On July 7, the DOL published its spring 2011 semiannual regulatory agenda. The agenda compiles all regulations expected to be under review or development during the coming year. Notably, the agenda states that, “in light of significant changes in the home care industry” the DOL intends to review the rule exempting “companionship services” from the FLSA.” Currently, the FLSA provides an exemption from minimum wage and overtime compensation for domestic employees engaged in providing companionship services. However, in October the DOL intends to issue a Notice of Proposed Rule-making “examining the definition of companionship services,” the criteria used to judge whether employees qualify as trained personnel rather than exempt companions, and the applicability of the exemption to third party employers.

The DOL also plans to change the rules of practice and procedure for its administrative proceedings. While the original procedural rules were modeled on the Federal Rules of Civil Procedure, these rules have not been amended to account for the multiple amendments to the Federal Rules. In explaining the need to address the procedural rules, the DOL further noted that “the nature of litigation has also changed [since the current rules’ implementation], particularly in the areas of discovery and electronic records.” Further, while the subject of administrative proceedings used to be primarily workplace injury and disease, now claims are more often “whistleblower and workplace retaliation claims” that “require more structured management and sophisticated motions and discovery procedures than our current regulations provide.”

The regulatory agenda also includes several significant proposed rules whose development has been underway for some time. The agenda notes the DOL’s intention to move forward with narrowing the “advice exemption” to the Labor Management Reporting and Disclosure Act ( “LMRDA” ) and expanding the definition of “persuader activities” under the Act. The DOL’s proposed changes to the LMRDA will increase these reporting requirements. Currently, the LMRDA requires the disclosure of agreements with persons who work on behalf of employers to persuade employees to exercise or not exercise their rights to organize or collectively bargain, or to persuade employees of how they should exercise such rights. See Washington Labor & Employment Wire » DOL to Publish Proposed Rule Expanding Reporting Requirements for Labor Consultants and Persuaders. The agenda also includes moving forward with a proposed rule published on June 22 that revises the list of industries required to record workplace industries and illnesses and makes reportable all amputations and in-patient hospitalizations resulting from work-related incidents. See Washington Labor & Employment Wire » OSHA Proposal Would Revise List of Industries Required to Record and Report Worker Injuries and Illnesses. 

Similarly, the agenda indicates that the DOL is moving forward with multiple other OSHA initiatives already underway, including the development of a rule requiring employers to implement an Injury and Illness Prevention Program. OSHA is also in the early stages of formulating rules to regulate workplace exposure to beryllium and food flavorings containing diacetyl and also plans on holding hearings on occupational exposure to crystalline silica. 

Finally, this fall OSHA plans to issue two final rules of note. First, in September OSHA will issue a final rule updating the construction industry standard for the construction of electric power transmission and distribution lines. This rule is intended to “prevent fatalities, add flexibility to the standard, and update and streamline” the existing rule. In conjunction with this rule, OSHA will also revise general industry requirements to ensure that the requirements for work performed in the maintenance of electric power and transmission and distribution installations are consistent with construction requirements. Second, OSHA is scheduled to promulgate a rule protecting construction workers in confined spaces in November. The current rule governing work in confined spaces applies only to “general industry” workers, but not to construction workers.

On June 30, 2011, ALJ Clifford H. Anderson rejected Boeing Co.’s challenge to the controversial unfair labor practice complaint filed against it by the NLRB in April. The NLRB’s complaint, which has ignited a partisan firestorm, alleges that Boeing unlawfully transferred an aircraft assembly line from Washington State to South Carolina as retaliation for prior strikes by the unionized workforce in Washington State. The case will proceed to trial before the ALJ.

The case has drawn fierce condemnation by Congressional and Senate Republicans, Republican governors and state attorneys general, and right-to-work groups, who allege the case represents a frontal attack on right-to-work states. NLRB Acting General Counsel Lafe E. Solomon has defended the complaint, pointing to a number of specific statements made in the press by Boeing officials concerning the desire to set up the production line in a non-union setting. For example, one high-level Boeing official told the Seattle Times that “The overriding factor (in locating the work in South Carolina) was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.”

In seeking dismissal of the unfair labor practice complaint, Boeing argued that the building a new production line for 787 Dreamliners in South Carolina did not represent a removal or transfer of work from Washington State, since the second production line had never been located in Washington State. Boeing further argued that the NLRB would have to - and could not - prove that any unionized Washington workers were adversely affected by the decision to build the production line in South Carolina. Additionally, Boeing argued that the comments made by its officials were taken out of context and that it only considered permissible factors in locating the production line in South Carolina.

In rejecting Boeing’s motion to dismiss the complaint prior to the NLRB General Counsel putting on evidence, the ALJ ruled that the NLRB General Counsel would have the opportunity to present evidence and make a showing of unlawful discrimination. The ALJ explained that it is unusual to dismiss an unfair labor practice complaint at such an early stage and ordered the trial to go forward. In addition, the ALJ also refused Boeing’s request to dismiss a costly potential remedy sought by the NLRB General Counsel - the transfer of the production line back to Washington State - and noted that Boeing had not yet set forth facts showing that the allegedly anti-union statements by its officials were taken out of context.