On May 11, 2009, the Equal Employment Opportunity Commission (EEOC) issued its regulatory agenda for the next six months.EEOC plans to issue by the end of May 2009 its final regulations under the Genetic Information Nondiscrimination Act (GINA), the statute that prohibits discrimination on the basis of genetic information and imposes restrictions on acquisition and disclosure of such information. GINA requires EEOC to issue a final rule by May 21, 2009. The comment period on EEOC’s proposed regulations under GINA closed on May 1, 2009.

EEOC also projects that it will issue a notice of proposed rulemaking in August 2009 to amend certain of its Americans with Disabilities Act (ADA) regulations in light of the ADA Amendments Act. Passed in September 2008, with an effective date of January 1, 2009, the ADA Amendments Act generally lowers the threshold requirements for demonstrating that someone is disabled under the ADA. On December 11, 2008, voting 2-2 along party lines, the Commission failed to pass draft proposed regulations ahead of the Act’s effective date.  

EEOC also announced that, rather than finalize its March 31, 2008 proposed rule regarding the burden of proof in disparate impact cases under the ADEA-a position that meshed with the later ruling of the Supreme Court in Meacham v. Knolls Atomic Power Laboratories, 128 S. Ct. 2395 (2008)-it would instead issue a new proposed rule in August 2009, with a final rule expected by March 2010. EEOC had asked in its March 2008 proposed rule for comments on whether the regulations should provide more information on the meaning of “reasonable factors other than age” (RFOA). In light of the comments it received, and in light of the Meacham and earlier Smith v. City of Jackson decisions of the Supreme Court, EEOC has determined it is appropriate to issue a proposed rule “to address the scope of the RFOA defense.”

Finally, EEOC anticipates issuing proposed regulations this month making employee self-identification the preferred method for collecting race and ethnic data to conform with current reporting instructions for the EEO-1 Report. EEOC also plans to issue a proposed rule regarding the federal sector equal employment opportunity complaint process in June 2009.

On May 11, 2009, OSHA published its agenda for regulations it has selected to review or develop over the next twelve months. OSHA has four regulatory items in the pre-rule stage, three in the proposed rule stage, and one long-term item. While OSHA has published a schedule for these items, the published dates are tentative and subject to change.

Regulations in Pre-Rule Stage

In June 2009, OSHA plans to initiate a peer review of the occupational exposure standard for crystalline silica as part of the process for developing a proposed standard for crystalline silica. This review will include an analysis of the possible health effects resulting from such exposure and the economic impact that recommended protective measures will have on employers. On February 1, 2008, OSHA implemented a National Emphasis Program for exposure to crystalline silica.

By July 2009, OSHA expects to complete a Small Business Regulatory Business Fairness Act (”SBREFA”) panel to discuss occupational exposure to diacetyl, a major component in artificial butter. On September 25, 2007, OSHA denied a petition by the United Food and Commercial Workers International Union and the International Brotherhood of Teamsters for an Emergency Temporary Standard for employees exposed to diacetyl. This SBREFA panel is an initial step to develop a proposed rule for controlling occupational exposure to diacetyl.  

By December 2009, OSHA plans to implement a peer review of occupational exposure to beryllium. In 2002, OSHA solicited information pertaining to exposure to beryllium, including the possible adverse health effects, exposure assessment and monitoring methods, and medical surveillance. OSHA plans to use this information to develop a proposed rule addressing occupational exposure to beryllium.

By December 2009, OSHA expects to complete a Section 610 (of the Regulatory Flexibility Act) review of its current Methylene Chloride Standard, 29 C.F.R. § 1910.1052. This review will consider the need for the standard; whether it overlaps, duplicates, or conflicts with other regulations; and the degree to which technology, economic conditions, or others factors have changed since the rule was last evaluated. 

Regulations in Proposed Rule Stage

In June 2009, OSHA will reopen for a second time the record on its Electrical Protective Equipment proposed rule for additional information on minimum approach distances. OSHA published the proposed rule on June 15, 2005 and held a public hearing from March 6-14, 2006. OSHA previously reopened the record in October 2008 for 30 days.  

In June 2009, OSHA will close the record for its proposed rule for cranes and derricks in construction. OSHA published the proposed rule on October 9, 2008 and held a public hearing from March 17-20, 2009.   

In October 2009, OSHA will analyze comments it received in connection with its proposed rule to extend confined-spaces protection to construction workers. OSHA published the proposed rule on November 28, 2007 and held a public hearing on July 22, 2008. 

Long-Term Action

OSHA plans to undertake a Section 610 (of the Regulatory Flexibility Act) review of its current Bloodborne Pathogen Standard, 29 C.F.R. § 1910.1030. This review will consider the need for the standard; whether it overlaps, duplicates, or conflicts with other regulations; and the degree to which technology, economic conditions, or others factors have changed since the rule was last evaluated. OSHA has not provided a timetable for when it expects to initiate the review process.

On May 12, 2009, Department of Labor Secretary Hilda Solis testified before the Subcommittee on Labor, Health, and Human Services, Education, and Related Agencies of the Committee on Appropriations.

During her testimony, Secretary Solis stated that “[t]he department has developed an aggressive, comprehensive hiring plan for its worker protection agencies.” Solis also testified that the funding increase planned for the agencies - a 10% increase over the FY2009 budget - will restore the agencies’ funding and staffing levels to pre-2001 levels.

Ranking Member Rep. Todd Tiahrt (R-KS) and other Republican members of the Subcommittee criticized the plan because they claimed that this funding increase shifted money from the Office of Labor-Management Standards, the organization responsible for collecting and investigating union leaders’ financial filings.

The National Labor Relations Board stands to receive a $20.8 million increase under President Obama’s fiscal year 2010 budget proposal. The increase of nearly 8% would bring the FY 2010 budget to $283.4 million and follows a 4.3% increase for FY 2009 in the recent omnibus funding bill signed into law on March 11, 2009.

The funding increase is primarily intended to fund an expected modest increase in unfair labor practice and representation cases brought by NLRB regional offices.

On May 6, 2009, President Barack Obama nominated Jane Oates as Assistant Secretary of Labor for the Employment and Training Administration (ETA). ETA is responsible for providing job training, employment, labor market information, and income maintenance services primarily through state and local workforce development systems.   

As the current Executive Director of the New Jersey Commission on Higher Education and as Senior Policy Advisor to Gov. Jon S. Corzine, Oates focuses on linking higher education with K-12 education and the workforce. She also serves on the State Employment and Training Commission, the State Commission on Adult Literacy and Education, New Jersey High School Redesign Task Force, the Public Sector Work Group, and chairs the State Educators Health Benefits Commission and the Governor’s Schools Board of Overseers. 

Prior to this role, Oates served as Senior Policy Advisor to Sen. Edward Kennedy (D-MA). In that role, Oates she focused on higher education, national service, adult literacy, education research, and workforce issues.

On May 1, 2009, the Senate, by voice vote, confirmed Thomasina Rogers’ appointment to the Occupational Safety and Health Review Commission (OSHRC). OSHRC is a quasi-judicial agency responsible for adjudicating occupational safety and health cases.  Rogers, who served as acting Chair from February 18 to April 27, 2009, is expected to be named as OSHRC Chair by President Obama. The Chair of the Commission participates in case adjudication and is responsible for the administrative operations of the agency.

Rogers was a member of the Commission from November 1998 until April 27, 2009, when her term expired. Rogers served as OSHRC Chair from 1999 through 2002. Rogers has also served as Chairman of the Administrative Conference of the United States and as Legal Counsel to the Equal Employment Opportunity Commission.

Core Provisions: This Act would amend the Federal Arbitration Act (FAA) to prohibit mandatory arbitration of employment claims unless provided under the terms of a collective bargaining agreement. The Act would make mandatory arbitration clauses in employment, consumer, and franchise agreements unenforceable. The Act also would overturn the Supreme Court’s recent decision in 14 Penn Plaza v. Pyett and would not permit employees to waive the right to take constitutional or statutory claims to court. In introducing the bill, Senator Russ Feingold explained that “the use of arbitration has grown exponentially” and, though arbitration “has advantages” it also “can be used as a weapon by the stronger party against the weaker party.” The bill addresses concerns that “mandatory arbitration clauses are slowly eroding the legal protections that should be available to all Americans.” Sen. Feingold emphasized that arbitration provisions should be utilized only when both parties knowingly agree to arbitrate after the dispute has arisen.

Status: Sen. Russ Feingold (D-WI) introduced S.931 on April 29, 2009, and it was referred to the Senate Judiciary Committee. Rep. Hank Johnson (D-GA) introduced a similar bill to the House (H.R. 1020) on February 12, 2009.

On May 5, 2009, the Department of Labor’s Wage and Hour Division (WHD) posted a new opinion letter on the scope of permissible employer policies requiring employees to provide notice of FMLA leave, which the WHD designated as FMLA2009-1-A.

Signed by Acting Administrator Alexander Passantino, the new letter expressly supersedes a January 15, 1999 opinion letter (designated as FMLA-101). The prior opinion letter had been interpreted to prohibit employers from applying internal call-in policies, disciplining employees under no call/no show policies, or disciplining employees who call in late, as long as the employees provided notice within two business days that the leave was FMLA-qualifying, regardless of whether they could have practicably provided notice sooner.

When the DOL published on February 11, 2008, a Notice of Proposed Rulemaking (NPRM) on proposed changes to the 1995 FMLA regulations, it clarified that regulatory language requiring employees who cannot provide the required 30 days advance notice to provide notice of the need for FMLA leave “as soon as practicable . . . ordinarily . . . within one or two business days of when the need for leave becomes known to the employee” was intended as an illustrative outer limit only. The DOL asserted that FMLA-101’s so-called “two day rule” for FMLA notice “in effect, mistakenly read the regulation as allowing employees two business days from learning of their need for leave to provide notice to their employers, regardless of whether it would have been practicable to provide notice more quickly” (emphasis added). The revised regulation, which became effective on January 16, 2009, clarifies that where an employee cannot provide 30 days advance notice of FMLA leave, “it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day” after becoming aware of the need for leave, but that “the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.” 29 C.F.R. § 825.302(b).

The new WHD opinion letter notes that “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.” Thus, the determination of the adequacy of an employee’s notice is driven by the individual facts and circumstances, rather than an arbitrary two-day timeframe. The regulation itself also recognizes employers’ ability to enforce reasonable call-in policies. “Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied” so long as the employer does not delay or deny leave where the employee provides timely notice as set by the regulation.  29 C.F.R. § 825.302(d).

Therefore, to the degree that WHD Opinion Letter FMLA-101 had been interpreted to create a flat “two day rule,” the Department’s new letter officially rescinds it.

Core Provisions: This Act would amend the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on the basis of sex, race or national origin. The Act requires employers to provide equal pay for jobs that are comparable in skill, effort, responsibility and working conditions. It also prohibits companies from reducing other employees’ wages to achieve this pay equity. In addition, the Act mandates that employers disclose their job categories and pay scales to the public. Employers would still be able to differentiate in wage rates based on seniority systems, merit systems, and systems that measure earnings by quantity or quality of production. Aggrieved employees would have the choice of filing a charge with the EEOC or proceeding directly to federal court.  The bill would permit compensatory and punitive damages against non-government employers and allow plaintiffs to pursue Rule 23 class actions instead of the present opt-in collective action mechanism used for Equal Pay Act and FLSA actions.

Status: Sen. Harkin (D-IA) introduced S.904 on April 28, 2009 and it was referred to the Committee on Health, Education, Labor, and Pensions. Rep. Norton (D-DC) introduced H.R.2151 on April 28, 2009 and it was referred to the Committee on Education and Labor. Substantially similar legislation was introduced in the 110th Congress, but failed to make it out of committee.

OSHA has announced that it intends to issue an Advance Notice of Proposed Rulemaking and to convene meetings to evaluate possible regulatory methods related to combustible dust. The rulemaking and meetings will focus on hazard recognition, assessment, communication, combustible dust definition, and other concerns.

According to OSHA, more than 130 workers have been killed and more than 780 have been injured in combustible dust explosions since 1980. In support of a rulemaking, Secretary of Labor Hilda L. Solis stated, “OSHA is reinvigorating the regulatory process to ensure workers receive the protection they need while also ensuring that employers have the tools needed to make their workplaces safer.”  

This rulemaking comes after Congressional pressure on OSHA to focus on combustible dust. On July 29, 2008, the Senate Subcommittee on Employment and Workplace Safety held a hearing to examine whether OSHA was adequately enforcing its National Emphasis Program for combustible dust. The hearing focused on a February 7, 2008 combustible dust explosion that resulted in 14 fatalities at an Imperial Sugar Company plant.  

On April 30, 2008, the House passed the Combustible Dust Explosion and Fire Prevention Act of 2008.  This Act, if passed by the Senate, would have required OSHA to issue a rule regarding combustible dust. 

On February 4, 2009, Reps. Miller (D-CA), Barrow (D-GA), and Woolsey (D-CA) introduced the Workers Protection Against Combustible Dust Explosions and Fires Act (H.R. 849), which would require the Secretary of Labor to issue interim and final regulations regarding working exposure to combustible dust. On March 23, 2009, the Act was referred to the Subcommittee on Workforce Protections. This legislation is similar to previous legislation passed by the House on April 30, 2008 and referred to the Senate.