Agencies Finally Issue Their Regulatory Agendas for 2012
Although federal agencies ordinarily release unified agendas in the spring and fall of each year, many did not release their long-awaited unified agendas and regulatory plans for 2012 until December 21, 2012. Read the full post here. (December 27)
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IRS Amends Eligibility, Extends Timeframe for Voluntary Classification Settlement Program Participation
The Voluntary Classification Settlement Program (VCSP) allows eligible taxpayers to voluntarily reclassify their workers as employees for federal employment tax purposes and thereby obtain partial relief from federal tax liabilities. The IRS has made a number of revisions to the VCSP, e.g., allowing taxpayers to participate in a modified version of the VCSP even if they have not met the prior VCSP requirement of having filed all require Forms 1099 for the previous three years with respect to the workers to be reclassified. Read the full post here. (December 21)
DOL Announces Effective Date of Rule Governing Nondisplacement of Service Contract Employees
The final rule implementing Executive Order 13495, which applies to certain contracts covered by the federal Service Contract Act, varies slightly from the initial proposals, e.g.: clarifies Department of Labor (DOL) regulations; amends Federal Acquisition Regulations (FAR); adds cross-references throughout FAR to applicable DOL regulations; and clarifies that a "service employee" doesn't include an individual employed in a bona fide executive, administrative, or professional capacity. Read the full post here. (December 21)
OSHA's Whistleblower Protection Advisory Committee to Include Littler Shareholder Gregory Keating
Labor Secretary Hilda Solis announced that Gregory Keating, co-chair of Littler's Whistleblowing and Retaliation Practice Group, will be appointed to the newly established Whistleblower Protection Advisory Committee, a 15-member panel charged with determining and recommending ways to improve the fairness, efficiency, effectiveness and transparency of OSHA's whistleblower protection program. Read the full post here. (December 14)
OIG's Semiannual Report to Congress Discusses Enforcement Actions, Legislative Recommendations
The Department of Labor's Office of Inspector General (OIG) has issued its Semiannual Report to Congress, outlining its significant accomplishments during the six-month period ending September 30, 2012 and making a number of legislative recommendations. Read the full post here. (December 11)
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Supreme Court Agrees to Review Same-Sex Marriage Cases
The U.S. Supreme Court announced that it will decide the constitutionality of both the Federal Defense of Marriage Act, which defines "marriage" as a legal union between a man and a woman, and California's Proposition 8, a 2008 state voter initiative banning gay marriage. Read the full post here. (December 7)
DOL Launches Workplace Recruitment Database Comprising Potential Hires with Disabilities
The Departments of Labor and Defense have established a 2013 Workforce Recruitment Program database containing more than 3,000 profiles of postsecondary students and recent graduates with disabilities, including veterans, that can be accessed by private sector employers. Read the full post here. (December 5)
DOL Proposes to Update OALJ Rules of Practice and Procedure
The Department of Labor (DOL) has issued a proposed rule that seeks to revise and restructure the agency's rules of practice and procedure for conducting administrative hearings before the Office of Administrative Law Judges, the "trial court" that presides over many employment-related claims filed with the DOL. Read the full post here. (December 3)
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Senate Approves Amendment to Defense Bill that Expands Whistleblower Protections, Rejects Amendment Eliminating Contractor Cuts
The Senate unanimously agreed to an amendment to the Defense bill that would extend whistleblower rights and protections to federal contractors and their employees. Read the full post here. (November 30)
The Use of Criminal Records in Employment Will Get Another Look
The U.S. Commission on Civil Rights has announced that it will hold a public briefing to examine the use of criminal background checks in employment. The meeting will discuss in particular how criminal background checks impact African American and Hispanic workers, as well as the Equal Employment Opportunity Commission's recently-approved updated enforcement guidance on this topic in general. Read the full post here. (November 29)
The Criminal Division of the U.S. Department of Justice (DOJ) and the Enforcement Division of the U.S. Securities and Exchange Commission (SEC) have issued new guidance to help individuals and employers that conduct business internationally understand and comply with the U.S. Foreign Corrupt Practices Act (FCPA). Enacted in 1977, the FCPA aims to combat the bribery of foreign officials, and ensure accounting transparency. The new document - A Resource Guide to the U.S. Foreign Corrupt Practices Act - is nonbinding, informal guidance for entities of any size that conduct business abroad and/or have foreign subsidiaries.
The 130-page guide discusses such topics as who and what is covered by the FCPA's anti-bribery and accounting provisions; the definition of a "foreign official"; how successor liability applies in the mergers and acquisitions context; what constitutes proper and improper gifts, travel and entertainment expenses; the nature of facilitating payments; what constitutes an effective corporate compliance program; what whistleblower provisions and protections are available under the Act; and what are the civil and criminal penalties, sanctions, and remedies under the FCPA.
For a more detailed discussion of this new guidance, see Littler's ASAP: U.S. Department of Justice and SEC Release Long-Awaited Guidance on Foreign Corrupt Practices Act by Katherine Franklin, Earl "Chip" Jones, and Bradley Siciliano.
401(k)s and Other Employer-Sponsored Retirement Plans Can Make Loans, Hardship Distributions to Victims of Hurricane Sandy
To further assist employees affected by Hurricane Sandy, the Internal Revenue Service has announced that it is easing procedural and administrative rules to allow 401(k)s and similar employer-sponsored retirement plans to more readily make loans and hardship distributions to employees and their family members who live or work in a designated disaster area. Read the full post here. (November 21)
Even Administrative Agencies Make Mistakes: Corrected Model FCRA Forms Now Available to Employers Who Conduct Background Checks
The Consumer Financial Protection Bureau has taken responsibility for issuing several model forms required by the Fair Credit Reporting Act. It recently acknowledged that the Notice of User Responsibilities and the Summary of Rights published by the Bureau in December 2011 contained errors. The announcement is important for employers because the deadline for using the model forms is January 1, 2013. Read the full post here. (November 19)
More Than 3,000 Whistleblower Claims Were Filed Under Dodd-Frank in 2012, While Only 1 Award Granted, According to SEC Report
The SEC's 2012 Annual Report on this whistleblower program summarizes the agency's experience with the program during the 2012 fiscal year, the types of tips received, and the SEC's enforcement efforts. Read the full post here. (November 19)
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Obama Wins, Senate Democrats Keep Majority - What Will It Mean for Employers?
Now that the election-generated dust has settled, employers are left wondering how the results will impact their operations in the coming four years. Read the full post here. (November 7)
PBGC Amends Its Enforcement of ERISA Section 4062(e)
The Pension Benefit Guaranty Corporation (PBGC) has launched an enforcement pilot program under ERISA § 4062(e) that will ease financial guaranty obligations for small and financially stable businesses. Read the full post here. (November 6)
IRS, DOL Offer Additional Tax Breaks, Payment and Reporting, Extensions in Light of Hurricane Sandy
The Internal Revenue Service (IRS) and Department of Labor (DOL) have announced new deadline filing extensions and tax relief measures to individuals and businesses affected by Hurricane Sandy. Read the full post here. (November 5)
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There is a growing awareness of mental health issues in the workplace and increasing calls for government to enact legislation to provide employees with a psychologically safe workplace. One of the most recent developments in this area is a standard prepared by the Canadian Standards Association and the Bureau de normalisation du Québec (the "Standard").1 The Standard has been available in draft form since November 2011 and is expected to be published in its final form in early November 2012.
The Standard's Requirements
The draft Standard, the first in the world according to the creators, sets out optimistic suggested goals and processes for achieving psychological health and safety ("PHS") in the workplace. The draft Standard requires employers, among other things, to: draft a PHS policy; develop and implement a system to implement that policy; identify, assess, and reduce the risk of PHS hazards; investigate PHS incidents; and, monitor, audit and improve the PHS system. These steps are in addition to all of the existing steps being taken to develop and manage occupational health and safety ("OHS") systems.
It is expected that the final Standard published in November 2012 will have some changes from the draft Standard that was released, but we do not anticipate significant changes to the basic structure and obligations. More compliance tools and models are expected to be provided with the final Standard.Continue Reading...
In the wake of President Obama's win over Governor Mitt Romney, employers can expect an acceleration of the Administration's effort to dramatically alter workplace policy. Republicans hold on to power in the House of Representatives, while Democrats will remain in control of the Senate. Senate Republicans not only fell short of their push to gain a majority in the upper chamber of Congress, but appear to have lost two of their current 47 seats. Will a closely divided Congress lead to compromise or gridlock? With the balance of power in Washington effectively the same, the legislative logjam that characterized the 112th Congress is likely to continue during at least the next two years of the Obama Administration.
To learn more about the elections' impact on employers, please see Littler's ASAP, How Will the 2012 Election Results Impact Labor, Employment and Benefits Policy?, by Ilyse Schuman and Michael Lotito.