On September 24, 2008, the House passed by a voice vote the Railroad Safety Improvement Act (H.R. 2095), which increases rail employee training standards and modifies hours of service requirements. 

H.R. 2095, which also includes provisions reauthorizing Amtrak and providing funds to various rail safety initiatives, gained recent momentum following a tragic California train accident on September 12. Supported by the major rail unions and industry groups, the Act would provide resources to the Federal Railroad Administration (”FRA”), create minimum training standards for railroad workers, and strengthen FRA enforcement powers. H.R. 2095 requires the FRA to establish a certification program of conductors and requires a study on certification of other classes and crafts of rail employees.

The bill enhances various hours-of-service requirements to address fatigue among train and signal employees, who are currently forbidden from being required to be on duty more than 12 consecutive hours. H.R. 2095 provides that all train and signal employees are provided at least 10 consecutive hours of uninterrupted rest following 12 hours on duty (although this requirement would be suspended three years for passenger train employees during an FRA study of the issue). It also ensures that train and signal employees receive 48 consecutive hours off duty at their home terminals after each six days being on duty, and 72 consecutive hours off duty at their home terminals in the event they are required to work a seventh day.  

H.R. 2095 caps “limbo time,” the time spent by rail crews after completing service awaiting transportation or being transported to the point of final release. Although paid time, “limbo time” counts neither as time on duty or time off duty and does not currently count against the maximum daily 12 hours of service.

H.R. 2095 requires railroads to develop plans to limit and manage worker fatigue and prohibits railroads from interfering with or delaying medical treatment of injured workers and forbids disciplining workers for requesting treatment. It also mandates the implementation of a positive train control system by Class I railroads and intercity passenger and commuter railroads by the end of 2015. A positive train control system would allow for automatic control and stopping of locomotives in the event of a missed signal, providing a backup safety system in the event of a human error.

Although the compromise bill maintains widespread bipartisan support, Sen. Tom Coburn (R-OK), has stated he will delay the bill because it provides $1.5 billion to the Washington Metropolitan Area Transit Authority. This procedural delay requires Democratic Senate leadership to hold a cloture vote on the bill.

On Tuesday, September 23, 2008, the United States Senate Committee on the Judiciary held a hearing entitled “Barriers to Justice: Examining Equal Pay for Equal Work.”  The focus of the hearing was the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074 (May 29, 2007) and the legislative responses to that decision, including the Fair Pay Restoration Act (H.R. 2831, S. 1483). 

Under the Ledbetter decision, an employee has 180 days from the employer’s initial act of pay discrimination in which to bring an action.  The Fair Pay Restoration Act would supplant the Supreme Court’s Ledbetter decision by permitting employees to challenge each and every discriminatory paycheck the employee receives within a two year period before filing a claim, as long as the claim is filed within 180 days of receiving a discriminatory paycheck.   Senators Feinstein, Feingold, and Leahy gave statements in support of the Fair Pay Restoration Act, and the committee heard from three witnesses concerning an alleged judiciary bias against plaintiffs in employment cases.

Senator Feinstein shared statistics that she stated demonstrated the immediate and future impact felt by women and their families as a result of discriminatory pay policies.  She asserted that disproportionate pay not only harms women and their families now, but also in retirement when, as a result of their smaller paychecks, women collect smaller pension checks.

Senator Leahy noted that in the current economic downturn many Americans are struggling for basic necessities. “It is sad that recent decisions handed down by the Supreme Court and Federal appellate courts have contributed to the financial struggles of so many women and their families,” he contended.

Senator Feingold belittled the Supreme Court’s Ledbetter decision, calling it erroneous and stating that it ignores the realities of the American workplace in which most employees have no way of learning within 180 days that they are being discriminated against in terms of compensation.  Senator Feingold also responded to critics of the legislation, who charge that the Act would force employers to defend themselves in costly litigation, by stating that the Act will “only affect those employers who underpay and discriminate against their workers, hoping that employees, like Ms. Ledbetter, won’t find out in time.”

Lilly Ledbetter, the plaintiff at the center of the controversial Supreme Court decision and one of the three witnesses to testify before the committee, also argued that the current state of the law under the Supreme Court’s decision does not make sense given the realities of the American workplace.  Ms. Ledbetter told the committee her story, and specifically about how, after years of working for Goodyear, she learned that she was being paid substantially less than her male peers for identical work.  “Justice Alito and four other Supreme Court justices sent the message that it’s just tough luck for the employee - if she doesn’t complain at the time of the employer’s original decision, the employer gets to pay her less for the rest of her career,” stated Ms. Ledbetter.

In addition to Ms. Ledbetter, two attorneys also testified before the Committee.  Lawrence Z. Lorber, a management-side practitioner, and Cyrus Mehri, a plaintiff-side attorney, gave the committee their views on the Ledbetter decision, and what the decision says about the way the judiciary views employment cases and employment plaintiffs.  Mr. Mehri catalogued what he perceived as a growing judicial bias against plaintiffs in employment cases, and specifically employment discrimination plaintiffs.  Mr. Mehri opined that the Ledbetter decision is an example of such anti-plaintiff bias and concluded that the only way to counteract this bias is to diversify the judiciary by expanding the pool of judicial nominees. Mr. Lorber contradicted Mr. Mehri’s evidence by enumerating a number of recent Supreme Court decisions in employment cases that expanded protections for employees under the ADEA, Section 1981, ERISA, and Title VII.  Mr. Lorber asserted that the cases he cited, all of which were decided during the Supreme Court’s 2007-2008 Term, demonstrate that there is no “pro-employer” bias or “anti-plaintiff” bias when the Court interprets employment laws.

Mr. Lorber also offered criticism of the Paycheck Fairness Act (H.R. 1338), proposed legislation that 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.

OSHA recently released an August 26, 2008 interpretation letter regarding its “Recording Occupational Injuries and Illnesses” part 1904.  The standards in this part help employers determine which injuries and illness they should record and report to OSHA.  The interpretation letter considers whether injuries to employees are considered “recordable” and how they should be recorded under this part when confronted with the following four scenarios:

1.   If an employee’s surgery requires her to work at home instead of the office while she recovers, is the employer required to record it as “days away from work” under § 1904.7 even if the employee is able to perform all routine job functions?

§ 1904.7(b)(3) and (b)(4) require employers to record an injury or illness that either involves one or more days away from work or involves restricted work or a job transfer. In particular, §1904.7(b)(4)(i) states that “restricted work” occurs when an employer keeps “the employee from performing one or more of the routine functions of his or her job, or from working the full workday that he or she would otherwise have been scheduled to work.” OSHA concluded that if the employee does not work from home as part of her normal work schedule, the employer must record the case as days away from work. If, however, the employee’s normal work schedule did include working from home at least one day a week, the employer must record the case as restricted work because the employee did not work the full 8-hour day.

2.  If an employee parks his car in the company parking lot and injures himself by inadvertently slamming the car door on his finger, is this injury considered work-related under § 1904.5(b)(2)(vii)?

Under § 1904.5(b)(2)(vii), an injury or illness “caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work” is not a “work-related” injury that is recordable.  OSHA clarified that three factors must exist for an injury or illness to qualify for this exception: (1) it must occur during an employee’s commute; (2) it must occur in the employer’s parking lot or access road; and (3) it must result from a motor vehicle accident.  OSHA concluded that, because the injury did not involve a motor vehicle accident during the employee’s commute, the third requirement for § 1904.5(b)(2)(vii) does not exist.  Therefore, the employer must record this accident on its establishment log.

3.  If an employee suffers a knee injury because of a work-related fall on March 15, is diagnosed with a contusion, retires from her job for reasons wholly unrelated to the injury on April 15, continues to have pain from the March 15 fall, and has surgery to treat this pain on July 15, is this injury recordable? If so, how should the injury be recorded?

Under § 1904.7(b)(1), employers must record a work-related injury or illness if it results in death, days away from work, restricted work or transfer to significant injury or illness by a physician or other licensed health care professional.  Because the employee received the injury while employed and met the § 1904.7(b)(1) criteria when the employee received medical treatment in July, the employer must record the injury.

4.  If an employee who is on restricted work activity for a work-related injury is terminated because of that injury, should additional hours be added to the OSHA Form 300 when calculating the “total hours worked by all employees” so the number of hours can correspond to the number of restricted work activity days or days away from work that are estimated and added to the Form 300?

OSHA concluded that employers should not add additional hours to the total hours worked figure because neither OSHA nor the Bureau of Labor Statistics calculates its rates based on the number of days.  Instead, they calculate rates based on the number of cases.

On September 23, the House and Senate each approved Mental Health Parity legislation, but did so via differing legislative vehicles.  The House passed H.R. 6983, a stand-alone mental health parity bill, by a solid bipartisan majority: 376-47. The Senate, which saw a previous stand-alone bill go down to defeat at the hands of a Republican filibuster on July 30, overwhelmingly passed (by a 93-2 margin) energy and tax legislation, H.R. 6049, that included identical mental health parity language.  Both bills require health plans providing mental health coverage to provide mental health coverage in the same manner as other physical health conditions.

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.

Unlike the Senate bill which does not directly offset the costs of the mental health parity provisions, the House bill is paid for by a delay in a tax benefit to multinational corporations.  According to the Senate Finance Committee, the parity provisions are expected to cost nearly $4 billion over the next decade.  It is unclear whether the House or the Senate will move first towards adopting the other house’s bill in an effort to reconcile the parity provisions.

The Bush administration released a statement expressing support for the Senate energy and tax bill which includes the mental health parity language, H.R. 6049.

On September 23, 2008, after forty minutes of debate, the House suspended the rules and passed the Health Insurance Restrictions and Limitations Clarification Act of 2008 (H.R. 6908).  This legislation was previously titled the Health Insurance Source of Injury Clarification Act of 2008.

This legislation would amend the provisions of the Employee Retirement Income Security Act, Public Health Service Act, and Internal Revenue Code permitting group health plans to establish limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.  The new language would clarify that such limitations must be explicit and clear and disclosed to the plan sponsor in advance of the point of sale to the plan. The plan sponsor and issuer of the coverage would be required to make available to participants and beneficiaries prior to their enrollment and upon their enrollment a description of such limitations and restrictions in an easily understandable form.  The legislation was amended to clarify that providing such materials upon enrollment meant “at the earliest opportunity that other materials are provided.”

On October 6 and 7, 2008, OSHA will hold a public hearing to receive comments on its new proposed rule designed to clarify that noncompliance with the personal protective equipment and training requirements in the general industry, construction, and maritime standards will expose employers to liability and penalties on a per-employee basis.  The hearing will be held in the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue, N.W. Conference Room 6, Room C-5320, Washington, D.C. 20210.  The hearing will commence at 10:00 a.m. on October 6, 2008 and, if necessary, will continue on October 7, 2008 at 9:00 a.m.

If a party is interested in providing testimony during the hearing, it must notify OSHA in writing no later than September 26, 2008.  OSHA has also asked for each party’s testimony to be no more than 10 minutes.  If a party needs more than 10 minutes, it must submit a written request with its notice of intention stating: (1) how much time it seeks, (2) the topics it will cover, and (3) why it cannot cover these topics in 10 minutes.  The notice of intention to appear at the hearing may be submitted in three ways: 1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/, 2) send three copies to the OSHA Docket Office, Docket No. OSHA-2008-0031, Technical Data Center, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) if less than 10 pages, fax the comments to 202-693-1648.  Each submission must include the Agency name and Docket Number for this rulemaking: OSHA-2008-0031.

On September 23, 2008, the House Education and Labor Subcommittee on Workforce Protections held a hearing entitled “Child Labor Enforcement: Are We Adequately Protecting our Children?”

Although the hearing did not specifically address any pending legislation, several witnesses expressed their support for the “Children’s Act for Responsible Employment of 2007″ (”CARE Act”) (H.R. 2674), which is co-sponsored by Subcommittee Chair Woolsey (D-CA). 

The CARE Act would amend the Fair Labor Standards Act (”FLSA”) to (1) narrow the exemption for agricultural work to the employment of children working on their families’ farms; (2) increase civil penalties for child labor violations; (3) impose special criminal penalties for aggravated child labor violations; (4) require the Secretary of Labor to gather and analyze data on work-related injuries to children employed in agriculture; (5) impose additional employer reporting requirements for work-related injuries for employees who are minors; and (6) incorporate a pesticide-related worker protection standard. There has been no movement on this legislation since it was referred to the Workforce Protections Subcommittee on July 24, 2007.

Alexander Passantino, Acting Wage and Hour Administrator for the U.S. Department of Labor, testified that his agency continues to give high priority to child labor complaints.  Passantino cited the declines in workplace injuries and fatalities as an indicator of the success of the agency’s efforts.  He also highlighted the agency’s “YouthRules!” information campaign.

Norma Flores, a former child worker, testified about her experiences as a migrant worker on farms in the South and Midwest.  She testified that during the six years she worked in the fields, she never saw an inspector. She recalled deplorable conditions including a lack of bathrooms, nowhere for workers to clean pesticides off their hands, and no clean drinking water.  Flores testified that she and other child workers were regularly exposed to hazardous chemicals and dangerous tools and machinery, but had no health insurance.

David Strauss, Executive Director of the Association of Farmworker Opportunity Programs, testified that his staff had observed many child labor violations, and testified in favor of increased enforcement efforts and strengthening existing protections.  For example, he noted that California has heat illness prevention standards, but there is no such federal hazardous occupation order for excessive heat.

Sally Greenberg, Executive Director of the National Consumers League and Co-Chair of the Child Labor Coalition, testified that recent reports by her organization made recommendations to the Department of Labor (DOL) about how to strengthen protections for children in 2005 and 2006, but the DOL has implemented only a handful of those revisions. Greenberg noted that the number of child-labor investigations have declined drastically.  She recommended focusing enforcement efforts on the agriculture and meat-packing industries.  Greenberg also recommended increased funding for Wage and Hour investigators, eliminating special statutory exemptions for agricultural employment, and raising the minimum age for particularly hazardous work to 18.

On September 17, 2008, the House passed the ADA Amendments Act (ADAAA) (S. 3406) by voice vote.  The White House has indicated that President Bush will sign the bill.

Passed in the Senate by unanimous consent on September 11, 2008, this legislation would overturn a number of controversial U.S. Supreme Court decisions that have narrowed the scope of the ADA.  The legislation purports to return the ADA to its original scope as intended by Congress in 1990 by prohibiting courts from considering “mitigating measures” such as medication, prosthetics, and assistive technology in determining whether an individual is “disabled” under the ADA.  However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses.

A person is considered disabled under the ADA if they suffer from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Although the new legislation retains the previously-debated “substantially limits” language, the bill directs the Equal Employment Opportunity Commission to change the current regulations defining “substantially limits” as “significantly restricted” because such regulations are “inconsistent with congressional intent, by expressing too high a standard.”

A statement released by the White House after the House vote, indicated that the president “looks forward to signing the ADAAA into law.” If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.

Core Provisions: This untitled legislation purportedly intends to “protect the civil rights of victims of gender-motivated violence . . . by creating employer liability for negligent conduct that results in an individual’s committing a gender-motivated crime of violence against another individual on premises controlled by the employer.”  Where an employer’s negligent conduct results in a gender-motivated violent crime on the employer’s premises, this legislation would impose employer liability for compensatory and punitive damages and injunctive and declaratory relief.  The legislation directs the Equal Employment Opportunity Commission to create and provide materials to employers regarding personnel policies and safety standards to assist employers in avoiding liability under the bill.

Status: Rep. Maloney (D-NY) introduced H.R. 6927 on September 17, 2008, and it was referred to the House Committee on Education and Labor and the House Judiciary Committee.

Core Provisions: This legislation would amend the provisions of the Employee Retirement Income Security Act, Public Health Service Act, and Internal Revenue Code permitting group health plans to establish limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.  The new language would clarify that such limitations must be explicit and clear and disclosed to the plan sponsor in advance of the point of sale to the plan.  The plan sponsor and issuer of the coverage would be required to make available to participants and beneficiaries prior to their enrollment and upon their enrollment, a description of such limitations and restrictions in an easily understandable form.

Status: Rep. Burgess (R-TX ) introduced the Health Insurance Source of Injury Clarification Act on September 16, 2008, and it was referred to the House Committees on Energy and Commerce, Education and Labor, and Ways and Means.  On September 17, 2008, the House Energy and Commerce Committee held a mark-up session and ordered H.R. 6908 to be reported by a voice vote.