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.

Photo credit: Kent Weakley

According to information published by the Office of Information and Regulatory Affairs, the latest regulatory plans differ from those issued in the past in that they do not include information on regulations that are either longer-term or in the pre-rule stages. Longer-term items are listed separately. Regulatory action on these long-term items is not expected to occur until more than 12 months after publication of the agenda.

Department of Labor

According to the DOL’s statement of regulatory priorities, the agency will continue to implement rules pursuant to its “Plan/Prevent/Protect” regulatory and enforcement strategy that will require businesses to establish and enforce plans for identifying and remedying labor law violations. According to the agency, employers “who fail to take these steps to comprehensively address the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and, may be subject to remedial action.” It will also undertake review of a number of existing rules to determine if more efficient and less burdensome regulatory alternatives are available. A complete list of rules the DOL plans to actively consider in the coming months can be found here.  Highlights of the DOL’s regulatory priorities are as follows:

OSHA

Of the 60 DOL rules at the pre, proposed, and final rule stages, 23 are under active consideration at the Occupational Safety and Health Administration (OSHA). In addition to targeting specific hazards, OSHA announced that it is “focusing on systematic processes that will modernize the culture of safety in America's workplaces and retrospective review projects that will update regulations and reduce burdens on regulated communities.” OSHA is in the process of evaluating the need for rules governing standards for bloodborne pathogens and infectious diseases in healthcare and other related high-risk environments. OSHA plans to issue a proposed standard on crystalline silica exposure in February 2012.

Also under development is a proposed rule implementing a new injury and illness prevention program (I2P2). OSHA describes the I2P2 rulemaking as the prototype for the Department's Plan/Prevent/Protect strategy. As discussed in the DOL’s statement of regulatory priorities, this proposal

will explore requiring employers to provide their employees with opportunities to participate in the development and implementation of an injury and illness prevention program, including a systematic process to proactively and continuously address workplace safety and health hazards. This rule will involve planning, implementing, evaluating, and improving processes and activities that promote worker safety and health hazards. OSHA has substantial evidence showing that employers that have implemented similar injury and illness prevention programs have significantly reduced injuries and illnesses in their workplaces.

According to the agenda, the agency intends to convene the Small Business Advocacy Review panel on this regulation this month.

The agency also has proposed changes to its reporting system for occupational injuries and illnesses that it contends “would enable a more efficient and timely collection of data and would improve the accuracy and availability of the relevant records and statistics.” OSHA is scheduled to complete its review of public comments on the proposal in May of this year.

OSHA also intends to issue final rules governing procedures for processing whistleblower retaliation complaints under various whistleblower statutes under the agency’s jurisdiction, including those created by the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Affordable Care Act.

A final rule on a revised Hazard Communication Standard is also anticipated to be issued in February of this year. OSHA is embarking on a review of its chemical standards, beginning with developing a request for information seeking input from the public to help the agency identify effective ways to address occupational exposure to chemicals.

Notably, regulations addressing occupational exposure to beryllium and food flavorings containing diacetyl and diacetyl substitutes, a standard for combustible dust, and a rule revising occupational injury and illness recording and reporting requirements to include a column for musculoskeletal disorders (MSD) are now considered longer-term regulatory efforts with no set issue date.

OFCCP

The Office of Federal Contract Compliance Programs (OFCCP) intends to issue a number of proposed and final rules governing contractor affirmative action and nondiscrimination requirements. A proposed rule revising construction contractor affirmative action requirements is slated to be released in April 2012. The OFCCP plans to propose new sex discrimination guidelines by this time period as well. According to the agency, current guidelines are “more than 30 years old and warrant[] a regulatory lookback.” In April 2012, the OFCCP plans to issue a proposal “to create sex discrimination regulations that reflect the current state of the law in this area.”

The agency is still considering comments it solicited regarding plans for a new compensation data collection tool “to identify contractors likely to violate” sex- and race-based compensation discrimination laws, as well as those it receives in response to its proposed rule governing affirmative action and nondiscrimination obligations of contractors and subcontractors regarding individuals with disabilities. The OFCCP issued the proposed rule on this topic in December 2011.

By July 2012, the agency plans to issue a final rule on revised contractor affirmative action requirements for veterans.

EBSA

The Employee Benefits Security Administration (EBSA) will focus its regulatory efforts on implementing provisions of the Affordable Care Act, as well as “expand[ing] disclosure requirements, substantially enhancing the availability of information to employee benefit plan participants and beneficiaries and employers, and strengthening the retirement security of America's workers.”

The agency also intends to issue rules “in a number of areas including pension benefit statements, participant education, and fiduciary guidance.” Among other regulatory items, the EBSA plans to re-propose a rule that would clarify who constitutes a “fiduciary” under ERISA when providing investment advice to retirement plans and other employee benefit plans. The revised proposal is expected to be issued in May 2012. After withdrawing the initial proposal, the EBSA in September 2011 announced that it had decided to re-propose this rule. 

With respect to pension benefit statements, the EBSA “is working on a proposed rule under ERISA section 105 that would require or facilitate the presentation of a participant's accrued benefits; i.e., the participant's account balance, as a lifetime income stream of payments, in addition to presenting the benefits as an account balance.” This proposal is expected to be released by June 2012. 

EBSA will be finalizing amendments to the disclosure requirements applicable to plan investment options, including Qualified Default Investment Alternatives, to better ensure that participants understand the operations and risks associated with investments in target date funds. In addition, EBSA will be issuing a final rule addressing the requirement that administrators of defined benefit pension plans annually disclose the funding status of their plan to the plan's participants and beneficiaries. Final rules on target date disclosures and annual funding notices are slated for release in April and May of this year, respectively.

The agency also is planning to propose changes to the rules governing the internal claims and appeals process. EBSA recently proposed a rule that would implement reporting requirements for multiple employer welfare arrangements (MEWAs) and certain other entities that offer or provide health benefits for employees of two or more employers. The proposal amends existing reporting rules to incorporate new requirements enacted as part of Affordable Care Act and to more clearly address the reporting obligations of MEWAs that are ERISA plans.

OLMS

In June 2011 the Office of Labor Management Standards (OLMS) issued a proposed  rule regarding employer and consultant “persuader activity” reporting under the Labor Management Reporting and Disclosure Act (LMRDA). Specifically, the DOL proposed to broaden the scope of reportable activities by substantially narrowing its interpretation of the “advice exemption” in Section 203(c) of the LMRDA. According to the agency’s regulatory agenda, the OLMS plans to issue a final rule on this matter by August 2012. If the proposal is finalized, employers (and their advisors, including legal counsel) will have to treat activities that have not been reportable for the past 50 years as now subject to reporting requirements, which potentially could result in substantial interference with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union campaigns, and have a chilling effect on employer free speech during such campaigns. Rulemaking seeking changes to the Form LM-21, Receipts and Disbursements Report, which is required pursuant to section 203(b) of LMRDA, is slated for long-term action with no set date. The rulemaking will propose mandatory electronic filing for Form LM-21 filers, and it will review the layout of the Form LM-21 and its instructions, including the detail required to be reported.

WHD

In past regulatory agendas the DOL’s Wage and Hour Division had stated that it would issue a proposed rule 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” and to “clarify that the mandatory manual preparation of ‘homeworker’ handbooks applies only to employers of employees performing homework in the restricted industries.’ According to the current agenda, it appears the WHD has put this “Right to Know” rulemaking effort on the back burner, as no date for the proposal’s issuance has been set.

The agency’s regulatory agenda also includes changes to the application of the FLSA to domestic service. The comment period on the proposed rule ends February 27, 2012. According to the agenda, this month the Department plans to propose amendments to the regulations implementing the Family and Medical Leave Act to incorporate amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act.

Equal Employment Opportunity Commission

The EEOC’s statement of regulatory priorities includes only one substantive item: “Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act.” This rule purports to clarify the meaning of the “reasonable factors other than age” (RFOA) defense used against an Age Discrimination in Employment Act (ADEA) claim and the disparate impact burden of proof under the ADEA. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims were cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed on the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC issued a new NPRM to address the scope of the RFOA defense in February 2010. According to the EEOC’s agency rule list, a final regulation on this topic was scheduled to be issued by the end of 2011. The agency approved by a 3-2 vote a final draft of this rule in November 2011. The final rule currently is under review by the Office of Management and Budget.

The EEOC also intends to issue a proposed rule that would update its race and ethnicity data collection method to conform with current reporting instructions for the EEO-1 Report, making employee self-identification the preferred method for collecting race and ethnic data on employees. This proposal as well as final rule amending its current Title VII and ADA recordkeeping regulations to address recordkeeping obligations under the Genetic Information Nondiscrimination Act (GINA) are expected to be released shortly.

National Labor Relations Board

In December, the National Labor Relations Board issued a final rule that will radically change representation election procedures. The initial proposal contained even more extensive changes. The regulatory agenda notes that the Board is “continuing to deliberate on the rest of the proposed amendments and expects to address them in a subsequent final rule.” The release date for a final rule incorporating the omitted representation election proposals remains “to be determined.”

Additional information on the unified and regulatory agendas can be found here.

Photo credit: istockphoto

In addition, the fact sheet states that all employees of an employer are protected by the FLSA’s retaliation provisions, including those instances in which the employee’s work and the employer are not covered by the Act. Moreover, the section 15(a)(3) protections extend to employees who are no longer in an employment relationship with the employer. With respect to enforcement, the fact sheet explains that an aggrieved individual may file a complaint with the agency or pursue a private cause of action in court.

Fact Sheet # 77B: Protection for Individuals under the FMLA, outlines Section 105 of the FMLA and section 825.220 of the FMLA regulations, which prohibit employers from retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA, and provide examples of prohibited conduct. The fact sheet points out that the FMLA applies to, among other entities, private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. Retaliation complaints under section 105 can be raised within two years from the date of violation.

Finally, the new Fact Sheet # 77C: Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), discusses the protections and enforcement procedures under the retaliation provisions of the MSPA, which establishes employment standards related to wages, housing, transportation, disclosures, and recordkeeping requirements for migrant and seasonal agricultural workers, and mandates that farm labor contractors register with the U.S. Department of Labor. Specifically, Section 505(a) of MSPA makes it a violation for any person to:

intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker because such worker has, with just cause, 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 proceedings, or because of the exercise, with just cause, by such worker on behalf of himself or others of any right or protection afforded by this Act.

DOL fact sheets on other wage and hour issues can be found here.

The SOL defines “excepted activities” as those authorized by law to continue during a lapse in appropriations, such as when: (a) funds remain legally available; (b) authority to undertake minimal obligations is necessarily inferable from other statutes; or (c) the agency’s activities are necessary “to address imminent threats to the safety of human life or the protection or property.”

As discussed in the memo, the approximately 1,650 employees to continue working during a shutdown include:

• 53 employees (including 10 individuals on call for the Office of Labor Management Standards) engaged in law enforcement;
• 463 employees (including 1 individual on call for the Office of Workers’ Compensation Programs (OWCP)) whose compensation is financed by a resource other than annual appropriations. These workers are employed by the Employment and Training Administration (ETA) and the OWCP; and
• 1,285 employees who are not otherwise exempt, but will be retained to protect life and property. Such individuals are employed at the DOL’s worker protection agencies, including the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), the Wage and Hour Division (WHD), and the Employee Benefits Security Administration (EBSA).

The 55-page memorandum includes the various sub-agency contingency plans that were approved by the SOL.

Health and Safety

• OSHA is developing a rule requiring employers to implement an Injury and Illness Prevention Program. The rule would include planning, implementing, evaluating and improving processes and activities that protect employee safety and health. Stakeholder meetings on the initiative have already begun.
• OSHA will consider drafting rules on occupational exposure to beryllium, food flavorings containing diacetyl and diacetyl substitutes, blood borne pathogens, and infectious diseases.
• At the proposed rule stage, OSHA plans to issue proposed rules governing the occupational exposure to crystalline silica. This proposed rule is scheduled to be issued by April 2011. OSHA is also drafting a proposed rule on combustible dust, but no Notice of Proposed Rule Making (NPRM) release date has been set. Other regulations at the proposed rule stage include those governing walking working surfaces and personal fall protection systems, and occupational injury and illness recording and reporting requirements.
• As for final rules, OSHA intends to issue a final rule on confined spaces in construction by November 2011.
• With respect to work-related musculoskeletal disorders, by February 2011 OSHA claims it will issue a final rule amending the occupational injury and illness recording and reporting requirements to include a Musculoskeletal Disorders (MSD) Column on the 300 Log. 
• By May 2011, OSHA plans to issue a final rule on electric power transmission and distribution, and electrical protective equipment.
• As for the whistleblower provisions of many of the statutes OSHA enforces, including the employee protection provisions of the Consumer Financial Protection Act of 2010, Section 1057 of the Dodd-Frank-Wall Street Reform and Consumer Protection Act, the Affordable Care Act, and the Consumer Product Safety Improvement Act, the agency plans to issue interim final regulations on these provisions by September 2011.

Employee Benefits

Next to workplace safety initiatives, the next largest percentage of rulemaking activity will focus on employee benefits. After issuing six final rules in the past six months, the Employee Benefits Security Administration (EBSA) lists 19 separate regulatory actions it plans to take in the coming months. Some of these regulations include the following:

• The EBSA intends to issue proposed rules addressing such issues as annual funding notices, pension benefit statements, the definition of “fiduciary”, improved fee disclosure for welfare plans, target date disclosures, and amendments to claims procedures.
• By April 2011, the EBSA plans to issue its final rule on improved fee disclosure for pension plans.
• A final rule addressing the statutory exemption for the provision of investment advice is scheduled to be issued by May 2011. 
• EBSA will also begin rulemaking to implement the automatic enrollment provision of the Patient Protection and Affordable Care Act (“Affordable Care Act’), which applies to employers with more the 200 full-time employees and who over enroll in one or more health benefit plans. The Agency plans to issue a request for information by May 2011. The Agency will also continue its development of other rulemaking activities under the Affordable Care Act.

Wage and Hour

• The DOL’s Wage and Hour Division (WHD) plans to issue regulations implementing the Family and Medical Leave Act (FMLA) to incorporate amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act. A NPRM is slated to be issued by February 2011.
• By April 2011, the WHD plans to issue a NPRM to 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.” Proposed rules were originally expected before the end of this year.
• The WHD also plans to clarify that the mandatory manual preparation of "homeworker" handbooks applies only to employers of employees performing homework in the restricted industries.
• The WHD also plans to issue by October 2011 a proposed rule that would apply the FLSA to domestic service workers.
• By March 2011, the WHD intends to issue a final rule implementing Executive Order 13495 – Nondisplacement of Qualified Workers Under Service Contracts – which establishes the policy that federal service contracts generally include a clause requiring the contractor and its subcontractors, under a contract that succeeds a contract for the same or similar service at the same location, to offer qualified employees (except managerial and supervisory personnel) employed on the predecessor contract a right of first refusal to employment under the successor contract.

Office of Labor Management Standards

• The OLMS is actively considering drafting a rule that would allow internet balloting in union officer elections.
• By June 2011, the OLMS plans to issue a proposed rule that would revise the interpretation of section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). That statutory provision creates an "advice" exemption from reporting requirements that apply to employers and other persons in connection with persuading employees about the right to organize and bargain collectively. A proposed revised interpretation would narrow the scope of the advice exemption.

Office of Federal Contract Compliance Programs

• The OFCCP will soon issue a proposed rule with request for comments on its plan to revise regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). This NPRM would strengthen the affirmative action requirements for federal contractors and subcontractors. According to the OFCCP, the NPRM would amend the regulations to require that federal contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts. The NPRM would also make revisions to recordkeeping requirements.
• By July 2011 the OFCCP also intends to issue a NPRM to revise the regulations in 41 CFR part 60-4 implementing the affirmative action requirements of Executive Order 11246 that are applicable to federal and federally assisted construction contractors. According to the agency, the proposed rule would “strengthen and enhance the effectiveness of the affirmative action program requirements for Federal and federally-assisted construction contractors and subcontractors, particularly in the area of recruitment and job training.”
• In another proposed rule dealing with affirmative action, the OFCCP plans to issue a NPRM that “would strengthen the affirmative action requirements for Federal contractors and subcontractors. The NPRM would amend the regulations to require that Federal contractors and subcontractors increase linkages and conduct more substantive analyses of recruitment and placement actions taken under section 503. The NPRM would also make revisions to recordkeeping requirements.”

• The Office of Federal Contract Compliance Programs (OFCCP) plans to issue proposed regulations on construction contractor affirmative action requirements as well as proposed regulations requiring that federal contactors and subcontractors conduct more substantive analysis of recruitment and placement actions taken under the Vietnam Era Veterans’ Readjustment Act. The OFCCP also plans to seek public comment on improving employment opportunities for individuals with disabilities.
• The Office of Labor Management Standards (OLMS) intends to propose a rule that would narrow the scope of the interpretation of section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). This section creates an “advice” exemption from reporting requirements that apply to employers in connection with persuading employees about the right to organize and bargain collectively. A notice of proposed rulemaking (NPRM) is estimated to be issued by November 2010.
• The OLMS plans to issue a final rule by June 2010 on a standard prescribing the size, form, and content of the notice to be posted by a contractor that describes the rights of employees under federal labor laws. Executive Order (E.O.) 13496 – Notification of Employee Rights under Federal Labor Laws – directed the OLMS to create regulations regarding the notice.
• The Wage and Hour Division (WHD) plans to issue a final rule by the end of 2010 to implement the provisions of E.O. 13495, Nondisplacement of Qualified Workers under Service Contracts. This E.O. requires that any federal service contracts and solicitations for such contracts include a clause requiring contractors and their subcontractors to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract.
• The WHD also intends to issue a NPRM by November 2010 to implement the National Defense Authorization Act, which expanded existing military family leave entitlements, and the Airline Flight Crew Technical Corrections Act, which expanded Family and Medical Leave Act (FMLA) eligibility requirements to include airline flight crews. According to the regulatory agenda, the DOL “is reviewing the implementation of these statutory amendments and other revisions of the current regulations.”
• The WHD plans to issue a NPRM by August 2010 of its intent to update the recordkeeping regulations under the Fair Labor Standards Act (FLSA) “in order to enhance the transparency and disclosure to workers of how their pay is computed, and to modernize other recordkeeping requirements for employees under ‘telework’ and ‘flexiplace’ work arrangements.”
• Considered a longer term action, the WHD intends to update the FLSA regulation: Application of the FLSA to Domestic Service, that would possibly subject certain currently exempt home care workers to FLSA coverage. The agency plans to issue a NPRM by October 2011.
• The Occupational Safety and Health Administration’s (OSHA) regulatory agenda includes prerule action on occupational exposure to beryllium and diacetyl, and a review of the Methylene Chloride Standard and the Bloodborne Pathogens Standard. OSHA plans to issue a NPRM on chrystalline silica by February 2011 and a final rule on cranes and derricks in construction by July 2010.

DOL will host live Web chats to discuss the regulatory agenda at the following times:

Monday, April 26

Office of Labor-Management Standards Web chat: 11 a.m. to noon EDT

Occupational Safety and Health Administration Web chat: 1 to 2 p.m. EDT

Employee Benefits Security Administration Web chat: 2 to 3 p.m. EDT

Tuesday, April 27

Office of Federal Contract Compliance Programs Web chat:  9 to 10 a.m. EDT

Wednesday, April 28

Wage and Hour Division Web chat: 9 to 10 a.m. EDT

Mine Safety and Health Administration Web chat: 10 to 11 a.m. EDT

Other stated goals for the DOL’s budget allocation include:

• The creation of a system of automatic workplace pensions. Under the proposal, employers who do not currently offer a retirement plan will be required to enroll their employees in a direct-deposit IRA account. Employees may opt-out. Small firms of 10 employees or less would be exempt.
• A doubling of the tax credit for small employers to offer a qualified retirement plan to their workers, from $500 to $1,000 per year, for a maximum of three years.
• An improvement in the transparency and adequacy of 401(k) retirement savings plans. Specifically, the DOL will undertake regulatory efforts to reduce barriers to annuitization of 401(k) plan assets; increase the transparency of pension fees; improve transparency of target date and other default retirement investments; and reduce conflicts of interest between pension advisers and fiduciaries.
• The expansion of families’ access to paid leave through a new $50 million fund to help states launch paid-leave programs cover their start-up costs.
• An expansion of the Saver’s Tax Credit to provide a 50 percent match on the retirement savings of families that earn less than $85,000 (up to $1,000 of savings would be matched).
• A boost in funding and proposed legislative changes to reduce improper unemployment insurance payments by more than $4 billion and employer tax evasion by $300 million over 10 years.

In addition, the budget funds an extension of Unemployment Insurance benefits, COBRA tax credits, and relief to states and localities to prevent layoffs, and would eliminate the capital gains tax on investments in small businesses. The DOL will hold a Q&A session on the budget on its website.

With respect to immigration initiatives, the budget allocates $137 million to the Department of Homeland Security for enhancements and expansion of immigration related verification programs at the U.S. Citizenship and Immigration Services.

Moreover, the budget provides $18 million – a five percent increase – to the Equal Opportunity Employment Commission (EEOC), and an additional $162 million, an 11 percent increase in funding, for the Department of Justice’s Civil Rights Division to strengthen civil rights enforcement of anti-discrimination laws.

More information on the 2011 budget can be found at the Office of Management and Budget’s website.

Photo credit:  timmy

• The Wage and Hour Division (WHD) plans to update the recordkeeping requirements under the Fair Labor Standards Act (FLSA) to require employers to, among other things, disclose to employees each pay period how many hours were worked, how much pay was computed, whether proper wages and overtime were included for hours worked, and what deductions were made. Solis noted that the proposed regulations would “increase transparency” to enhance a worker’s awareness of their entitlement to minimum wage and overtime pay each time they receive their paychecks.
• With respect to Americans and foreign nationals working temporarily in the U.S., the Employment and Training Administration (ETA) plans to amend the H2-B worker regulations to clarify an employer’s need for temporary foreign national workers, and ensure that citizen workers are fully considered before resorting to foreign labor.
• The DOL believes that the scope of section 203(c) of Labor-Management Reporting and Disclosure Act (LMRDA) – which provides, in part, that employer and consultant reporting is not required with respect to any agreement or arrangement to provide “advice” to the employer – is too broad and excludes information that should be reported. The Office of Labor-Management Standards (OLMS) seeks to narrow this advice reporting exemption to “better allow for the employer and consultant reporting intended by the LMRDA” and to “provide workers with information critical to their effective participation in the workplace.”
• The Office of Federal Contract Compliance Programs (OFCCP) will seek comments for a proposal to strengthen affirmative action requirements to increase job opportunities for veterans and the disabled.
• In the wake of the H1N1 Influenza Pandemic, the Occupational Safety and Health Administration (OSHA) will seek information on its proposed standard for airborne infectious diseases, and whether current infection control procedures are adequate to protect workers.
• The Mine Safety and Health Administration (MSHA) will publish a rule to decrease coal miners’ exposure to coal mine dust and reduce the instances of black lung disease.
• The Employee Benefits Security Administration (EBSA) plans to work with the Treasury Department to determine the best way to enhance an employee’s retirement security and facilitate access to lifetime income streams after retirement, and to encourage employers to offer their employees retirement annuities. A fact sheet on this regulatory effort can be found here.

The DOL notes that the agency’s regulations currently open for public comment include Temporary Agricultural Employment of H-2A Aliens in the United States, Interim Final Rule; Request for Information Regarding Sections 101 Through 104 of the Genetic Information Nondiscrimination Act of 2008; Hazard Communication, Proposed Rule; and Respirable Coal Mine Dust: Continuous Personal Dust Monitor (CPDM), Request for Information.

Three rules that are slated for periodic review under Section 610 of the Regulatory Flexibility Act to determine whether they should be continued without change, amended, or rescinded to minimize its impact on small entities, are OSHA’s rules governing Methylene Chloride and Bloodborne Pathogens, and the EBSA’s Plan Assets-Participant Contributions Regulation.

On December 7, 8 and 9 the DOL’s website will conduct chats hosted by the heads of the Occupational Safety and Health Administration, the Office of Labor-Management Standards, the Wage and Hour Division, the Employment and Training Administration, the Mine Safety and Health Administration, the Office of Federal Contract Compliance Programs and the Employee Benefits Security Administration. The public may submit questions to these chats via e-mail to Webmaster@dol.gov.

This entry was written by Ilyse Schuman.

The report also describes its investigative activities into organized crime and/or labor racketeering involving the funds in union-sponsored benefit plans, internal union corruption, and labor-management relations. The OIG highlights a major investigation that disclosed more than 30 years of organized crime control of the International Longshoremen’s Association Local 1235, and another case that resulted in a 10-year prison sentence for the Electrical Workers Local Union No. 3’s business manager for racketeering, bank fraud, and false statement charges, among other wrongdoings.

To improve the DOL’s programs and operation, the OIG makes a number of legislative recommendations, including the following:

• Allow the DOL Access to Wage Records. To reduce overpayments in employee benefit programs, the OIG claims the DOL needs legislative authority to easily and expeditiously access state UI wage records, SSA wage records, and employment information from the National Directory of New Hires (NDNH), which is maintained by the Department of Health and Human Services.
• Amend Pension Protection Laws. The OIG asserts that legislative changes to the Employee Retirement Income Security Act (ERISA) and the sections of the United States Code providing criminal penalties for ERISA violations would enhance the protection of assets in pension plans. To this end, the OIG suggests expanding the authority of the Employee Benefits Security Administration (EBSA) to correct substandard benefit plan audits and ensure that auditors with poor records do not perform additional plan audits; repealing ERISA’s limited-scope audit exemption; requiring direct reporting of ERISA violations to the DOL; and strengthening the criminal penalties in Title 18 of the United States Code for ERISA violations.
• Provide Authority to Ensure the Integrity of the Foreign Labor Certification Process. Under current law, the DOL is statutorily required to certify H-1B applications unless it determines them to be “incomplete or obviously inaccurate.” The OIG suggests that the DOL should have the statutory authority to ensure the integrity of the certification process itself, including the ability to verify the accuracy of the information provided on labor condition applications. The OIG also recommends that the Employment and Training Administration (ETA) seek the authority to bar employers and others who submit fraudulent applications to the H-1B foreign labor certification program, similar to the authority it has with respect to the H-2A and H-2B programs. 

This entry was written by Ilyse Schuman.

President Obama named Solis as his choice to lead the Department of Labor on December 18, 2008. Her confirmation hearing was held on January 9, 2009. During this hearing, some Republican senators expressed irritation that she refrained from expressing her position on contentious labor issues such as the Employee Free Choice Act (EFCA). It had been widely believed that one or more senators had threatened to put a hold on her nomination due to her reluctance to answer their questions.

Other issues continued to bog down her confirmation in recent weeks, including whether her position as a board member and treasurer of American Rights at Work (ARW) – a pro-labor organization that lobbied on behalf of EFCA and other labor-related bills Solis co-sponsored – presented a conflict of interest. As a result, some members of the HELP committee submitted additional rounds of written questions to Solis before they would agree to a vote.

Solis’ selection as Labor Secretary has been widely hailed by union leaders and worker advocates.

Solis has served as a member of the U.S. House of Representatives for the 32nd District of California since 2001, and is currently a Senior Whip, as well as a Regional Whip, for Southern California. She is a member of the Committee on Energy and Commerce, where she is Vice Chair of the Environment and Hazardous Materials Subcommittee and a member of the Health and Telecommunications Subcommittees. She also serves on the House Committee on Natural Resources and the House Select Committee on Energy Independence and Global Warming. Prior to serving in Congress, she worked as a California State Senator from 1994-2000, and as a California Assembly Member from 1992-1994.

During her three terms in Congress, Solis voted along party lines 98.4% of the time. She is a staunch supporter of the Employee Free Choice Act (EFCA) in particular and unions in general. Born into a union family, Solis is considered to be one of organized labor’s strongest proponents in the House of Representatives. She has received a near 100% rating by the AFL-CIO in terms of her pro-union voting record. In addition, she has marched with Andy Stern, president of the Service Employees International Union, in support of increased wages and benefits for janitors. In a press release, Stern has stated:

As someone who has pounded the pavement knocking on doors for Hilda Solis in her first upset campaign in California, I can tell you firsthand that this woman is about opening doors for millions of Americans who get up and go to work each day.

AFL-CIO President John Sweeney has voiced similar praise for Solis:

We're thrilled at the prospect of having Rep. Hilda Solis as our nation's next labor secretary. We're confident that she will return to the labor department one of its core missions - to defend workers' basic rights in our nation's workplaces. She's proven to be a passionate leader and advocate for all working families - in fact, she's voted with working men and women 97 percent of the time. The AFL-CIO looks forward to working with Rep. Solis as she charts new territory for our nation's working men and women. 

Solis is a member of the American Rights at Work Board of Directors. American Rights at Work is a pro-labor think tank that is strongly in favor of EFCA’s passage and champions workers’ rights and workplace safety issues. David Bonior, an early candidate for the Secretray of Labor job and the Chair of American Rights at Work--and a close advisor to President-elect Obama--said about Solis’ nomination:

I’ve worked with her for years in Congress and she sits on our Board of Directors – she’s a terrific leader who I know first hand will work tirelessly on behalf of America’s working families.

Solis’ record for supporting business interests is less than spectacular. She has garnered a 21% rating in 2003 by the U.S. Chamber of Commerce, indicating a fairly anti-business voting record. 

She has consistently voted in favor of increasing the federal minimum wage. Solis has indicated she will continue to support a bill she co-sponsored, the Protecting America’s Workers Act (H.R. 2049), which increases penalties against employers for worker safety violations, enhances protections for whistleblowers, and mandates that employers pay for personal protective equipment. She is also in favor of greater OSHA funding to increase enforcement of workplace safety laws.

In terms of civil rights, Solis has supported the reintroduction of the Equal Rights Amendment and related bills promoting comparable work pay rules for women, and legislation prohibiting job discrimination based on sexual orientation. In the healthcare arena, Solis voted in favor of giving mental health benefits full equity with physical health benefits.

On the immigration front, Solis recently spoke out against the Bush Administration’s changes to the H-2A agricultural guest worker program.  In opposing the regulation changes, Solis claimed: 

There is no question that the guest worker program needs significant overhaul but slashing wages and reducing basic rights for the most vulnerable workers in our country, especially hardworking Latino farm workers, is not the answer. I look forward to working with the Obama Administration and the Democratic majority to find the best solutions to strengthen this workforce and protections afforded to them.

When nominated and if confirmed, Solis will certainly alter the direction and activity of the Department of Labor. Stay tuned!