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

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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