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

We are pleased to announce a new addition to Littler’s blogroll:

Employee Benefits Counsel 

Brought to you by Littler's Employee Benefits, ERISA and Benefit Plan Litigation, and Executive Compensation practice groups, this blog covers:

• Legislative and regulatory developments in the employee benefits arena, including the topics of health care reform; plan design and administration; employee benefits litigation; and
• Executive compensation, providing insight and analysis on legal developments that warrant discussion.

During this time of significant governmental change and shifts in the strategy and style of benefits litigation, Littler's depth of experience in employee benefits, litigation, and executive compensation matters gives our attorneys a distinctly broad perspective with which to provide insight and useful analysis of the latest developments. To subscribe to receive email alerts of new blog posts, please enter your email address in the Subscribe box on the right side of the Employee Benefits Counsel blog homepage. 

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The Internal Revenue Service has released a detailed list of pension plan and other retirement-related contribution limitations for the Tax Year 2012 that were triggered by an increase in the cost-of-living index. According to the IRS announcement of the 2012 pension plan limitations, the main changes for 2012 include the following:

• The elective deferral (contribution) limit for employees who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan is increased from $16,500 to $17,000.
• The catch-up contribution limit for those aged 50 and over remains unchanged at $5,500.
• The deduction for taxpayers making contributions to a traditional IRA is phased out for singles and heads of household who are covered by a workplace retirement plan and have modified adjusted gross incomes (AGI) between $58,000 and $68,000, up from $56,000 and $66,000 in 2011. For married couples filing jointly, in which the spouse who makes the IRA contribution is covered by a workplace retirement plan, the income phase-out range is $92,000 to $112,000, up from $90,000 to $110,000. For an IRA contributor who is not covered by a workplace retirement plan and is married to someone who is covered, the deduction is phased out if the couple’s income is between $173,000 and $183,000, up from $169,000 and $179,000.
• The AGI phase-out range for taxpayers making contributions to a Roth IRA is $173,000 to $183,000 for married couples filing jointly, up from $169,000 to $179,000 in 2011. For singles and heads of household, the income phase-out range is $110,000 to $125,000, up from $107,000 to $122,000. For a married individual filing a separate return who is covered by a retirement plan at work, the phase-out range remains $0 to $10,000.
• The AGI limit for the saver’s credit (also known as the retirement savings contributions credit) for low-and moderate-income workers is $57,500 for married couples filing jointly, up from $56,500 in 2011; $43,125 for heads of household, up from $42,375; and $28,750 for married individuals filing separately and for singles, up from $28,250.

Full descriptions of the changed and unchanged adjusted limitations are set forth in the IRS announcement.  See also Littler's ASAP:  IRS Announces Pension Plan Limitations for Tax Year 2012.

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Federal contractors will have an additional month to submit their VETS-100/VETS-100A reporting forms required under the Vietnam Era Veterans' Readjustment and Assistance Act of 1974 (VEVRAA), as amended. The Department of Labor’s Veterans' Employment & Training Service (VETS) has announced that due to continuing technical problems with the agency’s electronic filing system, contractors required to file Forms 100 and 100A will have until December 30, 2011 to report the number of their current employees and new hires who are qualified covered veterans. The normal annual reporting cycle begins August 1 and ends September 30. The agency had already extended the filing deadline by one month, but the technical problems have not been resolved as anticipated. The DOL now expects the electronic system to be operational as of November 1, 2011.

According to the announcement on the VETS website, because of these technical difficulties, “the Department will not initiate enforcement actions against contractors who submit the VETS-100/VETS-100A from November 1, 2011 through December 30, 2011. Unless a further update is given or other recognized exceptions apply, the Department may initiate enforcement actions against contractors who do not submit VETS-100/VETS-100A forms by December 30, 2011.”

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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 Department of Labor’s Veterans' Employment & Training Service (VETS) has announced that federal contractors have until November 30, 2011 to submit their VETS-100/VETS-100A reporting forms. The Vietnam Era Veterans' Readjustment and Assistance Act of 1974 (VEVRAA), as amended, requires that certain contractors and subcontractors report annually the number of their current employees and new hires who are qualified covered veterans. More information on VEVRAA’s federal contracting requirements can be found here.

According to the notice on the VETS’s website, technical problems have delayed the electronic submission of these forms, which was slated to begin August 1, 2011. The agency believes the problems will be fixed within the next two months, enabling the online filing system to begin accepting the forms by October 1, 2011. Because of these technical problems, the agency states that it “will not initiate enforcement actions against contractors who submit the VETS-100/VETS-100A from October 1, 2011 through November 30, 2011.” Unless otherwise notified, contractors can expect the VETS to resume enforcement actions against those who fail to submit the VETS-100/VETS-100A forms by November 30, 2011.

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

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Except for intake of discrimination charges and appeals, evaluation of any charges that might necessitate a temporary retraining order or other immediate relief, and work on on-going litigation for which an extension has not been granted, the Equal Employment Opportunity Commission (EEOC) would essentially cease operations during the looming government shutdown. As discussed in the agency’s contingency plan in the event of lapsed appropriations, should a federal government shutdown occur:

• Staff will not be available to answer questions from the public, or to respond to correspondence from the public.
• While the EEOC will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown, these charges will not be investigated.
• Insofar as the courts grant EEOC’s requests for extensions of time, EEOC will not litigate in the federal courts.
• Mediations will be cancelled.
• Federal sector hearings will be cancelled, and federal employees’ appeals of discrimination complaints will not be decided.
• Outreach and education events will be cancelled.
• No FOIA requests will be processed.

The agency estimates that out of approximately 2,600 EEOC employees, about 131 staff and contract personnel, many part-time or on call, will perform the agency’s limited functions.

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The Department of Labor plans to continue scaled-back operations should the federal government shut down due to lack of appropriations. According to a memorandum (pdf) issued by DOL Solicitor M. Patricia Smith, in the event of a shutdown, the agency will retain approximately 1,650 out of 16,099 employees to carry out necessary functions and to “protect life and property.” The memorandum outlines the DOL’s shutdown plans that the Office of the Solicitor (SOL) has approved; includes documentation from the heads of the various DOL sub-agencies acknowledging that their agencies will generally cease operations, with some limited exceptions; and provides the SOL’s plan “for continuing a minimal level of activities sufficient to support the excepted activities of the Department under applicable legal standards.”

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

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We are pleased to announce two new additions to the Littler blogroll:

Labor Relations Counsel
Brought to you by Littler's Labor Management Relations Practice Group, the Labor Relations Counsel blog targets meaningful legal developments, including appellate court decisions, NLRB and NMB decisions, and administrative rules and regulations. During this time of enormous governmental change and shifts in strategy and style of powerful labor unions, Littler's history and depth of experience in labor relations gives its attorneys a distinctly broad perspective with which to provide insight and useful analysis of the latest developments.

Digital Workplace Blog
The Digital Workplace Blog is a unique collaboration between Littler Mendelson and Stuart N. Brotman Communications, bringing together legal and business minds to address issues arising in the digital workplace. This approach is designed to provide readers with a comprehensive understanding of the issues, with Stuart N. Brotman Communications covering developments from a management perspective, and Littler examining the legal implications of technology in the workplace.

To receive email alerts of new postings, please enter your email address in the Subscribe box on each blog’s homepage.

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President Obama has named U.S. Solicitor General Elena Kagan as his pick to replace retiring Justice John Paul Stevens to the U.S. Supreme Court. If confirmed, Kagan will be the third woman to preside over the nine-justice Court, and only the fourth woman to ever serve on the bench. A Democrat, Kagan is considered to be more moderate than Justice Sonia Sotomayor, Obama’s last nominee to the Court. Additionally, because Kagan was never a judge, she has no judicial track record to scrutinize during future confirmation hearings, and thus could be considered a “safer” pick. Also, unlike Sotomayor, Kagan does not have a history of opinions in labor and employment matters, as her academic career and writings focused primarily on matters of administrative and constitutional law. Although Kagan’s confirmation is not a sure bet by any means, the Senate’s 61-31 confirmation of her as Solicitor General last year indicates that she enjoys some measure of bipartisan support.

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President Obama has issued a proclamation establishing April 20 as “National Equal Pay Day.” This day is meant to symbolize “the day when an average American woman's earnings finally match what an average American man earned in the past year.” In a statement supporting Equal Pay Day, Labor Secretary Hilda Solis called for passage of the Paycheck Fairness Act (H.R. 12, S. 182), legislation that cleared the House of Representatives “and is gaining momentum in the Senate.” This measure would expand damages under the Equal Pay Act of 1963 to include potentially unlimited compensatory and punitive awards. In addition, it would amend the broad affirmative defense previously available to employers that the pay differential in question is caused by a factor other than sex. The bill would also eliminate the “establishment” requirement that employees must work in the same place of employment for wage comparison purposes.

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Today President Obama outlined his plan to promote the growth of small businesses as a way to stimulate the economy and reduce unemployment. During his State of the Union Address, Obama proposed using $30 billion repaid funds that financial institutions received through the Troubled Asset Relief Program (TARP) to increase the ability of small businesses to obtain loans. In addition, he called for tax incentives for businesses to invest in new plants and equipment, and the elimination of capital gains taxes on small business investment. 

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This morning, President Obama unveiled a $3.8 trillion budget for fiscal year 2011, (pdf) $14 billion of which is allocated to the Department of Labor (DOL). As expected, much of these funds are directed to the DOL’s labor and employment law enforcement efforts. According to a fact sheet, the budget provides $25 million and 100 additional enforcement personnel for the DOL, in conjunction with the Treasury Department, to identify and penalize employers who improperly classify employees as independent contractors. In addition, $1.7 billion – a $67 million increase – will be given to the DOL’s worker protection agencies for enforcement purposes, reflecting a shift in resources towards greater enforcement. The Occupational Safety and Health Administration (OSHA) will be provided $573 million, an increase of $14 million, to be used, among other things, to hire or transfer an additional 60 enforcement members to its staff, and conduct 9 percent more inspections. An additional $7 million will be provided to the Employee Benefits Security Administration (EBSA) to hire more benefits advisors and research staff.

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Littler is happy to introduce Ilyse Schuman as the newest member of the Firm’s Government Affairs team. Schuman is a shareholder in Littler’s Washington, D.C. office, where she heads up the Firm’s newly-formed Government Affairs practice and serves as main contributor to this blog. A veteran congressional staffer and policy advisor, she brings a wealth of Capitol Hill knowledge and experience to her new roles. We look forward to her insights as the landscape in Washington, D.C. continues to evolve for employers.

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