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

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

Military Service Member Exigency and Caregiver Leave

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

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The Department of Labor’s Wage and Hour Division (WHD) has issued three new fact sheets on unlawful retaliation under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Fact Sheet number 77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), briefly discusses the prohibitions, coverage and enforcement issues related to section 15(a)(3) of the FLSA, which makes it a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The fact sheet explains that covered complaints may be made orally or in writing, and that most courts have concluded that the FLSA’s retaliation protections extend to internal complaints as well.

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

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

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

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On December 12 Sen. Charles Schumer (D-NY) introduced a bill that would amend the Fair Labor Standards Act (FLSA) to make over-the-road bus drivers subject to the law’s maximum hours requirement. The Driver Fatigue Prevention Act (S. 1977) would revise Section 13(b)(1) of the FLSA, which exempts “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service” from the Act’s overtime provisions, to make an exception for over-the-road bus drivers. Over-the-road buses are those “characterized by an elevated passenger deck located over a baggage compartment.”

This bill has been referred to the Senate Committee on Health, Education, Labor and Pensions (HELP).

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

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

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

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

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During a hearing on the Fair Labor Standards Act (FLSA) conducted by the House’s Subcommittee on Workforce Protections, former administrator of the DOL’s Wage and Hour Division (WHD) and current Littler Shareholder Tammy McCutchen outlined how the agency’s shift in regulatory and enforcement tactics have made complying with the FLSA increasingly difficult for employers, and suggested changes. Overall, McCutchen explained that the WHD has become more punitive during this Administration, is upending practices that have been in place “for decades,” and has focused its resources on extensive and often unnecessary enforcement actions instead of helping good faith employers comply with the law.

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Bipartisan legislation introduced in the Senate last week would update the Fair Labor Standards Act’s (FLSA) computer employee exemption. Section 13(a)(17) of the FLSA establishes minimum wage and overtime exemptions for computer systems analysts, computer programmers, software engineers, or other similarly skilled workers provided that these employees’ specific job duties and compensation meet certain requirements. Specifically, to qualify for a computer employee exemption under current law the employee’s “primary duty” must consist of:

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Rep. Lynn Woolsey (D-CA) has reintroduced legislation that would create new record-keeping requirements for employers that hire independent contractors, and impose stricter penalties for misclassification. Notably, the Employee Misclassification Prevention Act (H.R. 3178) would amend the Fair Labor Standards Act (FLSA) to require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. In addition, the measure would do the following:

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To help commemorate National Domestic Violence Awareness Month, Rep. Lynn Woolsey (D-CA) reintroduced the Domestic Violence Leave Act (H.R. 3151), legislation that would allow employees to take leave under the Family and Medical Leave Act (FMLA) to address acts of domestic violence, sexual assault and stalking aimed at themselves, a spouse (including domestic partner and same-sex spouse), parent or child.

The FMLA leave could be used to seek medical attention for injuries; obtain legal assistance or remedies; participate in a legal proceeding; attend support groups or therapy; and participate in safety planning, among other related activities held during work hours. An employee would be able to substitute paid leave for the leave provided under this bill. An employer would be entitled to seek certification that the employee is legitimately taking FMLA leave for the reasons outlined in the measure, but would be required to keep such information confidential. In lieu of such written documentation as police reports or witness statements, an employee would be able to satisfy the certification requirement by providing a written statement describing the reason for taking leave.

In a press release, Rep. Woolsey stated: “Domestic violence is a widespread problem affecting millions of people in the United States, men and women,” adding that her bill “ensures that those who have suffered abuse have the time to recover, physically and emotionally, without losing their job or forfeiting the income that supports them and their family.”

The text of this bill has already been incorporated into a more extensive leave bill – the Balancing Act of 2011 (H.R. 2346) – Rep. Woolsey introduced in June 2011. Yet another measure, the Healthy Families Act (H.R. 1876, S. 984) introduced in May 2011, would require employers to provide paid sick leave as well as paid leave for employees who are the victims of domestic violence, stalking or sexual assault.

Photo credit:  Spauln

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Employers that voluntarily reclassify their independent contractors as employees for federal tax purposes and pay a fee covering a portion of their past payroll obligations can escape certain tax liability for improper misclassification under the IRS’s new Voluntary Classification Settlement Program (VCSP). In a statement announcing the program, IRS Commissioner Doug Shulman said: “This settlement program provides certainty and relief to employers in an important area,” adding: “This is part of a wider effort to help taxpayers and businesses to help give them a fresh start with their tax obligations.”

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

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

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

Photo credit: borisyankov

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Rep. Carolyn Maloney (D-NY) and Senator Jeff Merkley (D-OR) have introduced legislation that would afford civil rights protections to breastfeeding employees and expand existing rights to more employees. Specifically, the Breastfeeding Promotion Act of 2011 (H.R. 2758; S. 1463) would amend both the Fair Labor Standards Act (FLSA) and Title VII of the Civil Rights Act to prohibit employers from terminating or otherwise discriminating against an employee who nurses or expresses milk during lunch or break times and entitle many salaried employees to the same benefits given to their non-exempt counterparts under the Patient Protection and Affordable Care Act.

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During a hearing conducted by the House Subcommittee on Workforce Protections, lawmakers and panelists questioned whether the Fair Labor Standards Act (FLSA) has kept pace with modern industry. Subcommittee Chairman Tim Walberg (R-MI) began the hearing by claiming that federal labor standards have fallen behind the times, and that increased regulations and ambiguity within the statute itself have lead to unintended consequences for well-meaning employers. Specifically, he and the majority of those testifying claimed that the FLSA as currently written and interpreted has led to a flood of wage and hour litigation, reduced workplace flexibility, and decreased an employer’s incentives to hire. The Subcommittee’s media advisory claimed:

Despite the broad impact of the law on the American workforce, it is largely outdated and does not accurately reflect the realities of modern technology or today’s economy. The law has also created an environment of uncertainty with employers facing a patchwork of conflicting interpretations of the law and employees facing difficulty understanding their rights under the law.

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

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Members of both the House and Senate have introduced legislation that would extend the federal minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers, improve federal and state data collection and oversight with respect to the direct care workforce, and create a grant program to help states recruit and train direct care workers. Among other things, the Direct Care Job Quality Improvement Act (H.R. 2341, S. 1273) would limit the “companionship services” FLSA exemption to those who work fewer than 5 hours per week or are employed in this capacity for fewer than 12 weeks per calendar year.

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On June 3, 2011 Rep. Joe Baca (D-CA) introduced legislation that would mandate certain disclosures to and options for employees who receive their pay electronically through payroll cards. The Electronic Paycard Protection Act (H.R. 2125) would add a section to the Fair Labor Standards Act (FLSA) that outlines the new conditions imposed on an employer that uses electronic payroll cards, defined in the Act as “an access mechanism, including a prepaid card, code, or device, issued to an employee by an employer, or other entity by arrangement with the employer, through which an employer provides an employee access to his or her wages.”

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A bill that would require employers to provide paid sick leave to employees was reintroduced in both the House and Senate on May 12, 2011 by Rep. Rosa DeLauro (D-CT) and Sen. Tom Harkin (D-IA). The Healthy Families Act (H.R. 1876, S. 984) would allow employees to earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually. Employees could take this leave to attend to their own or a family member’s illness, or use the paid time off for preventative care such as medical appointments. In addition, the bill provides leave for employees who are the victims of domestic violence, stalking or sexual assault. Employers with 15 or more employees would be covered by the law.

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By Josh Kirkpatrick

On May 9, 2011, the U.S. Department of Labor announced the launch of its first smartphone application, an electronic timesheet employees can use to track their hours of work, including breaks. According to a DOL press release, the information tracked through this application “could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” The app, currently available in English and Spanish and only for iPhone, iPad and iPod Touch devices, allows users to input their hourly rate of pay and calculates the amount of wages due to the worker. Additionally, through the app, users can add comments related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. A glossary, limited information regarding wage and hour laws, and contact information for the DOL are accessible through the app. The agency stated it will pursue the development of updates that allow employees to track their tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest, among other pay information.  Continue reading this entry at Littler's Wage & Hour Counsel. 

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Timed to commemorate National Equal Pay Day on April 12, various lawmakers reintroduced the Paycheck Fairness Act (H.R. 1519, S. 797) and the Fair Pay Act (H.R. 1493, S. 788), bills that would amend the Fair Labor Standards Act (FLSA) to promote pay equity. The first measure, the Paycheck Fairness Act, would amend the FLSA to provide for potentially unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims, among other things. As previously discussed in this blog, the measure would:

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A bill introduced in the Senate last week takes aim at employers who mistakenly classify employees as independent contractors. The Payroll Fraud Prevention Act (S. 770) introduced by Senators Sherrod Brown (D-OH), Tom Harkin (D-IA), and Richard Blumenthal (D-CT), would impose new reporting requirements on employers, increase penalties for classification violations, and establish new protections for workers who believe they have been misclassified.

Among other things, the bill would:

• Require employers to keep records that reflect the accurate status of each worker as an employee or non-employee and clarify that employers violate the Fair Labor Standards Act (FLSA) when they misclassify workers.
• Require employers to notify workers of their classification as an employee or non-employee.
• Increase penalties imposed on employers who misclassify their employees as independent contractors and are found to have violated employees' overtime or minimum wage rights.
• Create a website to inform workers about their federal and state wage and hour rights.
• Provide protections to workers who are fired or otherwise discriminated against as a result of their efforts to be reclassified as employees.
• Direct the DOL’s Wage and Hour Division (WHD) to conduct targeted audits of certain industries with frequent incidences of misclassifying workers.

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Update: As expected, on April 14 the House and Senate passed the budget bill, sending the measure to the President for his signature. The Senate rejected a proposed resolution that would have de-funded the Affordable Care Act.

The eleventh-hour budget deal reached on April 8, 2011 would impact a number of healthcare and employment-related programs. Overall, the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (H.R. 1473), (pdf) commonly referred to as the continuing resolution (CR) to fund the federal government though September 30, 2011, cuts approximately $13 billion in appropriations from the President’s funding request for the U.S. Departments of Labor, Education, and Health and Human Services. Some initiatives are extended under the measure, while others are reduced or eliminated entirely. A full list of the program cuts can be found here. (pdf)

Health Care

Among other casualties (pdf) of the budget deal are two programs created by the Affordable Care Act – the Consumer Operated and Oriented Plan (CO-OP) and the Free Choice Voucher programs. The CO-OP program was designed to foster the creation of qualified nonprofit health insurance issuers that would have offered qualified health plans in the individual and small group markets. These plans were intended to compete with the private insurance market.

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By Kimberly Yates

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

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

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By Martha Keon

The FLSA provides that an employer may not:

"discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee."

The meaning of the phrase “filed any complaint” has been vigorously disputed in the federal courts, resulting in circuit splits on two issues:

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

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Although the pace has slowed somewhat, lawmakers continue to introduce new labor and employment legislation. The following bills have been introduced during the second month of the 112th Congress:

Wage and Hour

Rep. Donna Edwards (D-MD) reintroduced legislation that would amend the Fair Labor Standards Act (FLSA) to establish a base minimum wage for tipped employees. The Working for Adequate Gains for Employment in Services (WAGES) Act (H.R. 631) would mandate that tipped employees be paid at least $3.75 per hour. This amount would increase to $5 per hour a year after enactment. The following year, this base amount would increase to 70 percent of the minimum wage as established under section 6(a)(1) of the FLSA, or $5.50 per hour, whichever amount is greater. Although this bill would have a significant impact on the service industry if enacted, its chance of passage this term is slim.

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

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

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

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

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

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The DOL’s Wage and Hour Division (WHD) will issue a request for information (pdf) in Tuesday’s edition of the Federal Register regarding the new requirement that most employers provide a reasonable break time for lactating mothers. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing to express breast milk for up to one year after the child’s birth. The notice to be issued by the WHD includes the DOL’s preliminary interpretations of the new break time amendment, and seeks information and comment on a number of issues that have arisen under the new requirement. The WHD notes, however, that at this point it does not intend to issue regulations implementing the break time provision. The request for information is solely for the purpose of drafting additional employer guidance.

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The Department of Labor’s Office of Inspector General (OIG) has issued its Semiannual Report to Congress, (pdf) outlining its significant accomplishments made during the six-month period ending September 30, 2010 and making a number of legislative recommendations.  The OIG conducts audits and evaluations to review the effectiveness, efficiency, economy, and integrity of all DOL programs and operations, including those performed by its contractors and grantees. In addition, the OIG is responsible for conducting criminal investigations regarding labor union racketeering and organized crime. According to the report, during the six-month period, the OIG’s investigations resulted in 175 indictments, 158 convictions, 190 cases referred for prosecution, 83 cases referred for administrative/civil action, and $85 million in investigative recoveries, cost-efficiencies, restitutions, fines and penalties, forfeitures, and civil monetary actions.

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

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

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Speaking at a White House Middle Class Task Force event, Vice President Joe Biden announced that the Department of Labor’s Wage and Hour Division (WHD) and the American Bar Association (ABA) have forged a partnership to help process certain employment-related claims filed with the Division. Starting in December, the WHD will provide workers whose minimum wage, overtime, or family medical leave claims cannot be pursued by the DOL with a toll-free number through which they will be able to obtain the contact information of an ABA-approved attorney in their area. According to the DOL, due to limited resources, the agency is unable to pursue “thousands” of wage and hour claims. The toll-free legal referral service, said Biden, will help workers pursue their cases “in a way that is affordable.” Most of these ABA-vetted lawyers will provide their services on a contingency basis. According to the ABA, this partnership between a federal agency and the private bar is the first of its kind.

Photo credit:  Simon McConico Photography

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As expected, supporters of the Paycheck Fairness Act (S. 3772) failed to garner enough votes to advance the measure in the Senate, effectively killing the bill for the foreseeable future. The motion to move the bill closer to a vote failed by a margin of 58-41, short of the needed 60 votes. Senator Ben Nelson (D-NE) joined all Republicans present in opposing the bill. Senator Lisa Murkowski (R-AK) did not vote. At least 60 votes were needed to avoid the inevitable filibuster against the legislation, which would have, among other things, amended the Fair Labor Standards Act (FLSA) to provide for unlimited compensatory and punitive damages in gender-based wage discrimination cases, weakened an employer’s affirmative defense against such claims, incorporated anti-retaliation provisions into the FLSA, eliminated the requirement that employees work in the same establishment for wage comparison purposes, reinstated the Office of Federal Contract Compliance Programs (OFCCP) Equal Opportunity Survey, and required employees to “opt-out” of instead of “opt-in” to a class action lawsuit. These changes would likely have led to a dramatic increase in equal pay lawsuits, and undermined an employer’s ability to defend against them. As Sen. Mike Enzi (R-WY) stated before his vote was cast, “a better title for this bill should be the Jobs for Trial Lawyers Act.”

Sen. Majority Leader Harry Reid (D-NV) reintroduced the Paycheck Fairness Act in September. Former Sen. Hillary Clinton (D-NY) had introduced this measure as S. 182 in the Senate on January 9, 2009, the same day the House passed its companion bill (H.R. 12). It was probably believed that the measure had the best shot of passage during Congress’s lame duck session, as fewer supporters will remain in both the House and Senate come January as a result of the midterm election.

Photo credit: MBPHOTO, INC.

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The Fair Labor Standards Act (FLSA) provides that it is unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint ... under or related to this Act." 29 U.S.C. § 215(a)(3). The question before the U.S. Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir.), reh’g denied, 585 F.3d 310 (7th Cir. 2009), cert. granted, 130 S.Ct. 1890 (2010), was whether “filed any complaint” includes making an internal oral complaint.  Continue reading this entry at Littler's Wage & Hour Counsel. 

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On Wednesday, Sen. Majority Leader Harry Reid (D-NV) filed a cloture motion to proceed with consideration of the Paycheck Fairness Act (S. 3772). This procedural action sets up a vote on the bill – which would, among other things, amend the Fair Labor Standards Act (FLSA) to provide for unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims – when the Senate returns from the recess for upcoming elections.

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It is widely expected that a vote on the reintroduced Paycheck Fairness Act (S. 3772) could occur as early as this week. This legislation – which cleared the House of Representatives in January 2009 – would subject employers to potentially unlimited compensatory and punitive damages for violations of gender-based wage discrimination law, and would weaken the affirmative defense available to employers in such cases.

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Legislation that would amend the Fair Labor Standards Act (FLSA) to increase remedies for violations of the Equal Pay Act (EPA) and make it more difficult to defend against such claims was reintroduced in the Senate on Monday. Sen. Majority Leader Harry Reid (D-NV) introduced the Paycheck Fairness Act (S. 3772) with 13 cosponsors. Former Sen. Hillary Clinton (D-NY) had introduced this measure as S. 182 in the Senate on January 9, 2009, the same day the House passed its companion bill (H.R. 12). The White House recently urged the bill’s passage during a forum on work and family issues, calling it “a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve.”

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

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On July 29, Rep. Timothy Bishop (D-NY) introduced a bill that would enable more railway workers to take leave under the Family and Medical Leave Act (FMLA). The Railroad Hours of Service Employees Technical Corrections Act (H.R. 5944) would amend the FLSA by adding a section clarifying that railroad employees subject to hours of service laws would meet the FLSA’s leave eligibility requirements if they:

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This week, Rep. Linda Sanchez (D-CA) introduced legislation that would extend the federal minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers, improve federal and state data collection and oversight with respect to the direct care workforce, and create a grant program to help states recruit and train direct care workers. Specifically, the Direct Care Workforce Empowerment Act (H.R. 5902) would limit the “companionship services” FLSA exemption to those who work 20 or fewer hours per week.

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The Department of Labor’s Wage and Hour Division (WHD) has released a fact sheet to help employers comply with the lactation break time obligations established by the new health care law. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amends section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing mothers to express breast milk for up to one year after the child’s birth.

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During the White House Middle Class Task Force forum on work and family issues, the White House and various members of the administration called for passage of the Paycheck Fairness Act (H.R. 12, S. 182), equal pay legislation that cleared the House of Representatives in January 2009. Specifically, this measure would, among other things, expand damages under the Equal Pay Act of 1963 to include potentially unlimited compensatory and punitive awards, amend the broad affirmative defense previously available to employers that the pay differential in question is caused by a factor other than sex, and would eliminate the “establishment” requirement that employees must work in the same place of employment for wage comparison purposes.

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The Department of Labor’s Wage and Hour Division (WHD) has issued an administrative interpretation providing guidance on who may take time off under the Family and Medical Leave Act (FMLA) to care for a sick, newly born or adopted child when that person has no legal or biological attachment to that child. The FMLA typically permits employees to take up to 12 weeks of unpaid leave during any 12-month period for the aforementioned reasons, among others. The regulations extend these FMLA rights to those who stand in loco parentis – “in the situation of a lawful parent by assuming the obligations incident to the parental relation.” The administrator interpretation issued by Nancy J. Leppink, deputy administrator of the WHD, clarifies that an individual falling into this category is not required to establish that he or she provides both day-to-day care and financial support to the child, thus covering those who fall outside of the “traditional” parent category.

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On June 16, 2010, Nancy J. Leppink, Deputy Administrator of the U.S. Department of Labor, Wage and Hour Division, issued the second in her inaugural series of Administrator's Interpretations. Unfortunately, this newest interpretation (pdf), like the first, seems to reflect a continued effort by the Wage and Hour Division to reject certain key interpretations of the Fair Labor Standards Act (FLSA) issued during the Bush Administration. 

In the latest interpretation, the Administrator examines whether protective equipment worn by union employees can be considered "clothes" for purposes of section 203(o) of the FLSA and whether clothes changing covered by section 3(o) constitutes a principal work activity.  Continue reading this entry at Littler's Wage & Hour Counsel blog. 

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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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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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Legislation introduced in both the House and Senate would impose new record-keeping requirements on employers that hire independent contractors, and impose stricter penalties for misclassification. Introduced by Rep. Lynn Woolsey (D-CA) and Sen. Sherrod Brown (D-OH), the Employee Misclassification Prevention Act (H.R. 5107, S. 3254) would amend the Fair Labor Standards Act (FLSA) to require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. In addition, the measure would do the following, among other things:

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The Department of Labor’s Wage and Hour Division (WHD) has issued a fact sheet to help for-profit private sector employers determine whether they need to pay their interns minimum wage and overtime under the Fair Labor Standards Act (FLSA). As noted in the fact sheet, internships and training programs in the private sector are often considered “employment” subject to overtime and minimum wage requirements unless the intern works for his or her own educational benefit. In order to qualify for this limited exception, the internship must meet a six-factor test:

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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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The Department of Labor (DOL) has launched a website compiling enforcement data produced by the Office of Federal Contract Compliance Programs (OFCCP), Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA), Wage and Hour Division (WHD), and the Mine Safety and Health Administration (MSHA). Searchable compliance data includes OFCCP compliance evaluations and complaint investigations, EBSA cases that resulted penalty assessments, OSHA inspection case details, and concluded WHD compliance actions, among other information. The DOL explains that the purpose of the enforcement website is “to make the enforcement data, collected by these agencies in the exercise of their mission, accessible and searchable, using common search criteria, by the public. It intends, also, to engage the public in new and creative ways of using this data.” The DOL further notes that the site is a work in progress, and that “new features, functionality, and search criteria will be added over time.” For example, the agency is working on making enforcement data searchable by company name and address, as well as other criteria.

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The Department of Labor’s (DOL) Wage and Hour Division (WHD) has created a website as part of its “We Can Help” public awareness campaign that provides information to workers on how to file a complaint to recover back wages, learn more about the worksite investigation process, and obtain general information about workplace rights and the DOL’s services. According to a press release, the campaign is specifically targeting employees in such industries as construction, janitorial work, hotel/motel services, food services and home health care.

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While the most recent change to the Fair Labor Standards Act (FLSA) and the attention it may receive might seem small in comparison to Health Care Reform, the FLSA Amendment is significant. The Amendment, which now provides break time to nursing mothers, imposes a new requirement under the FLSA.

Currently, the FLSA does not require employers to provide rest breaks or meal periods to employees. Generally, rest break requirements are the subject of state regulation, and various states do require such breaks. Until this amendment, if rest breaks were not required by state law, then whether they were provided was a matter of agreement between the employer and employee. The amendment to the FLSA, 29 U.S.C. section 207(r)(1), changes that. The amendment will require all employers subject to the FLSA to provide rest breaks to mothers who wish to express breast milk.

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

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The U.S. Supreme Court has agreed to review the Seventh Circuit’s decision in Kasten v. Saint-Gobain Performance Plastics (7th Cir. 2009), (pdf) in which that court held that an oral complaint of a violation of the Fair Labor Standards Act (FLSA) is not considered protected conduct under the Act’s anti-retaliation provision.

The case arose when manufacturer Saint-Gobain Performance Plastics Corp. (“Saint-Gobain”), after implementing a series of progressive disciplinary steps against employee Kevin Kasten for failing to follow proper punching in and out procedures, terminated his employment. Kasten alleged that he verbally complained to his supervisors and a human resources generalist that the location of the company’s time clocks was illegal. To that end, Kasten filed a lawsuit under the FLSA alleging that he was fired in retaliation for his verbal complaints. Specifically, Kasten alleged that his complaints were covered by section 215(a)(3) of the statute, which provides that:

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Labor Secretary Hilda Solis has expressed the Department of Labor’s (DOL) view that an opt-in class action suit under the Fair Labor Standards Act (FLSA) and an analogous state law class action can be pursued in the same lawsuit. In the amicus brief (pdf) filed in Parker v. NutriSystem Inc., (3d Cir, No. 09-3545) Solis argues in favor of allowing both state and federal wage and hour claims to proceed in one class action, and takes the position that flat-fee compensation payments that bear no relationship to the cost of the goods sold do not fall under the FLSA’s Section 7(i) retail or service sales exemption.

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As expected, President Obama has signed into law a bill that will enable more airline employees to avail themselves of leave under the Family and Medical Leave Act (FMLA). The Airline Flight Crew Technical Corrections Act (S. 1422) was approved by the House of Representatives by voice vote on December 1.  The Senate passed this measure on November 10.

The bill sought to close a perceived loophole in the FMLA’s hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to qualify them for FMLA leave. In order to be entitled to FMLA leave, employees must have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12-month period, which equates to at least 60 percent of a standard 40-hour work week. Under the Fair Labor Standards Act (FLSA), which is used to determine the number of hours worked for FMLA purposes, some courts have concluded that the time pilots and fight attendants spend on the job between flights and on mandatory standby do not count as “hours worked.” The new Act clarifies that that the hours pilots or flight attendants work or for which they are paid – not just those spent in actual flight – count toward the minimum hours calculation.

For more information on this new law and its implications for airline employers, see Littler’s ASAP: President Signs Bill Easing FMLA Eligibility Requirements for Airline Flight Crew by Ilyse Schuman and Peter Petesch.

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A bill that would close a Family and Medical Leave (FMLA) loophole for airline pilots and flight attendants is a step closer to becoming law. On Tuesday, the House of Representatives passed the Airline Flight Crew Technical Corrections Act (S. 1422) by voice vote. The Senate approved this largely uncontroversial measure last month. This legislation would change the hours of service requirements to enable more airline industry employees to qualify for FMLA leave.

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

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

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On Tuesday the Senate cleared a bill that would close a Family and Medical Leave (FMLA) loophole for airline pilots and flight attendants. The Airline Flight Crew Technical Corrections Act (S. 1422) would change the hours of service requirements to enable more airline industry employees to take FMLA leave. On February 9 of this year, the House also passed by voice vote a nearly identical bill (H.R. 912).

During floor consideration of the Senate bill, Sen. Patty Murray (D-Wash.), who introduced the legislation, stated:

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

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Last week Rep. Jim McDermott (D-Wash.) reintroduced the Taxpayer Responsibility, Accountability, and Consistency Act of 2009 (H.R. 3408), a bill that would entitle individuals deemed independent contractors by their employers to petition the Internal Revenue Service (IRS) for a determination of whether they are properly classified as independent contractors, significantly increase employer penalties in the event of misclassification, and make it more difficult for employers to avoid employment tax liability for such misclassification.

Specifically, the new legislation would add a new section to Chapter 25 of the Internal Revenue Code (IRC) that would enable employers to avoid employment tax liability only if they are able to demonstrate that they had no reasonable basis for classifying the independent contractor as an employee. This new Section 3511 would supplant the safe harbor provisions of Section 530 of the IRC. Under the more stringent terms of Section 3511, an employer’s decision would be deemed “reasonable” if the employer reasonably relied on a written determination addressing the employment status of the individual or another individual holding a substantially similar position with the employer, or a concluded employment tax examination that did not find that the individual (or one holding a substantially similar position) should be considered an employee. In addition, the employer or its predecessor must not have treated any other individual holding a substantially similar position as an employee for employment tax purposes for any period beginning after December 31, 1977. The assessment of whether an individual holds a substantially similar position held by another would be made using criteria established by the Fair Labor Standards Act.

Employers that misclassify employees as independent contractors would be subject to the following penalties:

• A minimum of $250 (up from the current $50) per incorrect tax return, up to $3,000,000 (currently $250,000) per year. Lower penalties would be imposed if the returns are corrected within a specified period of time, although the amounts are significantly greater than those currently imposed on employers for misclassification.
• Smaller employers (those with gross receipts not exceeding $5,000,000) would be subject to fines of up to $1,000,000 per year, up from the current $100,000 limitation.
• In the event of intentional disregard for the filing requirement, employers would be subject to a $500 fine per tax return, up from the current $100 amount. The $3,000,000 per year penalty ceiling would not apply in this instance.

If enacted, the provisions of this bill would apply to information returns required to be filed after December 31, 2009. This bill has been referred to the House Committee on Ways and Means.
 

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Legislation introduced by Reps. George Miller (D-CA) and Lynn Woolsey (D-CA) would freeze the statute of limitations for the recovery of backpay under the Fair Labor Standards Act (FLSA) from the date an employer is notified of an investigation by the Department of Labor’s (DOL) Wage and Hour Divisions (WHD) until the date the Agency informs the employer that the investigation is complete. The Wage Theft Prevention Act (H.R. 3303) was drafted in response to the newly-released Government Accountability Office (GAO) Report (pdf) to the House Committee on Education and Labor on ways to reduce wage theft.  The Report recommended, among other things, that the Department of Labor (DOL) needed to improve its investigative process and suspend the statute of limitations to protect workers against the loss of pay while wage and hour investigations are ongoing. This GAO Report was released as a follow-up to an undercover investigation into the WHD’s handling of employee complaints from July 2008 to March 2009. According to a press release, the GAO report found that many wage and hour investigations were inadequately handled and eventually dropped because the statute of limitations was deemed too short and investigations too long. Currently, the statute of limitations for recovery of back wages under the FLSA is 2 years from the date of the violation, or 3 years in the event of a willful violation. According to Miller, “[t]his bill will hold those responsible for stealing workers’ wages by helping to ensure that legitimate complaints can be properly investigated.”

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On July 24, 2009, the federal minimum wage will increase from $6.55 per hour to $7.25 per hour.  This increase is the third and final increase in a three phase process. In light of the impending increase, there are several issues of which employers must be aware to prepare for the change  Continue reading at Littler's Wage and Hour Counsel blog.

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Last week Senator Patty Murray (D-WA) introduced legislation that would close a Family and Medical Leave (FMLA) loophole for airline pilots and flight attendants. The Airline Flight Crew Technical Corrections Act (S. 1422) would change the hours of service requirements to enable more airline industry employees to take FMLA leave. On February 9 of this year, the House passed by voice vote a nearly identical bill (H.R. 912).

As the law currently stands, employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12 months, which amounts to at least 60 percent of a standard 40-hour workweek. This method of calculation impacts employees in the airline industry, whose time spent on the job between flights or on mandatory standby does not count as “hours worked” under the Fair Labor Standards Act (FLSA), which the courts use to determine the requisite number of hours for FMLA purposes. This bill would clarify that the hours pilots or flight attendants work or for which they are paid – not just those spent in flight – count toward the minimum hours calculation. Specifically, an airline flight crew member would be eligible to take FMLA leave if he or she had worked or been paid for 60 percent of the applicable monthly guarantee, or the equivalent amount annualized over the preceding 12-month period, and if he or she had worked or been paid for at least 504 hours during the previous 12-month period.

This bill, which is co-sponsored by Senators Chris Dodd (D-CT), Kit Bond (R-MO), Susan Collins (R-ME), Lisa Murkowski (R-AK), and Jim Webb (D-VA), has been referred to the Senate Committee on Health, Education, Labor and Pensions.

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

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

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

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

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A bill introduced in both the House and Senate would amend the National Labor Relations Act (NLRA) to permit an employer to award individual employees with financial incentives beyond the pay or compensation level specified in a collective bargaining agreement (CBA). Introduced by Senator David Vitter (R-LA) and Rep. Tom McClintock (R-CA), the Rewarding Achievement and Incentivizing Successful Employees Act or the “RAISE Act” (H.R. 2732, S. 1184) would add the following provision to section 9(a) of the NLRA:

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Last week Rep. Donna Edwards (D-Md) introduced legislation that would amend the Fair Labor Standards Act (FLSA) to establish a base minimum wage for tipped employees. The Working for Adequate Gains for Employment in Services Act or “WAGES Act” (H.R. 2570) – which has 20 co-sponsors – would take effect 90 days after the bill’s enactment, mandating that tipped employees be paid at least $3.75 per hour. This amount would increase to $5.00 per hour beginning July 1, 2011. The following year, this base amount would increase to 70 percent of the minimum wage as established under section 6(a)(1) of the FLSA, or $5.50 per hour, whichever amount is greater.

If enacted, this bill would have significant impact on the service industry. Under the terms of this legislation, the Secretary of Labor would be required to publish any increase in the base amount for tipped employees at least 10 days in advance of any change.

The WAGES Act has been referred to the House Committee on Education and Labor.

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The U.S. Supreme Court has held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part under an accrual rule – applied prior to the PDA’s enactment – that gave less retirement credit for pregnancy than for medical leave generally. The Court in AT&T v. Hulteen (pdf) further held that the benefit calculation rule used by the employer in this case was part of a bona fide seniority system that insulated it from a Title VII challenge.

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

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To commemorate Equal Pay Day, Sen. Tom Harkin (D-Iowa) and Rep. Eleanor Holmes Norton (D-DC) reintroduced the Fair Pay Act (S. 904, H.R. 2151).  While full text versions of these bills are not yet available, they are believed to be substantially similar if not identical to the bills Harkin and Holmes Norton introduced during the last congressional session. Notably, this bill would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work. Specifically, the Fair Pay Act would make it unlawful to discriminate against employees:

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

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

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A report released yesterday by the Government Accountability Office (GAO) reveals that the Wage and Hour Division (WHD) of the Department of Labor (DOL) mishandled 9 out of 10 cases brought to them by a team of undercover agents posing as employees. According to Rep. George Miller (D- Calif.), chair of the House Education and Labor Committee, minimum wage, overtime and child labor complaints were “routinely brushed aside, improperly tracked, or inadequately investigated.” A video of his remarks at a hearing discussing the GAO's undercover investigation can be found here.  Rep. Miller claimed that the WHD “dropped the ball” on pursuing employee complaints, including those involving unlawful child labor, and often discouraged employees from pursuing their claims. According to Rep. Miller, Elaine Chao, the Secretary of Labor under the Bush Administration, was “absent without leave” during her time in charge of the DOL.

In response to this report’s findings, current Secretary of Labor Hilda Solis released a statement promising the following:

The department's Wage and Hour Division has already begun the process of adding 150 new investigators to its field offices to refocus the agency on these enforcement responsibilities. In addition, under the American Recovery and Reinvestment Act, the agency will hire 100 investigators to ensure that contractors on stimulus projects are in compliance with the applicable laws. The addition of these 250 new field investigators, a staff increase of more than a third, will reinvigorate the work of this important agency, which has suffered a loss of experienced personnel over the last several years.

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On Tuesday, February 10, 2009, Rep. Cathy McMorris Rodgers (R-WA) reintroduced the Family-Friendly Workplace Act (H.R. 933), a bill that would amend the Fair Labor Standards Act (FLSA) to permit private-sector employees to chose compensatory leave in lieu of cash wages for overtime hours worked. This “comp time” option has long been available to public sector employees, and has proven to be very popular.

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Just ten days into his term, President Obama has signed into law a bill that will make it easier to bring wage discrimination lawsuits against employers. The Lilly Ledbetter Fair Pay Act, which Congress made retroactive to May 28, 2007, extends the time period for employees to assert pay discrimination claims by making each paycheck a discriminatory act; not just the initial pay determination.

For more information on this law and how it will affect employers, see Littler’s ASAP: Paycheck Rule Revived for Pay Discrimination Claims with Signing of the Lilly Ledbetter Fair Pay Act by Alison N. Davis, Stephanie L. Hankin, and Tyree Ayers Jackson.

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As expected, the Lilly Ledbetter Fair Pay Act (S. 181) breezed through the U.S. House of Representatives today by a vote of 250 to 177. The House had previously voted to consider the bill under a closed rule excluding the introduction of amendments, virtually guaranteeing its passage. The Senate approved S. 181 on January 22 by a vote of 61-36 without amendment, despite a number of modifications Republican senators attempted to make to this wage discrimination legislation to limit its scope.

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In what will be the first employment-related bill to reach President Obama’s desk, the Lilly Ledbetter Fair Pay Act of 2009 (S. 181) cleared the Senate yesterday by a vote of 61 to 36. If signed – as pledged by President Obama and indicated by the presence of the bill’s namesake on President Obama’s train ride to Washington for his inauguration – this legislation will likely lead to an increase in the number of wage discrimination claims filed against employers and make it more difficult to defend against such actions.

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The Senate voted by a margin of 72 to 23 today to effectively limit all debate on the Lilly Ledbetter Fair Pay Act of 2009 (S. 181), virtually guaranteeing its passage. A bill with identical terms easily cleared the House without amendment by a vote of 247-171 last Friday. The House measure had been combined with H.R. 12, the Paycheck Fairness Act, which had also received House approval on Jan. 9 by a vote of 256-163. This week the Senate decided to consider the two bills separately, most likely to ensure that at least one employee-friendly bill gets signed when President-elect Obama takes office next week.

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As anticipated, the House swiftly passed two pay-related bills that will make it easier for employees to sue for wage discrimination. The Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were put to a vote without amendment, as they had been heavily vetted in the last Congress, yet failed to survive the Senate. The House today voted 256-163 in favor of the Paycheck Fairness Act, and 247-171 in favor of the Lilly Ledbetter Fair Pay Act. They will be sent to the Senate – which is likely to be more receptive to these bills this time around – as a package. Consideration may begin as early as next week. If approved, President-elect Obama will almost certainly sign them into law, starting the 111th Congress off to a decidedly worker-friendly start. Interestingly, Congress got off to a similar start in the Clinton era by passing a previously-vetted Family and Medical Leave Act as its first major bill weeks after Clinton took office.

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Before the 111th Congress has even convened, House Majority Leader Steny Hoyer (D-Md.) announced that two employment-related bills will reach the House floor later this week. Both the Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were introduced and easily passed the House during the last Congress, but stalled in the Senate due primarily to Republican opposition and a presidential veto threat. It is noteworthy that both bills are being sent directly to the House floor instead of being vetted through the committee process. In anticipation of a possible Democratic White House in 2009, congressional Democrats in the 110th Congress launched a comprehensive labor and employment law legislative agenda. (For more information, see Littler’s Report Transition to a New (Work) Day: An Initial Look At Workplace Change in the Obama Era). Congressional Democrats intended to vet this agenda in advance so that when the 111th Congress convened on January 6, 2009, these laws could be quickly enacted with the threat of a presidential veto removed. The introduction of the Paycheck Fairness Act and the Lilly Ledbetter Fair Pay Act directly to the House floor is the first installment in the full-implementation of this strategy.

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