Washington D.C. Employment Law Update

Bills Would Expand Pregnancy, Nursing Workplace Rights

Ilyse Schuman — Fri, 17 May 2013 16:28:00 -0500

This week members of the House and Senate introduced legislation designed to improve protections for pregnant and nursing employees. On Tuesday lawmakers reintroduced the Pregnant Workers Fairness Act (H.R. 1975, S. 942), a bill that would require employers to make reasonable accommodations for pregnant employees and job applicants as well as those with limitations related to childbirth. Modeled after provisions in the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act would institute certain anti-discrimination and retaliation protections for workers who request a reasonable accommodation related to their pregnancy, childbirth, or associated medical conditions, and prevent employers from requiring that a pregnant employee take leave if she could perform her job with a reasonable accommodation. The bill would also make it unlawful for an employer to require an applicant or employee affected by pregnancy or childbirth to accept a particular accommodation.

The same rights and remedies afforded by Title VII of the Civil Rights Act would apply to any violations of the Pregnant Workers Fairness Act. Public sector employees would be given similar remedies available under related civil rights statutes. Finally, the measure would direct the Equal Employment Opportunity Commission (EEOC) to issue regulations implementing the law within two years of the bill’s enactment.

The second measure introduced this week would expand the pool of employees who receive certain nursing mother rights. The Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require employers with 50 or more employees to provide rest breaks and space for non-exempt employees who are nursing mothers to express breast milk. The Supporting Working Moms Act (H.R. 1941, S. 934) would include salaried workers by amending Section 13 of the FLSA. According to a press release:

Current law provides mothers who are classified as non-exempt employees with reasonable break times to express milk in a private, non-bathroom environment while at work. The Supporting Working Moms Act would expand this provision to cover approximately 12 million salaried women who work in traditional office environments. Employers are not required to compensate an employee for the break time to express milk, and an employer with fewer than 50 employees who is unable to meet the requirements under the provision is exempt if it would pose an undue hardship.

All of these bills have been referred to committee.

Photo credit: monkeybusinessimages

EEOC Updates Disability Guidance Documents

Ilyse Schuman — Fri, 17 May 2013 15:14:11 -0500

Pursuant to the agency’s Strategic Plan, the Equal Employment Opportunity Commission (EEOC) has revised and updated four disability guidance documents. Among other goals outlined in the Strategic Plan is to ensure the EEOC “provides up-to-date guidance on the requirements of antidiscrimination laws.” To that end, the agency has made available revised question and answer documents on how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities.

According to the EEOC:

the revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.

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Senate Committee Questions NLRB Nominees as Third Circuit Declares Recess Appointments Unconstitutional

Ilyse Schuman — Thu, 16 May 2013 16:27:12 -0500

The three National Labor Relations Board members up for reconsideration and two new Board nominees faced pointed questions from the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday. Last month, President Obama announced his intent to re-name Mark Gaston Pearce (D) as Chairman of the National Labor Relations Board (NLRB), as well as seat the two Republican nominees, Harry I. Johnson, III and Philip A. Miscimarra, to the agency. In February, the President re-nominated Democrats Sharon Block and Richard Griffin to the Board after the U.S. Court of Appeals for the D.C. Circuit ruled that their January 4, 2012 recess appointments were unconstitutional. The hearing was held the same day the Third Circuit released its decision in NLRB v. New Vista Nursing & Rehabilitation, which reached a similar conclusion. Specifically, the Third Circuit held that the recess appointment of former Board member Craig Becker was invalid because it was not made during an intersession recess, which would invalidate the Block and Griffin appointments as well.

Committee Chairman Tom Harkin (D-IA) claimed that it was “deeply disappointing” to see what is happening to the Board in recent years, and placed the blame on “political squabbling.” According to Harkin, the Board has not had five confirmed members in a decade.

Ranking member Lamar Alexander (R-TN) agreed that it is important to have five confirmed members, but emphasized that there exists “a troubling lack of respect” for the constitutional mandate that there be a separation of powers in our government, namely the Senate’s responsibility to provide advice and consent over executive nominees. He claimed that President Obama “made recess appointments while the Senate was not in recess. This was unprecedented.” Said Alexander, “the Senate must decide when we’re in session. Not the President.”

Alexander explained that since the January 4, 2012 recess appointments, the Board has issued 910 published and unpublished decisions; 206 of which were issued after Noel Canning, the case in which the U.S. Court of Appeals for the D.C. Circuit ruled that the recess appointments were unconstitutional. All of these decisions, Alexander noted, can be appealed and vacated.

Alexander supported the nominations of Pearce, Johnson and Miscimarra, but said he would not approve the nominations of Griffin and Block, the two recess nominees.

Sen. Patty Murray (D-WA), on the other hand, urged the Senate to consider all five nominees as a package. Sen. Elizabeth Warren (D-MA) agreed, even though she expressed concern that one of the nominees was specifically hired by the Chamber of Commerce to curb NLRB’s regulatory authority. She believed that the need to have a fully functioning Board overrode any concerns she had about individual members.

During the hearing, each member was asked specific questions about their philosophies about labor law in general, and how the Board has acted in certain situations in particular.

Chairman Pearce was grilled the most given his leadership role. Sen. Harkin asked him why he feels the Board should continue to operate given the Noel Canning decision. Pearce responded that the decision conflicts with the conclusions of three other courts of appeals, and that “historically, the NLRB has functioned in the wake of constitutional challenges. We owe it to the public to continue to work.” He pointed out that the National Labor Relations Act affords no private right of action. Therefore, “the Board is the only forum. . . .the statute of limitations on unfair labor practices continues to run,” and that the Board’s obligations are not suspended while litigation over the legitimacy of the Board is pending.

Sen. Alexander asked Pearce about the Board’s efforts to expand the information that must be provided on the Excelsior list. He said that under Pearce’s direction, the Board has led a regulatory effort to include other information such as email addresses and telephone numbers. Alexander asked whether, if re-confirmed, would Pearce continue to pursue these efforts, and if so, why would he not allow employees to opt out of this requirement? Pearce answered that “Excelsior is decades old. . . . We are creatures or victims of technology,” and that it is “appropriate and responsible” for the Board to “look at technological advances that are typical in communications between employees and employers.” He said that all manners of communication would be evaluated and taken into consideration. Alexander urged Pearce to consider privacy considerations as well as technological ones.

Sen. Johnny Isakson (R-GA) asked Pearce why the NLRB has undone decades of precedent in its Specialty Healthcare decision. In this case, the Board changed the criteria for assessing appropriate bargaining units. Under the new standard, employers have the burden of proving excluded employees share an “overwhelming community of interest” with the proposed unit – a new and uncertain standard. The decision essentially makes it easier for unions to create smaller “micro” units within a workplace. Pearce responded that “it has been a tenet of the law to determine an appropriate – not the most appropriate – unit,” and that the decision in Specialty Healthcare is “consistent with assessments of what would be an appropriate bargaining unit.”

Recess nominees Richard Griffin and Sharon Block were asked why they have not resigned in the wake of Noel Canning. Richard Griffin claimed that since the Supreme Court has not rendered a final judgment on the matter, “I felt it was important to conduct the work I took an oath to continue to do.” Nominee Sharon Block agreed, saying that the “public we serve relies on us. It is incumbent upon me to continue to provide this service while the issue is being resolved.”

When asked what his concerns would be if confirmed, nominee Harry Johnson stated that “if good faith employers cannot operate” due to regulatory impediments, “there will not be jobs, not be employees, and there would not be viable labor unions.” Nominee Philip Miscimarra said that one factor every labor law case has in common is that “at least two people see something different. If confirmed, I will approach every decision with an open mind . . . and be open to differing views.” In addition, he stated that it is important to “apply the law as written in keeping with what Congress intended.”

Sen. Robert Casey, Jr. (D-PA) asked whether he supports the Board’s rulemaking authority. Miscimarra answered that he does, but that any consideration would depend on careful consideration of the need for the rule, any authorization in the NLRA for the rulemaking, the content of the rule, and the process for receiving public input.

Sen. Bernard Sanders (I-VT) predicted that the Committee would approve the five nominees along party lines, and that once the nominations are put before the full Senate, Republicans would threaten to filibuster the nominations, and that the Democrats would not be able to garner the 60 votes needed to overcome a filibuster. Thus, come the end of August when Chairman Pearce’s term ends, the Board would be left without a quorum and thus be rendered dysfunctional.

Sen. Harkin concluded the hearing by noting that the Committee will meet to vote on advancing the nominations next Wednesday, May 22, 2013.

A webcast of the hearing can be found here.

Photo credit: webphotographeer

Senate Committee Advances Nomination of Thomas Perez to be Labor Secretary

Ilyse Schuman — Thu, 16 May 2013 12:04:13 -0500

On Thursday morning, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 12-10 along party lines to advance the nomination of Thomas Perez to be the next Secretary of Labor. Now that Perez’s nomination has been reported favorably out of committee, it will next be considered by the full Senate.

Committee Chairman Tom Harkin (D-IA) emphasized that since the last committee hearing held to consider Perez’s nomination, there has been an “unprecedented level of disclosure” regarding Perez’s involvement in an alleged quid pro quo agreement with the City of St. Paul, Minnesota while serving in his current role as Assistant Attorney General of the Department of Justice’s Civil Rights Division. In Magner v. Gallagher, the city had challenged the use of statistics as evidence of race discrimination under the Fair Housing Act (FHA). The DOJ was reportedly concerned that the U.S. Supreme Court could strike down this practice and find that disparate impact claims are not cognizable under the FHA, so it allegedly encouraged the city to withdraw its lawsuit. In exchange, according to the accusations, the DOJ would decline to intervene in an unrelated False Claims Act (FCA) lawsuit. The FCA case at issue, United States ex rel. Newell v. City of Saint Paul, was brought by a private whistleblower charging that St. Paul violated the FCA by falsely certifying that it was using federal funds to create jobs for low income workers of all races, when the programs were allegedly focusing only on minority employment. Harkin argued that his investigation into the matter has shown that Perez’s actions were entirely “ethical and appropriate,” and expressed dismay over the delay regarding Perez’s consideration.

Ranking member Lamar Alexander (R-TN), however, claimed that sufficient information has not been provided regarding the Magner and Newell cases, and stated that Perez participated in an “extraordinary amount of wheeling and dealing” regarding the two lawsuits. According to Alexander, Perez “did not discharge his duties to protect the whistleblower in this matter,” and that it was “premature to report Mr. Perez’s nomination” out of committee.

Sen. Barbara Mikulski (D-MD) claimed she is the only one on the committee who knows Perez, and considers him “a fine nominee.” She cited a letter written by the Maryland Chamber of Commerce that said: “Mr. Perez proved himself to be a pragmatic public official,” and that “despite differences of opinion,” Mr. Perez proved himself to be “fair and collaborative. . . Our experience with Mr. Perez in Maryland would bode well for the Nation.”

A webcast of the committee’s executive session can be found here.

EEOC Settles First Case Alleging Genetic Information Bias

Ilyse Schuman — Wed, 15 May 2013 10:40:09 -0500

Last week the Equal Employment Opportunity Commission (EEOC) settled its first lawsuit involving a discrimination claim based on an applicant’s genetic history. The lawsuit alleged that Fabricut, a fabric distributor, violated the Genetic Information Nondiscrimination Act (GINA) when it requested a family medical history in its post-offer medical examination to a temporary employee and then violated the Americans with Disabilities Act (ADA) by denying a regular position to the temporary employee because it regarded her as having carpal tunnel syndrome.

After offering the plaintiff a permanent position, the company subjected her to pre-employment drug testing and a physical exam. The exam included a questionnaire that asked her to disclose the existence of medical conditions – including heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis, and mental disorders – that ran in her family. The applicant was also subjected to further medical evaluations to determine whether she suffered from carpal tunnel syndrome.

In addition to the ADA claim based on the company’s conclusion that she suffered from carpal tunnel syndrome – despite her own physician’s finding to the contrary – the plaintiff alleged that the medical questionnaire violated her rights under GINA. Among other provisions, Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. GINA was enacted in 2008, and took effect in 2009. The agency issued final regulations on Title II a year later.

According to EEOC, the lawsuit and settlement were both filed on May 7, 2013. The company has agreed to pay the plaintiff $50,000, as well as take remedial actions. In a press release, EEOC Regional Attorney Barbara Seely said: “We believe that when Fabricut fully understood and appreciated what happened, it took action to remedy the situation, as this quick settlement demonstrates,” adding, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

EEOC Holds Public Meeting to Discuss Wellness Programs

Governmental Affairs Team — Tue, 14 May 2013 15:19:17 -0500

By Ilyse Schuman and Sherron McClain

On May 8, 2013, The Equal Employment Opportunity Commission (EEOC) held a public meeting that addressed the interaction between employer-sponsored wellness programs and federal equal employment opportunity statutes enforced by the EEOC. Commissioners Constance Barker, Victoria Lipnic, Chai Feldblum, and Commission Chair Jacqueline Berrien were present and joined by seven panelists representing business, advocacy groups and providers. Opening statements by Commissioners Barker, Lipnic, and Feldblum all noted the increased attention that that the nation’s collective health and employer-sponsored wellness programs have received in recent years. Commissioner Barker further noted that the Commission’s focus is on ensuring that groups protected by federal employment laws receive equal access to wellness programs and are permitted to enjoy the rewards offered for choosing those programs.

The Affordable Care Act (ACA) includes provisions designed to encourage the use and effectiveness of wellness programs. However, uncertainty surrounding the treatment of wellness programs under the Americans with Disabilities Act (ADA) and restrictions imposed by regulations issued under the Genetic Information Nondiscrimination Act (GINA) may have the opposite effect. The uncertainty centers on whether the use of financial incentives, in the EEOC’s view, renders a wellness program “involuntary.”

As Christopher Kuczynski, EEOC Acting Associate Legal Counsel, stated in his testimony:

The statute, the legislative history, and EEOC's ADA regulations do not elaborate on the meaning of the word "voluntary." However, EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (Employee Inquiry Guidance) explains that where a wellness program includes disability-related questions and/or requires medical examinations, the program must be voluntary, and that "voluntary" means that the employer neither requires participation in the program, nor penalizes employees who do not participate. The guidance says nothing directly about wellness program incentives and their impact on voluntariness. At the time the guidance was issued, financial incentives were not a feature of most wellness programs.

With financial incentives now a key component of many wellness programs, this question remains unanswered.

Commissioner Feldblum’s opening statement acknowledged that employers and their employees deserve clarity regarding the relationship between wellness programs and federal employment laws and suggested that the Commission could provide such clarity by addressing questions such as:

What accommodations are required for disabled employees who participate in wellness programs?
When is a medical examination or inquiry part of an employee health program?
When is a program-related medical exam or inquiry “voluntary,” and therefore permissible under the ADA?

In her opening statement, Commissioner Lipnic pointed out that wellness programs implicate many statutes enforced by the EEOC, including the ADA, GINA, Title VII, the Age Discrimination in Employment Act (ADEA), and possibly other statutes; and that the Commission’s duty is to articulate a position on this topic with enough clarity to ensure that stakeholders are on “sure footing.” Relevant questions include:

Does a wellness program’s compliance with the Health Insurance Portability and Accountability Act (HIPAA) satisfy EEO requirements?
When is a program “voluntary”?
If financial incentives comply with HIPAA, are they “voluntary” under the ADA?
Does it matter whether the incentive is a carrot or reward versus a stick or penalty?
How do standards for voluntary wellness programs under GINA relate to standards under the ADA?

Commissioner Lipnic emphasized that the purpose of the meeting was educational, and not indicative of whether the Commission will issue guidance on any of the topics discussed.

After brief statements by each of the panelists, the Commissioners asked several rounds of questions, including the following:

Commissioner Barker requested that several panelists submit language after the meeting to help the Commission define voluntariness in the context of wellness plans. Commissioner Barker then asked if the panelists had any response to the statement of Judith Lichtman of the National Partnership for Women & Families regarding the potential disparate impact that wellness programs had on groups protected by civil rights laws, by imposing higher costs and withholding rewards because of health problems that disproportionately affect these groups. One panelist agreed that health care programs should not be punitive, stated that she did not believe that a “voluntary” wellness program necessarily prohibits all incentives, and offered to work with the Commission to determine which incentives should be deemed impermissibly coercive. Another panelist pointed out that wellness programs do not work well without health assessments, and that a blanket prohibition of incentives would be at odds with other initiatives implemented by the current Administration.

Commissioner Feldblum asked each panelist to address whether employee participation in cholesterol and blood sugar screening is a voluntary medical examination if: 1) screening is simply offered for free with no other incentive or penalty; 2) failure to participate in screening resulted in termination; 3) employees received a Starbucks gift card for participating; 4) employees received a $100 credit on their $300 monthly health care premium if they participated, or a $100 surcharge if not. All of the panelists agreed that scenarios 1 and 3 were voluntary medical examinations and that scenario 2 was not. The panelists disagreed on whether scenario 4 represented a voluntary medical examination.

Commissioner Lipnic asked if there was any real difference between the reasonable alternative standard under the Health Insurance Portability and Accountability Act (HIPAA) and the reasonableness standard under the ADA. Several panelists agreed that the two standards are similar enough to address the concerns presented by the Commission.

Commissioner Barker expressed concern that soon, both the Affordable Care Act (ACA) and HIPAA will use 30% of the cost of coverage as a benchmark for the maximum allowable amount of health-based incentives, and that the Commission should not create an arbitrary maximum allowance. She then asked the panelists if an employer complies with relevant EEO laws if it complies with HIPAA’s guidelines on maximum incentives. Three panelists answered “yes” and three answered no. Two of the panelists who answered “no” pointed out that while the 30% standard will soon exist under the ACA and HIPAA, HIPAA does not address voluntariness and therefore is not completely analogous to the Commission’s efforts regarding wellness programs.

Other questions raised by the Commissioners included whether the ADA limits the type of voluntary inquiries employers are allowed to ask, whether the concept addressed in the preamble to HIPAA’s 2006 Enforcement Rule is the same as “voluntariness,” how to ensure that sensitive information remains confidential and wellness programs remain affordable, whether the ACA encourages collection of medical information in the aggregate, and whether the ADA’s protection against the misuse of medical information is sufficient to address discrimination concerns.

Although the Commission did not clearly state what position, if any, it would take with respect to wellness programs under the ADA, the testimony of Acting Associate Legal Counsel Kuczynski was telling. He concluded that:

Guidance from the Commission will promote both uniformity in the handling of charges alleging violations of the ADA with respect to wellness programs, and voluntary compliance to prevent discrimination from occurring in the first place.

More information on the EEOC meeting, including written statements of the panelists and Commissioners, can be found here.

Photo credit: ODonnell Photograf

EEOC Seeks Comments on its Draft Principles for a Quality Control Plan

Ilyse Schuman — Tue, 14 May 2013 12:00:00 -0500

The Equal Employment Opportunity Commission (EEOC) is seeking input from “individuals, employers, advocacy groups, agency stakeholders and other interested parties” on its Quality Control Plan (QCP) draft principles. The QCP’s purpose is to revise the standards used to assess the quality of the agency’s investigations and conciliations of discrimination complaints. In February 2012 the EEOC approved a more comprehensive Strategic Plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. Pursuant to this Strategic Plan, the EEOC is to develop and approve a QCP that will measure the agency’s performance in handling discrimination claims.

After an initial call earlier this year for written comments and consideration of suggestions during a public meeting on the QCP, the EEOC suggests that a “quality investigation” is one that involves the following steps:

The Commission identifies the bases, issues, and relevant allegations of the alleged unlawful employment action in a charge.
The Commission conducts an investigation consistent with its Priority Charge Handling Procedures (PCHP).
The Commission applies the law to the facts to determine if there is reasonable cause to believe that unlawful employment discrimination has occurred.
The Commission communicates with the Charging Party and the Respondent (or with their lawyers, if represented) to obtain sufficient information to make its determination.

The plan defines a quality conciliation as one in which:

The Commission seeks targeted, equitable relief.
The Commission informs the parties of the proposed categories of relief and how monetary terms were reached.
The Commission responds appropriately to reasonable offers made by the parties.

The standard of review for assessing the quality of the EEOC’s investigations and conciliations will be “whether the actions taken were reasonable given the totality of the circumstances, including available resources.” The QCP will not assess the performance of any one investigator or other EEOC staff member. The agency emphasizes that the QCP will not establish a set investigation level for each charge, particularly given the different charge priority categories and resources available.

In addition, the EEOC explains that “the quality indicia set forth in the QCP are not to be confused with the statutory provisions set forth in Title VII, the ADEA, ADA, EPA, and GINA. Those federal statutes do not set out quality standards for individual investigations or conciliations.”

Comments on the draft principles for the QCP must be submitted by 5:00 pm EST on May 24, 2013 at strategic.plan@eeoc.gov or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507.

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Bills Seek to Limit NLRB, Union Authority

Ilyse Schuman — Mon, 13 May 2013 18:38:29 -0500

Before adjourning for a week-long recess, lawmakers in both the House and Senate introduced several bills addressing labor union and National Labor Relations Board activity.

The first bill reintroduced by Rep. Steve King (R-IA) would amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire undercover union organizers, commonly known as “salts.” The Truth in Employment Act (H.R. 1746) would add the following provision to Section 8(a) of the NLRA: “Nothing in this subsection shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.”

In a press release, Rep. King said that his bill:

would help restore the balance of rights between employers, employees, and labor unions by ensuring that employers are not forced to hire individuals who only want to damage their company.

These 'salting' activities should not be confused with legitimate union organizing, and companies should not be forced to 'play dumb' and hire people working on behalf of their competitors. The Truth in Employment Act will go a long way towards protecting small businesses from sabotage, extortion, and frivolous lawsuits, and it should be enacted immediately as a common-sense clarification to federal labor law.

Under current law, an employer cannot discriminate against a “salt” simply because of an alleged conflict of interest or due to “potential” violation of company policies. The employer does have the right to require the salt to perform work in the normally expected manner. The extent of “salting” in use by unions is uncertain, as some salts identify their union affiliation and others do not.

Rep. Steve Stockman (R-TX) introduced the second labor-related bill, the Union Coercion Prevention Act (H.R. 1815) which seeks to “protect workers from the corrupt and coercive ‘Card Check’ system of organizing labor unions.” Among other changes, this bill would mandate that a designated representative of employees for the purpose of collective bargaining be selected by secret ballot in an election conducted by the Board and:

That, for purposes of determining the majority of the employees in a secret ballot election in a unit, the term “majority” shall mean the majority of all the employees in the unit, and not the majority of employees voting in the election.

The measure would also make several process and procedural changes to the representation election process. These amendments are designed to preempt regulatory efforts to establish expedited representation elections. For example, the bill would stipulate that:

No election shall be conducted less than 40 calendar days following the filing of an election petition. The employer shall provide the Board a list of employee names and home addresses of all eligible voters within 7 days following the Board’s determination of the appropriate unit or following any agreement between the employer and the labor organization regarding the eligible voters.

Finally, Senator Lamar Alexander (R-TN) introduced a companion bill (S. 850) to the House-approved Preventing Greater Uncertainty in Labor-Management Relations Act. Both bills are designed to limit the activities and enforcement power of the National Labor Relations Board until the Senate validly confirms a quorum, the U.S. Supreme Court rules on the constitutionality of President Obama’s three Board recess appointees, or until the 113th Congress adjourns. The Republican-controlled House narrowly passed this measure on April 12. The Senate counterpart is unlikely to advance in the Democrat-controlled chamber. Meanwhile, the Obama Administration on April 25 filed a petition with the U.S. Supreme Court seeking review of the U.S. Court of Appeals for the District of Columbia Circuit’s finding in Noel Canning v. NLRB that the recess appointments were unconstitutional.

Arbitration Fairness Act Reintroduced

Ilyse Schuman — Mon, 13 May 2013 18:25:38 -0500

A bill that would significantly restrict the ability for employers to arbitrate employment disputes was reintroduced in the House and Senate last week. The Arbitration Fairness Act of 2013 (H.R. 1844, S. 878) – introduced by Rep. Henry “Hank” Johnson (D-GA) and Sen. Al Franken (D-MN) – would amend the Federal Arbitration Act (FAA) to invalidate all predispute arbitration agreements that require the arbitration of any employment, antitrust, or consumer dispute, or conflict arising under any statute intended to protect civil rights. This Act would not apply to arbitration provisions contained in collective bargaining agreements.

This legislation broadly defines “employment dispute” as “a dispute between an employer and employee arising out of the relationship of employer and employee as defined by the Fair Labor Standards Act.” The definition of “consumer dispute” is similarly broad enough to encompass a wide range of legal conflicts. If enacted, this bill would essentially eliminate arbitration as a litigation alternative for employee claims – as well as those brought by clients/customers – unless the parties agree to the arbitral forum post-dispute. The provisions of this bill would take effect on the date of enactment, and would apply to any dispute or claim arising on or after that date.

As discussed in a press release, the impetus for the Arbitration Fairness Act is a series of Supreme Court cases sanctioning the use of arbitration agreements in a variety of circumstances.

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California Private Sector Employment Legislation Update

Governmental Affairs Team — Mon, 13 May 2013 15:58:45 -0500

By Chris Cobey

As many are aware, the California Legislature and Governor’s office are controlled by one party, unlike Washington, D.C. Thus, unlike in Washington, legislation introduced by the majority party in Sacramento has an excellent chance of passage by the Legislature. In fact, to date, virtually all committee and floor votes on bills affecting most private sector employers have been essentially party-line votes. There is less certainty in predicting what bills passed by the Legislature will be signed by Governor Brown, and thus become law.

Under the Legislature’s 2013 calendar, a bill must be passed by its house of origin by May 31. The Legislature will take its summer recess from July 4 through August 4. The last day for any bill to be passed is September 13. The Governor must sign or veto by October 13 any bill passed by the Legislature on or before September 13 and in the Governor’s possession after September 13.

Following is a brief summary of significant bills¹ affecting private sector employers in California now pending in the Legislature, and their status in the legislative process.

AB 10 would raise the minimum wage, in steps, to $9.25 per hour by 2016, and provide the minimum wage could increase, but not decrease, as adjusted by the California Consumer Price Index. Pending in Assembly Appropriations.

AB 263, which would, among other things, add a new portion to the Labor Code prohibiting specified "unfair immigration-related practices," is pending before the Assembly Appropriations Committee. The bill would also increase civil penalties to as high as $10,000 per employee per violation for any retaliation against an employee. Pending in Assembly Appropriations.

AB 442 would expand the civil penalty and the payment of restitution of wages to the employee for a Labor Commissioner citation against an employer by also subjecting the employer to payment of liquidated damages to the employee. Passed Assembly; pending in Senate.

AB 729 would create an evidentiary privilege shielding communications between a union agent and a represented worker. Pending Assembly passage.

AB 880 would require a large employer (500 or more employees) to pay the Employment Development Department an employer responsibility penalty for each covered employee enrolled in Medi-Cal based on the average cost of coverage provided by large employers to their employees, including both the employer’s and employee’s share of the premiums; would assess interest of 10% per year on employer responsibility penalties not paid on or before the date payment is due; would require a large employer subject to an employer responsibility penalty to pay a penalty for any employer responsibility penalty payment that is more than 60 days overdue. This bill would also make it unlawful for a large employer to, among other things, designate an employee as an independent contractor or temporary employee, reduce an employee’s hours or work, or terminate an employee if the purpose is to avoid the imposition of the penalty. A violation of those provisions would result in a penalty of 200% of the penalty amount the employer would have paid for the applicable period of time. The bill would also prohibit a large employer from discharging or taking other action against an employee who enrolls in a public health benefit program or obtains advanced premium tax credits through the California Health Benefit Exchange and would make the willful refusal of the employer to rehire, promote, or otherwise restore the employee or former employee a misdemeanor. The bill would authorize an employee to file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations if the employee is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee exercised his or her rights under these provisions. By establishing a new crime, this bill would impose a state-mandated local program. Pending in Assembly Appropriations.

AB 1082 would require an employer who employs 50 or more full-time equivalent employees to annually report to the Employment Development Department specified information relating to the average number of hours each employee worked per week in a calendar year and whether those employees were enrolled in minimum essential coverage under an eligible employer-sponsored health care plan. Pending in Assembly Appropriations.

AB 1385 would require the Department of Industrial Relations to procure a case management system that has the capability to provide the public with free, web-based access to a searchable database containing information regarding the final disposition of all complaints, citations, and administrative proceedings of the department. Pending in Assembly Labor and Employment.

AB 1387 would increase the car wash employer’s bond requirement amount from $15,000 to $150,000, but would exempt an employer from that requirement if the employer has a collective bargaining agreement in place that meets specified criteria, and would delete the existing sunset date for the statute governing car washes, thus extending those provisions indefinitely. Pending in Assembly Appropriations.

SB 168 would make a successor farm labor contractor liable for wages and penalties owed by a predecessor farm labor contractor. Pending Assembly passage.

SB 292 would clarify that no evidence of sexual desire is required for proof of a claim of sexual harassment. The intent of this bill is to negate what the bill’s author suggests is the outlier holding in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, that a plaintiff in a same-sex harassment case must prove that the harasser harbored a sexual desire for the plaintiff in order to survive summary judgment. Pending Assembly passage.

SB 390 creates a criminal provision in the Labor Code allowing the Labor Commissioner to pursue a criminal misdemeanor prosecution against employers who do not remit payroll taxes. Pending Senate passage.

SB 400 would extend the protections available to persons in FEHA protected categories to victims of stalking; would also prohibit an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s known status as a victim of domestic violence, sexual assault, or stalking; would require the employer to provide reasonable accommodations for such a victim; would create a private right of action for an aggrieved employee to seek enforcement of those victim status protection and reasonable accommodation provisions; would permit the recovery of reasonable attorney’s fees by a prevailing employee only. Pending Senate passage.

SB 404 would add an additional protective status to the Fair Employment and Housing Act of "familial status," a concept that is very broadly defined in the bill. Pending in Senate Appropriations.

SB 435 would require employees of piece rate workers to pay those employees for any rest breaks mandated by law, and set the rate of pay for rest and recovery periods for piece rate workers. Passed the Senate; pending in the Assembly.

SB 462 would authorize the award of attorney's fees and costs in an action brought for the non-payment of wages, fringe benefits or health and welfare pension fund contributions, where the prevailing party is not the employee, contingent on a finding by the Court that the employee brought the court action in bad faith. Pending in Senate Appropriations.

SB 556 would expand employers’ liability for damages caused by an independent contractor or the independent contractor's employees, including wage and hour violations, penalties, fines and willful misconduct if the contractor or its employees were uniformed similar to that of the contracting entity, or drove a vehicle with the contracting entity’s logo. Pending in Senate Labor and Industrial Relations.

SB 607 (“Workplace Flexibility Act”) would have allowed individual employees to propose alternative work schedules to employers, such as 10 hours a day for four workdays a workweek, with the ninth and tenth hours being paid at the regular rate of pay, and overtime for any hours beyond ten hours in a day, or forty in a workweek. Failed passage on 3-1 vote in Senate Labor and Industrial Relations; reconsideration granted.

SB 648 would extend the same prohibitions on the smoking of tobacco products to electronic cigarettes. Pending in Senate Judiciary.

SB 655 purports to codify the California Supreme Court's decision in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 on mixed motives in discrimination cases. Pending Senate passage.

SB 776 would modify existing law concerning permissible credits employers may take against the obligation to pay the general prevailing rate of per diem wages for prevailing wage payments, and would prohibit credit from being granted for employer payments made to monitor and enforce laws related to public works if those payments are not required by a collective bargaining agreement. Passed Senate; pending in Assembly.

Contact Chris Cobey (ccobey@littler.com) with any questions on these or other pending California legislation.
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¹ Except bills concerning worker’s compensation and unemployment insurance.

NLRB's Posting Rule Invalidated by D.C. Circuit

Labor Management Relations Practice Group — Wed, 08 May 2013 16:40:11 -0500

The U.S Court of Appeals for the D.C. Circuit recently struck down the National Labor Relations Board’s August 2011 Notice Posting Rule, which would have required employers to conspicuously display a notice informing employees of their rights under the National Labor Relations Act (the “Act”). In National Association of Manufacturers, et al. v. NLRB, the court invalidated the rule because it found all three of the rule’s enforcement mechanisms unlawful. A majority of the court also found that the rule exceeded the Board’s rulemaking authority as delegated by Congress. To learn more about the decision, please continue reading at Littler's Labor Relations Counsel.

OSHA Sets Sights on Temporary Workers

Ilyse Schuman — Wed, 01 May 2013 15:31:26 -0500

The Occupational Safety and Health Administration (OSHA) has directed its Compliance Safety and Health Officers (CSHO) to take additional steps during inspections to determine whether employers are adequately protecting temporary workers. Pursuant to a memo issued to OSHA regional administrators, CSHOs are directed to use a new code to document when temporary workers are exposed to health and safety hazards. For this information collection, OSHA will consider “temporary workers” to include those who “work under a host employer/staffing agency employment structure.”

Inspectors will also assess whether employers have adequately trained temporary workers in a language and vocabulary they can understand. According to the memo, “[r]ecent inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others.”

If OSHA Compliance Safety and Health Officers (CSHO) encounter temporary workers during an inspection, they are directed to “document the name of the temporary workers' staffing agency, the agency's location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency).”

According to information in an agency news release, fatal work injuries involving temporary workers accounted for 542 (12%) of the 4,693 fatal work injuries reported in 2011.

Photo credit: scibak

EEOC to Discuss Legality of Employee Wellness Programs

Ilyse Schuman — Wed, 01 May 2013 14:25:37 -0500

The Equal Employment Opportunity Commission (EEOC) intends to hold a public meeting next week to address the interplay between employee wellness programs and various federal equal employment opportunity laws. Several panelists will discuss how implementing wellness programs could raise issues under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and other EEOC-enforced statutes.

The meeting will take place on Wednesday, May 8, 2013, at 9:00 a.m., Eastern Time, in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 "M" Street, NE, Washington, D.C. 20507. Individuals wishing to attend the public meeting should arrive at least 30 minutes in advance due to seating limitations.

Photo credit: Skynesher

Jenny Yang Confirmed as New EEOC Member

Ilyse Schuman — Mon, 29 Apr 2013 08:08:53 -0500

On April 25, 2013, the Senate confirmed Jenny R. Yang to be a Member of the Equal Employment Opportunity Commission (EEOC) to fill the open Democratic seat. Her term will expire on July 1, 2017.

As previously discussed, Yang comes to the EEOC from private practice, where she specialized in representing employees in civil rights class actions and wage and hour collective actions. Among the priorities of the EEOC’s recently approved Strategic Enforcement Plan (SEP) are the enforcement of equal pay laws and focus on systemic cases. Yang’s skillset, therefore, aligns with these goals.

Prior to working in private practice, Yang served as a U.S. Department of Justice (DOJ) trial attorney in the employment litigation section of the DOJ’s Civil Rights Division. Yang has also worked as a New York University Community Service Fund attorney fellow at the National Employment Law Project, and as a law clerk for the U.S. District Court for the Eastern District of Pennsylvania. According to her attorney profile, Yang is the Vice Chair of the Board of Directors for the Asian Pacific American Legal Resource Center and a former Co-Chair of the National Governing Board for the National Asian Pacific American Women’s Forum. She received her law degree from New York University School of Law, and her undergraduate degree in Government from Cornell University.

Yang joins Chair Jacqueline Berrien (D), Constance S. Barker (R), Chai Feldblum (D), and Victoria A. Lipnic (R).

Bills Would Extend Workplace Protections to LGBT Employees

Ilyse Schuman — Fri, 26 Apr 2013 18:02:15 -0500

Two bills introduced in both chambers of Congress on Thursday would extend employment protections and leave benefits to members of the gay and lesbian community. The first bill, the Employment Non-Discrimination Act (ENDA) (H.R. 1755, S. 815), would prohibit employment discrimination on the basis of sexual orientation and gender identity, while the second measure, the Family and Medical Leave Inclusion Act (H.R. 1751, S. 846), would allow employees to take leave under the Family and Medical Leave Act (FMLA) to care for a same-sex spouse or partner and additional family members.

ENDA

The bipartisan ENDA was reintroduced in the House by Jared Polis (D-CO) and Ileana Ros-Lehtinen (R-FL) and cosponsored by 158 others. The Senate companion bill is sponsored by Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI). This bill would make it unlawful for an employer with 15 or more employees:

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.

The bill defines “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.”

The bill would also prohibit employment agencies and labor organizations from discriminating against individuals on these bases, and ban retaliation against individuals who exercise their rights under this bill. The provisions would not apply to religious organizations or the armed forces, or require employers to establish hiring quotas or provide preferential treatment to employees based on their sexual orientation or gender identity.

An employer could still enforce dress or grooming standards, so long as employees who have undergone or are undergoing gender transition may follow the dress or grooming standards applicable to their intended gender.

Individuals aggrieved by the type of discrimination proscribed by this bill would be entitled to remedies afforded under Title VII of the Civil Rights Act, although only disparate treatment – and not disparate impact – claims would be recognized.

In a press release, Rep. Ros-Lehtinen said:

I am proud to join my colleagues in the House and Senate to re-introduce the Employment Non-Discrimination Act. . . It is inherently unfair that many skilled, qualified and motivated LGBT members of our communities too often experience rejections at job interviews, are denied promotions, or other forms of harassment in the workplace, simply because of their sexual orientation or gender identity. This is unacceptable. Federal law is currently failing these LGBT individuals and consequently, a majority of states still allow employers to discriminate based on sexual orientation and gender identity. The bill that we are proposing will end this unacceptable practice by prohibiting employment discrimination based on sexual orientation and gender identity. No American should have to fear harassment at work, or risk losing their livelihood because of who they are. That is why Congress needs to work to get this bill passed and set a national standard of equality for all in the workplace.

According to information provided by Sen. Merkley’s office, “more than 85 percent of Fortune 500 companies already extend workplace protections based on sexual orientation and more than one-third on the basis of gender identity.” In addition, over 90 companies have joined the Business Coalition for Workplace Fairness, a group of leading U.S. employers that support the Employment Non-Discrimination Act.

FMLA Inclusion Act

The Family and Medical Leave Inclusion Act was introduced in the House by Rep. Carolyn B. Maloney (D-NY), and in the Senate by Sen. Richard Durbin (D-IL). This measure would permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent who has a serious health condition. This legislation would not change the terms of the FMLA, but rather expand its coverage to the aforementioned additional family members.

In a press release, Sen. Durbin said: “Regardless of the make-up of one’s family, all employees should be given the same rights to care for a sick loved one in a time of need,” adding, “For 20 years, we have had a law that provides unpaid leave for families in crisis. As families change, so should the laws designed to help them.”

Photo credit: carterdayne

OSHA Says Third Party Agents, Including Union Reps, Can Enter Non-Union Worksites During Inspections

Workplace Safety Practice Group — Tue, 23 Apr 2013 14:20:49 -0500

By Ben Huggett

In a letter of interpretation dated February 21, 2013 (but only publicly released on April 5), the federal Occupational Safety and Health Administration (OSHA) states that, during inspections of non-union workplaces, employees can be represented by anyone selected by the employees, including outside union agents.

The new interpretation from Richard Fairfax, Deputy Assistant Secretary of OSHA, to Steve Sallman, Health and Safety Specialist with the United Steelworkers Union, asserts that OSHA's standard for Representatives of Employers and Employees allows workers at establishments without collective bargaining agreements to designate outside representatives or union agents to represent them during OSHA inspections. This ruling contradicts the plain language of OSHA's governing regulation, 29 C.F.R. § 1903.8(c), as well as longstanding agency guidance and past interpretations.

OSHA's action in allowing unions and other organizations to participate in its inspections, even where they do not formally represent a majority of employees, threatens to disrupt OSHA's primary mission by embroiling the agency in representation organization and community disputes. Moreover, it represents an unwarranted change in existing law that has not undergone appropriate notice and comment rulemaking. Continue reading Littler's ASAP: OSHA Changes Course: Will Allow Outside Representatives, Including Union Agents, to Enter Non-Union Worksites During OSHA Inspections.

Whistleblower Bill for Offshore Oil and Gas Workers Reintroduced

Ilyse Schuman — Tue, 23 Apr 2013 09:37:03 -0500

Rep. George Miller (D-CA) has reintroduced a bill that would provide whistleblower protections for employees in the offshore oil and gas industries. The Offshore Oil and Gas Worker Whistleblower Protection Act (H.R. 1649) would prohibit employers from retaliating against offshore oil and gas workers who provide information to their employer or a government official regarding any “reasonable belief” that there has been a violation of the Outer Continental Shelf Lands Act (OCSLA). The bill would also protect employees who exercise their rights under the OCSLA; report injuries or unsafe conditions to their employer or a government official; or refuse to perform work based on a good faith belief that doing so would cause injury, impairment, or an oil spill. In addition, as discussed in a fact sheet, the legislation would establish a procedure for filing complaints with the Department of Labor – which enforces whistleblower provisions in 22 separate statutes – and would allow for awards of back pay, exemplary damages, attorneys’ fees, and remedies to address whistleblower “blacklisting.”

In 2010 the House of Representatives approved an earlier version of the Offshore Oil and Gas Worker Whistleblower Protection Act, but the bill failed to progress in the Senate.

The bill’s reintroduction reflects Congress and the Administration’s continued focus on expanding whistleblower protections. Notably, the Department of Labor has requested $22 million for the agency’s whistleblower protection program for Fiscal Year 2014, a $6 million increase from current levels.

Photo credit: Devonyu

DOL Labor Secretary Nominee Thomas Perez Addresses Senate Committee

Ilyse Schuman — Thu, 18 Apr 2013 17:45:02 -0500

Updated April 25, 2013

If confirmed as the next Labor Secretary, Thomas Perez said during a Senate Committee hearing his top priorities for the Department include reauthorizing the Workforce Investment Act (WIA), ensuring safe and equal opportunity workplaces, establishing pension security, and providing even-handed enforcement of wage and hour laws. Last month President Obama named Perez – who currently serves as Assistant Attorney General of the Department of Justice’s Civil Rights Division – as his choice to fill the position left vacant by Hilda Solis’s departure in January.

Most of the more pointed questions lobbed at Perez concerned the DOJ’s involvement in an alleged quid pro quo agreement with the City of St. Paul, Minnesota. As discussed more fully in a Congressional Joint Staff Report released on April 15, the purported quid pro quo agreement involved a lawsuit, Magner v. Gallagher, in which the City had challenged the use of statistics as evidence of race discrimination under the Fair Housing Act (FHA). The DOJ was reportedly concerned that the Supreme Court could strike down this practice and find that disparate impact claims are not cognizable under the FHA, so it allegedly encouraged the City to withdraw its lawsuit. In exchange, according to the report, the DOJ would decline to intervene in an unrelated False Claims Act (FCA) lawsuit, United States ex rel. Newell v. City of Saint Paul. The FCA case was brought by a private whistleblower charging that St. Paul violated the FCA by falsely certifying that it was using federal funds to create jobs for low income workers of all races, when the programs were allegedly focusing only on minority employment.

Ranking Member Sen. Lamar Alexander (R-TN) pointed out that one of the responsibilities of the DOL is to respond to whistleblower complaints. The Occupational Safety and Health Administration is charged with enforcing 22 separate whistleblower statutes. Said Alexander, “That’s why allegations made in the report issued this week about Mr. Perez’s interference with the decision not to intervene in a whistleblower case is of concern.”

Committee Chairman Tom Harkin (D-IA), however, defended Perez’s actions in this matter. Both he and Perez emphasized that it was the City that raised the idea of linking the two cases, not the DOJ. In addition, Perez explained that he consulted with a FCA expert and senior attorney at the DOJ, who ultimately determined that the FCA case was a weak candidate for DOJ intervention. Under questioning from Sen. Sheldon Whitehouse (D-RI), Perez explained that the expert “had an immediate and visceral reaction that [Newell] was not a winning case,” which was the primary reason the DOJ declined to intervene. Sen. Harkin stated that “lawyers make these choices all the time,” and the “evidence clearly shows” Perez acted ethically and appropriately. Perez further explained the DOJ explicitly decided against intervening and dismissing the matter so the plaintiff could have his day in court.

Under further questioning by Sen. Alexander, Perez admitted the Magner case was “a poor vehicle for raising” the disparate impact theory, which Perez supports.

Several Senators spoke in favor of Perez’s candidacy. Sen. Harkin said when Perez served as Secretary of Maryland's Department of Labor, Licensing and Regulation, he was known as a consensus builder. Harkin read an excerpt of a letter written in Perez’s support by the Maryland Chamber of Commerce, which stated that “Mr. Perez proved himself to be a pragmatic public official,” and the Chamber “found him to be fair and collaborative.” Sen. Ben Cardin (D-MD) echoed this sentiment, claiming that while at the helm of Maryland’s labor department, Perez “received highest praise from both the business community and labor community.”

Both Sens. Johnny Isakson (R-GA) and Lisa Murkowski (R- AK) asked Perez how he would handle the proposed – and later rescinded – fiduciary rule that would have broadly defined who constitutes a “fiduciary” for the purposes of rendering investment advice under the Employee Retirement Income Security Act (ERISA). Perez responded that if confirmed, he would “listen and learn” about all of the concerns regarding this rule, and accept any and all feedback.

Perez said job training programs at the DOL would also be a priority. He emphasized the need to engage the business community to determine which jobs are in demand, stating that “we can’t train and pray.”

Sen. Murkowski also asked Perez whether he would be committed to the H-2B visa program, regulations which have faced both judicial and administrative delay. Perez said he respects the bipartisan concerns over the H-2B wage rule and would work with her on the issue.

The Senate Committee on Health, Education, Labor and Pensions is scheduled to meet for an executive session next Thursday to consider Perez’s nomination. Stay tuned.

Update: The HELP Committee has postponed the vote on Perez’s nomination until May 8, 2013.

Gang of Eight Introduces Comprehensive Immigration Reform Bill

Global Mobility & Immigration Practice Group — Thu, 18 Apr 2013 17:25:48 -0500

By Ian MacDonald, Jorge Lopez, Scott Decker and Michelle Valerio

The “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) was introduced in the Senate early Wednesday morning by the “Gang of Eight,” a group of bi-partisan senators. The bill’s key features include: enhancement of border security and mandatory enrollment in the E-Verify program; legalization and a “pathway to citizenship” for unlawfully present individuals who entered the U.S. before December 31, 2011; and significant expansion of employment-based immigration coupled with elimination of the visa lottery and reduction of family-based immigration options. Continue reading this entry at Littler's Global Mobility & Immigration Counsel.

Photo credit: Alexskopje

House Committee Advances Working Families Flexibility Act

Ilyse Schuman — Wed, 17 Apr 2013 13:58:10 -0500

Update: On May 8, 2013, the House of Representatives passed the Working Families Flexibility Act by a vote of 223-204.

At the end of a House Committee on Education and the Workforce markup session, the committee voted 23 to 14 along party lines to approve a slightly amended version of the Working Families Flexibility Act (H.R. 1406). Introduced last week, the bill would allow non-exempt private sector employees to opt for paid time off in lieu of payment for overtime hours worked. Employees would earn compensatory time off (“comp time”) at a rate of at least one-and-one-half hours per hour of overtime worked, up to 160 hours per year, and would be able to cash out at any time. An employer would cash out any unused, accrued comp time at the end of each year.

In order to take advantage of this benefit, employees and employers would be required to enter into a written agreement to do so. Unionized employers would have to negotiate and include the provision for comp time in any collective bargaining agreement.

Bill sponsor Rep. Martha Roby (R-AL) explained that the latest version of the measure makes minor technical corrections and consolidates into one section the definitions contained in the bill.

In his opening statement, Committee Chairman John Kline (R-MN) said that the measure

does not alter the 40-hour workweek or change how overtime pay is calculated. . . . workers choose whether to accept comp time; workers choose when and why they withdraw from a comp time agreement; workers choose when to cash out their accrued comp time; and workers choose when to use their paid time off so long as they follow the same guidelines public employees do.

During the markup session, Rep. Roby stated that denying private sector workers the same right enjoyed by federal workers “is highly hypocritical, and it is highly unfair.”

Rep. George Miller (D-CA), however, opposed the bill, claiming it “would provide significant harm to American families” by asking employees to work extra hours to provide employers with interest-free loans. He and other Democratic members on the committee argued that the bill, as written, lacks sufficient employee protections, and is a “misguided attack on the 40-hour workweek.”

Rep. Robert Andrews (D-NJ) acknowledged that “this is an issue where there is common ground,” but expressed disagreement with the underlying bill. He pointed out that during a subcommittee meeting to consider this legislation, Rep. Roby claimed that her bill includes additional worker protections than those included in prior versions of this legislation. Rep. Andrews stated, however, that the current bill is “substantively identical” to the version considered in 2003. One of the biggest concerns for Andrews was that he believed employees could be implicitly coerced into choosing comp time instead of cash wages, and that the bill does not adequately define “coercion” or explain what evidence is needed to prove coercion. Rep. Kline said this determination would be made on the facts of a particular case. Andrews responded that this fact-specific inquiry renders the bill a “litigation breeder.”

Rep. Roby reiterated that employees would be afforded the same protections as those offered under the Fair Labor Standards Act.

A number of Democratic members of the committee offered amendments to the bill, all of which were ultimately rejected. One amendment offered by Rep. Joe Courtney (D-CT) would have substituted the House version of the Health Families Act (H.R. 1286), which would establish a paid sick leave standard, for the text of H.R. 1406. In opposing this amendment, Rep. Roby said that mandating paid sick leave would have an immediate and detrimental effect on the economy, and constitutes an intrusion of the federal government on private sector benefits. Her bill, she stated, “provides far more flexibility without imposing a mandate.”

Rep. Suzanne Bonamici (D-OR) offered an amendment that would have required that interest accrue on the employee comp time, while Rep. Timothy Bishop’s (D-NY) amendment would have afforded private sector employees the same protections enjoyed by members of the public sector, including a just cause standard for termination and First Amendment protections.

As expected, none of these amendments were approved. The bill now passes to the House floor for a vote, where it is expected to pass. The legislation will face a tougher audience in the Democrat-controlled Senate.

More information on this bill can be found here.

Photo credit: MBPHOTO, Inc.