On May 19, 2008, the Department of Labor issued a final rule changing the annual reporting requirements for veterans hiring by federal contractors. The rule was part of the implementing regulations for the Jobs for Veterans Act (”JVA”) (Pub. L. 107-288, 116 Stat. 2033).

Passed in November 2002, the JVA amended the Vietnam Era Veterans’ Readjustment Assistance Act by changing the substantive criteria for determining veterans’ eligibility and by changing the procedural mechanism federal contractors must use to comply with the law. The JVA increased the threshold amount for qualifying contracts from $25,000 to $100,000. In addition, the JVA eliminated presumptive coverage of Vietnam-era veterans and expanded coverage to include (1) “veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded;” (2) veterans who had been discharged or released from active duty within the past three years; and (3) veterans who were discharged or released from active duty because of a service-connected disability.

Under the new rule, federal contracts entered into on or after December 1, 2003 will be governed by the new 41 C.F.R. § 61-300.  Contracts entered into after that date worth more than $100,000 will require an annual filing of the new VETS-100A form with the DOL’s Veterans’ Employment and Training Service (”VETS”).  Older contracts will continue to be subject to the old 41 C.F.R. § 61-250, which requires filing of the VETS-100 form for any contract of $25,000 or more.

VETS acknowledges that the new rule will require some contractors to file both the old and new forms, but asserts that such a result is mandated by the statutory language.  VETS estimates that less than twenty percent of current contractors will have dual filing requirements.

Federal contractors covered by the JVA must file their first VETS-100A annual report by September 30, 2009.  Because the VETS-100A annual report requires federal contractors to collect data for the preceding 12-month period, covered contractors must start compiling information for the newly covered veterans starting October 1, 2008.

On May 14, 2008, Rep. McMorris Rodgers (R-WA) introduced legislation that would allow an employer to offer its employees the option of receiving paid time off in lieu of overtime wages. The Family-Friendly Workplace Act (H.R. 6025) would amend the Fair Labor Standards Act (FLSA) to permit employers to offer paid time off at a rate of one and a half hours of paid leave for each hour of employment for which overtime pay would ordinarily be required. The bill, which has 11 Republican cosponsors, has been referred to the House Committee on Education and Labor.

Under the bill, an employee would have to consent in writing to swap paid time off for overtime, and would be able to withdraw his or her request for the arrangement at any time. An employer would also have to pay out any accrued time within 30 days of receiving an employee’s written request. No employee could accrue more than 160 hours of compensatory time, and employers could provide monetary compensation for an employee’s unused accrued time in excess of 80 hours at any time after giving 30 days notice. 

The legislation would also require employers to set a twelve-month schedule and pay out any unused accrued compensatory time once a year. Employees agreeing to receive compensatory time off would have to have worked for the employer at least 1,000 hours in the preceding twelve months. An employer could only offer paid time instead of overtime to unionized employees in accordance with a collective bargaining agreement. Employers offering paid time off for overtime could discontinue the option at any time with 30 days notice to the employees, unless a collective bargaining agreement provided otherwise.

Core Provisions: This act would amend the Fair Labor Standards Act (FLSA) to permit employers to offer employees the choice of receiving paid time off in lieu of overtime wages. The legislation would permit employers to offer paid time off at a rate of one and a half hours of paid leave for each hour of employment for which overtime pay would ordinarily be required. An employee would have to consent in writing to swap paid time off for overtime, and would be able to withdraw their request for the arrangement at any time.

An employer would also have to pay out any accrued time within 30 days upon receipt of an employee’s written request. No employee could accrue more than 160 hours of compensatory time under the bill, and employers could provide monetary compensation for an employee’s unused accrued time in excess of 80 hours at any time after giving 30 days notice.

The legislation would require employers to set a twelve-month schedule and pay out any unused accrued time once a year. Employees agreeing to receive compensatory time off would have to have worked for the employer at least 1,000 hours in the preceding twelve months. An employer could only offer paid time instead of overtime to unionized employees in accordance with a collective bargaining agreement.  Employers offering paid time off for overtime could discontinue the option at any time with 30 days notice to the employees, unless a collective bargaining agreement provided otherwise.

Employers would be required to accommodate reasonable requests by employees to use accrued compensatory time under the arrangement. The bill also prohibits employers from intimidating, threatening, or otherwise interfering with employees’ right to choose to receive either paid time off or overtime wages.   

Status: H.R. 6025 was introduced by Rep. McMorris Rogers (R-WA) on May 13, 2008, and referred to the House Committee on Education and Labor.

On April 21, 2008, the Department of Labor’s Wage and Hour Division (”WHD”) issued a new opinion letter on the administrative exception to the minimum wage and overtime requirements of the Fair Labor Standards Act (”FLSA”). 

In the letter, the WHD found that a Product Technology Application and Marketing Analyst (”PTA”) was an exempt employee under the FLSA.  The PTA’s primary responsibility was to work independently with the company’s engineering team to measure the performance of new products.  The PTA spent approximately 30 percent of her time as a liaison to the company’s sales team, and was the sale representatives’ primary point of contact for technical advice. The remainder of the PTA’s time was spent performing standardized tests on the company’s products, and writing reports summarizing the results and making comparisons to competitors’ products.  

An employee is exempt from the FLSA’s overtime requirements only if: (1)  the employee is compensated on a salary or fee basis at a rate of not less than $455 per week, (2)  the employee’s primary duty consists of the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) the primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.  29 C.F.R. § 541.200(a). 

The WHD concluded that the PTA met the requirements of this test because (1) the PTA met the salary requirement; (2) “work directly related to the management or general business operations” includes the work that the PTA performed in such functional areas as quality control, research, and marketing; and (3) the PTA exercised “discretion and independent judgment” when the PTA carried out major testing assignments and made decisions about how the employer’s products compared against competitors’ products.

On May 5, 2008, OSHA published its agenda for regulations it has selected to review or develop over the next twelve months. OSHA has four regulatory items in the pre-rule stage and three in the proposed rule stage. While OSHA has published a schedule for these items, the published dates are tentative and subject to change.

Regulations in Pre-Rule Stage

In May 2008, OSHA will initiate a Small Business Regulatory Business Fairness Act (”SBRFA”) panel to discuss occupational exposure to diacetyl, a major component in artificial butter. On September 25, 2007, OSHA denied a petition by the United Food and Commercial Workers International Union and the International Brotherhood of Teamsters for an Emergency Temporary Standard for employees exposed to diacetyl. This SBRFA panel is an initial step to develop a proposed rule for controlling occupational exposure to diacetyl.  

By August 2008, OSHA plans to complete a peer review of the occupational exposure standard to crystalline silica as part of the process for developing a proposed standard for crystalline silica. This review will include an analysis of the possible health effects resulting from such exposure and the economic impact that recommended protective measures will have on employers. OSHA has already implemented a National Emphasis Program for occupational exposure standard. For details regarding the National Emphasis Program, please consult a prior Washington Labor & Employment Wire article.

By November 2008, OSHA expects to complete a peer review of occupational exposure to beryllium. In 2002, OSHA solicited information pertaining to exposure to beryllium, including the possible adverse health effects, exposure assessment and monitoring methods, and medical surveillance. OSHA plans to use this information to develop a proposed rule addressing occupational exposure to beryllium.

By November 2008, OSHA will complete a Section 610 (of the Regulatory Flexibility Act) review of its current Methylene Chloride Standard, 29 C.F.R. 1910.1052. This review will consider the need for standard; whether it overlaps, duplicates, or conflicts with other regulations; and the degree to which technology, economic conditions, or others factors have changed since the rule was last evaluated. 

Regulations in Proposed Rule Stage

In June 2008, OSHA will reopen the record on its Electrical Protective Equipment proposed rule to obtain additional information on minimum approach distances. OSHA published the proposed rule on June 15, 2005 and held a public hearing from March 6-14, 2006.  

In August 2008, OSHA will issue a proposed rule governing safe work procedures for work on cranes and derricks. OSHA will base the proposed rule on the consensus reached by the Cranes and Derricks Negotiated Rulemaking Committee in July 2004.  

In September 2008, OSHA will hold a public hearing on its Confined Spaces in Construction proposed rule. The comment period for the proposed rule ended on February 28, 2008. For details regarding the proposed rulemaking and the specific requests for comment, please consult April 29, 2008 and December 17, 2007 Washington Labor & Employment Wire articles.

 For a review of the entire DOL regulatory agenda, including OSHA, please consult the OSHA website.

Congressional Democrats continue to pressure OSHA to enhance its enforcement activities.  On April 29, 2008, the Majority Staff of the Senate Health, Education, Labor, and Pensions (”HELP”) Committee published a report, “Discounting Death:  OSHA’s Failure to Punish Safety Violations that Kill Workers.”

The Committee made the following findings in its report:

• Current enforcement tools OSHA has at its disposal - a maximum prison sentence of six months and a maximum civil penalty of $70,000 - are inadequate when compared to other regulations. In particular, the maximum prison sentence is lower than the sentence for mail fraud, improperly hunting migratory or wild birds, dealing in counterfeit obligations, operating certain criminal financial enterprises, and piracy. The maximum penalty is lower than civil penalties under the South Pacific Tuna Act, the Fluid Milk Promotion Act, and the Clean Air Act.
• OSHA conducts lenient enforcement efforts. In particular, OSHA reduces the initial penalty imposed on employers by almost 40%, lowers the classification of citations more than 20% of the time, and rarely seeks criminal prosecution on the worst offenders.
• OSHA has not collected $27.5 million in assessed penalties in fatality cases, or almost one half of such penalties.

OSHA has conducted follow-up inspections on only 514 of the 2,007 employers or establishments (25.6%) targeted in the Enhanced Enforcement Program. For more details regarding OSHA’s revised Enhanced Enforcement Program, please consult a prior Washington Labor & Employment Wire article.

For more details regarding Democrats’ other recent efforts, please consult a recent Washington Labor & Employment Wire post.

On April 8, 2008, DHS announced that it had received enough H-1B visa petitions to meet the cap for fiscal year 2009 (October 1, 2008 to September 30, 2009). H-1B visas may be granted to highly skilled, college-educated, temporary foreign workers for a maximum of six years, but only 65,000 H-1B visas may be issued per year. DHS’s Citizenship and Immigration Services received approximately 163,000 visa petitions during a five-day filing period, and the visas will be distributed via lottery. 

In March and April 2008, three bills were introduced to raise the annual H-1B visa cap and to recapture and redistribute unused visas from prior years. For summaries of the pending legislation, please see our posts on The Strengthening United States Technology and Innovation Now Act (H.R.5642), the Global Competitiveness Act of 2008 (S.2839), and House Bill H.R.5882.

On March 24, 2008, DHS published an interim rule amending its regulations (8 C.F.R. § 214) governing H-1B visa petitions filed on behalf of alien workers. The rule prohibits “a petitioner from filing more than one petition based on the H-1B nonimmigrant classification on behalf of the same alien temporary worker in a given fiscal year if the alien is subject to a numerical limitation or is exempt from a numerical limitation by virtue of having earned a master’s or higher degree from a U.S. institution of higher education.” 

The rule was written to prevent petitioners from unfairly attempting to increase their chances of being selected in the random H-1B visa lottery. Prior to this rule, when USCIS approved a petition for a specific individual, it denied any duplicate petitions subsequently adjudicated.  However, there were no adverse consequences for a petitioner that sought to maximize his or her chances in the lottery by filing multiple petitions. Now if a petitioner is found to have filed multiple petitions, all the petitions will be denied and the filing fees will not be refunded. If duplicate petitions are discovered after the worker is granted an H-1B visa, it will be revoked.   

Written comments concerning the interim rule must be submitted on or before May 23, 2008. Information on how to submit comments may obtained on the federal government’s regulations website.

On April 22, 2008, Rep. Stark (D-CA) introduced legislation that would create a Family and Medical Insurance Program providing twelve weeks of paid family and medical leave. The Family Leave Insurance Act of 2008 (H.R. 5873) would create a federal insurance fund established and administered by the Secretary of Labor. The fund would provide benefits for employees taking leave (1) because of a serious health condition, (2) upon the birth or adoption of a child, (3) in order to care for a family member, (4) due to any qualifying emergency arising from the fact that a spouse, child, or parent of the employee is on active military duty, or (5) in order to care for a family member who is a covered service member. Under the benefits proposal, most employees would contribute 0.2 percent of their annual earnings, and employers would match employee payments. Benefit amounts would be tiered progressively according to income level and indexed for inflation under the Social Security wage index. The bill would allow employers with an equivalent or better paid-leave plan to opt out of participating in the insurance fund.

The legislation also prohibits an employer from interference, discrimination, or retaliation concerning an employee’s exercise of rights under the act, and would give employees a corresponding private right of action. The Secretary of Labor would have investigative authority and would be authorized to bring an administrative or civil action. The bill also provides criminal penalties for knowingly submitting or helping another to submit a false certification in order to fraudulently collect benefits.    

Similar legislation introduced by Sen. Dodd (D-CT) on June 21, 2007 as the Family Leave Insurance Act of 2007 (S. 1681) has been referred to the Senate Finance Committee.  In addition, there are several other pending bills that would expand FMLA coverage, including the Crime Victims Employment Leave Act (H.R. 5845), Healthy Families Act of 2007 (H.R. 1542, S. 910), Family and Medical Leave Expansion Act (H.R. 1369), FMLA Amendment (H.R. 5090), and Military Family Job Protection Act (H.R. 3993, S. 1885).

On May 1, 2008, the House of Representatives passed the Genetic Information Nondiscrimination Act (H.R. 493) by a vote of 414-1. The bill, which was unanimously passed by the Senate on April 24, now moves to President Bush, who has indicated that he will sign the bill within the next two weeks. The House had previously passed an earlier version of this legislation in April 2007.

The bill prohibits employers from discriminating against employees on the basis of genetic information in hiring, firing, and other activities. It also prohibits health insurers from discriminating against individuals on the basis of genetic information and is intended to encourage individuals who might otherwise fear genetic discrimination to seek potentially beneficial genetic testing.

Former Republican presidential candidate Rep. Ron Paul (R-TX) cast the lone vote in opposition to the bill.