On October 26, 2009, President Obama formally nominated  P. David Lopez as General Counsel for the Equal Employment Opportunity Commission (EEOC). The nomination has been referred to the Senate Committee on Health, Education, Labor, and Pensions for confirmation.

Lopez currently serves as a Supervisory Trial Attorney at the EEOC’s Phoenix District Office. The Harvard Law graduate has previously worked as a Special Assistant to then-Commissioner Gilbert F. Casellas, as well as an attorney in the Employment Litigation Section of the Civil Rights Division of the U.S. Department of Justice.

The EEOC’s General Counsel position has been vacant since Ronald Cooper’s resignation earlier this year. Obama announced his intent to nominate Lopez for the position on October 22.

Core Provisions: This legislation would extend for six months the maximum COBRA continuation coverage period for individuals who were involuntarily terminated between April 1, 2008 and December 31, 2009. The bill would also amend the American Reinvestment and Recovery Act of 2009 to extend the eligibility period and maximum assistance period for COBRA premium assistance under the Act. No extended COBRA benefits or extended COBRA premium assistance would extend beyond December 31, 2010.

Status: Rep. Sestak (D-PA) introduced H.R. 3930 on October 26, 2009, and it was referred to the Committees on Education and Labor; Energy and Commerce; and Ways and Means.

On October 22, 2009, President Obama announced his intent to nominate P. David Lopez as General Counsel for the Equal Employment Opportunity Commission (EEOC). The EEOC’s General Counsel directs the Commission’s litigation through the agency’s district offices, which file and litigate the Commission’s lawsuits throughout the country.

Lopez began his career at the EEOC in 1994 as a Special Assistant to Commissioner Gilbert F. Casellas. He currently serves as a Supervisory Trial Attorney at the EEOC’s Phoenix District Office. Prior to joining the Commission, Lopez worked at the U.S. Department of Justice in the Employment Litigation Section of the Civil Rights Division. Lopez received his Juris Doctor from Harvard Law School and his Bachelor’s Degree in Political Science from Arizona State University.

The White House has not yet indicated when President Obama’s final nomination will be announced. If nominated and confirmed, Lopez would serve a four-year term.

On October 22, 2009, the Senate approved the latest conference report for the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647). The bill contains an expansion of current Family and Medical Leave provisions as applied to military-related leave. The House previously approved the conference report on October 8 by a vote of 281-146. The Senate approved the conference report by a 68-29 margin, sending H.R. 2647 to President Obama, who is expected to sign the bill.

The Family and Medical Leave Act was amended in 2008 to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks to care for a member of the armed forces due to a serious injury or illness. The 2008 amendments also permit an employee to take leave for “any qualifying exigency” arising out of a spouse, son, daughter, or parent serving active duty. The term “qualifying exigency” covers numerous events, including issues arising from a covered military member’s short notice deployment, military events and related activities (such as office ceremonies), childcare and related activities arising from the active duty, making or updating financial or legal arrangements to cover for the family member’s absence, attending counseling, rest and recuperation arising from active duty, and any other event that the employer and the employee agree is a qualifying exigency.

H.R. 2647 expands the 2008 amendments by extending qualifying exigency leave to active duty members. The bill also extends military caregiver leave to family members of veterans who are “undergoing medical treatment, recuperation, or therapy, for a serious injury or illness,” so long as the former service member was a member of the Armed Forces (including the National Guard or Reserves) at any time during the five years preceding the treatment in question. These employees are entitled to take up to 26 workweeks of leave within a single 12-month period.

In addition to its provisions expanding military-related leave, the bill also allows federal employees under the Federal Employees Retirement Security System to receive retirement credit for unused sick leave.

On October 21, 2009, by a 15-8 vote, the Senate Health, Education, Labor, and Pensions (”HELP”) Committee approved SEIU associate general counsel Craig Becker, the most controversial of President Obama’s three nominees to the National Labor Relations Board (NLRB). The HELP Committee unanimously supported the nominations of Democratic union attorney Mark G. Pearce and Republican Senate staffer Brian E. Hayes to the Board.  After the votes, Sen. John McCain (R-AZ) placed a “hold” on the Becker nomination, which will likely delay the full Senate’s consideration on all three nominations. 

Becker, who serves as Associate General Counsel to both the SEIU and the AFL-CIO, has drawn opposition from business groups, led by the U.S. Chamber of Commerce, and Republicans, who have called for a hearing over his nomination. Sen. McCain has informed HELP Committee Chairman Tom Harkin (D-IA) that he has “concerns regarding Mr. Becker’s written views, which indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer.” Sen. Harkin asserted that holding a hearing was unnecessary and departed from longstanding practice. 

The NLRB currently is functioning with only two of five board positions filled, raising questions over the validity of two-member Board decisions that has resulted in the D.C. Circuit invalidating two-member Board decisions. Other circuits have upheld two-member Board decisions and the issue may be resolved by the U.S. Supreme Court this year. If confirmed by the Senate, President Obama’s three nominees will return the Board to full strength.

On October 21, 2009, OSHA published an Advance Notice of Proposed Rulemaking to address the fire and explosion hazards related to combustible dust. The advanced notice includes requests for comments and information regarding the definition of combustible dust, hazard recognition, hazard assessment, hazard communication, and training. 

The advance notice comes after the Chemical Safety and Hazard Investigation Board (”CSB”) conducted a study of dust explosion incidents between 1980 and 2005. Based on this study, the CSB listed five recommendations for OSHA to implement: (1) revise the hazard communication standard to clarify the coverage and requirements related to combustible dust; (2) communicate with the United Nations Economic Commission for Europe to amend the Globally Harmonized System to address combustible dust hazards; (3) provide combustible dust-related training through the OSHA Training Institute; (4) implement a special emphasis program for combustible dust; and (5) issue a standard designed to prevent combustible dust fires and explosions. OSHA has addressed the first four recommendations and this rulemaking addresses the fifth recommendation.

This advanced notice also 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 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. 

OSHA has also asked for public comments in connection with this advanced notice. The comment period will remain open until January 19, 2010. 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, Docket No. OSHA-2009-0023, Technical Data Center, 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-2009-0023.

Core Provisions: On October 15, the House approved 307-114 a conference report for the 2010 Homeland Security Appropriations Bill. The legislation includes a three-year extension of E-Verify, the federal government’s voluntary, internet-based system that allows employers to verify employees work eligibility, and appropriates $137 million to operate the system.

The bill also provides three-year authorization extensions for visa programs for religious workers (R visa), rural-serving doctors (Conrad 30-J visa), and those who invest money in a business that creates at least 10 full-time jobs in the United States (EB-5 visa).

Status: Rep. David Price (D-NC) introduced the bill on June 16, 2009.  The House originally approved its version of the bill on June 24, 2009. The Senate asked for a conference to resolve differences. The conference report will now move to the Senate for consideration.

On October 13, 2009, President Barack Obama withdrew the nomination of Lorelei Boylan as Administrator of the Department of Labor’s Wage and Hour Division. The Wage and Hour Administrator is responsible for enforcing the Department of Labor’s wage and hour laws, as well as issuing interpretative guidance and opinion letters to assist employers in their efforts to comply with those laws.  

The White House first announced its intent to nominate Boylan as the Wage and Hour Administrator on April 14, 2009.

On October 13, 2009, the Senate Finance Committee approved its version of healthcare reform legislation, the America’s Healthy Future Act, by a vote of 14-9. Only one Republican, Sen. Olympia J. Snowe (R-ME), voted to pass the bill out of committee. The legislation, whose stated purpose is to provide a “high-performing health care system [that] would guarantee all Americans affordable, quality coverage no matter their age, health status, or medical history,” contains numerous provisions that would directly impact employers. 

If enacted, the America’s Health Future Act would limit the ability of midsize and large employers with group health plans to impose annual and lifetime limits on coverage, would require such employers to provide first-dollar coverage for preventive care, and would require them to cap out-of-pocket health care costs.  Additionally, although the bill does not require employers to offer health insurance, effective July 1, 2013, employers with more than 50 employees that do not offer health insurance coverage would be required to reimburse the government for tax credits and subsidies provided to employees who purchase individual health insurance coverage.  The costs to employers that do not offer health insurance coverage would be up to $400 per year for each full-time employee.

Under the bill, small businesses with between 10 and 20 employees would be eligible for a new tax credit if they contribute at least 50 percent of the cost of their employees’ health insurance premiums. In 2011 and 2012, eligible employers could receive a credit for up to 35 percent of their contributions. In 2013, they could be eligible to receive a tax credit for two years that covers as much as 50 percent of their contributions if certain conditions are met. Small businesses with 10 or fewer employees and with average taxable wages of $20,000 or less would be able to claim the full credit amount.  The credit would begin to phase out for business with more employees and higher taxable wages, with a complete phaseout for businesses with 25 employees or average taxable wages of $40,000. Non-profit organizations with 25 or fewer employees would also be eligible to receive the tax credits if they meet the same requirements. Those organizations would be eligible for a 25-percent credit in 2011 and 2012, and a 35-percent credit thereafter. 

The Finance Committee’s bill must now be combined with legislation previously approved by the Senate Health, Education, Labor and Pensions (HELP) Committee in July before it can head to the Senate floor for a vote. The HELP bill is different in many respects than the bill passed by the Finance Committee.  The HELP bill, for example, would require employers with more than 25 employees to offer health coverage to those employees and pay at least 60 percent of the premiums, or pay $750 for each uninsured full-time employee and $375 for each part-time employee who is not offered coverage. 

On October 7, 2009, the Senate Judiciary Committee held a hearing to consider the effect of recent Supreme Court decisions on employment discrimination litigation. The hearing focused on the court’s decisions in Circuit City Stores Inc. v. Adams, 532 U.S. 105 (2001), which held that valid pre-dispute arbitration clauses are fully enforceable by employers under the Federal Arbitration Act, and Gross v. FBL Financial Services, 129 S. Ct. 2343 (June 18, 2009), which heightened the burden of proof for employees bringing age discrimination claims, holding that plaintiffs must prove age was the “but for” cause of their adverse employment action. 

In his opening statement, Sen. Patrick Leahy (D-VT) stated that both decisions “make it more difficult for victims of employment discrimination to seek relief in court, and more difficult for those victims who get their day in court to vindicate their rights.” He worried that such a high bar would encourage employers to “mistreat American workers in a still recovering economy.” Two bills currently introduced in Congress, the Arbitration Fairness Act of 2009 and the Protecting Older Workers Against Discrimination Act, would reverse both of these decisions.

The committee heard testimony from Jamie Leigh Jones regarding her legal battle over an anti-arbitration clause. When Ms. Jones sued Haliburton, her former employer, over claims that she was sexually assaulted on site by the company’s employees in Iraq, she fought to bring her case in court instead of before an arbitrator as her employment contact required. Senator Franken (D-MN) noted that his amendment to the Defense Appropriations Act would prevent federal contractors like Haliburton from including such binding arbitration clauses in their employment contracts.

Jack Gross, who recently lost his age discrimination claim before the Supreme Court, also testified. The committee also heard from employment law trial lawyer Michael Fox, who warned against legislative interference with the court system, and Michael Foreman, the director of the Civil Rights Appellate Clinic at the Pennsylvania State University Dickinson School of Law, who urged Congress to step in to secure individual civil rights.

Mark De Bernardo, a partner at Jackson Lewis LLP,  testified on behalf of the Council for Employment Law Equity in “strong opposition” to the Arbitration Fairness Act, which he testified would ”virtually eliminate all ADR-in-employment agreements in this country.” While De Bernardo recognized Ms. Jones’ story as a difficult case with “difficult facts,” De Bernardo stressed that arbitration in general benefits employees as well as employers, as it provides an avenue for those employees whose cases would not have made it to court to still have their claims heard.

Senator Specter responded by asking De Bernardo how he reconciles this position with employers’ opposition to the proposed inclusion of a binding arbitration provision in the Employee Free Choice Act. De Bernardo characterized the two as “apples and oranges,” since employment arbitration substitutes an alternative dispute measure for litigation while the Employee Free Choice Act would substitute binding arbitration for collective bargaining, making mutually agreed upon solutions an unattractive option.