Agencies Finally Issue Their Regulatory Agendas for 2012

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IRS Amends Eligibility, Extends Timeframe for Voluntary Classification Settlement Program Participation

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)

EEOC Approves Strategic Enforcement Plan
The Equal Employment Opportunity Commission (EEOC) has announced its approval of a Strategic Enforcement Plan (SEP) that establishes agency priorities and integrates all components of the EEOC's private, public, and federal sector enforcement activities. The stated purpose of the SEP is to "focus and coordinate the EEOC's programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace." Read the full post here. (December 20)

Final Defense Authorization Bill Includes Whistleblower Provisions
The final draft of H.R. 4310 includes provisions enhancing whistleblower protections for Department of Defense and National Aeronautics and Space Administration contractor and subcontractor employees, and establishes a four-year pilot program enhancing whistleblower protections applicable to all civilian federal agency contractors. Read the full post here. (December 20)

PBGC Calls for Legislation to Help Sustain Multiemployer Pension Plan System
Pension Benefit Guaranty Corporation (PBGC) Director Joshua Gotbaum urged Congress to develop legislation to improve the long-term viability of multiemployer pension plans, which are created by collective bargaining agreements, are jointly administered by a board of trustees comprising union and employer representatives, and have become increasingly more reliant on the PBGC for financial assistance when in distress. Read the full post here. (December 19)

Congress Approves Bill that Would Increase Trade Secrets Protection
The House of Representatives overwhelmingly approved a one-page bill that broadens the scope of what constitutes an employer's trade secret under the Economic Espionage Act by amending the Act to clarify that a trade secret includes information related to "a product or service used in or intended for use in" interstate or foreign commerce. Read the full post here. (December 19)

House Committee Report Contains Sharp Criticism of NLRB
The House Committee on Oversight and Government Reform released a staff report highlighting rulemaking, decisions, and other actions taken in recent years by the National Labor Relations Board that the Committee contends are indicative of the agency's pro-union bias. Read the full post here. (December 17)

Obama Announces NMB Nominees
President Obama has nominated Linda Puchala to serve a second term as a member of the National Mediation Board (NMB). The President has also nominated Nicholas Christopher Geale to fill the vacant Republican seat on the NMB. Read the full post here. (December 17)

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OSHA's Whistleblower Protection Advisory Committee to Include Littler Shareholder Gregory Keating

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

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 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)

EEOC Actions Resulted in Record Amount of Monetary Benefits Awarded to Private Sector Claimants, According to FY 2012 Performance and Accountability Report
The Equal Employment Opportunity Commission's (EEOC) newly released Performance and Accountability Report for fiscal year 2012 states that the agency recovered more than $365.4 million in monetary benefits through its private sector administrative activities, and $44.2 million through litigation. Read the full post here. (November 26)

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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

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?

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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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.

Compliance with the Standard will be voluntary. It will not be legally enforceable unless it is possible to enforce it under a general duty clause under OHS legislation, or it is specifically incorporated into OHS legislation. It remains to be seen whether the Standard will be incorporated into OHS legislation, but many CSA standards have already been incorporated and are enforceable through orders, directions, or prosecution. It also remains to be seen whether regulators will attempt to enforce the Standard through a general duty clause in OHS legislation, requiring employers to take every reasonable precaution in the circumstances. The presence of workplace violence and harassment provisions in OHS legislation could be an impediment to this method of enforcement because such provisions arguably establish the level of reasonable precautions to be taken to protect workers.

Employers who plan to implement the Standard may find guidance in Psychological Health and Safety: An Action Guide for Employers,² a detailed and practical publication of the Mental Health Commission of Canada intended to assist employers in complying with the Standard. The Guide lists actions that can be implemented to protect employees' PHS in the workplace.³ The Guide provides an explanation of why each action is important, a description of how that action may be implemented, and a list of online resources that are available to assist in the implementation of the action.⁴

While the Standard is voluntary and presents challenges for implementation given its complexity and the fact that it imposes obligations beyond existing OHS obligations, it also presents an opportunity. This is an opportunity for employers to develop policies and procedures to enhance worker health and safety beyond those required by existing OHS and human rights laws. These policies and procedures may assist employers in stemming the tide of claims of bullying, harassment, violence, psychological injury, and stress made in civil, human rights, OHS, workers' compensation, and grievance proceedings.

For a detailed analysis of the Standard, please see Heenan Blaikie's OHS & Workers' Compensation Management Update.

¹ Canadian Standards Association, Draft Standard CSAZ1003/BNQ9700-803-5 Psychological Health and Safety in the Workplace, section 4.2.2 (a) - (f). ["Standard"]

² Mental Health Commission of Canada, Psychological Health and Safety: An Action Guide for Employers (January 2012). ["Action Guide"]

³ Action Guide, supra note 2 at p. 3.

⁴ Action Guide, supra note 2 at p. 3.

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.

NLRB General Counsel Gives Guidance on "At Will" Provisions in Employee Handbooks

Federal Agencies Grant Motor Carrier, Taxpayer Reprieves in Light of Hurricane Sandy
The Federal Motor Carrier Safety Administration has temporarily exempted truckers providing direct assistance to the hurricane relief effort from several of its regulations, and the IRS is allowing taxpayers and preparers affected by the storm until November 7 to file returns and accompanying tax payments that would have been due on October 31. Read the full post here. (November 1)

EEOC Provides Guidance on the Application of Employment Discrimination Laws to Instances of Domestic Violence, Stalking
The Equal Employment Opportunity Commission has released a question and answer fact sheet that appears to extend Title VII of the Civil Rights Act and the Americans with Disabilities Act to protect employees or applicants who have experienced domestic or dating violence, sexual assault, or stalking outside of the workplace. Read the full post here. (October 29)

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ARB Rejects OFCCP's Claim of Jurisdiction Based on Hospital's TRICARE Participation

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The Supreme Court of Canada released its eagerly awaited decision in R. v. Cole, 2012 SCC 53, on October 19, 2012. In the decision, the Court held that employees may have a reasonable, though diminished, expectation of privacy in personal information stored on their work computers - at least where the personal use of such devices is permitted or reasonably expected by employers. This reasonable expectation of privacy is protected by the Canadian Charter of Rights and Freedoms (the "Charter").

The Facts

Mr. Cole was an Ontario high-school teacher. In addition to his regular teaching duties, he was responsible for policing the use by students of their networked laptops. To this end, he was supplied with a laptop owned by the school board and he was given domain administration rights on the school's network. This allowed him to access the hard drives of students' laptops. Mr. Cole was also permitted to use his laptop for incidental personal purposes, which he did. He often browsed the Internet and stored personal information on the laptop's hard drive.

Mr. Cole's difficulties began when a school technician, performing maintenance activities on the school's network, found a hidden folder on Mr. Cole's laptop that contained nude photographs of a high school student. The technician reported his findings to the school principal who seized the laptop and handed the information over to the police. The police reviewed the information contained on the hard drive without first obtaining a search warrant. They proceeded to charge Mr. Cole with possession of child pornography and unauthorized use of a computer.

DOT to Solicit Input on Possible Hours of Service Regulations for Motorcoach Operators

Unions Promote State Workplace Anti-Bullying Bills
During a press conference sponsored by the Workplace Bullying Institute (WBI) and attended by union leaders, WBI Director Gary Namie called for unions to support the Healthy Workplace Bill, a measure that has been introduced in 21 states since 2003, according to the organization. Read the full post here. (October 16)

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DOL Launches Website on Workplace Flexibility

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• Disclose social media log-in credentials;
• Access personal social media in the employer's presence; or
• Divulge any personal social media content.

However, an exception permits employers to ask an employee to divulge personal social media content that the employer "reasonably believe[s] to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations."

To learn more about the law and its potential implications for employers, please continue reading Littler's ASAP, California's New Social Media "Password Protection" Law Takes a More Balanced Approach by Accounting for Employers' Legitimate Business Interests, by Philip Gordon and Lauren Woon.

OSHA Launches Alternative Dispute Resolution Pilot Program for Whistleblower Complaints

House Approves Federal Whistleblower Bill
The House of Representatives passed the Whistleblower Protection Enhancement Act of 2012 (S. 743), a bill that strengthens whistleblower protections for federal employees. Read the full post here. (October 1)

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Littler Shareholder Walter Hunter Testifies at Joint Congressional Hearing on NLRB Developments Affecting Higher Education

Pregnancy Reasonable Accommodation Bill Introduced in Senate
Senator Bob Casey (D-PA) introduced the Pregnant Workers Fairness Act (S. 3565), 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. Read the full post here (September 28)

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The enforceability of these provisions in the United States was recently affirmed by the U.S. District Court for the Southern District of New York in Martinez v. Bloomberg LP, 2012 U.S. Dist. LEXIS 113227 (S.D.N.Y. Aug. 10, 2012). This decision holds important lessons for multinational employers concerning the enforceability and limitations of these clauses.

To learn more about the decisions and its potential implications for employers, please continue reading Littler's ASAP, New Decision Highlights the Importance of Forum Selection Clauses in Cross-Border Employment Agreements, by Philip Berkowitz, Laurent Badoux, and Trent Sutton.

Senate Panel Discusses Ways to Improve Pension Structure

New Whistleblower Bills Target Private Sector
Members of the House of Representatives introduced two measures that would expand and strengthen whistleblower protections in the private sector. One bill would extend whistleblower protections to non-federal government contractors and subcontractors who disclose information about the misuse of federal funds; the other seeks to expand and streamline the administration of whistleblower protections for private-sector employees. Read the full post here. (September 18)

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