Government policies and proposals

Legislative Update for the Week of June 9, 2014

Leg Roundup Image 132 by 140.jpgDOL Issues Proposed Rule Implementing Contractor Minimum Wage Executive Order
The Department of Labor has issued a proposed rule to implement the new Executive Order (E.O) 13658 - Establishing a Minimum Wage for Contractors - which raises the minimum wage of certain federal contractors to $10.10 per hour starting January 1, 2015. Issued in February, the E.O. covers federal contracts and contract-like instruments that are the result of solicitations issued on or after January 1, 2015. Contractors, in turn, are required to incorporate the E.O. minimum wage clause in their lower-tier subcontracts. Read the full post here. (June 12, 2014)

Legislative Updates for the Month of May 2014

Leg Roundup Image 132 by 140.jpgRules Governing Overtime, Reportable "Persuader" Information, to be Released this Year According to Federal Spring 2014 Regulatory Agendas
 Once again, federal agencies quietly released their semi-annual regulatory agendas on the eve of a long holiday weekend, and on the same day President Obama announced his nomination of Shaun Donovan to lead the Office of Management and Budget (OMB). Twice a year, agencies set forth all rulemaking items under development, along with target completion dates. While these dates are often aspirational, they do provide some insight into which rules will be released sooner rather than later, and which items have been placed on the backburner. Read the full post here. (May 27, 2014) 

OSHA and NLRB Join Forces to Keep Whistleblower Claims Alive
During a Senate subcommittee hearing on whistleblowing last month, Occupational Safety and Health Administration (OSHA) Assistant Secretary David Michaels lamented the relatively short 30-day statute of limitations for filing a whistleblower claim under section 11(c) of the OSH Act. According to Michaels, the agency dismisses hundreds of merit cases each year solely on the statute of limitations issue. His oral and written testimony suggested a number of ways to give teeth to what he claimed was the most widely-used whistleblower statute. One suggestion he did not make during the hearing - which is now in operation - is a "claim referral program" where OSHA intake investigators notify all complainants who file an untimely whistleblower charge of their right to file a charge with the National Labor Relations Board. Read the full post here. (May 21, 2014) 

U.S. House of Representatives Approves Exemption to Affordable Care Act for Expatriate Insurance Plans
For multinational corporations, the passage of the Affordable Care Act (ACA) has raised some uncertainty as to ACA's impact on expatriate workforces. Indeed, domestic insurance providers have complained that they suffer a disadvantage in the expatriate market on account of having to comply with ACA requirements, such as by providing free preventive care and a ban on lifetime coverage limits. This is because there has been no exemption from the ACA for U.S. expatriate coverage. On April 29, 2014, the U.S. House of Representatives passed the Expatriate Health Coverage Clarification Act of 2014 (H.R. 4414) to exempt health insurance plans sold to expatriate workers from the ACA requirements. Read the full post here. (May 6, 2014)

Legislative Updates for April 12-30, 2014

Leg Roundup Image 132 by 140.jpgMinimum Wage Bill Fails to Advance in Senate
As expected, Senate supporters of the Minimum Wage Fairness Act (S. 2223) failed to garner the 60 votes needed to bring the measure to a floor vote without the threat of a filibuster. The legislation - which would have raised the federal minimum wage to $10.10 per hour in increments over a three-year period and indexed future increases to inflation - was considered a symbolic component of President Obama's "Opportunity for All" agenda laid out in his State of the Union Address. The motion to invoke cloture on the Minimum Wage Fairness Act failed by a vote of 54-42. Read the full post here. (April 30, 2014) 

Littler Shareholder Greg Keating Testifies at Senate Subcommittee Hearing on Whistleblowing
During a Senate Subcommittee hearing on the adequacy of private sector whistleblower laws, Littler Shareholder and co-chair of the firm's Whistleblowing and Retaliation Practice Group Gregory Keating urged lawmakers to "consider alternatives to increased penalties and deterrents in the whistleblowing context," and recommended ways in which employers can adopt and promote cultures of compliance that encourage employees to approach management about their concerns before safety issues arise. Read the full post here. (April 29, 2014) 

Senate Confirms David Weil as New Wage and Hour Administrator
The revised Senate rule allowing certain presidential nominations to be confirmed with a simple majority vote - previously ridiculed as the "nuclear option" - enabled the Senate on Monday to confirm David Weil as the next administrator of the Department of Labor's Wage and Hour Division (WHD). The vote was 51-42 in favor of his nomination. Read the full post here. (April 28, 2014)

Legislative Update for the Week of March 31, 2014

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President Obama Poised to Enact Provisions of Paycheck Fairness Act Through Executive Action
Because the House of Representatives is not expected to consider the Paycheck Fairness Act (S. 2199) this term, President Obama will reportedly implement provisions of this measure applicable to federal contractors via Executive actions on Tuesday. The move will coincide with Equal Pay Day, and is the latest in a series of recent Presidential actions designed to implement employment law reform by bypassing Congress. Read the full post here. (April 7, 2014)

House Clears Bill Revising Definition of Full-Time Employee Under Affordable Care Act
As expected, the House of Representatives approved legislation on Thursday that would change the definition of "full-time employee" under the Affordable Care Act. Under the healthcare law's employer responsibility requirements, an employer with 50 or more full-time or full-time equivalent employees will be required to provide health insurance that meets certain ACA standards to their full-time employees starting in 2015, or pay a penalty. The ACA considers a worker "full time" if he or she works 30 hours or more per week, instead of the customary 40 per week. The Save American Workers Act (H.R. 2575) would specifically define "full-time employee" as an employee, "with respect to any month . . . who is employed on average at least 40 hours of service per week.'' The measure was approved by a vote of 248-179, with 18 Democratic lawmakers joining all Republicans in support of the bill. Read the full post here. (April 3, 2014)

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Legislative Update for the Week of March 24, 2014

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Legislation would Effectively Prevent NLRB's Representation Election Rule From Moving Forward
As a preemptive strike against a final "ambush" representation election rule, Republican lawmakers in both chambers introduced legislation that would blunt its intended effects. In February, the National Labor Relations Board reissued its controversial proposal that would not only expedite union election procedures, but also fundamentally alter the way elections are carried out, and remove many employer due process rights. The reissued proposal was substantively the same as that initially introduced in June 2011, which triggered over 65,000 comments. The Board will hold public hearings on this proposed rule in the coming weeks. Read the full post here. (March 27, 2014)

Labor Secretary Discusses Persuader Rule, Overtime Regulations, OSHA Actions During House Budget Hearing
Labor Secretary Thomas Perez fielded questions about current Department of Labor rulemaking, past sub-regulatory actions, and future agency plans during a hearing before the House Committee on Education and the Workforce to discuss the DOL's FY 2015 budget proposal. Committee Chairman John Kline (R-MN) emphasized that "budgets are about priorities," and that the hearing would elucidate the areas and policies the Department deems most important. Read the full post here. (March 26, 2014)

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Australia Beefs Up Its Anti-Bullying Laws

By Naomi Sheridan

Australian workplaces have long been subject to anti-bullying laws, but effective January 1, 2014, workers have an additional avenue in which to bring workplace bullying complaints against employers.

Australian workers have been able to lodge workplace bullying complaints under workplace health and safety laws to the various health and safety authorities in each state of Australia. Now, the Fair Work Commission (the Commission) also has jurisdiction to deal with workplace bullying complaints as a result of the former government's pre-election amendments to the Fair Work Act 2009 (Cth) (the Act). The Commission has already received a small number of bullying claims, with some lodged as early as January 1. The Commission has not released the number of complaints it has received under the new amendments and is unlikely to do so ahead of its standard quarterly data release which will occur next in March.

Under the new system, a worker is now able to lodge an application to obtain an order that workplace bullying cease if it is found to be occurring in the workplace.

Under the Act, a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker or a group of workers of which the alleged victim is a member. The Act clarifies that reasonable management action that is carried out in a reasonable manner does not amount to bullying.

While the Commission cannot award damages for bullying claims under the amendment, it can order that bullying cease. If an employer does not take appropriate action, the worker can apply to the federal court, which can order fines against a corporation of up to $51,000 or against an individual of up to $10,200 (Australian dollars).

Workers may also lodge a workers' compensation claim with respect to any alleged illness or injury flowing from workplace bullying.

If recent unfair dismissal statistics are any indication of what is to come, Australian employers should expect to experience a steady rise in bullying complaints through this new system.

Any company with Australian operations should consider implementing the following steps:

  • Ensure that you have an up-to-date anti-bullying policy in place for your Australian workplaces.
  • Ensure that your anti-bullying policy contains an internal complaint procedure.
  • Ensure that all workers are regularly trained on equal opportunity matters including workplace bullying.
Tags: Bullying

Legislative Update for the Week of December 30, 2013

Leg Roundup Image 132 by 140.jpgNLRB's Notice Posting Rule Effectively Void, But Employers Should Anticipate Renewed Rulemaking Efforts
The National Labor Relations Board's legal attempt to revive its notice posting rule issued in August 2011 has run its course.  The rule - Notification of Employee Rights under the National Labor Relations Act - would have required employers to conspicuously display a notice informing employees of their rights under the NLRA.  In May 2013, in National Association of Manufacturers, et al. v. NLRB, the U.S Court of Appeals for the D.C. Circuit invalidated the rule, finding that the enforcement mechanisms imposed by the rule were unlawful. Four months later, the court dismissed the Board's petition to review. Read the full post here. (January 3, 2014)

Legislative Update for the Week of December 16, 2013

Leg Roundup Image 132 by 140.jpgBill Prohibiting Pre-Employment Credit Checks Introduced in Senate
Sen. Elizabeth Warren (D-MA) has introduced a bill that would prohibit employers from asking prospective employees about their credit histories or obtaining such information through a consumer or credit report.  In addition, the Equal Employment for All Act (S. 1837) would amend the Fair Credit Reporting Act (FCRA) to prevent employers from discriminating against employees on the basis of their credit worthiness.  The bill would make an exception for jobs that require a national security clearance or where credit information is otherwise required by law.  Notably, the bill does not include exceptions for positions in the financial services or banking industries. Read the full post here. (December 19, 2013)


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Legislative Update for the Week of December 2, 2013

Leg Roundup Image 132 by 140.jpgFour Headaches Facing Multistate Employers in the U.S.
With much of the focus on the federal healthcare law, the Patient Protection and Affordable Care Act, and other federal initiatives (or the lack thereof due to political constraints in Congress), it is often all too easy for employers operating in multiple states to overlook the need to familiarize themselves with the many state laws to which they are subject. Alternatively, multistate employers may very well know they need to keep their eye on state laws throughout the country - but quickly become overwhelmed by the sheer number of rules and regulations coming out of the states in which they operate. Understanding how those laws may interact with or alter the effect of federal law may be as equally complicated. Read the full post here. (December 4, 2013)

House Subcommittee Hearing Examines New OFCCP Actions
The House Subcommittee on Workforce Protections held a hearing on Wednesday to discuss recent Office of Federal Contract Compliance Programs (OFCCP) rules and other initiatives affecting federal contractors, subcontractors, and healthcare providers.  Notably, the OFCCP recently issued its final revised affirmative action rules for protected veterans and individuals with disabilities. Among other requirements, these rules set hiring benchmarks for veterans, and a 7% utilization goal for employment of qualified individuals with disabilities for each of the job groups established in the contractor's women and minorities' affirmative action plans. Read the full post here. (December 4, 2013)

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Legislative Update for the Week of November 25, 2013

Leg Roundup Image 132 by 140.jpgFederal Agencies Issue Fall 2013 Unified Agendas and Regulatory Plans
In a quiet release two days before Thanksgiving, federal agencies issued their fall 2013 unified agendas and regulatory plans.  The unified agendas, published twice a year, provide a roadmap of agency activity for the coming months, and highlight what proposed and final rules are imminent.  The regulatory plans, published in conjunction with the fall agendas, provide additional details about the most significant actions the agencies plan to undertake in the coming year, and identify agency priorities.  The following summarizes the key regulatory measures that the Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB) and Department of Health and Human Services (HHS) consider priorities for 2014. Read the full post here. (November 27, 2013)

NYU and UAW Agree to Union Election for Graduate Students
NYU and the UAW have reached an agreement to pave the way for an election among covered graduate students at NYU and NYU-Poly to determine whether the graduate students will be represented as a bargaining unit by the UAW. Read the full post here. (November 27, 2013)

Image credit: JuDesigns