Core Provisions: Attempting to reverse the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074 (May 29, 2007), this legislation would reset the statutory limitations periods upon the receipt of any paycheck affected by a discriminatory decision involving pay, no matter how far in the past the underlying act of discrimination allegedly occurred. In Ledbetter, the Supreme Court ruled that the statute of limitations was only reset upon an actual discriminatory decision. This bill would also amend Title VII to extend the EEOC filing period from 180 days to 360 days, and from 300 days to 480 days for states with fair employment agencies.

Status: H.R.2660 was introduced by Rep. Ruppersberger (D-MD) on June 11, 2007 and referred to the House Subcommittee on Health, Employment, Labor and Pensions.

Core Provisions: This Act would create a federal insurance fund, similar to the unemployment benefits scheme, to provide eight weeks of pay for employees taking FMLA leave. Employees would contribute 0.2 percent of their annual earnings, and employers would match employee payments. The bill would allow employers with an equivalent or better paid-leave plan to opt out of participating in the insurance fund.

Status: S.1681 was introduced by Sen. Dodd (D-CT) on June 21, 2007 and referred to the Finance Committee. S.1681 currently has three co-sponsors.

Core Provisions: This Act would expand the FMLA by applying the statute to employers of at least 25 employees (rather than the current 50-employee threshold), including domestic violence as a reason to take FMLA leave, and creating an employee entitlement to a total of 24 hours of leave during any 12-month period for a parent to “participate in an academic activity” of a child. The Act would also create a grant program to be administered by the states for providing income replacement to new parents for not less than six weeks during any 12-month period.

Status: H.R.1369 was introduced by Rep. Maloney (D-NY) on March 7, 2007 and referred to several House Committees. The House Education and Labor Committee referred the bill to the Subcommittee on Workforce Protections on June 27, 2007. H.R.1369 has one co-sponsor.

Core Provisions: S.1898 and S.1975 would extend the FMLA provision of 12 weeks of unpaid leave to up to six months for spouses, children and parents of soldiers injured in combat; H.R.3481 would include primary caregivers as well. S.1894 would extend the FMLA to up to 26 work weeks for primary caregivers of service members with combat-related injuries, and H.R.3391 would extend the FMLA to up to 26 work weeks for spouses, children and parents.

Status: S.1898 was introduced in the Senate by Sen. Clinton (D-NY) on July 30, 2007 and was referred to the HELP Committee. Sen. Dodd (D-CT) introduced S.1894 on July 26, 2007, and he also introduced S.1975 on August 2, 2007. Both bills were referred to the HELP Committee. H.R.3481 was introduced in the House by Rep. Woolsey (D-CA) on September 6, 2007 and was referred to the Subcommittee on Workforce Protections, while Rep. Issa (R-CA) introduced H.R.3391 on August 3, 2007, which was also referred to the Subcommittee on Workforce Protections. S.1898 currently has nine co-sponsors, S.1894 has 10 co-sponsors, S.1975 has 16 co-sponsors, H.R.3481 has 70 co-sponsors, and H.R.3391 has five co-sponsors.

Core Provisions: This comprehensive energy package includes provisions from the Green Jobs Act of 2007 (H.R.2847) to fund an “Energy Efficiency and Renewable Energy Worker Training Program.” The Department of Labor would administer this program to address job shortages that are obstructing growth in green industries, such as energy efficient construction, renewable electric power, energy efficient vehicles and biofuel development. The legislation also would expand Davis-Bacon Act prevailing wage requirements for federally funded energy-related projects.

Status: On December 6, 2007, the House gave final approval to the Energy Independence and Security Act by a vote of 235 to 181. On December 13, 2007, the Senate passed an amended version of the bill by a vote of 86 to eight. The amended version passed the House on December 18, 2007, and the President signed the legislation on December 19, 2007.

In a December 4, 2007, conference marking the 40th anniversary of the ADEA, EEOC Commissioner Stuart Ishimaru remarked that age discrimination is sometimes the “stepchild” in the EEOC’s enforcement agenda and the agency needs to do a “far better job” in enforcing the ADEA. Commissioner Ishimaru suggested that the EEOC needs to focus on preparing for the anticipated increase in older workers in the workforce as baby boomers stay in the workforce longer, but noted that the EEOC does not currently have an organized plan to address this trend.

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If you have any questions or comments about the Washington Labor & Employment Wire, please contact:

Robert G. Lian, Jr.
Partner, Labor and Employment Practice
blian@akingump.com
202.887.4358

Joshua B. Waxman
Partner, Labor and Employment Practice
jwaxman@akingump.com
202.887.4209

William F. Allen
Senior Counsel, Labor and Employment Practice
ballen@akingump.com
202.887.4245

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Senior Policy Counsel, Public Law and Policy Practice
jtucker@akingump.com
202.887.4279

ADA - Americans with Disabilities Act

ADEA - Age Discrimination in Employment Act

ADR - Alternative Dispute Resolution

CPSC - Consumer Product Safety Commission

DHS - Department of Homeland Security

DOL - Department of Labor

EBSA - Employment Benefits Security Adminstration

EEOC - Equal Employment Opportunity Commission

EEP - Enhanced Enforcement Program

EEVS - Electronic Employment Verification System

ENDA - Employment Non-Discrimination Act

ERISA - Employee Retirement Income Security Act

FLSA - Fair Labor Standards Act

FMLA - Family Medical Leave Act

GAO - Government Accountability Office

HELP - Health, Employment, Labor and Pensions 

HIPAA - Health Insurance Portability and Accountability Act

ICE - Immigration and Customs Enforcement

INA - Immigration and Nationality Act

LOTO - Lockout/Tagout

NDAA - National Defense Authorization Act

NLRB - National Labor Relations Board

NLRA - National Labor Relations Act

OLMS - Office of Labor Management Standards

OSHA - Occupational Safety and Health Administration

OSHRC - Occupational Safety and Health Review Commission

PBGC - Pension Benefit Guarantee Corporation

PPA - Pension Protection Act

PPE - Personal Protective Equipment

QDIA - Qualified Default Investment Alternatives

RESPECT - Reempowerment of Skilled and Professional Employees and Construction Tradeworkers

SAVE - Secure America through Verification and Enforcement

SST - Sight-Specific Targeting

TAA - Trade Adjustment Assistance

USCIS - U.S. Citizenship and Immigration Services

USERRA - Uniformed Services Employment and Reemployment Rights Act

WARN - Worker Adjustment and Retraining Notification

WHD - Wage and Hour Division, Department of Labor

WRFA - Workplace Religious Freedom Act

The Occupational Safety and Health Administration (OSHA) has announced a new Enhanced Enforcement Program (EEP), which will become effective January 1, 2008. OSHA implemented the original EEP on September 30, 2003, to “target those employers who are indifferent to their obligations under the OSH Act.” The new program continues this objective but will “focus greater enforcement emphasis on those employers that have a history of violations with OSHA” or its state equivalents (State Plans).To achieve this renewed focus, OSHA has modified the triggering criteria for EEP cases, the definition of what constitutes prior OSHA history and the procedures once a case is in the EEP.

OSHA has significantly increased the number of cases that will qualify for the program. Under the existing program, only certain high-gravity serious violations could prompt the EEP. Under the new guidelines, serious violations of any gravity will initiate enhanced treatment. The following violations will qualify for the EEP-

• a fatality inspection in which OSHA finds one or more willful or repeat (any gravity) violations related to the death
• a fatality inspection in which OSHA finds one or more serious (any gravity) violations related to the death, and the employer has either-
• an OSHA history of violations similar in kind to the violation that led to the current fatality consisting of one serious, willful or repeat violation within the last three years
• the occurrence of another fatality within the last three years regardless of whether any citation was issued
• an inspection that results in the citation of three or more serious (any gravity) violations classified as willful or repeat, and the employer has an OSHA history of violations, similar in kind to one or more violations found in the current inspection, consisting of one serious (any gravity), willful or repeat violation within the last three years
• an inspection that results in one or more failure-to-abate notices where the underlying violations were classified as serious (any gravity)
• any egregious case
• a case consisting of one or more inspections in which the proposed penalties total more than $100,000.

Because an employer’s previous violations and inspection history factor into the threshold question of EEP qualifying criteria, OSHA has clarified what constitutes “OSHA history.” Under the revised program, an employer’s OSHA history can only include final orders from federal OSHA jurisdictions and/or State Plans.

The revised EEP also alters the procedures governing the implementation of the program. First, instead of transferring any related establishments from the Site-Specific Targeting (SST) secondary list to the primary list as the previous EEP program did, OSHA will now move all related establishments on the year’s primary or secondary list to each area office’s current inspection cycle if the establishment is in the same three-digit North American Industry Classification System code (or two-digit Standard Industrial Classification System code). This change will result in OSHA inspecting related worksites sooner than it would under the previous program. Second, the EEP will now also apply to agriculture and maritime employers. Third, now if OSHA determines that the establishment’s safety and health problems need to be addressed at the company headquarters, it will not only notify the company president, but also the employee representatives. Finally, OSHA has provided a list of provisions that area directors can include in settlement agreements in connection to violations in the EEP. These provisions are–

• requiring the employer to hire a qualified safety and health consultant to develop an effective and comprehensive safety and health program with management support in the establishment, and assist the company in implementing such a program
• applying the agreement company-wide
• using settlement agreements to obtain from employers a list of their current jobsites, or future jobsites within a specified time period, in construction (and, where appropriate, in agriculture, maritime and general industry)
• requiring the employer to submit to OSHA its log of work-related injuries and illnesses on a quarterly basis and to consent to OSHA’s conducting an inspection based on the report;
• requiring the employer to notify the area office of any serious injury or illness requiring medical attention and to consent to an inspection
• obtaining employer consent to entry of a court enforcement order under Section 11(b) of the Act.

On December 14, 2007, District Court Judge Charles R. Greyer granted the Department of Homeland Security’s motion to stay the proceedings in AFL-CIO v. Chertoff, Case No. 07-CV-4472 CRB (N.D. Cal.) pending new rulemaking planned by DHS to address the court’s concerns. On October 10, 2007, Judge Greyer had issued a preliminary injunction enjoining DHS and the Social Security Administration (SSA) from implementing the Final Rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” The new rule identifies the receipt of a no-match letter from the SSA as evidence that the employer had “constructive knowledge” that the employees listed in the letter were not authorized to work in the United States unless the employer takes certain steps within a specific time frame. The case is scheduled for a status conference on March 28, 2008. DHS has appealed the preliminary injunction to the 9th Circuit.