in the ANPRM, Section 503 requires covered federal contractors to:

• employ nondiscriminatory employment practices;
• provide reasonable accommodations to qualified job applicants and employees with disabilities;
• after a job offer is extended but before employment begins, invite job applicants to voluntarily and confidentially self-identify as to whether or not they have a disability in order to benefit from any affirmative action programs covered contractors may have;
• maintain personnel and employment records; and
• for those contractors and subcontractors with 50 or more employees and a contract of $50,000 or more, develop and maintain a written affirmative action program (AAP).

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A number of federal agencies plan to issue an interim rule (pdf) that will require federal contractors and subcontractors to disclose executive compensation details and first-tier subcontractor awards on contracts expected to be $25,000 or more. This rule amends the Federal Acquisition Regulation (FAR) to implement the section of the Federal Funding Accountability and Transparency Act that requires the Office of Management and Budget (OMB) to create a free, public website that provides information about all federal contract awards. To that end, the rule requires that by the end of the month following the month the contract is awarded, and annually thereafter, the contractor or first-tier subcontractor must report the names and total compensation of each of the five most highly compensated executives for the contractor’s or first-tier subcontractor’s preceding completed fiscal year. Contractors and subcontractors whose gross income in the previous tax year was less than $300,000 are exempt from these disclosure requirements. The rule also requires contractors to report subcontracts of $25,000 or more, and any changes made to those contracts which impact data previously submitted. According to the interim rule, these reporting requirements “are sweeping in their breadth, and are intended to empower the American taxpayer with information that may be used to demand greater fiscal discipline from both executive and legislative branches of Government.”

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The Occupational Safety and Health Administration (OSHA) has issued a proposed rule that will revise and delete a number of its standards. This proposed rule is being implemented as “Phase III” of the agency’s Standards Improvement Project, which is designed to “remove or revise outdated, duplicative, unnecessary, and inconsistent requirements in its safety and health standards.”

According to OSHA’s summary of the proposed changes, the agency is considering a number of actions amending its standards, including revisions to its general industry, maritime, construction, and agricultural standards. Some changes will impact more than one industry. For example, OSHA explains that the proposed revisions to the General Industry “Slings” standard also would affect shipyard employment and the construction industry.

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On Friday, a federal court judge issued an order (pdf) that will effectively permit the National Mediation Board’s (NMB) final rule (pdf) changing its 75-year-old representation election policy to proceed as planned. On May 17, the Air Transport Association of America (ATA) filed a lawsuit in federal court seeking to prevent the NMB from implementing this change to the election process that will make it easier for unions to organize airline and railroad employees. Under the long-established approach, a majority of employees eligible to vote in representation elections determined the outcome of the election. As a result, employees who chose not to participate are effectively viewed as “no union” votes. The NMB’s new rule changes this policy by basing the voting outcome on the majority of those who actually vote, as is closer to the practice in non NMB-governed industries.

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Employers have anxiously awaited the release of the interim final rules (pdf) relating to “grandfathered” health care plans under the Patient Protection and Affordable Care Act (PPACA). The regulations have garnered a significant amount of controversy in the past couple of days, as a leaked draft version indicated that more than half of employer-sponsored plans would not qualify for the grandfathered status. Under PPACA, health plans that were implemented before the Act was signed into law on March 23rd are exempt from many, but not all, of the law's consumer protections. The regulations seek to clarify how plans may qualify for and/or lose the grandfathered status.  Continue reading this entry at Littler's Healthcare Employment Counsel blog. 

Photo credit:  MBPHOTO, INC.

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The Employee Benefits Security Administration (EBSA) has issued a final rule clarifying certain issues relating to the timing and order of domestic relations orders under section 206(d)(3) of the Employee Retirement Income Security Act of 1974 (ERISA). According to a summary published in the Federal Register, the rule provides guidance to plan administrators, service providers, participants, and alternate payees on the qualified domestic relations order (QDRO) requirements under ERISA. The rule is being issued in response to a specific statutory directive contained in the Pension Protection Act of 2006 (PPA).

In essence, the rule clarifies that a plan administrator cannot disqualify a domestic relations order (DRO) that otherwise meets ERISA’s QDRO standards solely because the order is issued after, or revises, another domestic relations order or QDRO. Similarly, a DRO that otherwise meets ERISA’s requirements to be a QDRO will not be disqualified because of the time at which it is issued, such as after the parties divorce, or after the death of the participant. Moreover, the rule stipulates that these DROs are subject to the same requirements and protections that apply to all QDROs under section 206(d)(3) of ERISA.

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The Department of Labor (DOL) has announced plans to conduct web chats this month on issues involving workplace safety and benefit plan responsibilities. The Occupational Safety and Health Administration (OSHA) will host a web chat on workplace hazards associated with combustible dust on June 28, 2010. According to a notice (pdf) to be published in Monday’s edition of the Federal Register, the information gathered in response to the web chat will be used in the development of a proposed standard for combustible dust. The chat will focus on major issues related to a proposed rule such as scope, balance between performance and specification-based requirements, economic impacts, and definitions.

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On Monday, the Department of Labor’s Office of Labor-Management Standards (OLMS) held a public meeting to discuss potential changes to employer and consultant reporting under section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Section 203 establishes reporting and disclosure requirements for employers and labor relations consultants who enter into agreements or arrangements “whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer.” The agency requires employers and consultants to annually fill out certain disclosure forms regarding these arrangements. As the law currently stands, Section 203(c) exempts employers and consultants from filing these reports by reason of the consultant’s giving or agreeing to give “advice” to the employer. During Monday’s hearing, the OLMS indicated that it believes the current interpretation of the advice exception was overbroad and seeks to narrow it through rulemaking, as outlined in its semiannual regulatory agenda. (pdf)

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The Occupational Safety and Health Administration (OSHA) is set to issue a proposed rule (pdf) to revise the agency’s walking-working surfaces and personal protective equipment standards. According to a summary of the proposed rule to be published in Monday’s edition of the Federal Register, the proposed rule is intended to reduce the number of fall-related employee deaths and injuries by updating the rule to include new technology (including personal fall protection systems) and industry methods. The proposed rule: “reorganizes the rule in a clearer, more logical manner and provides greater compliance flexibility,” and “increases consistency between construction, maritime, and general industry standards, and eliminates duplication.”

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The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) has issued final regulations (pdf) governing the employment of children for non-agricultural jobs. According to a summary published in the Federal Register, the final rule revises the child labor regulations to incorporate statutory amendments to the Fair Labor Standards Act (FLSA), updates and clarifies the regulations that establish protections for youth employed in nonagricultural occupations, and implements specific recommendations made by the National Institute for Occupational Safety and Health (NIOSH) in its 2002 report to the DOL. Additionally, the regulations substantially increase the maximum permissible civil money penalty an employer may be assessed for child labor violations that cause the death or serious injury of a young worker. In a statement, the DOL claims that the final regulations “give employers clear notice that there are certain jobs children are simply not allowed to perform. They also expand opportunities for young workers to gain safe, positive work experience in fields such as advertising, teaching, banking and information technology, as well as through school-supervised work-study programs.”

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The Department of Labor’s Office of Labor Management Standards (OLMS) will publish in tomorrow’s Federal Register a final rule (pdf) implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf)  This EO mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA).

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The Internal Revenue Service (IRS) has published in the Federal Register final regulations (pdf) relating to diversification requirements for certain defined contribution plans holding publicly traded employer securities. According to the IRS, these regulations “will affect administrators of, employers maintaining, participants in, and beneficiaries of defined contribution plans that are invested in employer securities."  Specifically, the regulations implement section 401(a)(35) of the Internal Revenue Code, which was added by section 901 of the Pension Protection Act of 2006 (P.L. 109-280). This section requires certain defined contribution plans to provide participants, alternate payees and beneficiaries the right to divest employer securities held in their pension plan accounts and to direct the reinvestment of these amounts among at least three alternative investment options. The final regulations include a summary of comments it received from the proposed regulations issued in January 2008, and an explanation of revisions the agency deems most significant. These final regulations apply for plan years beginning on or after January 1, 2011, and are effective as of May 19, 2010.

Photo credit:  Kirby Hamilton

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The Department of Defense (DoD) will publish in tomorrow’s edition of the Federal Register an interim rule (pdf) implementing section 8116 of the DoD Appropriations Act for Fiscal Year 2010, which restricts a contractor’s use of mandatory arbitration agreements in certain instances. Specifically, section 8116 bans contractors or subcontractors at any tier that receive funds in excess of $1 million from the appropriations bill from enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” The Secretary of Defense is permitted to waive the applicability of this prohibition to a particular contract or subcontract in the interest of national security. Additionally, the arbitration limitations do not apply to a contractor’s or subcontractor’s agreement with employees or independent contractors that cannot be enforced in the U.S.

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The Department of Labor has issued interim final regulations (pdf) implementing the dependent coverage provisions of the Patient Protection and Affordable Care Act, as amended by the Healthcare and Education Reconciliation Act (PPACA) (the dependent coverage provisions are contained in ERISA section 715).

The new regulations provide that effective for plan years beginning on or after September 23, 2010 (effective date), any group health plan or group health insurance issuer (plan), which provides coverage to dependent children must make coverage available to dependent children until they have attained the age of 26. The regulation confirms that the last required coverage date is the day before the child's 26th birthday.  Continue reading this entry at Littler's Healthcare Employment Counsel blog.

Photo credit:  MBPHOTO, INC.

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The Department of Labor’s (DOL) Office of Labor Management Standards (OLMS) announced its intent to hold a public meeting to solicit input regarding employer and consultant reporting under section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Section 203 establishes reporting and disclosure requirements for employers and labor relations consultants who enter into agreements or arrangements “whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer.” Employers and consultants are required to annually fill out certain disclosure forms (LM-10, LM-20) regarding these arrangements.

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The Employee Benefits Security Administration (EBSA) is set to publish a notice (pdf) in the Federal Register announcing the availability of model COBRA notices that group health plans and other entities are required to provide to individuals eligible for the premium reductions and additional health care coverage election periods provided by the American Recovery and Reinvestment Act (ARRA), and extended for the third time by the Continuing Extension Act (CEA) of 2010. The CEA extends through May 31, 2010, the 65 % premium COBRA subsidy for eligible individuals who are involuntarily terminated from employment. In addition, the CEA provides retroactive eligibility for individuals who lost their jobs after the prior COBRA subsidy expired on March 31, 2010.

The EBSA has created a webpage that contains links to an updated Model Updated General Notice, Model Notice of New Election Period, Model Supplemental Information Notice, Model Notice of Extended Election Period, and a Model Updated Alternative Notice, in addition to instructions on which notice to provide and to whom.

Longer COBRA extensions are included in the American Workers, State, and Business Relief Act of 2010 (H.R. 4213), which the Senate passed in March. House and Senate negotiators are working to resolve differences so that both Chambers can approve final legislation before Memorial Day.

Photo credit:  MBPHOTO

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In tomorrow’s edition of the Federal Register, the National Mediation Board (NMB) is set to publish a final rule (pdf) amending its representation election procedure that has been in place for 75 years, making it easier for employees in the air and rail industries to unionize. Under the existing approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. Therefore, employees who chose not to participate are counted as “no union” votes. Effective as of June 10, 2010, the NMB’s final rule upends this decades-old policy by basing the voting outcome on the majority of those who actually vote, as is the practice in non-NMB-governed industries.

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Last week, the Department of Labor (DOL) announced a new regulatory and enforcement strategy that will require businesses to implement self-monitoring plans to ensure compliance with several labor laws. Under the “Plan/Prevent/Protect” initiative, the Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Office of Federal Contract Compliance Programs (OFCCP), and the Wage and Hour Division (WHD) will develop regulatory actions mandating that employers establish and enforce plans for identifying and remedying labor law violations. According to a DOL statement on this new program,

[e]mployers and others must 'find and fix' violations — that is, assure compliance — before a Labor Department investigator arrives at the workplace. Employers and others in the Department's regulated communities must understand that the burden is on them to obey the law, not on the Labor Department to catch them violating the law. This is the heart of the Labor Department's new strategy.

For more information on this DOL initiative and how it will impact employers, see Littler’s ASAP: "Plan/Prevent/Protect": The DOL’s Program to Transform Employment Law Compliance for Businesses by Jay Sumner, Van A. Goodwin, Mary E. Sharp, and Antonio D. Robinson.

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The Occupational Safety and Health Administration (OSHA) plans to conduct stakeholder meetings and solicit written comments on its current injury and illness recordkeeping collection methods in preparation for regulatory action to modernize the system. In a news release, OSHA’s Assistant Secretary of Labor David Michaels stated that the public meetings and written input “will help give OSHA direction to develop innovative ideas that will allow employers, workers and researchers to participate in improving occupational safety and health through the use of occupational injury and illness data.” As discussed in a summary of OSHA’s intent published in the Federal Register, these efforts will also support President Obama's Open Government initiative by increasing the ability of the public to easily find, download, and use the resulting dataset generated and held by the federal government.

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The Occupational Safety and Health Administration (OSHA) is seeking information and comment (pdf) on occupational exposure to infectious agents in health care and health care-related settings in order to determine whether it will take further regulatory action to limit the spread of occupationally acquired infectious diseases. According to a summary of this request published in the Federal Register, OSHA is interested in strategies that are being used in work settings where health care is provided (e.g., hospitals, outpatient clinics, clinics in schools and correctional facilities) and health care-related settings (e.g., laboratories that handle potentially infectious biological materials, medical examiner offices and mortuaries) to mitigate the risk of occupationally acquired infectious diseases. To that end, the agency seeks to collect “information and data on the facilities and the tasks potentially exposing workers to this risk; successful employee infection control programs; control methodologies being utilized (including engineering, work practice, and administrative controls and personal protective equipment); medical surveillance programs; and training.”

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The U.S. Department of Health and Human Services (HHS) has issued interim final regulations (pdf) to implement the provisions of the Early Retiree Reinsurance Program (ERRP), the temporary cost assistance program instituted as part of the Patient Protection and Affordable Care Act (PPACA). The ERRP provides $5 billion in temporary financial help for employer plans that continue to provide health coverage to “early retirees,” defined as individuals age 55 and older who are neither active employees nor eligible for Medicare, plus their spouses, surviving spouses and dependents. Under the ERRP, the Secretary will reimburse plans for certain claims between $15,000 and $90,000 (with those amounts being indexed for plan years starting on or after October 1, 2011). Funds will be available until the earlier of January 1, 2014 or until the $5 billion is depleted. These plans can receive reimbursement for a portion of medical, surgical, hospital, and prescription drug costs.  Continue reading about this development at Littler's Healthcare Employment Counsel blog.

Photo credit:  Andriy Solovyov

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During a recent Q&A session on the Department of Labor’s semiannual regulatory agenda, Deputy Administrator of the Wage and Hour Division (WHD) Nancy Leppink highlighted the agency’s plans to revise the Fair Labor Standards Act’s (FLSA) recordkeeping requirements, and the rules governing the employment of workers who provide companionship services. If approved and implemented, both of these regulatory measures would result in significant changes.

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According to the Equal Employment Opportunity Commission’s (EEOC) semiannual regulatory agenda, final rules on Title II of the Genetic Information Nondiscrimination Act (GINA) and the employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA) are imminent. The EEOC intends to issue a final rule on GINA sometime next month. Title II prohibits the use of genetic information in making employment decisions and limits employer access to genetic information, as well as imposes certain confidentiality obligations. The EEOC issued a proposed rule in March 2009. The final rule has already been sent to the Office of Management and Budget (OMB) for review.

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On Monday, the Department of Labor (DOL) published in the Federal Register its Semiannual Regulatory Agenda. (pdf)  This document sets forth the regulations the agency intends to review or develop in the next 12 months. According to the summary of the agenda, the DOL’s “agencies have carefully assessed their available resources and what they can accomplish in the next 12 months and have adjusted their agendas accordingly.” Highlights of the agenda include the following:

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In tomorrow’s edition of the Federal Register, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) will publish a proposed rule (pdf) implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities.

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In tomorrow’s edition of the Federal Register, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) will publish a final rule (pdf) implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6, 2009, EO 13502: Use of Project Labor Agreements for Federal Construction Projects 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 March 19, the Department of Labor’s Wage and Hour Division (WHD) published in the Federal Register a notice of proposed rulemaking (NPRM) (pdf) that seeks to implement Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts, (pdf) signed by President Obama on January 30, 2009. This Order requires that any federal service contracts and solicitations for such contracts include a clause requiring contractors and their subcontractors to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. The right of first refusal clause does not apply to managerial or supervisory employees. Any new contractor cannot advertise employment openings until the right of first refusal has been exercised by the existing employees.

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The Occupational Safety and Health Administration (OSHA) has published in today’s edition of the Federal Register a proposed rule (pdf) that revises the notification requirements in the exposure determination provisions of the standards for hexavalent chromium (“Cr(VI)”). A direct final rule will be published in tomorrow’s edition. Specifically, the proposal would require employers to notify employees of the results of all exposure determinations, whether or not exposure exceeds the permissible exposure limit (PEL). Currently, the exposure determination provision of the chromium standard requires employers to determine the 8-hour time-weighted-average exposure for each employee exposed to Cr(VI), and notify employees exposed to levels that exceed the PEL. Under the general industry standard, notice has to be provided within 15 work days. For construction and maritime employees, employers must provide notice within 5 work days.

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On Tuesday, the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) will publish in the Federal Register a final (pdf) and a proposed rule (pdf) providing for greater worker investment and retirement account protections. Both final and proposed rules were drafted in response to the Pension Protection Act of 2006 (PPA), which amended portions of the Employee Retirement Income Security Act (ERISA) dealing with investment advice and retirement plan transparency. The announcement of these rules was made at a White House forum hosted by Vice President Joe Biden on Friday. According to the DOL, these two new rules are “designed to enhance retirement security and transparency for the millions of workers covered by 401(k), pension and other retirement arrangements.”

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In tomorrow’s edition of the Federal Register, the Employee Benefits Security Administration (EBSA) will publish a final rule (pdf) that outlines procedures relating to the assessment of civil penalties against sponsors of multiemployer pension plans for certain violations of section 305 of the Employee Retirement Income Security Act (ERISA). The Pension Protection Act of 2006 (PPA) added section 305 to ERISA, which sets forth additional rules for multiemployer defined benefit pension plans that are in endangered or critical status. The PPA gave the Secretary of Labor authority to assess civil penalties not exceeding $1,100 per day against any plan sponsor of a multiemployer plan that fails to follow these additional rules and procedures. According to the EBSA, the final rule sets forth how the maximum penalty amounts are computed, identifies the circumstances under which a penalty may be assessed, outlines certain procedural rules for the Department of Labor (DOL) and filing by a plan sponsor, and provides a plan sponsor with a means to contest an assessment by the DOL.

The rule takes effect on March 29, 2010.

Photo credit:  MBPHOTO, INC.
 

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The Equal Employment Opportunity Commission (EEOC) will issue in tomorrow’s edition of the Federal Register a notice of proposed rulemaking (NPRM) (pdf) to define the meaning of the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The need to clarify the scope of this defense was brought about by two recent U.S. Supreme Court cases that address the RFOA defense when plaintiffs claim an employer’s facially neutral policy or practice has a disparate impact on older employees.

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The Department of Transportation (DOT) will publish in tomorrow’s edition of the Federal Register a notice of proposed rulemaking (NPRM) (pdf) to amend certain drug-testing procedures to conform them to the Department of Health and Human Services (HHS) laboratory drug-testing requirements. According to a summary of the NPRM, the proposed changes are intended to create consistency with new requirements established by the HHS Mandatory Guidelines. Primary proposed changes include:

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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) will publish in tomorrow’s Federal Register a proposed rule (pdf) that revises its current Occupational Injury and Illness Recording and Reporting (Recordkeeping) requirements to restore a column to the OSHA 300 Log that employers would use to record work-related musculoskeletal disorders (MSD). This column for MSD was initially included in the 2001 Recordkeeping final regulation, but was deleted before it became effective. OSHA is seeking to reintroduce this reporting requirement, as it believes that the information generated from the MSD column will, among other things, improve the “accuracy and completeness” of national occupational injury and illness statistics, and “provide valuable and industry specific information to assist OSHA in effectively targeting its inspection, outreach, guidance and enforcement efforts to address workplace MSDs,” in addition to helping employers identify the incidence of such injuries.

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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.

Photo credit:  borisyankov

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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.

Photo credit: Kameleon007
 

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A final rule (pdf) slated for publication in tomorrow’s Federal Register will revoke the requirement that federal contractors inform employees of their rights regarding the payment of union dues or fees. On January 30, 2009, President Obama issued Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws that requires government contractors and subcontractors to post notices outlining employees’ rights under the National Labor Relations Act (NLRA). Executive Order 13496 also revokes Executive Order 13201 – Notification of Employee Rights Concerning Payment of Union Dues or Fees – issued by former President Bush on February 17, 2001. Executive Order 13201 had required that federal contractors post a notice to its employees informing them that: (1) they are not required to join or maintain membership in a labor union; and (2) that those who are not union members – but are nonetheless required to pay dues or fees pursuant to a union security agreement – can object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment. The final rule deletes the portions of the Federal Acquisition Regulation (FAR) that require or refer to the union dues or fees notification requirements of the revoked Executive Order.

With respect to the mandate that contractors post notices outlining an employee’s rights under federal labor laws, the Department of Labor (DOL) in August issued a proposed rule that 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. A final rule on these requirements has not yet been issued.

This entry was written by Ilyse Schuman.

Photo credit:  Boris Yankov

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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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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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As anticipated, the Department of Labor’s the Employee Benefits Security Administration (EBSA) has withdrawn its final rule (pdf) published on January 21, 2009 regarding the provision of investment advice to participants and beneficiaries in individual account plans such as 401(k)s and beneficiaries of individual retirement accounts (IRAs) and related plans. Last week, the EBSA issued a final rule extending the applicability and effective dates of the investment advice rule, which would have taken effect on November 18.

The withdrawn rule would have implemented a statutory prohibited transaction exemption under the Employee Retirement Income Security Act (ERISA) and parallel provisions in the Internal Revenue Code made by the Pension Protection Act (PPA), and provided an additional administrative class exemption. According to the EBSA, the agency received a number of comments that raised concerns about the potential for investment adviser self-dealing as a result of these provisions. Commenters claimed that the rule does not contain strong enough safeguards to protect the interests of plan participants and beneficiaries from potential conflicts of interest. The EBSA concluded that given these and other legal and policy concerns raised, the Department is justified in withdrawing its final rule, and intends to propose new regulations on the statutory prohibited transaction exemption under ERISA shortly.

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The Department of Defense (DoD) has adopted without change an interim rule that provides whistleblower protections for DoD contractor employees. The interim rule, issued on January 15, 2009, implemented portions of the National Defense Authorization Acts for Fiscal Years 2008 and 2009 that added these whistleblower rights and protections. Specifically, the added protections prevent government contractors from discharging, demoting, or otherwise discriminating against employees as a reprisal for disclosing to government officials information regarding waste or mismanagement, danger to public health or safety, or a violation of law related to a DoD contract.

The interim rule expanded the types of information covered by existing whistleblower protections, in addition to the categories of government officials to whom the information could be reported without reprisal. The rule also established time periods in which the Inspector General and agency head must act on the employee’s complaint of a whistleblower violation, and allows the employee to bring a claim in federal court once he or she has exhausted all administrative remedies. Pursuant to the new rule, all solicitations and contracts must include a clause informing employees of their whistleblower rights.

These requirements became final as of November 19, 2009.

Photo credit:  Lkmorlan

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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 Health and Human Services (HHS) has published interim final rules that conform the enforcement regulations of the Health Insurance Portability and Accountability Act (HIPAA) to those made by the Health Information Technology for Economic and Clinical Health Act (the HITECH Act) regarding the electronic transmission of health information. Signed into law as part of the American Recovery and Reinvestment Act of 2009 (ARRA or ”Economic Stimulus”), the HITECH Act, among other things, modified the HHS Secretary’s authority to impose civil monetary penalties for violations of HIPAA rules occurring after Feb. 18, 2009. These HITECH Act revisions significantly increase the penalty amounts the Secretary may impose for such violations.

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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 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 Department of Labor (DOL), Internal Revenue Service (IRS), and the Centers for Medicare and Medicaid (CMS) have published in the Federal Register interim final rules (pdf) governing Sections 101 through 103 of Title I of the Genetic Information Nondiscrimination Act of 2008 (GINA). Title I of GINA amended the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act (PHS Act), the Internal Revenue Code of 1986 (Code), and the Social Security Act (SSA) to prohibit discrimination in health coverage based on genetic information. Sections 101-103 contain provisions banning discrimination based on genetic information in health insurance coverage and group health plans. The EEOC has not yet issued final rules interpreting Title II of GINA, which prohibits discrimination in employment based on genetic information, and limits the acquisition and disclosure by employers and other entities of such information.

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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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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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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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Pursuant to one of President Obama’s executive orders issued on January 30, 2009, the Department of Labor’s (DOL) Office of Labor-Management Standards is rescinding regulations requiring federal contractors and subcontractors to post notices informing employees of their rights to refrain from joining a union, otherwise known as Beck notices.  The executive order at issue – Notification of Employee Rights Under Federal Labor Laws (number 13496) – requires such contractors to instead post notices explaining employees’ rights to join unions and bargain collectively under the National Labor Relations Act. Executive Order 13496 also revokes Executive Order 13201 issued under the Bush administration, which mandated that federal contractors post Beck notices at the worksite.

Because Obama’s executive order revokes Bush’s order, the regulations implementing that order are no longer in force or effect. Therefore, the DOL is rescinding these regulations through a final rule, and not a proposed rule, which would necessitate public comment.

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In the wake of heavy criticism and a lawsuit filed by seven major airline companies, the Federal Aviation Administration (FAA) has decided to revoke its revised pilot and flight attendant rest rules for long-range flights. Instead, the agency announced it will work with airlines to study safety measures over the coming year.

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The Department of Labor (DOL) proposes to suspend for nine months the H–2A regulations published on December 18, 2008, which became effective on January 17, 2009. The amended rules—implemented in the closing days of the Bush administration—were intended to make it easier for agricultural employers to hire foreign workers on a temporary or seasonal basis to fill agricultural jobs where U.S. workers were unavailable. The sweeping changes to the H-2A regulations have proven to be difficult for the DOL to implement.  Continue reading on Littler's Global Immigration Counsel blog.

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Pursuant to the Obama administration’s announced intent to reverse a midnight regulation governing health care providers, the Department of Health and Human Services has published in the Federal Register its proposed rescission of the so-called provider conscience rule, published on December 19, 2008. The rule prohibits employment discrimination against health care workers if they harbor religious or moral objections to providing certain services such as abortion and the dispensing of birth control. This rule was controversial not only because it might have limited women’s access to certain health care services, but also because it subjected employers to potentially conflicting laws regarding religious discrimination in the workplace.

Comments on this proposed rescission are due by April 9, 2009. Such comments may be submitted electronically at http://www.Regulations.gov. Click on the link: “Comment or Submission” and enter the keywords: “Rescission Proposal.” Alternatively, comments may be made via email to proposedrescission@hhs.gov. Written comments (one original and two copies) may also be sent to: Office of Public Health and Science, Department of Health and Human Services, Attention: Rescission Proposal Comments, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Room 716G, Washington, DC 20201.

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The Equal Employment Opportunity Commission (EEOC) has published in the Federal Register its proposed regulations for Title II of the Genetic Information Non-Discrimination Act (GINA). GINA – which, among other things, prohibits employment discrimination based on genetic information, bars the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements – mandates that the EEOC issue implementing regulations by May 21 of this year. Title II of GINA, which governs the employment provisions of the Act, takes effect on November 21, 2009.  Comments on the proposed regulations are due by May 1, 2009.

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On February 24, the Internal Revenue Service (IRS) published in the Federal Register its final rule regarding automatic contributions to 401(k) plans and similar types of defined contribution plans. Such automatic enrollment features were established by the Pension Protection Act (Pub. L. No. 109-280), which amended the tax code to facilitate automatic enrollment for 401(k) plans, Section 403(b) tax-deferred annuity plans, Section 457(b) governmental plans, and similar arrangements. These regulations affect administrators of, employers maintaining, participants in, and beneficiaries of section 401(k) plans and other eligible plans that include an automatic contribution setup. Among other things, the regulations clarify minimum percentage requirements for qualified automatic contribution arrangements (QACA), expand uniformity requirements, and establish a notice timing requirement.

The final regulations relating to qualified automatic contribution arrangements apply to plan years beginning on or after January 1, 2008. The regulations relating to eligible automatic contribution arrangements apply for plan years beginning on or after January 1, 2010.

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The Occupational Safety and Health Administration (OSHA) has issued an advanced notice of proposed rulemaking regarding the development of a standard that addresses occupational exposure to diacetyl and food flavorings containing diacetyl. Occupational exposure to diacetyl has been linked to the lung disease commonly known as “popcorn lung.”

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The Occupational Safety and Health Administration published a notice of proposed rulemaking in the January 21 Federal Register that addresses the fit-test procedures for respiratory protection face masks. The rule would add two PortaCount® quantitative fit-testing protocols to the OSHA Respiratory Protection Standard (29 CFR 1910.134). Employers in general industry, shipyard employment, and the construction industry would be affected by this change.

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The Mine Safety and Health Administration (MSHA) and the National Institute for Occupational Safety and Health (NIOSH) published a proposed rule Friday in the Federal Register that establishes criteria for approving “continuous personal dust monitors,” new devices worn by miners to report coal dust exposure levels on a real-time and continuous basis. This proposal updates the application requirements for existing coal mine dust personal sampler units (CMDPSUs) that are currently used. The proposed rule addresses only the standards for approving the device requirements; it does not change regulations on how these sampling devices should be used.

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On January 2, 2009, the Department of Labor (DOL) published a final regulation in the Federal Register that outlines the procedures for assessing civil penalties up to $1,000 per day against employee benefit administrators or sponsors who fail to disclose certain documents to participants, beneficiaries, employee representatives, and other employees as required by the Employee Retirement Income Security Act (ERISA), as amended by the Pension Protection Act of 2006 (PPA).

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On the last day of 2008, the Department of Labor’s Mine Safety and Health Administration (MSHA) published two final rules in the Federal Register setting standards for underground mine operations. One final rule requires underground mine operators to use flame-resistant conveyor belts and institute other fire protection measures. This rule implements recommendations set forth in a report released last year by a technical study panel established under Section 11 of the Mine Improvement and New Emergency Response (MINER) Act of 2006. According to a press release issued by the MSHA, the final rule mandates that underground coal mine operators:

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Citing privacy concerns, the Department of Labor (DOL) issued a new rule abolishing the requirement that federal construction contractors and subcontractors include workers’ home addresses and full social security numbers on weekly certified payroll statements that are submitted to the contracting federal agency under the Davis-Bacon and Copeland Anti-Kickback Acts. Under the new rule published in the Federal Register on December 19, only a partial identifier is required, such as the last four digits of the individual’s social security number.

Many labor organizations opposed the new rule, fearing that omitting a worker’s complete identification information from weekly payroll statements could result in the misclassification of workers, underpayment of wages, fringe benefit abuses, and illegal kickbacks on federal construction projects.
 

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The Department of Labor has posted on its website its updated poster incorporating the recent military family leave amendments and other changes to the Family and Medical Leave Act (FMLA), as reflected in the recently-published final FMLA rule. Employers covered by the FMLA are required to post notice of an employee’s FMLA rights in a conspicuous area in the workplace.

The DOL has also posted a number of new and revised optional FMLA forms. These forms include the FMLA Certification of Health Care Provider for Employee's Serious Health Condition (WH-380E); FMLA Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380F); FMLA Notice of Eligibility and Rights and Responsibilities (WH-381); FMLA Designation Notice (WH-382); Certification of Qualifying Exigency For Military Family Leave (WH-384); and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

These forms expire on December 31, 2011.
 

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The United States Citizenship and Immigration Services (USCIS) has issued a final rule that revises Form I-9 and the list of documents that are acceptable to prove identity and employment authorization. Employers will be given a 45-day grace period to begin using the new form. Failing to do so may result in fines.

For more information on this interim final rule, see Littler’s ASAP: USCIS Issues Interim Final Rule on I-9 Employment Verification by Jorge R. Lopez and Chadwick M. Graham.
 

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For the first time in 20 years, the H-2A guest worker program for agricultural employees is slated for reform. On Dec. 11, the Department of Labor (DOL) and Department of Homeland Security (DHS) issued final rules regarding the hiring of foreign agricultural workers, ostensibly to streamline the hiring process of these temporary and seasonal employees.

Under the current guest worker program, employers are allowed to hire foreign workers only if they cannot find U.S. workers willing and able to do the job, and only if the wages and working conditions they provide do not negatively impact U.S. workers. Previously, the DOL had to certify the employer’s recruitment efforts and wage rates. Under the new rules, an employer need only attest that it has fully complied with the H-2A requirements. This substantially shortens the processing times. An employer who falsifies this attestation is subject to fines (which are increased under the new rules), revocation of labor certification, and debarment from participation in the guest worker program.

Additionally, the DOL rule changes the program’s wage formula. The wage rate is currently calculated using the Department of Agriculture’s quarterly farm labor survey data that is averaged across several regions and agricultural industries. The new rule uses Bureau of Labor Statistics Occupational Employment Survey (OES) data, which is arguably more detailed and takes several regions, occupations and skill levels into account.

The DHS rule, among other things, eases the employer’s limitation on petitioning for multiple, unnamed agricultural workers, allows workers to stay in this country for a longer period of time following visa expiration, and limits worker participants to citizens of a select group of countries.

In general, these rules will likely benefit agricultural employers, as they relax some of the administrative burdens inherent in the H-2A program. Predictably, organized labor has vociferously opposed these changes on the grounds that they make it easier for an employer to bypass recruitment efforts to find available American labor, and allow employers to pay lower wages for all agricultural workers.

The DOL final rule is set to be published December 18 in the Federal Register.  It is anticipated that the final DHS rule will be published around the same time period.
 

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