Utilizing its rarely-used rule-making authority, the National Labor Relations Board on December 21, 2010 announced a proposed rule that would require all private employers under its jurisdiction to post workplace notices of statutorily-protected employee rights. The proposed rule is intended to inform employees - both unionized and non-unionized - of their rights under the NLRA and is patterned after similar posting requirements under the Fair Labor Standards Act, the Family and Medical Leave Act, and a recent Department of Labor rule requiring posting of NLRA rights by federal contractors. Non-NLRA employers, including employers of railroad, airline, and agricultural workers, would not be affected by the proposed rule.

The proposed rule would require employers to post an 11-by-17 inch poster in the workplace and, where the employer regularly communicates electronically with its employees, distribute an electronic version of the poster. The poster would be provided for download on the NLRB website, as well as in hard copy form at NLRB regional offices. Under the proposed rule, failure to adhere to the posting requirements would be considered an unfair labor practice under NLRA Sec. 8(a)(1) and, in cases of knowing violations, could be considered evidence of unlawful anti-union sentiment in NLRB proceedings in which employer motive is at issue. The NLRB has clarified that, at least during a transition period, non-compliant employers unaware of the posting requirement would usually not face penalties if they promptly rectified the non-compliance.

The Board approved the proposed rule over the dissent of the Board’s lone Republican, Brian E. Hayes, who argued that the posting requirement is beyond the scope of the Board’s NLRA Sec. 6 power to issue “such rules and regulations as may be necessary to carry out the provisions” of the NLRA. 

The NLRB will be accepting comments on the proposed rule for 60 days following its publication in the Federal Register.  More information can be found here.

The Department of Labor’s Wage and Hour Division (WHD) has implemented an initiative in conjunction with the ABA to refer workers whose FLSA or FMLA claims the WHD declines to pursue to private attorneys by providing a toll-free number to an ABA attorney approval service. As of December 13, when the WHD informs a complainant that it is declining to pursue his or her claims, it will also provide complainants a toll-free number to contact the ABA-Approved Referral System which will provide the complainant with a list of private attorneys in their geographic area. The referred attorneys will have experience in wage and hour and medical leave claims. The DOL-ABA initiative will also grant an authorized attorney ready access to the information obtained by the DOL in the course of its investigation.

How much information the WHD will provide to a private attorney depends on the stage at which it decides not to pursue the complaint. The WHD may refer the complainant to the ABA service at the complaint intake or complaint review stage if the worker decides not to file a complaint or indicates he or she would prefer to pursue a private right of action.  Referral will also occur if the WHD determines that the complaint does not align with its priorities or that a referral would provide the “quickest access to justice.” At this stage, the worker will be sent a letter stating that WHD did not yet investigate their complaint and providing them the ABA toll-free number.

If, however, the WHD has completed an investigation when it declines to pursue the claim, it will send the complainant a letter with the WHD case number, the violations found, and the amount of wages owed. Complainants will also receive a form that will allow them or an authorized attorney to obtain quickly certain items from the investigation file.

The WHD estimates that 35,000 to 40,000 workers contact the division each year for help, including 25,000 or more workers seeking assistance with minimum wage, overtime, or family medical leave claims. The WHD declines to pursue approximately 10% of these claims, instead informing the complainant that they have a private right of action.

On December 8, the House voted down the Robert C. Byrd Mine Safety Protection Act, designed to improve worker safety conditions for miners. Because the bill was considered under suspension of House rules, it needed votes from two-thirds of the House lawmakers to pass. It was rejected by a 214-193 vote, with 213 Democratic votes and one Republican vote in favor, and 166 Republican votes and 27 Democratic votes in opposition.

Introduced in the House on December 3, the legislation was intended to address safety concerns in light of recent mining accidents, particular the Massey Energy Upper Big Branch Mine explosion April 5 that left 29 miners dead. The bill would have authorized the Labor Department’s Mine Safety and Health Administration to revoke an employer’s mining engineering plan if it creates safety hazards and levy fines for serious violations. It also increased MSHA’s authority by enabling it to seek a court order to close an unsafe mine, to subpoena documents and testimony, and to require additional training for miners in unsafe mines. In addition, it would have protected miners who inform authorities of violations from retaliation by operators and ensured that miners do not lose pay while mines are closed for safety reasons.

On December 2, 2010, President Obama announced his intention to nominate Leon Rodriguez to the position of Administrator of the Wage and Hour Division (WHD) of the U.S. Department of Labor, a post that has remained vacant during the Obama administration. Currently, Rodriguez serves as Deputy Assistant Attorney General and Chief of Staff in the Civil Rights Division at the Department of Justice, where he oversees the operations of the Division and leads the Division’s work on immigration and national-origin related matters. Rodriguez is Obama’s second nomination for the position of WHD Administrator. Obama’s first nominee, Lorlei Boylan, withdrew herself from consideration in October 2009 after her nomination received opposition, and her confirmation vote was postponed.

Before joining the Civil Rights Division, Rodriguez served as the County Attorney for Montgomery County, Maryland, from 2007 to 2010. Prior to his appointment as County Attorney, he spent several years in private practice at the law firm Ober, Kaler, Grimes & Shriver, where his practice focused on white-collar and health law. From 1997 to 2001, Mr. Rodriguez served first as an Assistant U.S. Attorney in Pittsburgh, Pennsylvania and later as First Assistant U.S. Attorney. From 1994 to 1997, he worked as a trial attorney in the Criminal Section of DOJ’s Civil Rights Division, specializing in prosecuting law enforcement misconduct, racial violence, and human trafficking. Rodriguez began his legal career in 1998 as an Assistant District Attorney in the Kings County District Attorney’s Office in New York.

On November 30, 2010, the Employee Benefits Security Administration (”EBSA”) of the U.S. Department of Labor issued a proposed regulation in the Federal Register that would require that additional information be disclosed in target date investments. The proposed rule would amend the qualified default investment alternative regulation and the participant-level disclosure regulation.

Under the proposed rule, which follows recently-promulgated SEC target date disclosure rules, EBSA would require plan fiduciaries to issue additional disclosures about the design and operation of target date investments. These requirements include an explanation of the asset allocation of the investment, a graphical depiction of how the allocation would change over time, and the significance of the target date of the investment. The proposed rule would also require plan fiduciaries to disclose information concerning the plan’s issuer, objectives, investment strategies and risks, historical performance, and fees and expenses. 

Additionally, the proposed rule would require that the fiduciary issue a disclaimer that investors may lose money upon arrival of the target date, which could coincide with retirement. It also includes a safe-harbor for the use of electronic media to provide the required disclosures to plan beneficiaries and participants.

Parties may submit written comments through January 14, 2011.

On November 18, 2010, the Employee Benefits Security Administration (”EBSA”) of the U.S. Department of Labor issued a proposed regulation in the Federal Register implementing the annual funding notice requirements of ERISA Section 101(f) for defined benefit plan administrators.

The proposed rule requires that administrators of defined benefit plans governed by Title IV of ERISA provide annual funding notices to the Pension Benefit Guaranty Corp., plan participants and beneficiaries, labor organizations representing such plan participants and beneficiaries, and employers contributing to applicable multi-employer plans.

Under the proposed rule, the notices must include information on the plan’s funding percentage, indicating how well the plan is funded, as well as its assets and liabilities, including a breakdown of how the plan has invested its assets. The proposed rule includes sample model notices for both single employer and multi-employer plans and requires notice be provided no later than 120 days from the end of the plan year.

Parties may submit written comments by January 18, 2011.