On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a 13-10 party-line vote, President Obama’s nomination of M. Patricia Smith to serve as Solicitor for the Department of Labor. The Solicitor of Labor represents the DOL in litigation and alternative dispute resolution and provides legal opinions and advice regarding DOL activities.    

At the time of her nomination, Smith worked as the Commissioner for the New York State Department of Labor. Prior to this role, Smith served as Chief of the Labor Bureau for the New York State Attorney General’s Office.

On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a voice vote, President Obama’s nomination of William E. Springs as Assistant Secretary for Policy, Department of Labor. The Office of the Assistant Secretary for Policy provides advice and assistance to the DOL regarding such topics as policy development, program evaluation and implementation, budget and performance analysis, and legislation.

At the time of his nomination, Spriggs worked as a professor and Chair of the Department of Economics at Howard University. Spriggs also served on the Agency Review Team for the DOL during President Obama’s transition to the White House. During the Clinton Administration, Spriggs led the staff of the National Commission for Employment Policy and served as a senior economist for the Democratic staff of the Joint Economic Committee of the U.S. Congress. 

Spriggs also served as Chair of the Independent Health Care Trust for UAW Retirees of Food Motor Company, Chair of the UAW Retirees of the Dana Corporation Health and Welfare Trust, and Vice Chair of the Board of the Congressional Black Caucus Political Education and Leadership Institute. Spriggs also served on the United Food and Commercial Workers’ Union National Commission on ICE Misconduct and Violation of 4th Amendment Rights.

 On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a voice vote, President Obama’s nomination of Joseph A. Main as Assistant Secretary for Mine Safety and Health Administration, Department of Labor. MSHA administers the provisions of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006. MSHA also enforces compliance of safety and health standards designed to improve safety and health conditions in mines across the country and reduce the number of accidents. 

At the time of his nomination, Main worked as a self-employed mine safety consultant, with his recent work focusing on international mine safety, preventing mining accidents, and developing training programs and facilities to prepare miners and emergency responders for mine emergencies. Prior to this role, he served in several positions in the United Mine Works of America. 

Core Provisions: New House and Senate bills would amend the Age Discrimination in Employment Act of 1967 (ADEA) to clarify the plaintiff’s burden of proof in lawsuits brought under the statute. Under the bills, a plaintiff can establish an unlawful employment practice by demonstrating by a preponderance of the evidence that age was a “motivating factor” for the adverse employment action, even if other factors also contributed to the decision. Alternatively, the plaintiff can establish by a preponderance of the evidence that the challenged action would not have occurred absent the employee’s age.

The bills were introduced in response to the Supreme Court’s June 18, 2009 decision in Gross v. FBL Fin. Servs. Inc., 129 S. Ct. 2343 (2009), in which the Court held a plaintiff bringing an ADEA disparate treatment claim must prove that age was the “but for” cause of the adverse employment action. The bills’ stated purpose is to ensure the standard for proving unlawful disparate treatment under the ADEA and other anti-discrimination and anti-retaliation laws mirrors the standard under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

Status: Rep. Miller (D-CA) and 16 co-sponsors introduced the House version of the bill (HR 3721) on October 6, 2009, and it was referred to the House Committees on the Judiciary and Education and Labor later that day. Similar legislation was introduced in the Senate by Sen. Harkin (D-IA) and 16 co-sponsors.

On October 7, 2009, the Department of Homeland Security (DHS)’s final rule to rescind the No-Match regulation was published in the Federal Register. DHS had published its proposed rule to rescind No-Match in the August 19 Federal Register. After considering public comments on the proposed rule, DHS finalized the rule without making any changes. The final rule reinstates the language of 8 CFR 274.1(l) as it existed prior to issuance of the No-Match Rule. The rule is scheduled to take effect 30 days after its publication in the Federal Register.

The No-Match Rule, initially issued by the Bush Administration in August 2007 (72 FR 45611) and supplemented in October 2008 (73 FR 63843), required the Social Security Administration (SSA) to detail the legal obligations of employers when they received a no-match letter from the SSA and outlined “safe-harbor” procedures for such employers. The No-Match Rule was never put in effect because it was blocked by court order shortly after its issuance. (See AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB (N.D. Cal.)

After completing a review of the Rule, DHS announced its intent to focus immigration enforcement efforts and community outreach on increased compliance through enhanced employment verification programs, such as E-Verify, and ICE Mutual Agreement Between Government and Employers (IMAGE), among other programs. The IMAGE program assists employers through education and training on enhanced techniques to identify fraudulent immigration documentation and proper hiring procedures.

On July 8, 2009, DHS announced its intention to propose a new regulation to rescind the Rule. A day later, the Senate approved by unanimous consent an amendment to the 2010 homeland security appropriations bill (H.R. 2892) prohibiting the use of 2010 funds to rescind the No-Match program. Although the proposed rule was published prior to the close of the fiscal year, the final rule was not.

On October 6, 2009, the Senate passed an amendment (SA 2588) to the Department of Defense Appropriations Act of 20l0 (HR 3326) which will restrict the use of binding arbitration provisions by federal contractors.

The amendment affects federal defense contractors who currently use mandatory arbitration agreements of claims under Title VII or any tort claims “relating or arising out of” sexual assault or sexual harassment, including claims of assault and battery, intentional infliction of emotional distress, false imprisonment or negligent hiring, supervision, or retention.  The amendment prohibits allocating defense appropriations funds to any “existing or new” federal contract if the contractor or subcontractor “at any tier” requires employees or independent contractors to sign such mandatory arbitration agreements as a condition of employment.

The amendment passed with 68 votes in favor and 30 against.  The amendment was submitted by Senator Franken (D-MN) on October 1, 2009, and is co-sponsored by Senator Landrieu (D-LA). 

On October 1, 2009, OSHA announced a new National Emphasis Program (NEP) that targets occupational injury and illness records prepared by employers.   

Under this NEP, OSHA will complete the following steps for a records inspection:  obtain copies of an employer’s OSHA Form 300, a full roster of employees, the total numbers of hours worked, and the average number of workers; review individual employee’s records; review an employer’s log to identify cases that do not meet OSHA’s recordability criteria; interview the employee in charge of maintaining injury and illness records; interview employees who are likely to be injured or become ill; interview management representatives; interview first-aid providers and health care professionals; and conduct a limited walkaround safety and health inspection. 

The NEP focuses on selected industries with high injury and illness rates, including scheduled passenger air transportation, animal slaughtering, steel foundries, soft drink manufacturing, couriers, mobile home manufacturing, rolling mill machinery and equipment manufacturing, iron foundries, and nursing care facilities.

This program went into effect on September 30, 2009.

On September 30, 2009, the Department of Labor’s Employment and Training Administration (ETA) filed an extension of the comment period for a proposed rule to amend the H-2A visa program. The H-2A program allows U.S. agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs. Employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States.

The proposed rule was published in the Federal Register by ETA on September 4. The comment period was originally scheduled to close on October 5; however, ETA has extended this period to October 20. Notice of the extension is scheduled to be published in the Federal Register on October 2.

The final rule on the current regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations and the enforcement of contractual obligations of the employers of such workers.

Under the December 2008 regulations, employers have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps, including: (1) submission of a job order to the State Workforce Agencies (SWAs) serving the area of intended employment; (2) running two print advertisements; (3) contacting former U.S. employees who were employed within the last year; and (4) recruiting in all states currently designated as a state of traditional or expected labor supply with respect to each area of intended employment.

Under the proposed revised rule, an employer must provide DOL with documentation that it has complied with the prerequisites for employing foreign workers under the H-2A program, rather than simply attesting to compliance. The proposed rule also reinstates the use of the Department of Agriculture’s quarterly farm labor survey as the basis for determining the adverse effect wage rate, rather than the Bureau of Labor Statistics’ occupational employment survey data used under the 2008 rule. The rule also proposes the use of a national registry to assist agricultural employers in finding workers across the nation.

The new rule also requires employers to provide copies of job orders submitted to DOL to its workers and post notices outlining employee rights. The rule also provides protections to U.S. workers employed by H-2A employers to ensure the U.S. workers in similar jobs do not receive less wages or benefits than their H-2A counterparts. Finally, the proposed rule strengthens penalties for companies who do not comply with the program requirements and increases DOL authority for conducting audits and monetary penalties.

In May 2008, DOL issued a nine-month suspension of the new regulations in order to afford the new administration an opportunity to review the rule. However, the Department lifted the suspension one month later in response to a preliminary injunction blocking the suspension issued from the U.S. District Court for the Middle District of North Carolina. After completing its review of the rule, DOL proposed the revised regulations on September 4 to ensure the U.S. agricultural economy employs U.S. workers to the fullest extent possible.