On October 2, 2008, the Department of Labor, Office of Labor-Management Standards (”OLMS”), published a Final Rule that increases annual financial disclosures required of unions by the Labor-Management Reporting and Disclosure Act (”LMRDA”).  

The new Final Rule implements Form T-1, entitled the Trust Annual Report.  Form T-1 requires a covered labor union to provide financial information about various “trusts” affiliated with the union, such as assets, liabilities, receipts and disbursements.  Form T-1 will give employees and employers a more robust picture of a union’s financial situation. 

The new Final Form T-1 Rule only applies to labor unions with total annual receipts of $250,000 or more.  This limited scope continues OLMS’s recent history of targeting larger unions for increased financial transparency.  In addition to the new Form T-1 Final Rule, OLMS recently increased the amount of disclosure in the Form LM-2 filled out by large unions and established procedures for revoking a small union’s privilege of filing the streamlined LM-3 financial disclosure form.  OLMS explained that these changes are meant “to deter potential misuse of union trusts that have occurred in the past and allow union members to know exactly where their hard-earned dollars are being spent.”

In order for an organization or fund trigger a labor union’s duty to file a T-1, the organization or fund must (1) be established by the labor union or have a governing body that includes at least one member appointed or selected by the labor union, (2) one of the trust’s primary purpose must be to provide benefits to the members of the labor union or their beneficiaries, and (3) the labor union, alone or in combination with other labor unions, must appoint or selects a majority of the members of the trust’s governing board or the labor union’s contribution to the trust, alone or in combination with other labor unions, represents more than 50% of the trust’s receipts. 

The Form T-1 final rule will take effect on January 1, 2009.

OSHA recently released an August 26, 2008 interpretation letter regarding its “Recording Occupational Injuries and Illnesses” part 1904.  The standards in this part help employers determine which injuries and illness they should record and report to OSHA.  The interpretation letter considers whether injuries to employees are considered “recordable” and how they should be recorded under this part when confronted with the following four scenarios:

1.   If an employee’s surgery requires her to work at home instead of the office while she recovers, is the employer required to record it as “days away from work” under § 1904.7 even if the employee is able to perform all routine job functions?

§ 1904.7(b)(3) and (b)(4) require employers to record an injury or illness that either involves one or more days away from work or involves restricted work or a job transfer. In particular, §1904.7(b)(4)(i) states that “restricted work” occurs when an employer keeps “the employee from performing one or more of the routine functions of his or her job, or from working the full workday that he or she would otherwise have been scheduled to work.” OSHA concluded that if the employee does not work from home as part of her normal work schedule, the employer must record the case as days away from work. If, however, the employee’s normal work schedule did include working from home at least one day a week, the employer must record the case as restricted work because the employee did not work the full 8-hour day.

2.  If an employee parks his car in the company parking lot and injures himself by inadvertently slamming the car door on his finger, is this injury considered work-related under § 1904.5(b)(2)(vii)?

Under § 1904.5(b)(2)(vii), an injury or illness “caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work” is not a “work-related” injury that is recordable.  OSHA clarified that three factors must exist for an injury or illness to qualify for this exception: (1) it must occur during an employee’s commute; (2) it must occur in the employer’s parking lot or access road; and (3) it must result from a motor vehicle accident.  OSHA concluded that, because the injury did not involve a motor vehicle accident during the employee’s commute, the third requirement for § 1904.5(b)(2)(vii) does not exist.  Therefore, the employer must record this accident on its establishment log.

3.  If an employee suffers a knee injury because of a work-related fall on March 15, is diagnosed with a contusion, retires from her job for reasons wholly unrelated to the injury on April 15, continues to have pain from the March 15 fall, and has surgery to treat this pain on July 15, is this injury recordable? If so, how should the injury be recorded?

Under § 1904.7(b)(1), employers must record a work-related injury or illness if it results in death, days away from work, restricted work or transfer to significant injury or illness by a physician or other licensed health care professional.  Because the employee received the injury while employed and met the § 1904.7(b)(1) criteria when the employee received medical treatment in July, the employer must record the injury.

4.  If an employee who is on restricted work activity for a work-related injury is terminated because of that injury, should additional hours be added to the OSHA Form 300 when calculating the “total hours worked by all employees” so the number of hours can correspond to the number of restricted work activity days or days away from work that are estimated and added to the Form 300?

OSHA concluded that employers should not add additional hours to the total hours worked figure because neither OSHA nor the Bureau of Labor Statistics calculates its rates based on the number of days.  Instead, they calculate rates based on the number of cases.

On October 6 and 7, 2008, OSHA will hold a public hearing to receive comments on its new proposed rule designed to clarify that noncompliance with the personal protective equipment and training requirements in the general industry, construction, and maritime standards will expose employers to liability and penalties on a per-employee basis.  The hearing will be held in the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue, N.W. Conference Room 6, Room C-5320, Washington, D.C. 20210.  The hearing will commence at 10:00 a.m. on October 6, 2008 and, if necessary, will continue on October 7, 2008 at 9:00 a.m.

If a party is interested in providing testimony during the hearing, it must notify OSHA in writing no later than September 26, 2008.  OSHA has also asked for each party’s testimony to be no more than 10 minutes.  If a party needs more than 10 minutes, it must submit a written request with its notice of intention stating: (1) how much time it seeks, (2) the topics it will cover, and (3) why it cannot cover these topics in 10 minutes.  The notice of intention to appear at the hearing 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-2008-0031, Technical Data Center, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) if less than 10 pages, fax the comments to 202-693-1648.  Each submission must include the Agency name and Docket Number for this rulemaking: OSHA-2008-0031.

On September 17, 2008, the House Education and Labor Subcommittee on Workforce Protections held a hearing entitled “Secret Rule: Impact of the Department of Labor’s Work Health Risk Assessment Proposal.”  The hearing examined a proposal from the Department of Labor’s Office of Policy to change and codify the risk assessment process, by which agencies evaluate if exposure to a toxic material poses a significant risk.  Agency decisions about whether to regulate a toxic material take into account risk assessments, as well as whether proposed regulations are technologically and economically feasible. 

This proposed rule has been referred to as the “secret rule” because it was not included in the Department of Labor’s semiannual regulatory agenda, was not originally published in the Federal Register, and the documents or advice that formed the basis of the proposed rule have not been disclosed.

Leon Sequeira, Assistant U.S. Labor Secretary for Policy, testified that the proposed rule merely codifies existing risk assessment best practices into a single easy-to-reference regulation.  The proposed rule would institute two new requirements: (1) agencies developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical would be required to issue an Advanced Notice of Proposed Rulemaking (ANPRM) soliciting input including scientific studies and data, and (2) agencies would be required to post online documents relied upon in developing the risk assessment no later than fourteen days after the conclusion of the relevant rulemaking step that utilized those documents.

Randel Johnson, Vice President of the U.S. Chamber of Commerce, also spoke favorably about the proposed rule.  Johnson pointed out that because courts give risk assessments of federal agencies significant deference, it is important that the initial risk assessment is accurate.  Johnson stated that requiring an ANPRM would not necessarily slow down the regulatory process, but it would allow agencies to gather all relevant data and perfect the risk assessment as early as possible in the process.

Dr. Celeste Monforton of The George Washington University School of Public Health and Margaret “Peg” Seminario, Director of Occupational Health and Safety at AFL-CIO, both testified against the proposed rule.  Monforton characterized the current procedures for issuing occupational health-protective rules as “paralyzed,” and argued that the proposed rule would make it even more difficult and time-consuming to issue such protections.  Seminario argued that the current administration has consistently refused to set any new occupational health standards, but is now rushing to lock in place these new procedures to make it more difficult for the next administration to protect workers from known health risks. Seminario also pointed out that the proposed procedures would apply to rules currently in the regulatory process, none of which have had ANPRMs, but which would now be required.  Seminario also emphasized that even though the proposed rule would require the online publication of documents relied upon in formulating rules, the Department of Labor has yet to publish any of the documents it relied upon in formulating the so-called “secret rule.”

Subcommittee Chair Woolsey (D-CA), Rep. Payne (D-NJ), and Rep. Hare (D-IL) all asked the panel questions indicating their disapproval of the proposed rule.  In her concluding remarks, Chairwoman Woolsey announced her continued commitment to protecting the health of American workers by making sure that “any ill-conceived proposal will not see the light of day - particularly this one.”

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new directive to provide guidance to employers when filling out their Employer Information Report, or EEO-1.  Certain private employers and federal government contractors are required to file an EEO-1 report annually, which details its employees’ job categories, race, ethnicity, and gender.

In November 2005, the EEOC, in conjunction with the OFCCP, finalized a revised EEO-1 report form, which contains different descriptions of race, ethnicity, and job categories.  For instance, while the old EEO-1 plan provides a race and ethnicity category for “Hispanic,” the revised form includes a category for “Hispanic or Latino.”  The OFCCP’s new directive is an attempt to reconcile the revised EEO-1 report and the now-outdated OFCCP regulations that have not yet been changed to reflect the new EEO-1 categories.

The new directive clarifies that federal contractors will not be cited for noncompliance for using either the old or new EEO-1 race and ethnicity categories when preparing their affirmative action plans and provides further guidance on the use of the new categories in specific affirmative action plan requirements such as workforce, job group, utilization and other analyses.

The filing deadline for the EEO-1 report is September 30, 2008.

OSHA recently released a July 14, 2008 interpretation letter regarding its “Determination of work-relatedness” standard, 29 C.F.R. § 1904.5. The interpretation letter considers whether injuries to employees on an employer’s parking lot are considered “work-related” injuries under § 1904.5(b)(2)(vii).

This standard helps employers determine which injuries and illnesses they should record and report to OSHA. In particular, § 1904.5(a) requires an employer to “consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” In addition, § 1904.5(b)(2) provides a list of injuries or illness occurring in the workplace not considered “work-related,” thus not recordable.

Under § 1904.5(b)(2)(vii), an injury or illness “caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work” is not a “work-related” injury that is recordable.

In its interpretation letter, OSHA clarified that three factors must exist for an injury or illness to qualify for this exception:  (1) it must occur during an employee’s commute; (2) it must occur in the employer’s parking lot or access road; and (3) it must result from a motor vehicle accident. OSHA concluded that because the injuries did not involve a motor vehicle accident, the third requirement for § 1904.5(b)(2)(vii) does not exist. Therefore, employers must record these accidents on their establishment logs.

On August 29, 2008, the DOL’s Office of the Assistant Secretary for Policy issued a notice of proposed rulemaking (NPRM) that changes the methods used to measure workplace exposure to toxic substances and hazardous chemicals. Under this proposed rule, agencies must seek out and receive all relevant data before proposing a health standard. 

In particular, the proposed rule makes two significant changes to the existing regulations:

• When developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical, agencies must issue an Advance Notice of Proposed Rulemaking (ANPRM) soliciting input on studies, scientific information, data describing the frequency, intensity and duration of exposure of workers in affected industries and occupations, key default factors and assumptions, and other relevant information.
• Agencies must post electronically all documents relevant to a rulemaking addressing occupational exposure to toxic substances and hazardous chemicals no later than fourteen days after the conclusion of the relevant rulemaking step that relied upon or utilized those documents. The rulemaking steps include, but are not limited to, publishing an ANPRM, concluding the Small Business Regulatory Fairness Act (SBREFA) process, publishing of the NPRM, concluding any public hearing, and publishing a final rule.

The Office for the Assistant Secretary for Policy has also asked for public comments in connection with this proposed rule. The comment period will remain open until September 29, 2008. Comments may be submitted in two ways:  1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/ or 2) mail or hand deliver to the Office of the Assistant Secretary for Policy, 200 Constitution Ave., NW, S-2312, N.W., Washington, D.C., 20210, Attention: Risk Assessment Policy. 

On August 19, 2008, OSHA published a proposed rule designed to clarify that noncompliance with the personal protective equipment and training requirements in the general industry, construction, and maritime standards will expose employers to liability and penalties on a per-employee basis. Currently, an employer may receive one penalty for failure to train or provide personal protective equipment for multiple employees. Under this proposed rule, an employer could receive a separate penalty for each employee. The proposed rule, however, does not add any new compliance obligations for employers with respect to providing new equipment or training programs. It simply changes the liability risk for any failure to comply with existing regulations.In particular, the proposed rule makes two significant changes to the existing regulations.

• Introduces an identical new section in Parts 1910, 1915, 1917, 1918, and 1926, “Compliance duties owed to each employee” (§§1910.9 ,1915.9, 1917.9, 1918.9, and 1926.20(f)), clarifying that employers have separate compliance duties for each employee with respect to personal protective and training requirements.
• Revises training provisions in the general industry, construction, and maritime standards that require employers to institute or provide a training program for “all employees” to require employers to train “each employee.”

OSHA has also asked for public comments in connection with this proposed standard. The comment period will remain open until September 18, 2008. 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, 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-2008-0031.

On August 21, 2008, the Employee Benefits Security Administration (EBSA) announced two proposed rules making investment advise more accessible for participants in 401(k) plans and individual retirement plans (IRAs).

Congress passed the Pension Protection Act (PPA) in 2006, amending the Employee Retirement Income Security Act (ERISA).  The PPA added a new prohibited transaction exemption that allows greater flexibility for participants of 401(k) plans and IRAs to obtain investment advice. Under the exemption, advice may be given through an unbiased computer model or through an adviser compensated on a flat-fee basis.  Furthermore, advisors must disclose their fees.

The proposed regulation provides guidance on certifying the unbiased computer models and provides a model form that advisors can use to disclose their fees.

EBSA is also proposing a class exemption from ERISA’s prohibited transactions rule allowing advisors to give individualized advice to participants after giving advice generated by use of a computer model.

Written comments on the proposed regulation should be received by the Department of Labor on or before October 6, 2008. To submit comments electronically, email e-ORI@dol.gov, or use the Federal eRulemaking portal at http://www.regulations.gov/.  Interested parties may also send comments to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Attn: Investment Advice Regulations, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.

Core Provisions: Rep. Miller (D-CA), along with eleven Democratic co-sponsors, introduced legislation on July 30, 2008 that would prohibit the Secretary of Labor from issuing, administering, or enforcing any rule, regulation, or requirement derived from a proposal submitted to the Office of Management and Budget (OMB) entitled “Requirements for DOL Agencies’ Assessment of Occupational Health Risks.”

The draft rule reportedly changes the process Department of Labor (DOL) agencies follow when preparing risk assessments related to health standards governing occupational exposure to toxic substances and hazardous chemicals by challenging OSHA’s current assumptions that there is no threshold carcinogen exposure below which the cancer risk is zero, and that permissible exposure levels should be based on exposure to a toxin over a career lasting 45 years.

The proposed bill comes after Rep. Miller and Sen. Kennedy (D-MA) sought documentation related to the rule’s development after the rule was referenced on the OMB website despite the fact that it was not included in the DOL’s semiannual regulatory agenda. The proposed rule has not yet been published in the Federal Register.

Status:  Rep. Miller’s legislation, the “Prohibiting the Department of Labor’s Secret Rule Act of 2008″ (H.R. 6660) has been referred to the House Committee on Education and Labor.