The Department of Labor (DOL) recently issued several new rules governing H-2A and H-2B visas, and the Davis-Bacon Act. 

H-2A Rule.  On December 18, 2008, theU.S. Department of Labor’s Employment and Training Administration (ETA) and Employment Standards Administration (ESA) published a final rule amending the H-2A program for employing foreign workers in temporary or seasonal agricultural jobs. The final rule re-engineers the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A (agricultural temporary worker) status. The final rule utilizes an attestation-based application process based on pre-filing recruitment and eliminates duplicative H-2A activities currently performed by State Workforce Agencies (SWAs). 

The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature. “Temporary or seasonal nature” means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers is truly temporary.

Under the new process, employers must complete a general attestation stating that they will abide by the H-2A process. Additionally, employers must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4)  recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment in which the  employer’s work is to be performed. Finally, employers must submit a job order to the applicable SWA. 

The rule also establishes enhanced penalties for violations and new tools to ensure employer compliance, including audits, revocation of approved labor certifications, increased debarment authority and substantial increases in fines - up to $100,000 for violations resulting in serious injury or death of a worker. The rule also will prohibit employers and recruiters from charging fees to workers for access to jobs, a practice that in the past has led to many reported abuses.  The rule will go into effect on January 17, 2009.

H-2B Rule.  On December 18, 2008, the U.S. Department of Labor’s Employment and Training Administration (ETA) and Employment Standards Administration (ESA) published a final rule amending the H-2B program for employing foreign workers not working in agricultural jobs. The final rule re-engineers the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the DHS to employ a nonimmigrant worker in H-2B status.

The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. 

To show a “one time occurrence,” the employer must establish that the employer has not employed workers to perform the services or labor in the past and the petitioner will not need workers to perform the services in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence. 

To show a “seasonal need,” the employer must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. 

To show a “peak load need,” the employer must establish that it regularly employs permanent workers to perform services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and that the temporary additions to staff will not become a part of the employer’s regular operation.

Similar to the new process for H-2A visas described above, the new H-2B visa rule also adopts an employer-attestation model. Under the threat of fines and other penalties, employers will attest that they have complied with all the H-2B program’s requirements and submit evidence of their recruitment efforts along with their application.  The DOL may debar for up to three years employers, attorneys and agents found to have committed fraud or willful misrepresentation concerning the H-2B employment-based immigration program, or failed to cooperate with Labor Department audits or investigations.

The regulations also allow the DOL to reinstate illegally laid off U.S. workers, assess civil monetary penalties up to $10,000 and award back wages for violations of the program.  The final rule is effective on January 18, 2009.

Davis-Bacon Rule. On December 19, 2008, the DOL’s Wage and Hour Division (WHD) published a final rule revising regulations under the Davis-Bacon and related Acts (DBRA) and the Copeland Anti-Kickback Act to discontinue the reporting of employee social security numbers and personal addresses on weekly certified payrolls. Instead, employers will be required to use individual identifying numbers for employees that, “in virtually all cases,” will be the last four digits of each employee’s social security number. 

The Davis Bacon and Related Acts (DBRA) requires all contractors and subcontractors performing work on federal or District of Columbia construction contracts or federally assisted contracts in excess of $2,000 to pay their laborers and mechanics not less than the prevailing wage rates and fringe benefits for corresponding classes of laborers and mechanics employed on similar projects in the area. The prevailing wage rates and fringe benefits are determined by the Secretary of Labor for inclusion in covered contracts.

Employers working under DBRA-covered contracts should redact this personal information from weekly submissions to the WHD.  The final rule is effective on January 18, 2009.

President-elect Obama is expected to announce his nomination of Congresswoman Hilda L. Solis from California as the new Secretary of Labor. The nomination ends weeks of speculation, with potential nominees including Harley Shaiken, Mary Beth Maxwell, former Rep. David Bonior, and Rep. Rosa DeLauro. Rep. Solis is a liberal Democrat who has voted with her party 98.4% of the time during the current Congress. Rep. Solis will be the third Hispanic nominated to a cabinet position by President-elect Obama, joining Gov. Bill Richardson (Commerce) and Sen. Ken Salazar (Interior).

While not a member of the House Committee on Education and Labor, Rep. Solis has served on the Committees on Energy and Commerce, Natural Resources, and Energy Independence and Global Warming.  Her voting record during her four terms in Congress reveals that she is sympathetic to numerous worker and union positions. 

Unions.  A strong supporter of union rights, Rep. Solis cosponsored the Employee Free Choice Act (EFCA) (H.R. 800). This legislation would (1) allow unions to gain certification with a card-check procedure instead of the traditional election process, (2) require binding arbitration for first-time contracts that are not concluded within 120 days, and (3) increase penalties for unfair labor practices committed by employers during initial bargainin. Labor unions invested heavily in the 2008 election, and the EFCA is their top legislative priority. 

Minimum Wages.  Rep. Solis has been a long-time supporter of increasing the minimum wage.  As a California state senator in 1996, she had a prominent role in the effort to increase California’s minimum wage to $5.75 per hour. In the House of Representatives, she cosponsored the Fair Minimum Wage Act (H.R. 2), which ultimately led to an increase in the federal minimum wage to $7.25 per hour (Public Law 110-28). 

Unemployment Benefits. In June 2008, Rep. Solis voted for the 13-week extension of unemployment benefits for workers who have lost their jobs in the recent economic downturn (Public Law 110-252). On her website, Rep. Solis argues that an extension of unemployment benefits is a cost-effective and fast-acting economic stimulus. 

 ”Green Collar” Jobs. Rep. Solis has actively supported increased investment in “green collar” jobs. These jobs include green building, energy efficiency retrofit and service, and renewable energies such as wind, solar and biofuels. She cosponsored the CLEAN Energy Act of 2007 (H.R. 6) that provided for $125 million for green collar job training. President Bush signed the CLEAN Energy Act into law on December 19, 2007 (Public Law 110-140). 

Anti-Free Trade. Rep. Solis has resisted any trade agreement that does not include strong labor, environmental, and human rights protections. She voted to suspend fast track procedures for the Colombia Free Trade Agreement because of workers rights violations and other human rights issues in Colombia. Rep. Solis also voted against the Central America Free Trade Agreement (CAFTA) and granting the President “Fast Track” trade negotiating authority.

Workplace Safety.  Rep. Solis supports expanded safety and health regulation. She cosponsored the Protecting America’s Workers Act (H.R. 2049), which would increase penalties against employers for worker safety violations, enhance protections for whistleblowers, and require employers pay for personal protective equipment that keeps workers safe. Rep. Solis has also supported increased funding for the Department of Labor to combat poor working environments, especially sweatshop activity in the United States and abroad.

Congress recently passed legislation (S. 3712) to correct a drafting error in the “Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008.”

The mental health parity law requires health plans providing mental health coverage to provide mental health coverage in the same manner as other physical health conditions. The new legislation clarifies that the effective date for the law’s provisions covering collectively bargained plans is January 1, 2010, not January 1, 2009.

The Senate passed the technical correction legislation by unanimous consent on November 20, 2008, the House unanimously passed the bill on December 10, 2008, and the President is expected to sign the noncontroversial legislation.

On December 12, 2008, OSHA published a final rule designed to clarify that noncompliance with the personal protective equipment (”PPE”) and training requirements in the general industry, construction, and maritime standards will expose employers to liability and penalties on a per-employee basis.

OSHA first requested comments when it published the proposed rule on August 19, 2008. After receiving fifty comments prior to holding a public hearing on October 6, 2008, OSHA made one change from the proposed rule by adding “other types of PPE” to 29 C.F.R. § 1910.9. 

With this change, this section of the rule now states: “[s]tandards in this part requiring the employer to provide personal protective equipment (PPE), including respirators and other types of PPE, because of hazards to employees impose a separate compliance duty with respect to each employee covered by the requirement.”

The final rule becomes effective on January 12, 2009. 

Legislation to relax pension plan rules for senior citizens and employers was introduced and passed in Congress late last week.  The “Worker, Retiree and Employer Recovery Act” (H.R. 7327) would suspend for one year the 50 percent tax penalty otherwise imposed upon seniors who do not make the minimum withdrawal required by their defined contribution retirement plans. 

The bill would also temporarily delay the designation of multi-employer plans as in endangered or critical status.  The bill provides that, for the October 1, 2008 through September 30, 2009 period, sponsors may elect to retain the plan’s status designation for the previous plan year.  For plans that were in endangered or critical status for the preceding year, the plan sponsor would not be required to update its plan or schedules as otherwise required by the Employee Retirement Income Security Act (ERISA).  The bill would also extend funding improvement periods for plans in endangered or critical status from 10 to 13 years, and for plans in seriously endangered status from 15 to 18 years.

The Worker, Retiree and Employer Recovery Act was introduced by Rep. Rangel (D-NY) on December 10, 2008, and the House passed the bill without objection that same day.  The Senate passed the legislation on December 11, 2008 by unanimous consent.

On December 11, 2008, the Equal Employment Opportunity Commission (EEOC) voted on proposed regulations to implement the ADA Amendments Act.  After contentious discussions in a meeting open to the public, the Commission split across party lines and the vote failed, with Republicans Naomi Earp and Constance Barker voting in favor of the proposed rule and Democrats Stuart Ishimaru and Christine Griffin voting against it. 

The Act, which was signed into law by President Bush on September 25, 2008 and takes effect January 1, 2009, requires the EEOC to promulgate regulations to implement the Act, but does not set a deadline for when the EEOC must have the regulations in place.  Commission Chair Earp had favored issuing an Interim Final Rule, which would take effect when issued, but because of opposition from the public, she agreed to submit a Notice of Proposed Rulemaking instead.

Prior to the actual vote, Commissioners Ishimaru and Griffin opposed presenting the proposed rule to the public because the Commission had not yet voted to approve the rule and because disagreements among the Commissioners made clear that the vote to approve the proposed rule would fail.  Commissioners Ishimaru and Griffin argued that disclosing the rule prior to Commission approval violated the Commission’s pre-decisional privilege and would also mislead the public as to the contents of the rule since the proposed rule would no doubt change.

Despite these objections, Commission Chair Naomi Earp allowed the Office of Legal Counsel to present selected portions of the proposed rule.  Commission Chair Earp and Commissioner Barker argued that the Commission had a duty to get the rule in place as quickly as possible because of the January 1, 2009 effective date of the Act.  Commissioners Ishimaru and Griffin cautioned against rushing to put out a document that was not ready and urged that it was more important to take the time to get it right. 

The Equal Employment Opportunity Commission (EEOC) announced that it would hold an open meeting on Thursday, December 11, 2008 to consider regulations to implement the ADA Amendments Act, which was signed into law by President Bush on September 25, 2008.

The ADA Amendments Act, which becomes effective on January 1, 2009, altered the definition of “disability” by rejecting certain Supreme Court decisions and portions of the EEOC’s ADA regulation. While the legislation retains the basic definition of a disability as an impairment that substantially limits one or major life activities, the statute expressly directs the EEOC to revise the portion of regulations that defines “substantially limits.” Although one would reasonably expect that the EEOC will issue some regulation by the end of the year to avoid having no position on the new definition, this definition may be further revised once the Democrats control the Commission following President-elect Obama’s inauguration.

 The meeting, which is open to the public, will be held at 2 p.m. in the Clarence M. Mitchell, Jr. Conference Room on the ninth floor of the EEOC Office Building, 1810 L Street N.W., Washington, DC 20507.

On December 2, 2008, OSHA announced that is has extended the public comment period for the proposed rulemaking for Cranes and Derricks in Construction by 45 days to January 22, 2009. The proposed rule was published on October 9, 2008 to increase the protection provided for employees against hazards associated with the use of cranes and derricks used in construction activities.

The comment period will remain open until January 22, 2009. Comments 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, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) fax the comments to 202-693-1648. Comments must include the Agency name and Docket Number for this rulemaking: OSHA-2007-0066.

On November 26, 2008, NLRB General Counsel Ronald Meisburg issued a Guideline Memorandum concerning an employer’s withdrawal of union recognition due to a loss of majority support in the bargaining unit. The memorandum updates prior guidelines issued shortly after the Board’s decision in Levitz Furniture Co., 333 NLRB 717 (2001).

In Levitz, the Board held that an employer may lawfully withdraw recognition from an incumbent union only if it can prove with objective evidence that the union has actually lost majority support. The Board allocated the initial burden of proof concerning loss of majority support to the employer. Once the initial burden is met, the General Counsel may then present rebuttal evidence showing that the union enjoyed majority support at the time of withdrawal or that the employer’s evidence is unreliable. The burden then shifts back to the employer to establish actual loss of majority status.

This Guideline Memorandum clarifies two important points in withdrawal of recognition cases. First, it states that the Board will not issue complaints in cases where the General Counsel’s office or regional offices has objective evidence that the union has lost majority support, even if the employer has no such evidence. 

Second, the memorandum clarifies what constitutes objective evidence sufficient to demonstrate actual loss of majority support. The evidence must be direct, untainted, and specific enough to show that a numerical majority of the bargaining unit - 50 percent or more - no longer supports the union. Thus, an anti-union petition signed by a majority of the bargaining unit that contains unequivocal language rejecting the union as a representative, a poll in which the majority of the bargaining unit rejects the union, or firsthand statements from a majority of bargaining unit employees rejecting the union are examples of objective evidence that would be considered sufficient to show loss of majority support. Circumstantial evidence of loss of majority support will be challenged as insufficient under Levitz.

The General Counsel’s office will determine on a case by case basis whether hearsay evidence of loss of majority status, such as hearsay evidence of employee sentiments or polling, is sufficient to demonstrate loss of majority support.