On February 25, 2009, the Equal Employment Opportunity Commission (”EEOC”) distributed advance copies of a proposed rule under the Genetic Information Nondiscrimination Act (”GINA”).

GINA, which was signed into law on May 21, 2008, prohibits health insurers and employers from discriminating against someone on the basis of their genetic information. The EEOC is responsible for developing implementing regulations by May 21, 2009 for Title II, which (1) prohibits employers from discharging, refusing to hire, or otherwise discriminating on the basis of genetic information, (2) bars employers from intentionally acquiring genetic information about applicants and employees, and (3) imposes strict confidentiality requirements regarding genetic information. Title II will become effective on November 21, 2009.

The proposed regulations provide additional guidance regarding some of the terms used in the Act. For example, the regulations define “employee” to cover not just current employees, but also applicants and former employees. The proposed rule also clarifies that drug and alcohol tests are not “genetic tests,” and invites comments on the scope of the term “genetic test,” specifically, “how the term should be applied, whether the proposed regulation should be more or less expansive, and whether it or the preamble should provide examples of what should be included or excluded.”

GINA provides six exceptions to the statutory sections prohibiting employers from acquiring genetic information. The proposed regulation addresses each of the exceptions, which are (1) where the employer inadvertently obtains genetic information; (2) where the employer offers qualifying health or genetic services, including such services offered as part of a voluntary wellness program; (3) where the employer requests family medical history to comply with the certification provisions of the Family and Medical Leave Act (”FMLA”) or state or local family and medical leave laws; (4) where the employer acquires genetic information from documents that are commercially and publicly available, including print and Internet publications, except that an employer may not research medical databases or court records for the purpose of obtaining genetic information about an individual; (5) where the employer acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace, provided that the employer complies with monitoring restrictions provided in the proposed regulation; (6) where an employer that conducts DNA analysis for law enforcement purposes requires genetic information of its employees, apprentices, or trainees for quality control purposes to detect sample contamination.

In the proposed rule, the EEOC states that it is specifically seeking comment on subtleties of three of these exceptions: (1) what constitutes “voluntary” with respect to the employer-provided wellness program exception; (2) what should be included in the “commercially and publicly available” exception, particularly with respect to blogs and social networking sites; and (3) how the law enforcement exception should be applied.

The proposed regulation also reiterates the statutory prohibition against retaliation where an individual opposes any act made unlawful by GINA, files a charge of discrimination or assists another in doing so, or gives testimony in connection with a charge. The proposed regulation also addresses treatment and disclosure of genetic information, medical information that is not genetic information, enforcement and remedies, and the relationship of GINA to other laws.

At the February 25, 2009 EEOC meeting, Acting Chairman Stuart Ishimaru clarified that the 60-day comment period would not commence until publication of the Notice of Proposed Rulemaking (”NPRM”) in the Federal Register, which is anticipated on February 26th or 27th. Comments should be sent to the EEOC through the federal e-Rulemaking portal at http://www.regulations.gov/.

On February 25, 2009, the Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss its proposed regulations for the Genetic Information Non-Discrimination Act (GINA). The EEOC distributed advanced copies of the proposed regulations and announced that it would be publishing a Notice of Proposed Rule Making (NPRM) later this week.

GINA, which was signed into law on May 21, 2008, prohibits health insurers and employers from discriminating against someone on the basis of their genetic information.  The EEOC is responsible for developing implementing regulations by May 21, 2009 for Title II, which (1) prohibits employers from discharging, refusing to hire, or otherwise discriminating on the basis of genetic information, (2) bars employers from intentionally acquiring genetic information about applicants and employees, and (3) imposes strict confidentiality requirements regarding genetic information.  Title II will become effective on November 21, 2009.

The meeting opened with a summary of GINA, presented by Christopher J. Kuczynski, Assistant Legal Counsel-ADA Policy Division. Five panels with varying backgrounds and perspectives on the proposed rules than spoke, and the meeting ultimately concluded with a group discussion with all the panelists. 

Many of the panelists addressed their comments to the six exceptions to the statutory sections prohibiting employers from acquiring genetic information. Employers are allowed to acquire genetic information: (1) where the employer inadvertently obtains genetic information; (2) where the employer offers qualifying health or genetic services, including such services offered as part of a voluntary wellness program; (3) where the employer requests family medical history to comply with the certification provisions of the Family and Medical Leave Act (”FMLA”) or state or local family and medical leave laws; (4) where the employer acquires genetic information from documents that are commercially and publicly available, including print and Internet publications, except that an employer may not research medical databases or court records for the purpose of obtaining genetic information about an individual; (5) where the employer acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace, provided that the employer complies with monitoring restrictions provided in the proposed regulation; or (6) where an employer that conducts DNA analysis for law enforcement purposes requires genetic information of its employees, apprentices, or trainees for quality control purposes to detect sample contamination.

The first panelist was Susannah Baruch, Law and Policy Director of the Pew Genetics and Public Policy Center at Johns Hopkins University.  Baruch expressed concern over the inadvertent disclosure and wellness program exceptions to the prohibition against acquiring genetic information. While Baruch testified that GINA largely accords with the existing requirements of Title VII, the FMLA, and the Americans with Disabilities Act (ADA), she also stressed the importance of definitions in the statute and the need for the EEOC to adopt a flexible approach to the regulations. 

The second panelist was Jeremy Gruber, President and Executive Director of the Council for Responsible Genetics. In contrast to Baruch, Gruber argued that GINA had changed the existing law in such ways as by prohibiting employers from testing employees as part of a toxic exposure monitoring system. Gruber also testified that greater clarity was needed regarding the inadvertent disclosure and voluntary wellness program exceptions to the acquisition prohibitions.

The third panelist was Rae T. Vann, the General Counsel for the Equal Employment Advisory Council. Vann requested clarification that employers would not violate GINA by (1) requesting genetic information as part of a good faith effort to comply with the FMLA or the ADA’s “reasonable accommodations” provisions or by (2) treating confidential genetic information in accordance with the existing confidentiality provisions in the Health Insurance Portability and Accountability Act (HIPAA), FMLA, and ADA.  Vann also sought clarity regarding the publicly available exception to the acquisition prohibits and the prohibitions against seeking genetic information regarding employees’ family members.

The fourth panelist was Karen Elliott, a member of the Society for Human Resource Management. She testified that the EEOC must give more guidance on the inadvertent disclosure exceptions to the acquisition prohibition. Additionally, Elliott stressed the need for the EEOC to synchronize GINA requirements with existing regulations for the ADA, FMLA, and Title VII. 

The fifth panelist was Andrew J. Imparato, President and CEO of the American Association of People with Disabilities. He testified that the EEOC should partner with the Department of Labor (DOL) to institute a joint training program to educate the workforce about their rights to genetic privacy. Imparato also expressed concern about the growth of genetic information technologies and cautioned that the advent of future technologies requires a versatile application of GINA’s protections. 

After the five panelists concluded their testimony, they answered questions from the EEOC.  Christine M. Griffin, Acting Vice-Chair, asked about the appropriate level of detail in the regulations and about a potential joint training program. The panelists agreed that greater detail in the regulations and a training program would both be beneficial. 

Commissioner Constance S. Barker then asked about the toxic substance monitoring exception and whether an employer could transfer an employee who refused to take a test. Gruber, Imparato, Elliott and Baruch all answered that, if the employer transferred the employee, then the employer would have to “make the employee whole” by making up any difference in compensation. Vann expressed a concern that not allowing the employer to transfer the employee would be an excessive restraint on the employer’s ability to conduct business. However, Commissioner Barker stated that she believed employees who refused to take a test would be waiving their right to sue if they subsequently developed an injury. 

While advance copies of the proposed regulations distributed at the meeting, Acting Chairman Stuart Ishimaru clarified that the 60-day comment period would not commence until publication of the Notice of Proposed Rulemaking (”NPRM”) in the Federal Register, which is anticipated on February 26th or 27th. Comments should be sent to the EEOC through the federal e-Rulemaking portal at http://www.regulations.gov/. 

On February 25, 2009, House and Senate Republicans introduced the Secret Ballot Protection Act (”SBPA’), which would require secret ballot elections to form a union.

Introduced in the House by John Kline (R-MN), Tom Price (R-GA), and Buck McKeon (R-CA) and in the Senate by Jim DeMint (R-SC) and Mike Enzi (R-WY), the bill would amend the National Labor Relations Act to make it an unfair labor practice for an employer to recognize or bargain with a union that has not been selected through a secret ballot election conducted by the National Labor Relations Board (”NLRB”). It would also be an unfair labor practice for a union to cause or attempt to cause an employer to recognize or bargain with a union that has not been selected in a secret ballot election conducted by the NLRB. 

The legislation is intended in part as a counter to the proposed Employee Free Choice Act (”EFCA”), which would allow employees to unionize through a “card-check” recognition procedure. Under current law, a union can become the certified bargaining representative of a group of employees if it prevails in a secret-ballot election supervised by the NLRB or if the employer agrees to recognize the union voluntarily after the union shows it has support from more than 50 percent of the employees. In actual practice, many employers insist on a secret-ballot election before they will recognize a union. EFCA, expected to be introduced soon by congressional Democrats, would allow a union to become the certified bargaining representative of employees by showing that it collected authorization cards from a majority of the employees.

Legislation similar to SBPA was introduced in the 108th, 109th, and 110th Congresses, but failed to make it out of committee.

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act, the well-publicized $787 billion stimulus package designed to promote economic recovery and minimize unemployment (H.R. 1). The Senate and the House passed a joint version of the bill on February 13, 2009.

The final version of the Act omitted the controversial E-Verify requirements included in prior House versions of the bill.  The provisions would have prohibited certain federal contractors from receiving any stimulus funding unless they used the E-Verify system, an internet-based system that allows employers to verify employees’ work eligibility and is jointly administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services and the Social Security Administration. Opponents of E-Verify had criticized its error rate.    

The final version of the Act provides whistleblower protections to employees of any private, state, or local government entity that receives a contract, grant, or other payment from the stimulus’s funds. Under the whistleblower provisions, an employer cannot discharge, demote, or take any adverse employment action against an employee who reports evidence of: (1) gross mismanagement of a contract or grant, (2) a gross waste of covered funds, (3) a substantial and specific danger to public health or safety related to the implementation of stimulus funds, (4) an abuse of authority related to the implementation of stimulus funds, or (5) a violation of law, rule, or regulation related to a contract awarded as part of the stimulus. 

A person alleging a violation of these provisions shall submit a complaint to the inspector general of the agency administering the contract.  If the inspector general denies the employee relief or fails to issue a decision within 210 days of the filing of the complaint, the employee has the right to bring a complaint for a jury trial in federal court.  Preexisting mandatory arbitration clauses, except for those negotiated in the context of a collective bargaining agreement, are not binding on claims arising out of the stimulus’s whistleblower provisions.

Core Provisions: This legislation would amend the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code to prohibit insurers from excluding individuals with “preexisting conditions.” The legislation also prohibits health maintenance organizations (HMO) from using “affiliation periods,” which are periods that must elapse before an insurance policy becomes effective.  The legislation mandates that insurers publicly disclose the premiums associated with each type of coverage, and it prohibits the use of varying coverage rates within the same geographic area. The bill also authorizes the Secretary of Health and Human Services to establish rules to deter individuals from (1) enrolling for coverage only after they develop an illness, or (2) disenrolling for periods in which they are less likely to require coverage.

Status: Rep. Steve Kagen (D-WI) introduced the bill on February 13, 2009, with no cosponsors.  The bill was referred to the Committees on Energy and Commerce, Education and Labor, and Ways and Means. Rep. Kagan introduced identical legislation in the 110th Congress on February 14, 2008. That bill was referred to the House SubCommittee on Health and was not acted upon thereafter.

Core Provisions: This legislation 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. Employees 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 off 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. 933 was introduced by Rep. McMorris Rodgers (R-WA) on February 10, 2009 and referred to the House Committee on Education and Labor. Rep. McMorris introduced identical legislation in the 110th Congress on May 13, 2008. That bill was referred to the House Committee on Education and Labor and was not acted upon thereafter.

On February 10, 2009, the Senate passed an amended version of the American Recovery and Reinvestment Act of 2009 (H.R. 1), known as the economic stimulus package, by a vote of 61 to 37. Unlike the House’s version, the $838 billion package does not include a provision requiring federal contractors who receive funds to use the E-Verify system.

The inclusion of E-Verify in the stimulus package has been controversial. The House’s version of the bill, which was passed on January 28, 2009, prohibits certain federal contractors from receiving any stimulus funding unless they use the E-Verify system. E-Verify is an internet-based system jointly administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services and the Social Security Administration that allows employers to verify employees’ work eligibility. Opponents of E-Verify have criticized its error rate.    

On February 11, 2009, Senate and House leaders reached agreement on a final version of the economic stimulus package, which is reported to be worth $789.5 billion. A copy of that bill has not yet been made publicly available. The legislation now makes it way to the House, which is expected to vote on it as early as Friday, February, 13, 2009.

On February 6, 2009, President Obama signed an executive order, effective immediately, that encourages executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects where the total cost to the federal government is at least $25 million. This order comes just one week after Obama signed three orders in support of organized labor.   

The order defines a project labor agreement as a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project. In addition, the order provides specific terms that a project labor agreement must include, such as: (1) bind all contractors and subcontractors on the construction project; (2) allow all contractors and subcontractors to compete for contracts and subcontracts without regard to whether they are parties to collective bargaining agreements; (3) include guarantees against strikes, lockouts, and similar job disruptions; and (4) provide other mechanisms for labor-management cooperation on matters of mutual interest, including productivity, quality of work, safety, and health. 

The order revokes Executive Orders 13202 and 13208, signed by President Bush on February 17, 2001 and April 6, 2001, respectively. Executive Order 13202 stated that an executive agency could not require or prohibit bidders, offerors, contractors, or subcontractors to enter into agreements with one or more labor organizations on the same or other related construction projects. Executive Order 13208 required government neutrality toward a contractor’s labor relations in connection with federal and federally-funded construction projects.

On February 9, 2009, the House passed the Airline Flight Crew Technical Corrections Act (H.R. 912) by voice vote. The bill would amend the Family and Medical Leave Act (FMLA) by expanding coverage for flight attendants and pilots.

Enacted in 1993, the FMLA provides that covered employers must grant eligible employees up to 12 weeks of unpaid leave within a 12-month period for the birth and care of a newborn child, the adoption of a child, the care of an immediate family member with a serious health condition or medical leave when the employee himself or herself is unable to work due to a serious health condition. Employees are generally eligible to receive this leave if they have been employed (1) for at least 12 months by the employer, and (2) have worked at least 1,250 hours within the previous 12 months.

The bill would expand FMLA coverage for flight attendants and pilots by rendering them eligible to receive the FMLA leave so long as they had worked or been paid for 60 percent of the “applicable monthly guarantee,” or the equivalent annualized over the preceding 12-month period, and for a minimum of 504 hours during the same period. An “applicable monthly guarantee” is the time employers schedule flight crews, including time spent on the job between flights or on mandatory standby. 

The bill, which had 53 co-sponsors including members from both parties, was introduced by Rep. Tim Bishop (D-N.Y.) on February 9, 2009. The House suspended the rules, debated the bill, and passed the bill later that day. A parallel provision is expected to be introduced in the Senate soon.

The House had previously passed a similar bill during its last term (H.R. 2744, 110th Cong.), but the Senate failed to act on the bill before Congress adjourned.

Core Provisions: This legislation would require entities that receive or have received emergency economic assistance under the Troubled Assets Relief Program (TARP) to cap annual compensation to officers, directors, executives, or other employees.  The TARP program is part of the federal government’s program passed in October 2008 to purchase assets and equity from financial institutions in order to strengthen the financial sector.

Under the proposed legislation, annual compensation would be capped at the salary for the President of the United States, currently $400,000.  This limitation would be a condition for the receipt of TARP funds and would remain in effect during the duration of the assistance or obligation provided under TARP.  Compensation is broadly defined under the bill to include wages, salary, deferred compensation, retirement contributions, options, bonuses, property, and any other form of compensation deemed applicable by the Secretary of the Treasury.

A response to recent news reports revealing that some companies receiving government assistance under TARP have continued to pay executive officers hefty bonuses, the proposed legislation would impose stricter limitations than the treasury regulations announced by President Obama and Treasury Secretary Timothy Geithner on February 3, 2009. The new legislation caps permissible salaries at $400,000, as opposed to the $500,000 limits set forth in the proposed treasury regulations.  The CEO Pay Act also applies the limits on executive compensation to all entities that have received any assistance under TARP, as well as entities that will receive TARP funds going forward.

Status: Senator McCaskill (D-MO) introduced the CEO Pay Act on January 30, 2009 and it was referred to the Committee on Banking, Housing, and Urban Affairs. On February 4, 2009, Senator McCaskill proposed the CEO Pay Act as an amendment to the American Recovery and Reinvestment Act of 2009.