Washington D.C. Employment Law Update

EEOC Makes State Charge Statistics Available Online

Ilyse Schuman — Tue, 15 May 2012 17:00:44 -0500

The U.S. Equal Employment Opportunity Commission (EEOC) has created an online database that allows users to access private sector workplace discrimination charge statistics for each U.S. state and territory for fiscal years (FY) 2009-2011. The charge receipt data is broken down by type of discrimination alleged, as well as by the percent of total state and national charges. The EEOC intends to update this database each fiscal year.

In November 2011, the agency released its FY 2011 Performance and Accountability Report (PAR), which included details about the charge statistics filed during that period.

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NLRB Suspends Implementation of New Representation Election Rule

Labor Management Relations Practice Group — Tue, 15 May 2012 16:01:53 -0500

By Stefan Marculewicz

In light of yesterday’s federal court decision finding that the NLRB lacked a quorum necessary to issue the controversial new representation election rule, ] the Board has decided to suspend the rule’s implementation. The Board’s Acting General Counsel has similarly withdrawn guidance released last month governing the representation case procedure changes, which had taken effect on April 30, 2012.

According to the NLRB’s announcement, an estimated 150 election petitions have already been filed under the new procedures. The announcement states that “Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.”

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Senate Committee Discusses Issues Impacting Work/Family Balance

Ilyse Schuman — Tue, 15 May 2012 09:35:10 -0500

During a hearing held on May 10, 2012 by the Senate Committee on Health, Education, Labor and Pensions (HELP), senators focused on workplace flexibility. At the outset of the hearing -- Beyond Mother’s Day: Helping the Middle Class Balance Work and Family – Committee Chairman Tom Harkin (D-IA) claimed that current workplace laws have not kept pace with the realities of working life. Harkin stated, for example, that the Family and Medical Leave Act (FMLA) covers only about half of the workforce and that employees needs a “basic minimum floor” of paid sick leave.

Harkin is the chief sponsor of the Rebuild America Act, a bill that, among other things, would create a national paid sick day standard. Specifically, this bill incorporates the Healthy Families Act, a measure last introduced in May 2011 that would require employers to provide employees with paid sick leave. Under the terms of this measure employees would earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually. The hearing witnesses debated the merits of requiring most employers to provide paid sick leave.

Ranking member Mike Enzi (R-WY) offered the suggestion to panelists of testing the requirement on federal contractors. Ann O’Leary, Director of the Children and Families Program, Center for the Next Generation, said she has studied and written a paper on the same suggestion.

O’Leary also pointed out during questioning that the Pregnancy Discrimination Act (PDA) has made little difference for lower-educated workers, as the Act requires employers not to discriminate against women who are having a child, but provides no affirmative right to take leave.

Speaking on behalf of the Society for Human Resource Management (SHRM), Juanita Phillips described a variety of flexible leave policies her employer, Intuitive Research and Technology Corp., provides to its employees. She argued against mandated paid sick leave, claiming that the qualifying events set forth in the Healthy Families Act were “ill-defined” and would force employers to comply with another set of regulations that impose “inconsistent obligations.” She stated that the law also would disrupt an employer’s current paid leave practices and could require them to drop existing policies in order to comply with a federally-mandated one. Phillips claimed that many employers would be forced to cut back on other benefits or pay increases in order to comply with the law. Phillips urged the committee not to impose new mandates that would erode a firm’s competitive edge.

Phillips noted also that SHRM has developed a number of points that should be considered for any bill that would affect an employer’s leave policies. Among other suggestions, SHRM recommends that any such legislation include a statutorily-defined safe harbor so as not to punish employers that already provide generous leave benefits.

Judith Lichtman, Senior Advisor with the National Partnership for Women and Families, supported the Rebuild America Act as well as bills that would expand the FMLA and promote workplace flexibility. In particular, Lichtman was in favor of expanding this leave law to include part-time workers and victims of domestic violence and revising the definition of family members to include same-sex spouses and their children. Such provisions were included in the Domestic Violence Leave Act (H.R. 3151), legislation that would allow employees to take leave under the FMLA to address acts of domestic violence, sexual assault and stalking aimed at themselves, a spouse (including domestic partner and same-sex spouse), parent or child.

A related bill has been reintroduced in both chambers: the Family and Medical Leave Inclusion Act (H.R. 2364, S. 1283), which would amend the FMLA to permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse, domestic partner, grandparent, grandchild, parent-in-law, son- or daughter-in-law, child of a domestic partner, or adult child or sibling who has a serious health condition.

Measures Introduced this Year

In addition to the bills discussed during the hearing, a number of other measures have been introduced in recent months that address work/family balance. Legislation was recently introduced in the House of Representatives that would require employers to make reasonable accommodations for pregnant employees. The Pregnant Workers Fairness Act (H.R. 5647) would also institute certain anti-discrimination 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.

In February of this year Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) reintroduced the Working Families Flexibility Act (H.R. 4106, S. 2142), a bill that would provide employees with a statutory right to request flexible work terms and conditions. That same month the Equal Employment Opportunity Commission (EEOC) conducted a hearing to address the laws that govern pregnancy- and caregiver-based employment discrimination.

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NMB Issues Proposed Rule Revising Representation Dispute Procedures

Ilyse Schuman — Tue, 15 May 2012 08:51:38 -0500

The National Mediation Board (NMB) has issued a proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Signed into law on February 14, 2012, the FAA Act included significant restrictions over airline and railway union organizing. Specifically, the Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures. To this end, the proposed rule published in the May 15, 2012 edition of the Federal Register would make changes to existing NMB rules regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to conform to the FAA Act provisions. Continue reading this entry at Littler's Labor Relations Counsel.

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D.C. Federal Court Finds NLRB Election Rule Invalid for Lack of a Quorum

Labor Management Relations Practice Group — Mon, 14 May 2012 18:17:08 -0500

In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. Continue reading this entry at Littler's Labor Relations Counsel.

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New Executive Order Addresses Regulatory Burdens

Ilyse Schuman — Mon, 14 May 2012 08:24:00 -0500

On May 10, 2012, President Obama issued a new Executive Order (E.O.) – Identifying and Reducing Regulatory Burdens – that aims to reduce the costs and obligations of federal regulation. E.O. 13610 builds upon E.O. 13563 – Improving Regulation and Regulatory Review -- issued in January 2011. Among other things, the earlier E.O. requires agencies to establish retrospective review plans to determine whether previously-issued rules should be “modified, streamlined, expanded, or repealed.” The goals of the latest E.O. are “to promote public participation in retrospective review, to modernize our regulatory system, and to institutionalize regular assessment of significant regulations.”

To this end, E.O. 13610 requires federal agencies to:

invite, on a regular basis (to be determined by the agency head in consultation with the Office of Information and Regulatory Affairs (OIRA)), public suggestions about regulations in need of retrospective review and about appropriate modifications to such regulations. The retrospective analyses of regulations, including supporting data, are to be released to the public online wherever practicable.
give priority, consistent with law, to those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety, and our environment. To the extent practicable and permitted by law, agencies shall also give special consideration to initiatives that would reduce unjustified regulatory burdens or simplify or harmonize regulatory requirements imposed on small businesses.
regularly report on the status of their retrospective review efforts to OIRA.

DOL Seeks to Gauge Worker Knowledge of Workplace Wage and Safety Rights

Ilyse Schuman — Sun, 13 May 2012 13:11:05 -0500

The Department of Labor has submitted to the Office of Management and Budget (OMB) a proposed information collection request (ICR) that would determine the degree of employee knowledge concerning their rights governed by the DOL’s Wage and Hour Division (WHD) and Occupational Safety and Health Administration (OSHA). As stated in the notice published in the May 8, 2012 edition of the Federal Register, the purpose of the ICR – the 2012 Wage and Hour Division and Occupational Safety and Health Administration Surveys Workers' Voice in the Workplace – would be to “gauge the current level of workers' voice in the workplace and factors affecting workers' voice as it relates to WHD and OSHA administered laws.” The Federal Register notice explains further that:

The DOL working definition of voice in the workplace is the worker's ability to access information on his or her rights in the workplace, the worker's understanding of those rights, and the worker's ability to exercise those rights without fear of recrimination. The surveys will measure each of these items, first individually and then in combination, to come up with an overall measure of voice. The DOL also hopes to learn how voice is related to workers' perceptions of employer noncompliance, such as whether or not particular dimensions of voice correlate to workers' perceptions of noncompliance. The study will also be useful in examining how noncompliance in one area, such as safety, is related to voice in the workplace and noncompliance in another area, such as wages.

The OMB will need to review and approve the DOL’s proposed voluntary survey before use. Comments about this ICR may be sent by June 7, 2012 to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-Wage and Hour Division, Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202-395-6929/Fax: 202-395-6881 or via email to: OIRA_submission@omb.eop.gov.

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Agencies Issue Proposed Rule Implementing Federal Service Contractor Employees' Right of First Refusal

Ilyse Schuman — Fri, 11 May 2012 15:44:04 -0500

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a proposed rule that would amend the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 13495, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Obama on January 30, 2009. Generally, this E.O. requires that any federal service contracts covered by the Service Contract Act (SCA) above the simplified acquisition threshold (currently $150,000) and solicitations for such contracts include a clause requiring contractors and their subcontractors – with certain listed exclusions – to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. In August 2011, the Department of Labor issued final regulations outlining the applicable sanctions and remedies in the event a contractor is found in violation of this E.O. The new proposed rule published in the May 3, 2012 edition of the Federal Register would add subpart 22.12 and a new clause to the FAR to incorporate the language and intent of EO 13495 and the DOL’s implementing regulations. The proposal does not, however, address the investigative methods, available reviews, or enforcement mechanisms established by the DOL regulations “except as necessary to ensure that contracting officers and contractors, including subcontractors, are aware of their requirements and responsibilities.”

The proposed regulations discuss the following issues:

The definitions of “service contract” and “service employee.”
Statement of policy. The proposal clarifies that the EO’s policy applies only to service contracts for performance of the same or similar services at the same location.
The five exemptions to the EO’s requirements, which are listed in the E.O. itself.
Waiver authority and limitations. Under the E.O., the head of the procuring agency has the right to waive some or all of the provisions of this right of first refusal obligation if he or she determines in writing that doing so would not serve the purposes of E.O. or “would impair the ability of the federal government to procure services on an economical and efficient basis.” The proposed rule outlines the waiver requirements and penalties for noncompliance.
Certified employee lists. The predecessor contractor is required to provide to the successor contractor in a timely manner a certified list of its employees who are qualified to work on the successor contract. The proposal discusses these timeframes.
Required notifications to contractors and employees. The contracting officer (CO) is required to ensure that the predecessor contractor notifies its service employees of their rights under the E.O. At least 30 days before the expiration of the contract, the contractor must provide the CO with a list of the names of all service employees working under the contract and its subcontracts at the time the list is submitted. According to the proposal, there is a likelihood that, “during the initial implementation of the E.O., service employees of the predecessor contractor may not receive written notice and Contracting Officers (and hence successor contractors) may not receive the list 30 days before the end of the contract,” as the current notification clause in the FAR regulations does not include a right of first refusal, and permits submission of the list to the CO as few as 10 days prior to completion of the contract. As discussed in the proposal, the FAR Council is “considering possible steps that might be taken, as agencies transition to the new clause, to reduce instances where service employees of the predecessor contractor and successor contractors do not receive notice of their rights and successors receive lists less than 30 days before the end of the contract.” The agencies seek input on one possible solution, which is to “encourage agencies to enter into bilateral modifications (starting with the largest SCA-covered contracts) that obligate predecessor contractors to: (1) inform their service employees of their right of first refusal and (2) provide the list to the Contracting Officer no less than 30 days before contract completion.”
Remedies and sanctions, which are taken from the DOL’s final rule; and
The contract clause itself that must be inserted into federal service contracts.

Comments on this proposal must contain the identification number: FAR Case 2011-028 and be received by July 2, 2012. Comments may be submitted electronically through the federal eRulemaking portal or via facsimile to: 202-501-4067. Alternatively, written comments may be sent to: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th Floor, Washington, DC 20417.

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Employers Should be on the Lookout for New OFCCP Letters

OFCCP Practice Group — Fri, 11 May 2012 13:33:53 -0500

By Alissa Horvitz

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently released a wave of “heads up” letters that are designed to place government contractors on notice that certain facilities will be selected for an actual OFCCP compliance review during the next several months.

Unlike the old “CSAL” or Corporate Scheduling Announcement Letter mailings, which traditionally were sent to the company’s CEO with a listing of all facilities that could be audited – thereby providing government contractors with an efficient way of tallying the number of anticipated audits and marshaling internal resources accordingly – some of these new letters (pdf) have gone only to individual facilities, and they contain no attached listing of other company sites to be audited.

It is unclear whether “traditional” CSAL letters have gone out, too. If those have not gone out, and corporate CEOs will not be receiving the traditional listing of all sites to be audited, it will place an increased burden on consolidated compliance functions to track down internally the total tally of anticipated audits and allocate resources.

Facilities that received these “heads up” letters do not have to do anything in response to them, yet. The OFCCP’s district and regional offices will send an actual 30-day scheduling letter at some point in the near future, which will trigger the obligation to submit the requested affirmative action plans and support data within 30 days of the company’s receipt of the letter by certified mail. Those facilities that received “heads up” letters should alert their mail rooms to look for the DOL’s official certified letter any time in the next few months.

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House Clears EEOC Appropriations Bill with Several Limiting Amendments

Ilyse Schuman — Fri, 11 May 2012 13:16:02 -0500

On Thursday, May 10, 2012, the House of Representatives approved 247-163 a fiscal year 2013 funding bill (H.R. 5326) for a variety of federal agencies, including the Equal Employment Opportunity Commission (EEOC), that includes a series of amendments that would curtail enforcement of certain labor- and employment-related regulations and programs. Generally, the bill would allocate nearly $367 million to the EEOC for FY 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases.

Last month the House Appropriations Committee approved by voice vote the inclusion of the following provision offered by Rep. Jack Kingston (R-GA):

None of the funds made available by this Act may be used to implement, administer, or enforce the final regulations on ‘‘Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act’’ published by the Equal Employment Opportunity Commission in the Federal Register on March 30, 2012 (77 Fed. Reg. 19080 et seq.).

During several days of House consideration of this appropriations bill, a number of other amendments regarding funding concerns were approved. These amendments would prohibit the use of any of the bill’s funds from being used by the EEOC or Department of Justice (DOJ) to:

sue any state on behalf of the National Labor Relations Board pertaining to secret ballot union elections
implement, administer, or enforce the new EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions
fund DOJ lawsuits against state immigration laws
implement a section of the Americans with Disabilities Act (ADA) that allows miniature horses to be used as service animals
fund DOJ defenses to Affordable Care Act challenges

The Senate Appropriates Committee approved its own bill funding the EEOC last month. Once the full Senate passes a final appropriations bill, it will need to be reconciled with the House version.

Bills Would Prohibit Employers From Requesting Access to Employees' Email and Social Networking Sites

Ilyse Schuman — Fri, 11 May 2012 12:42:03 -0500

Members of the House and Senate introduced legislation on May 9, 2012 that would ban employers from requesting individuals’ usernames, passwords, or any other means of accessing their social networking sites and from taking adverse action against job applicants and employees who refuse to provide such information. The Password Protection Act of 2012 (pdf) (H.R. 5684, S. 3074), introduced in the Senate by Richard Blumenthal (D-CT), Chuck Schumer (D-NY), Ron Wyden (D-OR), Jeanne Shaheen (D-NH), and Amy Klobuchar (D-MN) and in the House by Reps. Martin Heinrich (D-NM) and Ed Perlmutter (D-CO), would still allow employers to permit the use of social networking within the office on a voluntary basis, establish computer and social media use policies, avail themselves of online information about individuals that is already public, and protect their intellectual property or confidential business information from theft. Employers found in violation of this bill would be subject to monetary penalties only.

Under the specific terms of the bill, it would be unlawful for an employer to knowingly and intentionally compel or coerce any person “to authorize access, such as by providing a password or similar information through which a computer may be accessed, to a protected computer that is not the employer’s protected computer, and thereby obtains information from such protected computer,” and to retaliate against an employee who refuses to comply. The bill builds upon existing technology law, namely the federal anti-hacking Computer Fraud and Abuse Act.

Last month members of the House of Representatives introduced similar legislation that would apply to both employers and universities. The Social Networking Online Protection Act (H.R. 5050), sponsored by Rep. Eliot Engel (D-NY), would also impose civil penalties on those entities that violate any provision of the bill. While Maryland has passed a similar law prohibiting employers from asking applicants and employees for social media account log-in credentials and related bills are pending in a handful of other states, the Social Networking Online Protection Act was the first such measure to be introduced at the federal level.

Specifically, H.R. 5050 would make it unlawful for an employer to:

require or request that an employee or applicant for employment provide the employer with a user name, password, or any other means for accessing a private email account of the employee or applicant or the personal account of the employee or applicant on any social networking website.

An employer would be similarly prohibited from discharging, disciplining, discriminating against, denying employment or promotion to, or otherwise threatening an employee or applicant who refuses to provide social networking or other login credentials or who participates in an action against an employer for violating the act. An employer would face civil penalties of up to $10,000 per violation. The bill provides similar protections for students who refuse to provide their usernames and passwords to their university or college officials.

The Social Networking Online Protection Act defines “employer” broadly to mean “any person acting directly or indirectly in the interest of an employer in relation to an employee or an applicant for employment.” The measure defines “social networking website” as:

any Internet service, platform, or website that provides a user with a distinct account--

(A) whereby the user can access such account by way of a distinct user name, password, or other means distinct for that user; and

(B) that is primarily intended for the user to upload, store, and manage user-generated personal content on the service, platform, or website.

Protecting an employee’s or applicant’s online privacy is an emerging employment issue. In March 2012, Sens. Blumenthal and Schumer sent requests to the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) asking them to determine whether requesting job applicants for their social medial login credentials for background check purposes violates federal law. Earlier this year, the National Labor Relations Board’s (NLRB) Office of General Counsel issued a report asserting the Board’s position that many policy provisions commonly seen in employers’ social media policies violate the National Labor Relations Act (NLRA). Given the attention that this topic has generated, a federal bill banning the practice of requesting online credentials could gain traction in the coming months.

For more information on the pitfalls of requesting employee usernames and passwords, see Littler’s ASAP, Though Not Yet Banned, Requiring Social Media Information Is a Bad Idea by Chris Leh.

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Former EEOC Commissioner to Head CFPB's Office of Minority and Women Inclusion

Ilyse Schuman — Thu, 10 May 2012 08:21:56 -0500

Stuart Ishimaru, who stepped down as a Commissioner with the Equal Employment Opportunity Commission (EEOC) on April 30, will now serve as the director of the Office of Minority and Women Inclusion (OMWI) at the Consumer Financial Protection Bureau (CFPB). The CFPB is charged with, among other tasks, rule-making, supervision, and enforcement for federal consumer financial protection laws; promoting financial education; monitoring financial markets for new risks to consumers; and enforcing consumer finance non-discrimination laws.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203) signed into law on July 21, 2010, contains a provision that requires federal agencies that deal with financial firms, including the CFPB, to create an OMWI within their agency. This office will impose certain diversity requirements on businesses in the financial industry. Section 342 of Dodd-Frank stipulates that each director of an OMWI will develop and implement standards for ensuring “to the maximum extent possible, the fair inclusion and utilization of minorities, women, and minority-owned and women-owned businesses in all business and activities of the agency at all levels, including in procurement, insurance, and all types of contracts.”

Ishimaru was appointed to the EEOC in 2003 by former President Bush, and serviced as the Commission’s acting chair from January 20, 2009 until April 7, 2010. In a press release announcing Ishimaru’s new position with the CFBP, the agency explains that its OMWI will develop standards for:

Equal employment opportunity and the racial, ethnic and gender diversity of the workforce and senior management of the agency;
Increased participation of minority-owned and women-owned businesses in the CFPB’s programs and contracts; and
Assessing the diversity policies and practices of the CFPB’s regulated entities.

Bill Would Permit Unionized Employers to Award Merit Pay

Ilyse Schuman — Tue, 01 May 2012 10:19:15 -0500

On April 26, 2012, Sen. Marco Rubio (R-FL) introduced legislation that would amend the National Labor Relations Act (NLRA) to permit employers whose workplaces are governed by collective bargaining agreements to award their employees with additional wages or other compensation for their job performance. A week earlier, Rep. Todd Rokita (R-IN) introduced the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act (H.R. 4385, S. 2371) in the House of Representatives.

Specifically, this measure would insert the following into the NLRA:

Notwithstanding a labor organization's exclusive representation of employees in a unit, or the terms and conditions of any collective bargaining contract or agreement then in effect, nothing in either--

(1) section 8(a)(1) or 8(a)(5), or
(2) a collective bargaining contract or agreement renewed or entered into after the date of enactment of the RAISE Act,

shall prohibit an employer from paying an employee in the unit greater wages, pay, or other compensation for, or by reason of, his or her services as an employee of such employer, than provided for in such contract or agreement.

In an op-ed piece for the Washington Examiner, Rep. Rokita wrote: “the National Labor Relations Board has repeatedly ruled that individual bonuses constitute ‘direct dealing,’ which is illegal under collective bargaining law, and that the NLRB has the power to strike down any bonuses or pay raises not negotiated by unions.” Rokita states further that his legislation “would amend the [NLRA] to reform the collective bargaining process and allow employers to give merit-based bonuses, raises or other increases to an individual employee above the level set by the employee's union contract.”

Sen. Rubio echoed these sentiments in a press release: “It is a sad day in America when no matter how hard an employee works, he or she is blocked from higher earning potential,” adding, “This bill fixes this arbitrary ceiling placed on these workers and allows the free market to function as it is supposed to. These kind of actions by the NLRB are the very root of the larger issue at hand: a board of unelected government bureaucrats dictating to businesses what employees are worth.”

The House version of the RAISE Act has been referred to the House Committee on Education and the Workforce. The Senate companion bill has been sent to the Senate Committee on Health, Education, Labor and Pensions.

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House Committee Approves EEOC Budget with Amendment Blocking ADEA Rule

Ilyse Schuman — Mon, 30 Apr 2012 11:33:19 -0500

The House Appropriations Committee on Thursday approved by voice vote a bill (pdf) that would provide nearly $367 million for the Equal Employment Opportunity Commission for fiscal year 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases. Specifically, the appropriations bill would give the EEOC $366,568,000 for FY 2013, $6,568,000 more than the Commission was provided in 2012 but more than $7 million below the amount requested. According to the report (pdf) accompanying the funding bill, the measure “includes language making up to $29,500,000 available for payments to State and local enforcement agencies.” In addition, the report states that the Appropriations Committee “is pleased with EEOC’s progress in reducing the backlog of private sector charges. The Committee expects the EEOC to continue to prioritize inventory reduction and to examine new ways to address the backlog and increase productivity. EEOC shall keep the Committee informed about its progress in reducing the backlog.”

The Committee also approved by voice vote an amendment offered by Rep. Jack Kingston (R-GA) that would prohibit any funds from being used to implement, administer, or enforce the new ADEA rule, which, Kingston claimed, makes it more difficult for employers to defend themselves against age discrimination lawsuits. The text of the amendment reads as follows:

Meanwhile, the Senate Appropriations approved its own EEOC funding measure last week. The Senate appropriations bill would provide the EEOC with more money ($373.7 million) than that offered in the House, and does not contain a similar amendment effectively blocking the ADEA rule’s implementation. However the Senate version does include report language expressing the Committee’s concern about EEOC’s plans to issue new guidance on the use of criminal and credit background checks in the employment context that” may limit the ability of conscientious employers to hire with confidence and create conflict with Federal and State laws.” The Senate Report “urges EEOC to use litigation resources more wisely by operating within the bounds of the law, and directs that stakeholders be engaged in discussion about the intended changes to background check guidance, and that new guidance on the use of criminal background checks and credit checks be circulated for public input at least 6 months before adoption.” The EEOC approved new guidance on criminal background checks on April 25.

If the House version is ultimately approved, both chambers’ bills will need to be reconciled.

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NLRB Issues Guidance on New Election Rule

Ilyse Schuman — Thu, 26 Apr 2012 15:52:44 -0500

In anticipation of the April 30, 2012 implementation date for the new National Labor Relations Board representation election rule, the Board’s Office of the General Counsel has issued guidance (pdf) on the representation case procedure changes. The Board has also released a set of frequently asked questions (FAQs) on the impact of the new election procedures. Continue reading this entry at Littler's Labor Relations Counsel.

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EEOC Approves Enforcement Guidance on the Use of Criminal Records in Employment

Ilyse Schuman — Thu, 26 Apr 2012 08:27:35 -0500

On Wednesday the Equal Employment Opportunity Commission (EEOC) approved in a 4-1 vote updated enforcement guidance governing the legality of considering a job applicant’s or employee’s criminal history when making hiring or other employment decisions. Commissioner Victoria Lipnic (R) joined the Democrat Commissioners in support of the guidance, while Constance Barker (R) was the lone member to vote against the new guidance. The Commission was scheduled to address guidance on reasonable accommodations under the Americans with Disabilities Act (ADA) as well, but did not consider this topic during the April 25 meeting. Although the use of credit history for employment screening had been a topic of discussion during an earlier Commission meeting, the Commission has not issued guidance on this topic either. Given Commissioner Stuart Ishimaru’s (D) impending resignation, it is likely that any new guidance on reasonable accommodation or credit history would need to be a bipartisan effort with only four Commissioners if such guidance is issued at all anytime soon.

In a press release, EEOC Chair Jacqueline Berrien said that the new guidance “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.” According to the Commission, the updated guidance incorporates new case law concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history. The EEOC asserts that the guidance “also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.”

The updated enforcement guidance and related Q&A document are available through the EEOC’s website. The Commission asserts that these documents discuss the following topics:

How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
Federal court decisions analyzing Title VII as applied to criminal record exclusions;
The differences between the treatment of arrest records and conviction records;
The applicability of disparate treatment and disparate impact analysis under Title VII;
Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
Best practices for employers.

The guidance includes a detailed discussion of the three factors identified by the Eighth Circuit in its 1975 Green v. Missouri Pacific Railroad decision that were relevant to assessing whether an exclusion is job related for the position in question and consistent with business necessity absent a validation study that meets the Uniform Guidelines of Employee Selection Procedures:

The nature and gravity of the offense or conduct;
The time that has passed since the offense or conduct and/or completion of the sentence; and
The nature of the job held or sought.

The guidance also includes examples of criminal conduct exclusions that do not consider the Green factors, as well as targeted exclusions that are guided by these factors. The guidance also sets forth how an individualized assessment may help an employer avoid Title VII liability. Notably, in recognition of the fact that employers in some industries are subject to federal requirements that prohibit individuals with certain criminal records from holding particular positions, the guidance states that compliance with federal laws and/or regulations is a defense to a charge of discrimination. However, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.

For more information on this new guidance, see Littler’s ASAP: EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers by Rod Fliegel, Barry Hartstein, and Jennifer Mora.

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EEOC Finds Claim of Discrimination Based on Gender Identity, Transgender Status is Cognizable Under Title VII

Ilyse Schuman — Wed, 25 Apr 2012 16:58:21 -0500

In a landmark decision, the Equal Employment Opportunity Commission (EEOC) has determined that a transgender woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is viable under Title VII of the Civil Rights Act. The case, Macy v. Holder, was brought by Mia Macy, a former male police detective who contends she was denied a job as a ballistics technician with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “Agency”) on account of her decision to become a woman. The EEOC’s finding that Macy may proceed with this cause of action could have wider repercussions in the private sector.

Background

According to complaint, in late December 2010 or early 2011, Macy applied for the ballistics technician job as a contract employee with the Agency lab and was given oral assurances by the lab’s director that she would receive the job pending a background check. At this point, Macy still presented herself as a man. Macy asserted that the contractor responsible for filling the position contacted her to begin processing the necessary paperwork associated with the job. On March 29, 2011 Macy informed the contractor via email that she was in the process of transitioning from male to female. Five days later, the contractor relayed this information to the Agency, and on April 8, 2011, Macy was told that the position was no longer available due to budget cuts. She later discovered that the position had instead been filled by another person, ostensibly because that individual was farther along in the background check process. Macy alleged that this reason was pretextual, and that she was denied the job because of her decision to become female.

Macy had initially filed an Equal Employment Opportunity (EEO) claim with the Agency alleging both sex and gender identity discrimination. The DOJ has one system for processing claims of sex discrimination under Title VII, and another for adjudicating complaints of sexual orientation and gender identity discrimination. According to the complaint, the rights offered by this split process are not the same as those offered under Title VII and other EEOC regulations, including the right to request a hearing before an EEOC administrative law judge and the right to appeal a final Agency decision to the EEOC. In considering her claim, the Agency split her discrimination allegation into one “based on sex (female) under Title VII”, and another based on “gender identity stereotyping” outside of Title VII’s scope. Because Macy did not believe that the Agency would thoroughly investigate her complaint in this fashion, she filed an instant appeal with the EEOC, which, she contends, has jurisdiction over her entire claim.

EEOC’s Findings

Examining Title VII’s history and relevant case law, the EEOC concluded that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition, and may therefore be processed under Part 1614 of EEOC’s federal sector EEO complaints process.” The Commission clarified further:

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.

With respect to transgendered individuals in particular, the EEOC explained that “[w]hen an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim.’” Therefore, the EEOC concluded, "intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on ... sex,' and such discrimination therefore violates Title VII." Macy, therefore, would be entitled to pursue with the Agency her entire claim of discrimination based on change of sex/transgender status and gender identity under Title VII.

Although this case involves employment discrimination at the federal level, the EEOC’s position would appear to apply to private sector employment as well. In its decision the EEOC takes the position that a claim of discrimination based on one’s gender identity does not create a new protected category under Title VII, but rather presents a different way of describing sex discrimination.

At the legislative level, lawmakers in 2011 reintroduced the Employment Nondiscrimination Act (ENDA) in both the House and Senate. This bill would, among other things, specifically ban employment discrimination based on an individual's actual or perceived sexual orientation or gender identity. Although ENDA has failed to progress this term, earlier this month Press Secretary Jay Carney reaffirmed President Obama’s support of this measure.

For more information on this decision, see Littler’s ASAP: The EEOC Opens the Door to Title VII Protection for Transgender Employees by Denise Visconti and Emily Chaloner.

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Senate Defeats Resolution to Block NLRB Election Rule

Ilyse Schuman — Tue, 24 Apr 2012 15:17:01 -0500

A measure designed to prevent the National Labor Relations Board’s new election rule from taking effect next Monday was defeated in the Senate. On Tuesday the Senate voted 45-54 in favor of a motion to proceed to a vote on S. J. Res. 36, a resolution disapproving of the Board’s rule that expedites and makes other dramatic changes to the representation election process. At least 60 votes were needed to allow the resolution to proceed to a vote. The vote was largely along party lines, with no Democrats supporting the resolution and Senator Lisa Murkowski (R-AK) the only Republican to vote against the measure.

Sen. Mike Enzi (R-WY), ranking member of the Senate Help, Education, Labor and Pensions (HELP) Committee, introduced S.J. Res. 36 in the Senate with 44 co-sponsors on February 16, 2012. Lawmakers introduced an identical resolution (H.J. Res. 103) in the House the same day. The text of this resolution is as follows:

Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Labor Relations Board relating to representation election procedures.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the National Labor Relations Board relating to representation election procedures (published at 76 Fed. Reg. 80138 (December 22, 2011)), and such rule shall have no force or effect.

Under the Congressional Review Act (CRA), a House or Senate joint resolution, if approved, has the force of law to prevent an agency rule from taking effect. Even if opponents of the NLRB rule had garnered sufficient votes to advance and ultimately pass the resolution, however, President Obama had indicated that he would veto such a measure.

During Tuesday’s two-hour debate of S.J. Res. 36, Sen. Enzi urged his colleagues to vote in its favor, saying that the NLRB’s job is to ensure fairness to the representation election process, not to tip the scales in favor of unionization.

The rule is scheduled to take effect on April 30, 2012, although litigation challenging the rule is pending.

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Senate Hearing Examines Problems with Pace of OSHA Rulemaking

Ilyse Schuman — Fri, 20 Apr 2012 13:29:55 -0500

The same day the Government Accountability Office (GAO) released a study finding that it takes an average of nearly 8 years for the Occupational Safety and Health Administration (OSHA) to finalize safety standards, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to address why this process takes so long. HELP Committee Chairman Tom Harkin (D-IA) began the hearing by claiming that the agency “is broken” and that its rulemaking process is “mired in bureaucracy.” Citing the GAO study, Harkin noted that in the 1980s and 1990s OSHA issued 47 safety standards, but has finalized only 11 since that time. OSHA’s silica standard, he highlighted, has been in development since 1974. While hearing panelists offered different proposals to solve the rulemaking delay, most agreed that the agency needs to set priorities and focus on those rules instead of continually shifting gears and getting “mired” in its own processes.

Speaking on the first hearing panel was GAO Director Revae Moran. She discussed the GAO report, and stated that between 1981 and 2010, it took OSHA between 15 months and 19 years to finalize a total of 58 safety standards. She explained that 15 percent of these rules took more than 10 years to be issued. This significant lag was due, in large part, to the agency’s “shifting priorities,” administrative requirements placed on the agency, and the high standard of judicial review for OSHA rules. Specifically, Moran explained that a 1993 executive order required that all significant rules be subject to a cost/benefit analysis which, she claimed, can add several months to the rulemaking process. In 1996 OSHA became one of three agencies required under the Small Business Regulatory Enforcement Fairness Act (SBREFA) to convene small business panels to determine the impact rules would have on these entities. Under questioning from Sen. Harkin, Moran also noted that OSHA’s rules are subject to a high standard of review. Namely, OSHA must demonstrate that there exists substantial evidence of a material impairment to a worker to support its rule-making effort, while other agencies must show only that the rule is not arbitrary and capricious.

The GAO report makes only one recommendation to expedite the rulemaking process, however. Specifically, the report recommends that OSHA and the National Institute for Occupational Safety and Health (NIOSH) work more closely in researching occupational hazards so that OSHA can avail itself of NIOSH’s expertise. Some lawmakers and panelists criticized this lone recommendation. For example, Clinical Professor of Environmental and Occupational Health Michael Silverstein claimed that OSHA and NIOSH have been working together for the past 40 years. While he noted that while collaboration is a good thing, it would not solve OSHA’s rulemaking process.

Sen. Al Franken (D-MN) asked Moran whether other suggestions presented by other panelists – including the use of voluntary consensus standards – would be a viable option. Moran responded that it would take a legislative act to allow such standards to suffice, as OSHA is held to certain specific and high standards. Moran did, however, advocate – as did several other panelists –that once OSHA determines the need for a safety standard, it “must be able to move forward as efficiently and effectively as possible.”

Need for Rule Deadlines, OMB Reform, Business Involvement

Some witnesses supported the idea that Congress should impose mandatory deadlines for OSHA standards. Randy Rabinowitz, Director of Regulatory Policy for OMB Watch, claimed that doing so would significantly expedite the process. GAO Director Moran noted during her testimony that there were statutorily set timeframes for establishing 9 of the 58 standards examined. According to Moran, these rules were finalized, on average, in half the time.

Rabinowitz also spoke in favor of more transparency for the Office of Management and Budget. According to Rabinowitz, OMB review of an OSHA rule takes anywhere from a few months to a few years. Professor Silverstein agreed that OSHA is subject to “innumerable procedural delays” through OMB review. Among other suggestions, Rabinowitz said that Congress should require OMB to keep a public record of its meetings and disclose the changes it requires the agency to make to any rule during the process. Like many of her fellow panelists, Rabinowitz also suggested that OSHA “should pick a few hazards and see these priorities through” without shifting focus. In addition, she was in favor of allowing OSHA to rely on existing scientific analysis so that it is not forced to reinvent the wheel for subsequent rules.

Speaking on behalf of the Chamber of Commerce, attorney David G Sarvadi reiterated the call for OSHA to “set priorities and stick to its list.” He also recommended that the agency get industry experts involved and consult with businesses “often and early” in the rulemaking process.

Ranking member Mike Enzi (R-WY), however, was opposed to Congress setting dates for rules. He claimed that this is a job best left to scientific experts. He noted that since 2003 reported instances of injuries and illnesses have decreased by 30 percent, and that, although regulation is one way to further reduce this rate, OSHA should be encouraged to pursue multiple methods of injury and illness reduction. Specifically, Enzi claimed that voluntary programs such as the Voluntary Protection Program (VPP) is a means of promoting safe workplaces, but that this program is being “threatened and undermined under the current administration.” Enzi expressed the desire to bring a bi-partisan bill he co-sponsored – the Voluntary Protection Program (VPP) Act – for markup. This bill would strengthen the VPP and make it permanent.

Panelist Silverstein agreed that the VPP is a beneficial program, but cautioned that it is often “mischaracterized as causing workplaces to become safe.” He noted that the VPP is a recognition program, which awards employers that have proven records of safe workplaces.

Enzi also criticized OSHA’s new hazard communication standard, which he claims includes provisions not discussed during stakeholder meetings. In particular, he found fault with the rule’s inclusion of information on combustible dust and the creation of a new category of “hazards not otherwise classified.”

During panelist questioning, Enzi also asked attorney Sarvadi about an OSHA memo issued earlier this year that directs field compliance officers and whistleblower investigators to keep an eye out for workplace policies and practices, including employer safety initiatives that could discourage employees from reporting injuries. Enzi asked whether this memo was an important use of the agency’s authority. Sarvadi responded that he was unsure “why this idea has persisted.” According to him, “there is no suggestion that there is a widespread underreporting.” He mentioned that employers must be careful to ensure that their incentive programs are not used inappropriately, but that this is a rulemaking issue.

A complete list of panelists and links to their testimony and an archived webcast of the hearing can be found here.

EEOC to Hold Meeting and Provide Guidance on the Use of Arrest and Conviction Records as well as Reasonable Accommodation and Undue Hardship Under the ADA

Ilyse Schuman — Fri, 20 Apr 2012 13:16:20 -0500

The Equal Employment Opportunity Commission (EEOC) intends to hold a public meeting on April 25, 2012 to discuss enforcement guidance on the legality of considering arrest and conviction records in making hiring decisions, and guidance on reasonable accommodation and undue hardship under the Americans with Disabilities Act (ADA).

The April 25 meeting will not be the first time the EEOC has considered these issues. In July 2011, the EEOC held a public meeting to discuss the use an applicant’s criminal record. Three months later the EEOC’s Office of Legal Counsel released an advisory opinion on employer use of arrest and conviction records during the hiring process. This non-binding document suggested that the Commission (1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question. It is expected that the EEOC will offer additional guidance on this topic during the April 25 meeting.

Similarly, in June 2011 the EEOC held a separate meeting to discuss reasonable accommodations and leaves of absence under the ADA. During that meeting the agency indicated that it would release further enforcement guidance on these ADA matters. It is anticipated that the EEOC will provide such guidance during next week’s meeting or shortly thereafter.

The meeting is scheduled to begin at 9:30 ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Those interested in attending are asked to arrive 30 minutes ahead of time due to limited seating.

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