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

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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