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

DOL

Overall, the bill would allocate $12 billion to the Department of Labor, an amount that is $497 million less than that granted to the agency for 2012 and $72 million below the President’s request. The measure includes the following restrictions on the use of these funds:

• The Wage and Hour Division (WHD) would be prohibited from pursuing its companionship exemption regulation.
• The bill would prohibit the enforcement of a final rule implementing Executive Order (E.O.) 13502, Use of Project Labor Agreements for Federal Construction Projects. This E.O. declared it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .”
• The measure includes a prohibition on the Office of Labor-Management Standard’s (OLMS) creation and implementation of a regulation that would narrow the scope of the “advice” exemption under the Labor-Management Reporting and Disclosure Act (LMRDA). 
• The bill would prevent any funds allocated to the Employee Benefits Security Administration (EBSA) from being used to promulgate a rule that would amend the definition of “fiduciary” under ERISA. Although the proposal to amend the definition of fiduciary was issued in October 2010, in September 2011 the EBSA announced that it would gather more input from stakeholders and re-issue the rule after additional consideration.
• The bill would prevent the Occupational Safety and Health Administration (OSHA) from using funds to develop and implement a rule creating an injury and illness prevention program.
• A provision in the appropriations bill would prevent the DOL from enforcing its new rule governing H-2B visas for temporary, seasonal nonagricultural workers for the fiscal year. The rule is currently facing a legal challenge.
• The measure would prohibit funds from being used to enforce the Fair Labor Standards Act (FLSA) regulation that makes automotive service managers, service writers, service advisors and service salesmen who are “not primarily engaged in the work of a salesman, partsman or mechanic” subject to minimum wage and overtime requirements.
• The bill includes a provision that prohibits the Mine Safety and Health Administration (MSHA) from proceeding with development or implementation of a rule governing coal mine dust.

NLRB

The appropriations bill would provide $258.3 million for the NLRB, $20 million below last year’s funding level, and $34.5 million less than the President’s budget request. The bill includes the following restrictions:

• The measure includes a provision that would prevent the NLRB from using any funds provided in the bill to enforce its decision in Specialty Healthcare, which allows union certification of smaller bargaining units.
• The bill prevents funds from being used to “implement, create, apply, or enforce through prosecution, adjudication, rulemaking, or the issuing of any interpretation, opinion, certification, decision, or policy, any standard for secret-ballot elections that conflicts with the standard articulated in the majority opinion in Dana Corp., 351 NLRB 434 (2007).”
• The bill prevents the NLRB from using funds “to issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means that enables off-site, remote, or otherwise absentee voting in an election to determine a representative for the purposes of collective bargaining.”
• The NLRB would also be precluded from using funds to implement its rule amending representation election procedures. In light of ongoing litigation opposing this rule, the NLRB has suspended its enforcement.The appropriations bill would also prevent the NLRB from using funds to develop portions of the proposed rule that were omitted from the final regulation.

HHS

As expected, the funding bill would defund a number of Affordable Care Act provisions and programs that would effectively prevent the law’s implementation. Specifically, the bill would rescind prior-year mandatory funds, and prevent the HHS from using any new discretionary funding to implement the health care reform law.

Senate Bill

Last month the Senate Appropriations Committee approved its own version of this multi-agency funding bill. In advancing the Senate bill, Senate Appropriations Committee members rejected amendments that would have prevented the NLRB from enforcing the Specialty Healthcare decision and its expedited election rule, as well as prevented the agency from bringing lawsuits against states that have enacted secret ballot protection measures. The two drafts – if eventually approved by their respective chambers – would therefore need to be reconciled. However, the prospects for agreement on this and other appropriations bills this year appears unlikely.

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H-2B Visa Rule

Among other changes, the H-2B rule will require businesses employing temporary, seasonal foreign workers and/or workers in corresponding employment to guarantee to offer employment for a total number of work hours equal to at least three-fourths of the workdays in every 12-week period (or, for job orders less than 120 days, every 6-week period). In addition, the rule requires employers to pay the same transportation and subsistence costs for employees who perform similar work to those hired under the program. Last year’s DOL funding bill already delayed this rule’s implementation for 2012. The rule also faces a court challenge. Sen. Richard Shelby (R-AL) offered the amendment, which was approved 19-11.

DOL Funding Levels

The bill would provide a total of $12.342 billion for the Department of Labor for FY 2013, down slightly from the amount granted for FY 2012 ($12.553 billion). Portions of this total would be allocated as follows:

• The Wage and Hour Division (WHD) would receive $237,730,000. As discussed in the bill’s Senate report, (pdf) the additional $10 million in funding over the 2012 level is designed:

to address the misclassification of employees as independent contractors and to provide enhanced enforcement of overtime pay regulations. In addition, as proposed in the budget request, the Committee recommendation includes funds reallocated from the Women’s Bureau for WHD efforts on Family and Medical Leave Act issues. The Committee also supports the President’s request to provide additional resources for the WHD to increase its oversight of organizations participating in the special minimum wage program for individuals with disabilities authorized under section 14(c) of the FLSA, in order to protect the rights of workers with disabilities.

• The bill would provide the same level of funding ($41,289,000) to the Office of Labor Management Standards (OLMS) as it provided for this year.
• The Office of Federal Contract Compliance Programs (OFCCP) would also receive the same amount ($105,187,000) as it received in 2012. The conference report notes that

almost 2 years ago the Department issued an advance notice of proposed rulemaking regarding regulations for implementing section 503 of the Rehabilitation Act. The Committee strongly supports the administration’s plan to issue a final rule by October of this year, as these regulations have not been updated in over 40 years.

• The Occupational Safety and Health Administration (OSHA) would receive a slight bump in funding for 2013. The bill would provide $565,468,000 for OSHA for FY 2013, up from $564,788,000 granted for 2012.
• The Employee Benefits Security Administration (EBSA) would receive $183,153,000 for FY 2013.

NLRB Funding

The bill would provide $288,306,000 for the NLRB, an amount that is $10 million more than the agency received in 2012. The increase is intended to fund the NLRB’s planned relocation costs.

NMB Funding

The appropriations bill would grant the National Mediation Board (NMB), the agency charged with mediating collective bargaining disputes, conducing representation elections, and administering arbitration of employee grievances in the railway and airline industries, $14.4 million for FY 2013. This amount is $1 million more than that given to the NMB in 2012. The proposed increase is intended to decrease the “backlog of key workloads and to respond to oversight and reporting requirements included in the FAA Modernization and Reform Act of 2012.”

HHS Funding

The bill would provide the HHS with $71.0 billion for FY 2013, up from $69.62 billion provided to the agency in 2012. This funding level includes $3.156 billion for the Centers for Medicare and Medicaid Services (CMS) to implement provisions of the Patient Protection and Affordable Care Act.

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• Prevent the DOL’s Employment and Training Administration (ETA) from implementing the H-2B Wage Methodology for Temporary Non-Agricultural Employment Rule. The DOL’s H-2B program provides visas to foreign workers if qualified U.S. workers are not available and the employment of foreign workers would not adversely affect the wages and working conditions of similarly employed U.S. workers. The rule at issue revises the methodology for establishing wage rates under this visa program. Because this rule is currently undergoing judicial challenge, the DOL has delayed the effective date until Jan. 1, 2012. The appropriations bill would prevent any funds from being used to implement this rule.
• Prohibit the Occupational Safety and Health Administration (OSHA) from using funds to develop, implement or enforce a rule that would add a column for Musculoskeletal Disorders (MSD) to the Occupational Injury and Illness Recording and Reporting Requirements form (Log 300). 
• Prohibit the DOL from implementing or enforcing a rule on coal dust until an independent assessment of the integrity of the data and methodology behind the rule is conducted.
• Prevent the NLRB from using appropriations funds to issue any new administrative directive or regulation that would provide employees “any means of voting through any electronic means that enables off-site, remote, or otherwise absentee voting in an election to determine a representative for the purposes of collective bargaining.”
• Prevent the Employee Benefits Security Administration (EBSA) from using appropriations funds to promulgate a proposed rule issued in 2010 that revises the definition of “fiduciary” for the purposes of rendering investment advice under the Employee Retirement Income Security Act (ERISA). In September 2011, the EBSA announced that it had decided to re-propose this rule. The Manager’s Statement explains that this section shall not be construed as preventing the agency from publishing a new or revised NPRM relating to the definition of a fiduciary, provided that interested parties and stakeholders are afforded a sufficient opportunity to review and comment on the proposed rulemaking.
• Prohibit funds to be used to enforce the Fair Labor Standards Act (FLSA) regulation that makes automotive service managers, service writers, service advisors and service salesmen who are “not primarily engaged in the work of a salesman, partsman or mechanic” subject to minimum wage and overtime requirements.

Total funding for DOL’s workforce protection agencies for FY 2012 is $1,615,664,000, an increase of $43.5 million from the previous year. Notably, the conference agreement does not include funding requested for expansion of the worker misclassification initiative. Broken down by DOL subagency, the appropriations bill would provide the following approximate amounts:

• $183.5 million for the Employee Benefits Security Administration (EBSA), an increase of $25.1 million from FY 2011 funding
• $227.5 million for the Wage and Hour Division (WHD), the same as last year
• $41.4 million for the Office of Labor Management Standards (OLMS), the same as last year
• $105.4 million for the Office of Federal Contract Compliance Programs (OFCCP), the same as last year
• $565.9 million for the Occupational Safety and Health Administration (OSHA), an increase of $7.2 million from last year. The increase includes an additional $6.4 million for compliance assistance activities and an additional $1.1 million for whistleblower enforcement
• $374 million for the Mine Safety and Health Administration (MSHA), an increase of $12.2 million from last year

The appropriations bill also provides funding of $13.4 million for the National Mediation Board (NMB). In addition, the spending bill, which provides funding for the Department of Defense (DOD) for FY2012, extends the existing restrictions on a defense contractor’s use of mandatory arbitration agreements in certain instances. The provision in FY 2012 DOD Appropriation Act prohibits contractors or subcontractors at any tier that receive funds appropriated by the Act for a contract in excess of $1 million from entering into or enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.”

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Labor-Related Provisions

Several sections of the appropriations bill seek to rein in the NLRB and the DOL’s Office of Labor Management Standards (OLMS). Many provisions would deny these agencies funding in order to prevent certain regulatory actions from going forward. Others would effectively reverse recent contentious NLRB decisions. Notable sections of the bill include the following:

• Electronic Voting. Section 404 would prohibit the NLRB from using appropriations funds to issue any new administrative directive or regulation that would provide employees “any means of voting through any electronic means that enables off-site, remote, or otherwise absentee voting in an election to determine a representative for the purposes of collective bargaining.”
• Expedited Elections. Section 405 would deny the NLRB funding to further develop, implement and enforce the proposed rule that would drastically change union representation election procedures.
• Notice Posting Rule. Section 406 would similarly deny funds to implement and enforce the recently-finalized rule requiring most employers to post a notice informing employees of their rights under the National Labor Relations Act.
• Appropriate Bargaining Unit. Section 402 would prevent the agency from using appropriations funds to “implement, create, apply, or enforce through prosecution, adjudication, rulemaking, or the issuing of any interpretation, opinion, certification, decision, or policy, any standard for initial bargaining unit determinations that conflicts with the standard articulated in the majority opinion in Wheeling Island Gaming Inc. and United Food and Commercial Workers International Union, Local 23, 355 NLRB 127 (August 27, 2010).” The Board’s recent decision in Specialty Healthcare deviates from such past precedent and instead adopts a controversial new standard for appropriate bargaining unit determination.
• Recognition Bar. By the same token, Section 403 stipulates that no appropriations funds may be used “to implement, create, apply, or enforce through prosecution, adjudication, rulemaking, or the issuing of any interpretation, opinion, certification, decision, or policy, any standard for secret-ballot elections that conflicts with the standard articulated in the majority opinion in Dana Corp., 351 NLRB 434 (2007).” Under Dana Corp., employees were given 45 days to request a secret ballot election after the employer voluntarily recognized the union as the exclusive bargaining representative. The Board’s recent decision in Lamons Gasket Company changed this timeframe by holding that a “reasonable period” of time – at least six months, the Board suggests – must pass before an employer’s voluntary recognition of a union can be challenged.
• Project Labor Agreements. Section 111 would prevent the DOL from using any appropriations funds to implement, administer, or enforce the final regulations implementing Executive Order 13502: Use of Project Labor Agreements for Federal Construction Projects.
• Persuader Regulations. Section 114 would prevent funds from being used to promulgate or implement a rule that would amend current regulations governing employer and labor relations consultant reporting under the Labor-Management Reporting Disclosure Act, including the already proposed “persuader” regulation issued by the OLMS in June.

DOL Generally

• Section 123 of the measure would prevent the DOL from initiating, administering, promulgating, or enforcing any significant regulatory action “unless the Committees on Appropriations of the House of Representatives and Senate have been notified at least 30 days prior to the issuance of such action.”
• Section 112 would deny funding to administer, implement, or promote the DOL’s ‘‘Bridge to Justice’’ program or any similar attorney referral program that refers individuals with complaints relating to employment violations to private attorneys.

Wage and Hour

• Right to Know Regulation. According to the WHD’s regulatory agenda, the agency intends to issue a proposed rule – otherwise known as the “right to know” regulation – that would update the recordkeeping regulations under the Fair Labor Standards Act (FLSA) in order to “enhance the transparency and disclosure to workers of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how their pay is computed.” Section 113 of the appropriations bill would prevent the agency from using funds to further develop/implement this proposal.

OSHA

• Injury and Illness Prevention Program. Section 120 prohibits the Occupational Safety and Health Administration from using appropriations funds to “continue the development of or to promulgate, administer, enforce, or otherwise implement” an Injury and Illness Prevention Program regulation. While OSHA has not yet set a specific date for publishing the proposed standard, this item was listed in the agency’s regulatory agenda. During a web chat to discuss OSHA’s agenda, OSHA’s Deputy Assistant Secretary Jordan Barab said that such a standard “will require employers to develop a program that will help them address their health and safety hazards in a systematic proactive way.”
• Musculoskeletal Disorders. Similarly, Section 119 of the bill would prevent OSHA from using funds to develop, implement or enforce a rule that would add a column for Musculoskeletal Disorders (MSD) to the Occupational Injury and Illness Recording and Reporting Requirements form (Log 300).

Immigration

• Section 118 would deny funding for the continued development, promulgation, administration or enforcement of the proposed rule: Wage Methodology for the Temporary Non-agricultural Employment H-2B Program. Similarly, Section 117 would prevent any appropriations funds from being used to pay the salaries and expenses of DOL staff “to require an H-2A employer to pay an H-2A worker a wage that is not the prevailing hourly wage in the occupation for which the employer has petitioned for workers.”

At this time, it is uncertain which, if any, of the above provisions will be included in the final appropriations bill. Most of these funding limitations will inevitably face strong opposition in the Senate.

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The Senate vote fell on the same day the DHS Secretary Janet Napolitano announced that the Administration supports a regulation that would require all federal contractors to use E-Verify. In a DHS press release, Napolitano stated that “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce. Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce.” The federal contractor rule advocated by the DHS would extend the use of E-Verify to covered federal contractors and subcontractors, including those who receive funds provided by the American Recovery and Reinvestment Act, otherwise known as the economic stimulus package. According to the press release, “the administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.” At the same time, the DHS plans to rescind its Social Security No-Match Rule, which was never implemented and had been blocked by a court order.

The Senate yesterday also approved by voice vote an amendment (S. AMDT. 1407) introduced by Sen. Patrick Leahy (D-VT) to make the EB-5 Regional Center Pilot Program permanent. EB-5 visas are awarded to qualified foreigners seeking to invest at least $1 million (or in certain circumstances, $500,000) in a business that will benefit the U.S. economy and create or save at least 10 full-time jobs.