On July 28, 2008, the Department of Labor’s Wage and Hour Division (”WHD”) posted seven opinion letters offering guidance on the proper application of the Fair Labor Standards Act (”FLSA”). The opinion letters regarding missed meal breaks, on-call time, and required shoes are discussed in detail below. 

Missed Meal Breaks, Premium Pay Offset, Unrecorded Work and Rounding.  In Letter FLSA2008-7NA, the WHD addressed a series of issues concerning employer liability when an employee misses a scheduled meal break. 

First, if an employee fails to take a meal break and does not notify the manager that he did so in direct violation of company policy, then the employer is still responsible for compensating the employee for all hours worked including the time during the missed meal period. “Work not requested but suffered or permitted is work time.” 29 C.F.R. § 785.11. The employer is not required to pay overtime, however, unless the employee worked more than 40 hours in the workweek.  No straight-time compensation is due under the FLSA if the employee works less than 40 hours in the week as long as the amount of pay divided by the number of hours worked exceeds the minimum wage.

Second, the “missed meal” period is considered work time for purposes of determining overtime compensation. The employee must be paid for all hours worked at the agreed rate plus the overtime premium for all hours worked over 40 in a workweek. If the employee works more than 40 hours, the employee must also be paid all straight time wages due under any express or implied contract or applicable statute.

Third, if an employee is regularly scheduled to work 35 hours per week and begins work early or works after the regular finishing time, the additional straight work time must be compensated if the total number of hours exceeds 40 in the workweek.

Fourth, an employer’s written policy against working outside of the schedule would not, ipso facto, insulate an employer from having to pay the employee.  Rather, the effect of a written policy on an employer’s responsibilities is a fact-specific inquiry. See e.g., Chao v. Gotham Registry, Inc., 514 F.3d 280 (2d Cir. 2008). In general, “it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough.” 29 C.F.R. § 785.13.

Fifth, under sections 7(e)(5), (6), and (7) of the FLSA, certain premium payments made by employers for work in excess of specified daily or weekly standard work periods or on certain special days are regarded as overtime premiums. In such situations, the extra compensation provided by the premium rates need not be included in the employee’s regular rate of pay for the purpose of computing overtime compensation.

Sixth, under 29 C.F.R. § 785.48(b), an employer can round off an employee’s time to the nearest five minutes, or the nearest one tenth or quarter of an hour. This type of rounding is acceptable as long as it would not result, over a period of time, in a failure to compensate the employees properly for all the time they have actually worked. See Field Operation Handbook § 30a02(b).

Required Type of Shoes are Not Uniforms.  In Letter FLSA2008-4, the WHD Administrator addressed an issue concerning §3(m) of the FLSA. An employer who required employees to wear “dark-colored,” closed-toed shoes with a non-slippery bottom requested guidance on whether the shoe requirement constituted a “uniform.”

The Administrator explained that although there are no “hard-and-fast rules” in determining whether certain types of dress are considered uniforms for the purposes of compliance with the provisions of the FLSA, the WHD’s Field Office Handbook § 30c12(f) provides the following applicable principles: (1) “if an employer merely prescribes a general type of ordinary basic street clothing to be worn while working and permits variations in details of dress, the garments chosen by the employees would not be considered to be uniforms,” and (2) “where the employer does prescribe a specific type and style of clothing to be worn at work, e.g. where a restaurant or hotel requires a tuxedo or a skirt and blouse or jacket of a specific or distinctive style, color, or quality, such clothing would be considered uniforms.” Applying these principles, the Administrator found that the shoe requirement did not constitute a uniform and thus the employer was not responsible for the costs. 

The Administrator also addressed the issue of whether the employer may offer to advance the money necessary for employees to voluntarily purchase shoes from a shoe manufacturer and recoup the advance through payroll deductions where those deductions may cause the employee’s paycheck to fall below the minimum wage for each hour worked in the pay period. Section 3(m) includes as part of “wages” the “reasonable cost” to the employer for furnishing any employee with board, lodging or other facilities. The Administrator held that allowing employees to purchase shoes and then deducting the cost of the shoes from their wages is an allowable deduction because the shoes constitute “other facilities.” See Field Office Handbook § 30c03(a)(4) (”Goods and merchandise, such as clothing and appliances, may be considered ‘other facilities’ . . . Only the actual cost to the employer (not necessarily the retail cost) may be taken as a wage credit.”). The Administrator also determined that the same deductions were allowable for “tipped” employees.

On-call Time and Hours Worked.  In Letter FLSA2008-8NA, the WHD addressed an issue regarding compensability of on-call time was compensable. The employer, an ambulance rescue service, requested guidance on whether the on-call time spent by rescue employees is considered hours worked. Employees report to the squad house from 8:00 a.m. to 4:00 p.m. and are on call from 6:00 a.m. to 8:00 a.m. and from 4:00 p.m. to 6:00 p.m. five days a week without compensation. The employee has eight minutes to drive to the squad house if that employee receives an emergency call during the on-call period. The employee is paid one and one half times his or her hourly rate for the time spent on the emergency call. The number of calls to which the employee must respond varies. In the winter, the calls may occur every day. During the rest of the year, the employee may be called once or twice a week or, in some weeks, not at all.

Under 29 C.F.R. § 785.17, “[a]n employee who is required to remain on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on call.’” On the other hand, “[a]n employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.” Id.; see also 29 C.F.R. § 553.221(d).

The WHD found that the winter on-call time was compensable but that the summer on-call time was non-compensable. The time spent waiting on call during the winter season was sufficiently restrictive to make it compensable under the FLSA because: (1) the extremely short in-person response time precludes the effective use of the on-call time for all but the narrowest range of personal purposes (2) all of the on-call time must take place within a restricted geographic area to allow for such a rapid response, (3) the high number of call-ins (requiring one response every four hours), (4) the apparent impossibility of trading on-call responsibilities because both employees are on call five days per week, and (5) the inability to turn down any of the call-ins. The WHD also cautioned that if the frequency of calls in the non-winter months were to increase, the employees’ ability to use the on-call time effectively for their own purposes would need to be reevaluated. Similarly if the frequency of calls in winter months were to decrease to fewer than, on average, one call per four-hour shift, the conclusion that the employees are unable to use the on-call time for their own purposes would need to be reevaluated.

The other four WHD opinion letters concerned use of three-week pay periods, sale of novelty items at promotional events, status of “jailers” as “law enforcement personnel,” and application of the learned professional exemption to “service coordinators.”

 On July 31, 2008, by a margin of 247-178, House Democrats passed the Paycheck Fairness Act (H.R. 1338), with the support of 14 Republicans. The bill amends the Equal Pay Act, which prohibits sex-based wage discrimination. If signed into law, the Paycheck Fairness Act would eliminate the caps on punitive and compensatory damages in Equal Pay Act actions, make it more difficult for employers to establish the affirmative defense that a pay disparity is due to a factor other than sex, and eliminate such a defense where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences.Speaking in support of the bill, Rep. Slaughter (D-NY) described how the gender wage gap hurts not only women, but also families that depend on women’s earnings, especially single-mother households. Other Democrats who spoke in favor of the bill emphasized that it would also amend the Fair Labor Standards Act (FLSA) to prohibit employers from retaliating against employees who share their wage information with other employees.

Several Republicans, including Rep. Diaz-Balart (R-FL) and Rep. McKeon (R-CA), asserted that the issue having the biggest economic impact on all Americans is rising energy costs, and protested the majority’s blocking of Republican attempts to bring energy reform bills to the floor before the House breaks for a recess. Republican lawmakers also stated that wage discrimination on the basis of gender is already unlawful, and that by removing current damage caps this bill would benefit trial attorneys and encourage unsubstantiated claims. Rep. McKeon said, “we’re about to pass a bill that will bring a major payday to trial lawyers but will do nothing to ease the pocketbook concerns of hardworking American families.”

In a statement released July 30, 2008, the White House threatened to veto the bill because it would allow unlimited damages, “require the Department of Labor (DOL) to replace its successful approach to detecting pay discrimination with a failed methodology,” and would significantly change the “factor other than sex” affirmative defense, thereby imposing a “tremendous burden on employers.” During debate, Rep. Castor (D-FL) noted, “we are not going to give up just because the President has threatened a veto of this measure.”

Several important amendments to the legislation were passed on the House floor. The House passed an amendment which clarified that a plaintiff must show intent to discriminate by proving malice or reckless indifference in order to recover punitive damages.  Another amendment  removed the legislation’s expansion of protection for job applicants, who remain protected from sex discrimination under Title VII. The House also passed an amendment delaying the effective date of the bill by six months from the time of enactment and requiring the DOL to educate small businesses about what is required under law and assist them with compliance. Other amendments clarified that immigration laws would still be applicable regardless of the worker protections in the bill prohibited the grant program created by the Paycheck Fairness Act from being used for Congressional earmarks.

Falling nine votes short of the 60 needed to overcome a Republican-backed filibuster on July 30, the Senate was unable to advance a House and Senate compromise over mental health parity language which was attached to pending energy and tax legislation (S. 3335).

The mental health parity provisions would amend ERISA to require group health plans to administer treatment limitations, beneficiary financial requirements and out-of-network coverage so that mental health benefits are no more restrictive than “substantially all medical and surgical benefits.” The legislation would exempt group health plans of employers with fewer than 50 employees.

Senate Democrats, with a handful of Republicans, mustered only 51 votes for cloture. Previous stand-alone mental health parity legislation has passed both the House and Senate, with the House approving mental health parity legislation (H.R. 1424) on March 5 by a vote of 268-148, and the Senate approving similar but distinct legislation (S. 558) by unanimous consent in September 2007.

Congress will likely continue consideration of the mental health parity compromise legislation upon return from its August recess.

On July 29, 2008, the Senate Subcommittee on Employment and Workplace Safety held a hearing to examine whether OSHA is adequately enforcing its National Emphasis Program for combustible dust. 

The Subcommittee focused on the recent accident at the Imperial Sugar Refinery in Port Wentworth, Georgia on February 7, 2008, when 13 employees were killed and approximately 40 more were injured. After its investigation, OSHA issued citations alleging 69 willful and 51 serious violations at the facility and proposed more than $5 million in penalties. The House responded to this accident by passing the Combustible Dust Explosion and Fire Prevention Act of 2008 earlier this year. While OSHA Assistant Secretary Edwin Foulke highlighted OSHA’s current efforts to improve workplace safety with respect to hazards posed by combustible dust during this hearing, other witnesses discussed the deficiencies in OSHA’s current enforcement plan as well as possible solutions to protecting workers from future accidents.   

Secretary Foulke testified specifically about OSHA’s investigation of the Imperial Sugar accident as well as its efforts, in general, to protect employees who are exposed to combustible dust hazards. As for the investigation, Secretary Foulke stated that Imperial Sugar’s failure to comply with existing OSHA standards directly contributed to the explosion. In particular, he mentioned that OSHA discovered large quantities of combustible dust throughout the facility, a common result from poor housekeeping practices. The investigation concluded that a spark ignited this dust and created a primary explosion. The primary explosion then caused accumulated dust to become airborne, which then created a series of secondary explosions. OSHA concluded that Imperial Sugar management knew it had not been monitoring its dust accumulations for many years and was also aware of the hazards caused by combustible dust.   

On March 14, 2008, OSHA initiated an inspection of Imperial Sugar’s Gramercy, Louisiana refinery and discovered large quantities of combustible dust in the power mill. After Imperial Sugar did not take immediate action, OSHA posted an imminent danger notice and temporarily shut down the powder mill facility. Furthermore, OSHA issued 49 willful and 42 serious violations with proposed penalties of more than $3.7 million.  This proposed penalty, combined with the $5 million Port Wentworth penalty, resulted in the third highest proposed penalty in the agency’s history. 

Secretary Foulke also discussed the agency’s National Emphasis Program (NEP) on combustible dust. The NEP provides for increased enforcement of OSHA’s existing combustible dust standards, along with educational and outreach efforts for employers and employees. The NEP focuses on workplaces where combustible dust hazards are likely to be found and provides a list of materials that can generate combustible dust. Among the standards Secretary Foulke listed as part of the combustible dust rules, he emphasized OSHA’s Housekeeping (29 CFR 1910.22) and Electrical (29 CFR 1910.307) standards as the most critical. The Housekeeping standard helps prevent significant amounts of combustible dust from accumulating, which in turn reduces the likelihood of secondary explosions. The Electrical standard helps ensure that electrical ignition sources are not present in environments where combustible dust may become airborne. 

In addition, Secretary Foulke provided an update on the NEP. As of early July, OSHA and its state plan partners have opened 326 inspections under the combustible dust NEP. On June 6, 2008, OSHA sent a memorandum to all Regional Administrators and State Designees that all sugar refineries (beet and sugarcane) in the federal jurisdiction will be inspected under the NEP. OSHA also distributes compliance guidance to employers and employees for its combustible dust rules, including a 2005 Safety and Health Information Bulletin Combustible Dust in Industry:  Preventing and Mitigating the Effects of Fire and Explosions, e-Tools on its website, and an 80-page publication entitled Guide for Protecting Workers from Woodworking Hazards.  Furthermore, OSHA has been training its staff on combustible dust hazards. In December 2007, the OSHA Training Institute developed a three and one-half day course on Combustible Dust Hazards and Controls, which more than 100 federal and state OSHA personnel have completed. OSHA also provides refresher courses on combustible dust rules and hazards for its employees. 

Finally, Secretary Foulke mentioned that OSHA plans to take the following steps with respect to its combustible dust standards: (1) clarify how the OSHA Hazard Communication standard applies to combustible dust; (2) update the General Industry Housekeeping provision, 29 CFR 1910.22; (3) amend the Housekeeping requirement to state that it applies to accumulations of dust that contribute to an explosion hazard; and (4) consider other options upon the completion of the combustible dust NEP. 

The hearing also included testimony from John S. Bresland, Chairman and CEO of U.S. Chemical Safety & Hazard Investigation Board; Amy Beasley Spencer, Senior Chemical Engineer of the National Fire Protection Association; Richard W. Prugh, Senior Process Safety Specialist of Chilworth Technology, Inc.; and Imperial Sugar Company Vice President for Operations Graham H. Graham.

Bresland testified about the Imperial Sugar explosion as well as other explosions recently, a polyethylene dust explosion at West Pharmaceutical Services in Kinston, North Carolina and a resin dust explosion in CTA Acoustics in Corbin, Kentucky. The U.S. Chemical Safety Board (CSB) determined that all three explosions could have been prevented if the companies had followed the National Fire Protection Association (NFPA) recommendations for controlling dust hazards. Bresland stated that OSHA needed to develop a new standard, an emphasis program, and an awareness campaign of the risks and hazards associated with combustible dust. 

Beasley testified that the NFPA believes that OSHA is not doing enough to protect workers and should develop regulations that incorporate the relevant NFPA codes and standards. Beasley requested that the Senate ensure that OSHA mandates its combustible safety through the use of NFPA codes and standards.

Prugh testified that OSHA can improve its current enforcement mechanism and provided five documents that could serve as models or recommendations for new OSHA results regarding combustible dust.

On July 28, 2008, the Department of Labor (”DOL”) announced a Notice of Proposed Rulemaking to revise existing regulations under the Fair Labor Standards Act (”FLSA”). Billed as “clean-up” amendments, the new rules are an attempt to bring the regulatory regime into accord with new judicial and legislative developments. The proposed rules are the culmination of a decade-long initiative begun in 1996.

The proposed rulemaking would change the existing FLSA regulations in a number of ways:

Tips credits. The FLSA allows employers to use the money an employee receives in tips to count towards that employee’s total compensation for minimum wage purposes.  The proposed rules would incorporate 1974 and 1977 amendments to the FLSA’s tip credit provisions. Specifically, the proposed regulations specify that an employer could not take a tip credit unless “(1) [its] employee has been informed by the employer of the provisions of this subsection and (2) all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.” The proposed regulations would also allow an employer to claim credit against wages for the reasonable cost of providing employees with meals and may require their acceptance as a mandatory condition of employment.

Compensatory Time. In 1985, Congress changed the FLSA to allow public sector employees to receive compensatory time instead of overtime payments. Compensatory time can be used as leave; a typical compensatory time arrangement allows an employee to take every other Friday off if that employ accrues nine hours of overtime every two weeks. The proposed regulations would incorporate several Courts of Appeal decisions interpreting compensatory time. Specifically, the regulations outline an employer’s duty to grant an employee compensatory time off “within a reasonable period after [the employee] mak[es] the request” if the use of compensatory time does not unduly disrupt the agency’s operations.

Commute Time. The proposed regulations define certain circumstances when pay is not required for employees who use vehicles provided by their employers for home-to-work commuting purposes. Specifically, travel time is to be considered noncompensable if the use of the vehicle is ‘‘conducted under an agreement between the employer and the employee or the employee’s representative.” The agreement may be a formal written agreement, a collective bargaining agreement, or an understanding based on established industry or company practices.

Youth Opportunity Wage. The proposed regulations would also incorporate a youth opportunity wage that allows an employer to pay an employee under 20 years of age a minimum wage of $4.25 per hour during the employee’s first 90 consecutive calendar days of initial employment with the employer. The amendment also protects current workers by prohibiting employers from taking action to displace employees, including reducing hours, wages, or employment benefits, for the purpose of hiring workers at the opportunity wage.

Salesmen Exemption. The proposed regulations would incorporate developments in the salesmen exemption to the FLSA. Generally, salesmen are exempt from the FLSA’s overtime requirements. The proposed regulations would incorporate a 1974 Congressional amendment to extend the overtime exemption to include any salesman primarily engaged in selling boats and eliminated the overtime exemption previously provided for partsmen and mechanics servicing trailers or aircraft. The proposed regulations would also change the language to include “any salesman, partsman, or mechanic primarily engaged in selling and servicing automobiles.”

Minimum Tipped Wage. The proposed regulations would establish the minimum cash wage required to be paid to tipped employees at $2.13 per hour and would limit the allowable hourly tip credit to the difference between $2.13 and the applicable minimum wage required by section 6(a)(1) of the FLSA.

Agricultural Workers on Water Storage/Irrigation Projects. The proposed regulations would expand an existing FLSA overtime pay exemption for workers on ditches, canals and reservoirs to cover employees who spend 90 percent (rather than 100 percent) of the water is used for agricultural purposes.

Food Bank Workers. The proposed regulations would incorporate a 1998 amendment to the definition of “employee” that excludes individuals who volunteer solely for humanitarian purposes to private non-profit food banks and who receive groceries from those food banks.

Firefighters. The proposed regulations would add a new definition for employees engaged in “fire protection activities.” The new definition would include “a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous material worker, who-(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and (2) is engaged in the prevention, control,  and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.”

Stock Options Not Part of Regular Rate. The proposed regulations would specify that stock options meeting certain criteria were an additional type of remuneration that could be excluded from the regular rate when computing overtime pay.

Higher Minimum Wage. The proposed regulations would reflect the current tiered increase minimum wage: $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.

Fluctuating Workweek. The proposed regulations clarify the regulations governing the “fluctuating workweek” method of computing overtime pay for salaried nonexempt employees whose weekly work hours vary or fluctuate, and who receive a fixed salary as compensation (apart from overtime premiums) for whatever hours they are called upon to work in a workweek, whether few or many. The proposed clarifying revision would eliminate language that discourages employers from paying bonuses or premium payments in addition to salary (e.g., nightshift differentials or hazard pay) by sometimes invalidating the fluctuating workweek method of overtime computation where such payments are made.

The DOL will be accepting comments on the proposed regulations until September 11, 2008.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has launched two initiatives to aid veterans seeking jobs.

The first initiative, called Ensuring the Accessibility of Online Application Systems, is designed to ensure that federal contractors provide equal opportunities to qualified applicants with disabilities to compete for jobs when using an online application system. Electronic job application systems must be accessible to and usable by applicants who have disabilities. If the online systems are not accessible, the contractor must provide a reasonable accommodation that allows an equal opportunity to compete for a job, unless such an accommodation would cause undue hardship. All OFCCP compliance evaluations will now include a review of the contractor’s online application systems and whether reasonable accommodations are made when requested. Where a complaint is filed involving a federal contractor’s online application system, OFCCP will investigate the complaint rather than referring it to the EEOC.

The Good Faith Initiative for Veterans Employment (”G-FIVE”), creates an incentive for federal contractors to increase their employment of and affirmative action for covered veterans under the Vietnam Era Veterans’ Readjustment Assistance Act (”VEVRAA”) by creating factors by which a contractor can earn recognition as a G-FIVE contractor. Contractors that qualify for a G-FIVE rating will be excluded from an OFCCP compliance evaluation for three years following the date the recipient receives the rating.  Some factors include:

• Evidence of covered veterans in the contractor’s labor force;
• Evidence of an increase in the number of covered veterans in the contractor’s labor force;
• Number of partnerships with local veterans’ service organizations to employ or advance covered veterans;
• Recruitment efforts at educational institutions to reach students who are covered veterans;
• Number of job advertisements in the local community targeting veterans;
• Number of on-the-job training opportunities for covered veterans.

Based on the outcome of a full compliance review, each year the Regional Director will recommend contractors to the National Office that have demonstrated outstanding achievements in the employment of covered veterans.  Contractors may also self-nominate for recognition.

The three-year exclusion from OFCCP compliance evaluations will not apply where a complaint or investigation by the EEOC or a state agency suggests equal employment opportunity issues that warrant an evaluation.

On July 24, 2008, following an afternoon markup session, the House Committee on Education and Labor passed an amended version of the Paycheck Fairness Act (H.R. 1338) out of committee by a vote of 26 to 17, thus advancing the bill to the House floor. In an attempt to address ongoing pay disparities by gender, the Paycheck Fairness Act would eliminate the caps on punitive and compensatory damages in actions brought under the Equal Pay Act, and would make it more difficult for employers to establish the “bona-fide factor” affirmative defense. Under the Paycheck Fairness Act, the “bona-fide factor” defense would no longer be valid where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences.

The Committee passed the amendment proposed by Committee Chairman Miller (D-CA), which was a substitute version of the legislation. Miller’s amended version is similar to the original, but addresses some employer concerns by clarifying that employees would only be deemed to work in the same “establishment” for purposes of proving a pay disparity if the employees “work for the same employer at workplaces located in the same county or similar political subdivision of a State.” The amended bill also clarifies that the provision protecting employees from employer retaliation would not apply to employees with access to wage information by virtue of their job duties who disclose other employees’ wages, unless the disclosure is in response to a complaint or charge or in furtherance of an investigation. Where the original legislation appropriated “such sums as may be necessary,” the version passed by the committee would authorize a $15 million appropriation.

Several proposed amendments failed to pass, including two amendments by Rep. Price (R-GA), which would have made implementation of the Act contingent upon a 90-day study by the Department of Labor on whether the bill would hinder recruitment and hiring, and limited reasonable attorney’s fees under the act to $2,000 per hour. Several proposed amendments were ruled non-germane by Chairman Miller. These included an amendment proposed by Rep. McMorris Rodgers (R-WA) mirroring her proposed Family-Friendly Workplace Act (H.R. 6025), and an amendment proposed by Rep. McKeon (R-CA) requiring a study on how rising energy costs exacerbate the impact of wage disparities for American families.

On July 22, 2008, in response to a spate of unfair labor practice charges involving employees disciplined after participating in demonstrations organized to protest immigration legislation, NLRB Geneeral Counsel Ronald Meisburg released a new Guideline Memorandum to aid employees, unions, and employers in determining what kind of political activity is protected by the “mutual aid or protection” clause of Section 7 of the National Labor Relations Act. The General Counsel noted that “[a]s a matter of enforcement policy under the Act, we do not want to equate political disputes with labor disputes, or promote the use of strikes and similar activity for resolving what are essentially political questions.”Section 7 of the Act protects an employee’s rights to engage in concerted activity for “mutual aid or protection.” The Board and the Supreme Court have interpreted this clause as protecting employees when they engage in political activity “in support of employees of employers other than their own” or seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.”

The test that the Board uses to determine if employee political activity is protected is “whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.” Thus, if the subject of an employee’s advocacy is directly related to employee working conditions, that advocacy has met a threshold requirement for Section 7 protection. Based on this criteria, the demonstrations against proposed immigration legislation that would require prospective employees to obtain certain clearances before working in this country and would mandate prospective employers to verify each employee’s paperwork seemingly fall under the “mutual aid or protection” clause.

Political activity that is not related to employee working conditions is not protected under the “mutual aid or protection” clause. Examples of unprotected political advocacy include complaints to governmental bodies that do not involve working conditions, and distribution of leaflets calling for the election of certain candidates without reference to any particular employment-related issues or that promote the creation of a workers’ party generally.

Political advocacy that concerns employee working conditions may still be unprotected if the means employed to carry out that advocacy are improper. Once the subject of the activity is determined to be employment related, it must be determined whether the means employed are protected. Political advocacy concerning a specifically identified employment condition is protected if it is not disruptive of work operations and occurs during non-work time and in non-work areas.

An employer may impose lawful and neutrally-applied work rules to restrict employment related political advocacy that occurs on-duty or to discipline employees who leave or stop work to engage in employment related political advocacy.

On July 23, 2008, the Employee Benefits Security Administration (EBSA) published a proposed rule making it easier for participants covered by 401(k)-type plans to make informed retirement savings decisions.

Currently, there are approximately 437,000 participant-directed individual account plans (e.g., 401(k) plans) that cover an estimated 65 million participants. Because participants and beneficiaries are increasingly responsible for making their own retirement savings decisions, there is a heightened concern that these individuals do not have the information necessary to make informed decisions. The proposed regulation contemplates the disclosure of certain plan and investment-related information, including fee and expense information, to these participants and beneficiaries. 

As part of the proposal, EBSA would require plan fiduciaries to make available basic information about the plan and its investment options on a regular basis, such as: (a) different options available under the plan; (b) how to give investment instructions; (c) information about investment returns and fees and expenses; and (d) how to obtain more detailed information. The agency has also developed a model chart to provide investment-related information in a user-friendly format, but the agency will also allow plan fiduciaries the flexibility to design their own charts or comparative formats.   

Written comments on the proposed regulation should be received by the Department of Labor on or before September 8, 2008. To submit comments electronically, email e-ORI@dol.gov (enter into subject line: Participant Fee Disclosure Project), or use the Federal eRulemaking portal at http://www.regulations.gov/. Interested parties may also send comments to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Attn: Participant Fee Disclosure Project, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.

On July 22, 2008, the EEOC has issued a new Compliance Manual Section concerning workplace discrimination on the basis of religion. The new manual is intended as an overview of religious discrimination case law and the EEOC’s own views on the subject in order to provide “a practical resource for employers, employees, practitioners, and EEOC enforcement staff” in navigating the religious discrimination provisions of Title VII. The EEOC’s regulations on religious discrimination, 29 C.F.R. § 1605, are not affected by the manual.

The manual first addresses coverage issues, such as the definition of “religion” and a “sincerely held” belief under Title VII. The manual emphasizes that Title VII’s definition of religion is very broad, intended to cover all aspects of religious observance and traditional and non-traditional beliefs alike. The section further notes that religious discrimination protections extend to those with no religious beliefs at all. 

Next, the manual provides an analysis of disparate treatment claims of religious discrimination and workplace harassment based on religion. The manual also discusses what constitutes a “reasonable accommodation,” addressing both the scope of the accommodation required and common methods of religious accommodation used by employers. Lastly, the manual discusses the intersection of religious discrimination with other similar forms of discrimination, such as discrimination based on national origin or race.

The EEOC issued the new manual in response to rising claims of religious discrimination and at the request of agency officials involved in investigating and prosecuting these claims. The EEOC speculated this rise in claims may be attributable to an increase in religious pluralism, noting that as religious diversity in the workplace has increased, charges of religious bias may have risen in response. Religious discrimination claims filed at the EEOC have climbed from 1,388 in 1992 to a record 2,880 in 2007.