On February 11, 2008, OSHA issued a directive amending its enforcement policy to address the “Control of Hazardous Energy (Lockout/Tagout)” (LOTO) standard, 29 C.F.R. § 1910.147. This standard “covers the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy could cause injury to employees.” The directive provides guidance for OSHA personnel performing inspection activity related to the LOTO standard.

OSHA made the following significant changes in this instruction:

• adds compliance safety officer guidelines that require compliance safety and health officers who are trained in energy control practices and procedures to be the only individuals that can evaluate machines and equipment to determine that they are properly locked and/or tagged out in accordance with §1910.147
• provides examples of citations that may result from various scenarios
• describes three affirmative defenses commonly associated with the LOTO standard: (1) greater hazard to comply with the standard; (2) impossibility defense, which applies if the LOTO standard was functionally impossible or would prevent the performance of the work, and if there are no alternate means of employee protection; and (3) unpreventable employee misconduct
• incorporates compliance assistance flowcharts
• provides additional information on alternatives to the LOTO standard, which include (1) complying with the minor servicing exception, the note contained in §1910.147(a)(2)(ii); (2) utilizing the cord and plug connected equipment or hot tap exemptions, §§1910.147(a)(2)(iii)(A) and (a)(2)(iii)(B); (3) effective machine guarding; (4) final actions granting LOTO standard variances; and (5) other applicable portions of 29 C.F.R. Part 1910 that prevent employee exposure to hazardous energy
• includes additional guidance of the minor servicing exception, specific energy control procedures, periodic inspections and unexpected energization
• adds vehicle repair and maintenance standards and practices to prevent the release of hazardous energy
• includes general reference material for information pertinent to hazardous energy control.

The DOL has published a Notice of Proposed Rulemaking under the FMLA and is now encouraging interested parties to submit comments on the proposed regulations by midnight, April 11, 2008. A copy of the Federal Register Notice, instructions for submitting comments and related documents are available at Wage and Hour’s FMLA Notice of Proposed Rulemaking Web site.

Employers who are interested in commenting on the new FMLA regulations can contact Bob Lian at Akin Gump Strauss Hauer & Feld LLP for guidance on crafting a regulatory comment that best protects employer interests.

The Wage and Hour Division of the Department of Labor (DOL) has published a new update poster for the expanded Family and Medical Leave Act (FMLA) coverage for American servicemen. Amended in the January 28, 2008 National Defense Authorization Act for FY 2008, the FMLA now permits a spouse, son, daughter, parent or next of kin of a service member to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Employers should immediately post the new poster, which is available on the DOL’s Web site at http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf. While numerous private vendors have begun offering revised FMLA compliance posters, these private-sector posters are not required for FMLA compliance. Rather, employers need only post the free poster available through the DOL Web site.

On March 6, 2008, the Senate Committee on Health, Education, Labor and Pensions (HELP) heard testimony related to the state of the economy and rising unemployment, including the consideration of measures to extend unemployment benefits (S.2544).

Committee Chairman Edward Kennedy (D-MA), who noted his previous unsuccessful attempts to include extension of unemployment benefits in recent economic stimulus legislation, introduced the measure on a stand-alone basis in January.

The proposed legislation would provide state governments with significant resources to extend unemployment benefits to out-of-work individuals for up to 20 weeks in most states, with benefits extending to 33 weeks in states with the highest levels of unemployment.

Sen. Mike Enzi (R-WY), ranking member of the committee, expressed his opposition to S.2544, instead urging improvements in federal education and job-training initiatives to combat unemployment. Former Senator and Secretary of Labor William Brock (R-TN), testified in favor of such initiatives, urging Congress to prioritize such programs, including a proposed Personal Competitiveness Account program that would allow workers to save for education and training throughout their careers.

On February 12, 2008, the House Education and Labor Subcommittee on Health, Employment, Labor and Pensions (HELP) held a hearing on the adequacy of existing anti-discrimination protections and the advisability of several legislative proposals. The subcommittee was particularly concerned with mandatory arbitration clauses in employment contracts, religious discrimination and employment protections for service-members, voluntary firefighters and emergency medical personnel.

The first group of witnesses spoke out against mandatory arbitration clauses and in favor of the arbitration prohibition section of the Civil Rights Act of 2008 (H.R.5129). Among the witnesses were Michael Foreman of the Leadership Conference on Civil Rights, who testified that most employees have no realistic choice other than to sign mandatory arbitration agreements, thereby signing away their rights to jury trials, and subjecting their claims to private arbitrators who have pro-employer incentives because they depend on employers for repeat business.

Mark De Bernado, executive director and president of the Council for Employment Law Equity, testified against the arbitration prohibition section of H.R.5129, which he warned would “effectively end arbitration in employment in America.” De Bernado outlined the benefits of alternative dispute resolution (ADR) for employers and employees, such as speedier resolution of disputes, increased chances for amicable resolution of employment problems and the same available remedies as litigation. De Bernado urged the subcommittee to codify commonly accepted elements of effective ADR programs as ADR “safeguards” rather than enacting H.R. 5129 and flooding the courts with litigation of formerly arbitrable claims.

The subcommittee also heard testimony about the Workplace Religious Freedom Act (H.R.1431) (WRFA), which would make it more difficult for employers to deny employee requests for accommodation of religious practices, including days off for religious holidays and the ability to wear religious clothing at work.

Several witnesses testified about proposed amendments to the Uniformed Services Employment and Reemployment Rights Act (USERRA) to include wages as a “benefit of employment” covered by the statute, prohibit discrimination against “potential applicants” for military service, explicitly permit disparate impact claims and require states receiving federal funding to waive their 11th Amendment immunity.

The subcommittee also heard testimony from witnesses about the alleged lack of employment protections for individuals who volunteer as firefighters or emergency medical service personnel.

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 legislation would prohibit video or audio monitoring of employees in restrooms, dressing rooms, or anywhere an employee would reasonably be expected to change clothing. An employer who violates the statute could be assessed a civil penalty of up to $18,000 per violation. The bill gives an employee affected by a violation a private right of action to obtain injunctive relief and damages not to exceed $25,000.

Status: On February 6, 2008, H.R.5228 was introduced by Rep. Andrews (D-NJ) and referred to the House Committee on Education and Labor.

Core Provisions: This bill would amend the Internal Revenue Code to eliminate taxation of non-economic damages awarded to unlawful discrimination plaintiffs and would allow for income averaging of back-pay and front-pay awards arising out of such employment claims.

Status: H.R.1540 was introduced in the House in March 15, 2007 by Rep. Lewis (D-GA) and was referred to the Committee on Ways and Means. S.1689 was introduced in the Senate by Sen. Bingaman (D-NM) on June 25, 2007 and was referred to the Senate Finance Committee.

 Core Provisions: The act would increase the annual H-1B cap and amend the Immigration and Nationality Act to exempt from the annual H-1B (specialty occupation) visa cap an alien who has: (1) earned a master’s or higher degree from an accredited U.S. university or (2) been awarded a medical specialty certification based on post-doctoral training and experience in the United States. Additionally, the act would increase worldwide immigration caps and exempts an alien who: (1) has earned a master’s or higher degree from an accredited U.S. university; (2) has been awarded medical specialty certification based on postdoctoral training and experience in the United States; (3) will work in shortage occupations; (4) has earned a master’s degree or higher in science, technology, engineering, or math and has been working in a related field in the United States during the three-year period preceding his or her immigrant visa application; (5) has extraordinary ability or received a national interest waiver; or (6) is the spouse or minor child of an employment-based immigrant. The act would also revise student visa provisions, authorize an L-1 (intracompany transfer) visa extension beyond the fifth or seventh year if the individual has a immigrant application pending, permit an alien with an approved labor certification to apply for permanent resident status adjustment if there is no visa immediately available by paying a $500 supplemental fee, direct the secretary of Homeland Security to establish a pre-certification procedure for employers who file multiple employment petitions, prohibit immigration application approval until background and security checks have been completed and any fraud allegations have been resolved, and authorize temporary workers (E, H, I, L O or P visas) who have not violated their status to renew their same category visa from within the United States.

Status: H.R.1930 was introduced by Rep. Shadegg (R-AZ) on April 18, 2007, and referred to the Judiciary Committee. On June 4, 2007, it was referred to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. S.1083 was introduced by Sen. Cornyn (R-TX) on April 10, 2007, and referred to the Judiciary Committee.

Core Provisions: Title I of this act would establish a program whereby aliens who can demonstrate a substantial past commitment to agricultural work in the United States are provided an opportunity to adjust their status to that of an alien in “blue card” status. Blue card status would be conferred upon an alien who: (1) has performed agricultural employment in the United States for at least 863 hours or 150 work days during the 24-month period ending on December 31, 2006; (2) applied for such status during the 18-month application period beginning on the first day of the seventh month that begins after the date of enactment of this act; (3) is otherwise admissible to the United States; and (4) has not been convicted of any felony or a misdemeanor, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500. Title I would also direct the secretary to adjust a blue card alien (and spouse and minor children) to permanent resident status if the alien has fulfilled specified periods of agricultural employment. Title II would reform the existing H-2A program for the temporary admission of alien agricultural workers. Employers desiring to employ H-2A aliens would need to first file an application with the secretary of Labor, including (1) a description of the nature and location of the job, (2) the job’s expected beginning and ending dates, (3) the number of jobs and (4) specified labor assurances respecting job opportunities covered by collective bargaining agreements and non-covered job opportunities.

Status: S.237 and S.340 were introduced by Sen. Feinstein (D-CA) on January 10, 2007, and January 18, 2007, respectively, and referred to the Judiciary Committee. H.R.371 was introduced by Rep. Berman (D-CA) on January 10, 2007, and referred to the Judiciary Committee. On February 2, 2007, it was referred to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. Leaders from both parties have indicated that reforming the agricultural worker visa program is a legislative priority.