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Washington Labor & Employment Wire » Agency Activity Alert

USCIS Announces Final Rule on I-9 Proof of Identity and Employment Authorization

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On April 14, 2011, in an effort to improve the integrity of the verification process, the United States Citizenship and Immigration Services (”USCIS”) announced a final rule that changes the types of documents an employer can accept as proof of identity and employment authorization during the Employment Eligibility Verification process. The rule takes effect May 16, 2011.

Employers are required to verify the identity and employment authorization of their employees by completing a Form I-9, or an Employment Eligibility Verification form. The government provides lists of approved documents that an employer can accept from the employee to prove their identity and eligibility to work. 

By this final rule, USCIS added some documents and removed others.  For example, the new rule now prohibits employers from accepting “Temporary Resident Cards” or “Employment Authorization Cards” because USCIS no longer issues them.  It also adds the new U.S. passport card to the list of documents acceptable to prove both identity and employment authorization.  The rule also prohibits employers from accepting expired documents even if they are on the approved documents lists.

Social Security Administration To Resume Sending No-Match Letters to Employers

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The Social Security Administration (”SSA”) has announced that it will resume sending “no-match letters” to employers this month.  The SSA issues no-match letters when certain information on wage statements provided by the employer does not match the information maintained by the SSA.  The new no-match letters, officially referred to as decentralized correspondence (DECOR) notices, will be sent to employers for the 2010 tax year.

An employer is required to provide the SSA with a W-2 for each of its employees annually.  The SSA uses the earnings information on the W-2 to determine the employee’s Social Security benefit amount.  The SSA compares each employee’s name and social security number on the W-2 with the same information in its records.  If the information does not match, the SSA will not post the employee’s earnings and will issue a no-match letter. 

Since no-match letters may be used as evidence of an employer’s constructive knowledge that specific employees may be unauthorized workers, employers should not simply ignore the letters.   The Department of Justice (”DOJ”) has issued general guidance for employer’s who receive a no-match letter.  For example, the DOJ warns against assuming that a no-match letter conveys information regarding the employee’s immigration status or authority to work, since no-matches can result from simple administrative errors, such as input errors by SSA staff or a reporting error by the employee or employer. 

The SSA started sending no-match letters in 1979 but stopped in 2008 when a federal court enjoined the Department of Homeland Security (”DHS”) and the SSA from implementing a proposed DHS regulation called “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.”  The DHS has since rescinded the proposed regulation.  The SSA will not send no-match letters to employers for the 2007 through 2009 tax years.

DOL Clarifies FLSA Tip Credit, Declines to Amend Regulations Governing the Fluctuating Workweek

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            On Tuesday, April 5, 2011, the Department of Labor (DOL) published updated regulations to the FLSA that were intended to conform the Act to subsequent legislation. The regulations were initially proposed in 2008 under the Bush administration. While the final rule updates regulations regarding the tip credit to reflect an increase in the minimum wage and clarifies existing overtime exemptions for employees engaged in fire protection activities, the rule is more interesting for what it does not do. In response to negative comments from employee groups, DOL opted not to adopt changes that would have clarified that salaried, non-exempt employees could receive bonuses under the fluctuating work week method of compensating overtime. 

            In addition to raising the maximum federal tip credit to $5.12 per hour, the final rule eliminated the maximum contribution percentage on valid mandatory tip pools. Notably, however, the DOL did not adopt a proposed regulation clarifying that bona fide bonus or premium payments do not invalidate the fluctuating workweek method of compensation. This proposal had been supported by the Chamber of Commerce, among other pro-employer entities. Commenters opposed to the proposed rule argued that it would allow employers to reduce employees’ fixed weekly salaries and instead provide compensation primarily through bonus and premium pay. The DOL noted that “in general, commenters representing employers favored the revisions while commenters representing employees strongly opposed the revisions.”

            DOL had also proposed a change to clarify that under section 7(o) of the FLSA, states and local governments that grant employees compensatory time off instead of cash overtime compensation must allow employees to use the compensatory time off on the date requested absent undue disruption to the agency. This clarification was not adopted in the final rule, but DOL reiterated that it maintains its longstanding position that employees are entitled to use compensatory time on the date requested. The final rule also does not include several other provisions originally proposed including providing an overtime exemption for service managers, service writers, service advisers, and service salesman; a regulation that allows an employer to take a meal credit even where the employee does not accept the meal voluntarily; and, examples of when pay is not required for employees who use their employer’s vehicle in home-to-work commuting.

EEOC Publishes Final ADA Regulations

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On March 25, 2011, the Equal Employment Opportunity Commission (”EEOC”) published its final revised regulations and interpretive guidance under the Americans with Disabilities Act (”ADA”). These revisions bring the Commission’s regulations into compliance with the ADA Amendments Act of 2008 (”ADAAA”), which explicitly invalidated certain prior EEOC regulations and several Supreme Court decisions interpreting the pre-2008 ADA.The ADA Amendments Act expanded the definition of “disability,” making it easier for an individual to establish that he or she has a disability within the meaning of the ADA. Accordingly, the EEOC’s final regulations, as with its prior proposed regulations, reflect a broadened understanding of what constitutes a “disability.” The regulations expand the definition of “major life activities” to include “major bodily functions,” such as breathing, cell reproduction, and immune system function. They provide that an impairment that is episodic or in remission is still considered a disability if it would substantially limit a major life activity when active. Additionally, the regulations provide that mitigating measures, other than the use of ordinary eyeglasses or contact lenses, should not be considered when assessing whether an individual has a disability. The regulations further revise the definitions of “substantially limits” and “regarded as” to reflect this broader understanding of what constitutes a disability under the Act.

The final regulations go beyond the proposed regulations previously promulgated by the EEOC to include additional guidance on certain topics. This includes clarification that cases in which an applicant or employee does not require reasonable accommodation can be evaluated solely under the “regarded as” prong of the definition of “disability,” and that whether an individual is substantially limited in a major life activity is irrelevant under the “regarded as” prong. Further, the final regulations state that a covered entity is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong.

General concerns were raised by employer groups about the inclusion of major life activities in the final regulations that were not listed in the statute, including specific concerns that the inclusion of “interacting with others” in the non-exhaustive list of major life activities would limit the ability to discipline employees for misconduct. The Commission declined to act on these concerns, noting that Congress provided that the lists of major life activity examples are non-exhaustive and that the Commission is authorized to recognize additional examples.

The final regulations also explain that the standard from Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), for determining whether an activity qualifies as a major life activity (i.e., that it be of “central importance to most people’s daily lives”) no longer applies after the ADA Amendments Act.

In conjunction with the publication of the final regulations, the Commission has released two question-and-answer documents. The ADAAA regulations, the accompanying question-and-answer documents, and a fact sheet are available from the EEOC here.

EEOC Holds Hearing on Employment of Persons with Mental Disabilities and Announces New Initiative

On March 15, 2011 the EEOC convened a public hearing on “The Employment of People with Mental Disabilities.” Organized primarily by Commissioner Chai Feldblum, who had significant involvement in the creation and passage of the Americans with Disabilities Act (”ADA”), the hearing featured three witness panels. Commissioner Stuart Ishimaru commented that the hearing was particularly timely as the Commission is on the brink of issuing its final regulations regarding the ADA Amendments Act. 

One of the hearing’s themes was the dignity and pride that working allows individuals with mental disabilities to have. In addition, a host of social and economic benefits to the individual and society, socially and economically were presented. The Commissioners of both parties in their opening and closing statements noted the bipartisan nature of this concern and indicated a sentiment that they speak with one voice in support of addressing the issues surrounding those with disabilities seeking and attempting to maintain employment. 

Employment Rates of People with Mental Disabilities

The first panel presented research, anecdotal data, and suggested strategies to improve the employment rates of people with mental disabilities. Dr. William Kiernan, director of the Institute for Community Inclusion, noted that 42% of people with intellectual disabilities live beneath the poverty line and that only 23% of such persons are in the workforce (as compared to 71.9% of the general population). Dartmouth professor Gary Bond reported that 70% of individuals with serious mental illness wish to work. Panelists also talked about challenges for individuals with mental disabilities, including transportation and the need for flexible hours, and the  technology which is redefining the traditional work day and location that can provide solutions. Ruby Moore, executive director of the Georgia Advocacy Office, cited various examples of corporations that have worked to create successful accommodations, including flexible working hours policies.

Requirements of the ADA, Strategies to Comply and Outcomes for People with Mental Disabilities

The second panel included Samuel Bagenstos, the principal deputy assistant attorney general for civil rights, a local Giant Foods supermarket manager and one of his employees with a mental disability, and a current EEOC legal intern who has struggled with psychiatric issues. Bagenstos testified on litigation efforts by the Department of Justice to enforce the ADA after Olmstead v. L.C., 527 U.S. 581 (1999), which requires public agencies to provide services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The supermarket manager testified about his success in working with individuals with mental disabilities and emphasized in questioning that his employment of such persons was based on business interest, not charity. One of his employees spoke about the connections she had made with people and the pride she takes in working. The EEOC legal intern described the dehumanizing effects of her multipl institutionalizations and described the pride and self-worth she has regained through sheer effort after removing herself from institutionalization.

Litigation to Enforce the Rights of People with Mental Disabilities

In the final panel, EEOC senior trial attorney Markus Penzel and charging party Donna Malone discussed their experience in EEOC v. Land Air Express, and how the ADA Amendments Act would have changed the litigation. Malone, who suffers from post-traumatic stress disorder (PTSD) as a result of repeated abuse by family members, was discharged after seven years based on a stereotype of individuals with PTSD. Penzel noted that the issue of whether Malone was legally disabled was a substantial issue in the litigation, but would not be an issue under the expanded scope of disability under the ADA Amendments Act.  In addition, Malone’s case would have been simplified due to the change in the burden of proof for individuals claiming to have been discriminated against because they are “regarded as” disabled. Penzel believes the changes to the ADA will help the EEOC and plaintiffs get to the substantive issues instead of being caught up in threshold issues.

 In her concluding remarks, Commissioner Feldblum stated her hope that the hearing demonstrated that it is possible to change the dire employment statistics for individuals with mental disabilities. She further posited that one critical step is to establish a forum through which efforts can be built upon the experience of employers who have been leading that way, using what they have learned to create more systematic change. Commissioner Feldblum then announced, “Towards that end, I am very pleased that I have had some initial conversations with the Chamber of Commerce and Society for Human Resource Management and I am pleased that they are willing to explore the possibility of working with me, the various disability groups and various agencies within the government to develop a coherent and coordinated effort to increase the number of people with disabilities in employment.” Commissioner Feldblum explained that she and her staff will facilitate such cooperative efforts with an initial focus on individuals with mental disabilities and that she will be forming a disability group with her government colleagues and a business group to get the efforts under way.

Occupational Safety and Health Review Commission Issues Decision on Time Limits for Recordkeeping Violations

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On March 11, 2011, the Occupational Safety and Health Review Commission issued a decision which addressed the question of when an “occurrence” of a regulatory violation happens for the purpose of determining whether it issued a citation within the statute of limitations.

At issue were five OSHA citations finding that Volks Constructors violated certain recordkeeping requirements at its facility located in Prairieville, Louisiana. OSHA cited the employer for numerous incidents of failing to maintain injury-and-illness records on OSHA Form 300 logs and Form 301 incident reports. The inspections took place between May and November 2006, leading OSHA to conclude that the employer failed to record 67 work-related injuries or illnesses at the site between August 2002 and April 2006. The employer did not contest that it failed to keep adequate records, but argued that the OSHA citations were too late.

Section 9(c) of the OSH Act states that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” None of the injuries or illnesses that the employer failed to log had occurred within six months of OSHA’s inspection and some had occurred almost five years earlier.

It was undisputed that the Secretary of Labor  issued the citations than six months after the recordkeeping duties at issue initially arose. The Secretary argued that the citations were timely because the violations continued during the five-year retention period prescribed by the recordkeeping regulations. Volks argued that these violations were one-time events that were not continuing, and that the citation could not be considered timely on the basis of the “discovery rule.”

The Commission affirmed four of the citations as timely and vacated a fifth citation as time-barred.  The Commission cited as controlling its decision in Johnson Controls, Inc., 15 BNA OSHC 2132, 1991-93 CCH OSHD ¶ 29,953 (No. 89-2614, 1993), where OSHA issued a citation for a recordkeeping violation more than six months after the employer erroneously deleted the entry of an employee’s elevated blood lead level from its illness and injury log. In Johnson Controls, the Commission held that “it is of no moment that a violation first occurred more than six months before the issuance of a citation, so long as the instances of noncompliance and employee access providing the basis for the contested citation[] occurred within six months of the citation’s issuance.” The Commission emphasized that it has explicitly held that, unlike other federal statutes in which an overt act is needed to show any violation, the OSH Act penalizes both overt acts and failures to act in the face of an ongoing, affirmative duty to perform prescribed obligations.

Next, the Commission rejected Volks’ argument that Johnson Controls has been undermined by intervening precedent from the Supreme Court and various courts of appeals. Specifically, Volks argued that the citation items were time-barred because they were not issued within six months of any “discrete, violative act.” The Commission found each line of cases cited by Volks to be distinguishable. With regard to Volks’ argument that, under the discovery rule, OSHA could not issue a citation for a recordkeeping violation more than six months after the close of the seven-day period, the Commission found that the discovery rule was irrelevant, since the Secretary did not claim that the discovery rule enabled her to cite Volks more than six months after the violations first occurred. “Rather, the timeliness of the citation at issue here is predicated solely on the continued existence of the violations throughout the five-year retention period, which means that OSHA did, in fact, issue the citation within six months of the occurrence of the recordkeeping violations.”

The fifth citation, which the court did vacate as time-barred, was for the employer’s failure to post an annual summary for the full time period required by 29 C.F.R. § 1904.32(b)(6). This regulation sets out a “date certain (April 30th) by which the posting of the annual summary may come to an end.” The Commission found that regulation’s plain language imposed a duty to post the summary for only a specified time period, and the Secretary failed to issue a citation within six months of the last day of that specified period. Thus, the citation was untimely.

DOL Review Board Upholds Debarment of Construction Contractor under Davis-Bacon Act for Worker Misclassification and Non-Payment of Wages for Time Worked

The Department of Labor’s Administrative Review Board ( “ARB” ) recently upheld an ALJ’s determination that a New York contractor violated the Davis-Bacon Act and related laws by “willful underpayment of wages due to misclassification of workers and failure to pay for all hours worked.” Pythagoras General Contracting Corp. v. Administrator Wage and Hour Division, DOL, ARB Nos. 08-107, ALJ No. 2005-DBA-14 (ARB Feb. 10, 2011) (as reissued Mar. 1, 2011). The ARB’s decision also upheld the ALJ’s decision to debar the contractor from obtaining future federal contracts for up to 3 years and increased the penalty awarded by the ALJ from $447,670 to $792,397, finding that the contractor failed to rebut the Wage and Hour Division’s ( “WHD” ) calculations of back pay.

The Davis-Bacon Act and related acts (known collectively as the DBRA) require that contractors pay no less than the prevailing wage rates determined by WHD to various classifications of mechanics or laborers they employ. The DBRA also requires contractors to keep accurate payroll records.

The case stems from an investigation conducted by the WHD between 2002 and 2004 after the agency received complaints that the contractor was not paying prevailing wages. The investigation concluded that the contractor failed to pay prevailing wages by misclassifying several employees as performing the work of laborers rather than mason tenders and carpenters and failing to compensate the employees for work performed prior to their scheduled start time. This pre-shift compensable time was spent gathering materials and tools and receiving work assignments.

The ARB’s decision relied heavily on the burden-shifting framework set forth in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). Under Mt. Clemens, the WHD administrator, as the party bringing the case, had the initial burden of proving that employees performed work for which they were improperly compensated. The burden then shifted to the contractor who had the burden to “negate the reasonableness of the inference to be drawn from the employee’s evidence.”  The contractor contested that the administrator’s evidence of limited employee testimony regarding misclassification of employees as labors and the performance of compensable activities before the scheduled work day began had established a reasonable inference. The ARB instead ruled that in light of the contractor’s incomplete and inaccurate payroll records, some of which had been discarded, the employee testimony was not refuted and could be relied upon to serve as the basis of an award for even non-testifying workers.

The contractor’s failure to maintain complete and accurate records also played a key role in its debarment.  The “incomplete and inaccurate records” that “reflected the misclassification of its workers” showed a willful violation of the act, as did the contractor’s failure to correct violations despite being placed on notice by the WHD’s investigation in 2002.

Borzi Addresses Fiduciary Regulation in Hearing

In a public hearing on March 1 and 2, 2011, Assistant Secretary of Labor for the Employee Benefits Security Administration (”EBSA”) Phyllis Borzi addressed the Department of Labor’s proposed fiduciary regulation, released in October 2010. The proposed regulation would update and expand the definition of a fiduciary under Section 3(21)(A) of ERISA. Under the proposed regulation, individuals preparing employer stock evaluations and similar investment advice would be considered ERISA fiduciaries. Speaking in support of the proposed change, Borzi pointed to the “tremendous evolution in the marketplace” in the 35-plus years since the existing fiduciary regulations were adopted and stressed the necessity of improving transparency and accountability.

At the hearing, critics of the proposed regulation urged EBSA to coordinate the fiduciary rulemaking with other agencies, including the Securities and Exchange Commission (”SEC”) and the Commodities Futures Trading Commission (”CFTC”).  Explaining that EBSA was working to harmonize the regulations with SEC and CFTC fiduciary standards, Borzi declined to defer entirely to those agencies regarding establishing new fiduciary standards. Borzi noted that the aims and structure of ERISA differed from other relevant statutes, such as the Consumer Protection Act and the Dodd-Frank Act, making it unworkable to completely synchronize the regulations.

Borzi explained that EBSA had no intention to issue a final fiduciary regulation that would require a covered party to be in violation of other statutes and regulations, but was unable to provide assurances that compliance with the EBSA regulation would necessarily comply with other fiduciary provisions. In issuing these caveats, Borzi noted that the proposed regulation would not directly conflict with existing Internal Revenue Service rules.

Prior to the hearing, Borzi stated that EBSA will likely issue a final regulation by the end of 2011.

Interested Parties Invited to Submit Amici to NLRB Concerning Witness Statements

On March 2, 2011, in Stephens Media LLC d/b/a Hawaii Tribune Herald (“Stephens Media”), No. 37-CA-7043, the NLRB invited interested parties to submit amici concerning employee witness statements.

In the first phase of Stephens Media, the Board ruled against the employer, a Hawaii newspaper, finding that it violated Section 8(a)(1) of the NLRA in refusing to provide union representatives to employees in disciplinary meetings and engaging in related unfair labor practices. 356 N.L.R.B. No. 63 (Feb. 14, 2011). The Board delayed ruling on a second issue – whether the employer was obligated to provide witness statements collected in the course of investigating the employee under Sections 8(a)(1) and 8(a)(5), setting aside the question for later determination.

In previous decisions in Fleming Cos., 332 N.L.R.B. 1086 (2000), and Anheuser-Busch Inc., 237 N.L.R.B. 982 (1978), the NLRB ruled that the employer’s obligation to furnish information “does not encompass the duty to furnish witness statements themselves.” In the February 14, Stephens Media decision, however, the Board questioned the scope and applicability of these decisions to the instant case. The request for amici for a second phase of Stephens Media, seeks clarification on (1) the definition of “witness statements” under Fleming Cos. And Anheuser-Busch, Inc., and (2) whether other types of investigatory documents are included in the employer’s duty to provide information.

Interested parties have until April 1, 2011 to file amicus briefs, which may be no more than 25 pages in length. The Board has also provided two additional weeks, until April 15, for response briefs.

President Obama Proposes Overall Budget Cut for Department of Labor in FY2012, Increase for OSHA

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On February 14, the Obama administration unveiled a $108.5 billion proposed budget for the Department of Labor for fiscal year 2012. The proposed budget would reduce DOL’s total budget by $40 million from the fiscal year 2011 budget, which is currently being funded by a recently enacted continuing resolution that will expire early next month.

The administration’s FY2012 budget calls for a significant increase for worker protection programs, including $240 million for the Wage and Hour Division (WHD), up from its current budget of $227.6 million. The budget allocates almost $50 million to a new multi-agency misclassification initiative aimed at coordinating federal and state efforts to combat the misclassification of employees as independent contractors. WHD’s budget includes $15 million for such misclassification investigations.

Notably, the budget requests $583.4 million for the Occupational Safety and Health Administration, an increase of a $24.8 million, or 4.4 percent, from fiscal year 2011. OSHA’s standard-setting directorate would receive $26 million, an increase of $36.8 percent from current funding levels. This $7 million increase includes $2.4 million to continue developing OSHA’s Injury and Illness Prevention Program rule, which aims to assist employers reduce workplace injuries by increasing their responsibilities for proactively identifying and fixing hazards in their workplaces.

In addition, the President’s budget requests $227 million for OSHA’s federal enforcement activities, an increase of 5.8 percent. The proposal would allocate $21 million for whistleblower protections, which would be separated out from enforcement, a change which OSHA claims would enable it to more easily track and report the resources used in the whistleblower program. According to OSHA, the funding would provide resources for 45 whistleblower investigators and 25 new inspectors.

Additional information concerning the President’s proposed FY2012 budget for the Department of Labor is available on the DOL’s website.