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

• 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!