Of particular interest to employers, the Senate bill also includes a “mental health parity” provision which had been previously passed by overwhelming majorities in the House (H.R. 6983) and Senate (H.R. 6049) in separate bills on September 23, 2008. Like these previous bills, the mental health parity provision of H.R. 1424 requires health plans providing mental health coverage to provide mental health coverage in the same manner as other physical health conditions. The Senate bill exempts group health plans of employers with fewer than 50 employees from these new requirements.

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.

Earlier on September 26, the Senate failed to pass similar unemployment benefit provisions as part of an economic stimulus bill (S. 3604). The bill, sponsored by Majority Leader Harry Reid (D-NV) and Sen. Robert Byrd (D-WV), fell 8 votes short of the 60-vote threshold required to overcome a Republican filibuster, obtaining only a 52-42 majority.  Republicans objected to language in the bill extending a ban on offshore drilling.

The unemployment insurance provisions of both bills would provide jobless workers who have exhausted their benefits with 7 more weeks of benefits, with additional 13-week extensions to workers in the 20 states (and the District of Columbia) with unemployment rates above 6 percent.

Following the failure of S. 3604 to receive 60 votes, the Senate may take up the House bill, which itself would then face a potential filibuster. The unemployment provisions could also be attached to other legislation, such as a potential financial system bailout bill.

The Bush Administration has announced its opposition to both the House and Senate bills and has promised a veto of both. It objects to the cost of the unemployment benefit provisions, as well as the precedent set by the extension of benefits, which follow a previous extension in July 2008.

H.R. 2095, which also includes provisions reauthorizing Amtrak and providing funds to various rail safety initiatives, gained recent momentum following a tragic California train accident on September 12. Supported by the major rail unions and industry groups, the Act would provide resources to the Federal Railroad Administration (”FRA”), create minimum training standards for railroad workers, and strengthen FRA enforcement powers. H.R. 2095 requires the FRA to establish a certification program of conductors and requires a study on certification of other classes and crafts of rail employees.

The bill enhances various hours-of-service requirements to address fatigue among train and signal employees, who are currently forbidden from being required to be on duty more than 12 consecutive hours. H.R. 2095 provides that all train and signal employees are provided at least 10 consecutive hours of uninterrupted rest following 12 hours on duty (although this requirement would be suspended three years for passenger train employees during an FRA study of the issue). It also ensures that train and signal employees receive 48 consecutive hours off duty at their home terminals after each six days being on duty, and 72 consecutive hours off duty at their home terminals in the event they are required to work a seventh day.  

H.R. 2095 caps “limbo time,” the time spent by rail crews after completing service awaiting transportation or being transported to the point of final release. Although paid time, “limbo time” counts neither as time on duty or time off duty and does not currently count against the maximum daily 12 hours of service.

H.R. 2095 requires railroads to develop plans to limit and manage worker fatigue and prohibits railroads from interfering with or delaying medical treatment of injured workers and forbids disciplining workers for requesting treatment. It also mandates the implementation of a positive train control system by Class I railroads and intercity passenger and commuter railroads by the end of 2015. A positive train control system would allow for automatic control and stopping of locomotives in the event of a missed signal, providing a backup safety system in the event of a human error.

Although the compromise bill maintains widespread bipartisan support, Sen. Tom Coburn (R-OK), has stated he will delay the bill because it provides $1.5 billion to the Washington Metropolitan Area Transit Authority. This procedural delay requires Democratic Senate leadership to hold a cloture vote on the bill.

Under the Ledbetter decision, an employee has 180 days from the employer’s initial act of pay discrimination in which to bring an action.  The Fair Pay Restoration Act would supplant the Supreme Court’s Ledbetter decision by permitting employees to challenge each and every discriminatory paycheck the employee receives within a two year period before filing a claim, as long as the claim is filed within 180 days of receiving a discriminatory paycheck.   Senators Feinstein, Feingold, and Leahy gave statements in support of the Fair Pay Restoration Act, and the committee heard from three witnesses concerning an alleged judiciary bias against plaintiffs in employment cases.

Senator Feinstein shared statistics that she stated demonstrated the immediate and future impact felt by women and their families as a result of discriminatory pay policies.  She asserted that disproportionate pay not only harms women and their families now, but also in retirement when, as a result of their smaller paychecks, women collect smaller pension checks.

Senator Leahy noted that in the current economic downturn many Americans are struggling for basic necessities. “It is sad that recent decisions handed down by the Supreme Court and Federal appellate courts have contributed to the financial struggles of so many women and their families,” he contended.

Senator Feingold belittled the Supreme Court’s Ledbetter decision, calling it erroneous and stating that it ignores the realities of the American workplace in which most employees have no way of learning within 180 days that they are being discriminated against in terms of compensation.  Senator Feingold also responded to critics of the legislation, who charge that the Act would force employers to defend themselves in costly litigation, by stating that the Act will “only affect those employers who underpay and discriminate against their workers, hoping that employees, like Ms. Ledbetter, won’t find out in time.”

Lilly Ledbetter, the plaintiff at the center of the controversial Supreme Court decision and one of the three witnesses to testify before the committee, also argued that the current state of the law under the Supreme Court’s decision does not make sense given the realities of the American workplace.  Ms. Ledbetter told the committee her story, and specifically about how, after years of working for Goodyear, she learned that she was being paid substantially less than her male peers for identical work.  “Justice Alito and four other Supreme Court justices sent the message that it’s just tough luck for the employee - if she doesn’t complain at the time of the employer’s original decision, the employer gets to pay her less for the rest of her career,” stated Ms. Ledbetter.

In addition to Ms. Ledbetter, two attorneys also testified before the Committee.  Lawrence Z. Lorber, a management-side practitioner, and Cyrus Mehri, a plaintiff-side attorney, gave the committee their views on the Ledbetter decision, and what the decision says about the way the judiciary views employment cases and employment plaintiffs.  Mr. Mehri catalogued what he perceived as a growing judicial bias against plaintiffs in employment cases, and specifically employment discrimination plaintiffs.  Mr. Mehri opined that the Ledbetter decision is an example of such anti-plaintiff bias and concluded that the only way to counteract this bias is to diversify the judiciary by expanding the pool of judicial nominees. Mr. Lorber contradicted Mr. Mehri’s evidence by enumerating a number of recent Supreme Court decisions in employment cases that expanded protections for employees under the ADEA, Section 1981, ERISA, and Title VII.  Mr. Lorber asserted that the cases he cited, all of which were decided during the Supreme Court’s 2007-2008 Term, demonstrate that there is no “pro-employer” bias or “anti-plaintiff” bias when the Court interprets employment laws.

Mr. Lorber also offered criticism of the Paycheck Fairness Act (H.R. 1338), proposed legislation that would eliminate the caps on punitive and compensatory damages in actions brought under the Equal Pay Act, and would make it more difficult for employers to establish the “bona-fide factor” affirmative defense.

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.

The mental health parity provisions would amend ERISA to require group health plans to administer treatment limitations, beneficiary financial requirements and out-of-network coverage so that mental health benefits are no more restrictive than “substantially all medical and surgical benefits.”  The legislation would exempt group health plans of employers with fewer than 50 employees.

Unlike the Senate bill which does not directly offset the costs of the mental health parity provisions, the House bill is paid for by a delay in a tax benefit to multinational corporations.  According to the Senate Finance Committee, the parity provisions are expected to cost nearly $4 billion over the next decade.  It is unclear whether the House or the Senate will move first towards adopting the other house’s bill in an effort to reconcile the parity provisions.

The Bush administration released a statement expressing support for the Senate energy and tax bill which includes the mental health parity language, H.R. 6049.

This legislation would amend the provisions of the Employee Retirement Income Security Act, Public Health Service Act, and Internal Revenue Code permitting group health plans to establish limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.  The new language would clarify that such limitations must be explicit and clear and disclosed to the plan sponsor in advance of the point of sale to the plan. The plan sponsor and issuer of the coverage would be required to make available to participants and beneficiaries prior to their enrollment and upon their enrollment a description of such limitations and restrictions in an easily understandable form.  The legislation was amended to clarify that providing such materials upon enrollment meant “at the earliest opportunity that other materials are provided.”

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.

Although the hearing did not specifically address any pending legislation, several witnesses expressed their support for the “Children’s Act for Responsible Employment of 2007″ (”CARE Act”) (H.R. 2674), which is co-sponsored by Subcommittee Chair Woolsey (D-CA). 

The CARE Act would amend the Fair Labor Standards Act (”FLSA”) to (1) narrow the exemption for agricultural work to the employment of children working on their families’ farms; (2) increase civil penalties for child labor violations; (3) impose special criminal penalties for aggravated child labor violations; (4) require the Secretary of Labor to gather and analyze data on work-related injuries to children employed in agriculture; (5) impose additional employer reporting requirements for work-related injuries for employees who are minors; and (6) incorporate a pesticide-related worker protection standard. There has been no movement on this legislation since it was referred to the Workforce Protections Subcommittee on July 24, 2007.

Alexander Passantino, Acting Wage and Hour Administrator for the U.S. Department of Labor, testified that his agency continues to give high priority to child labor complaints.  Passantino cited the declines in workplace injuries and fatalities as an indicator of the success of the agency’s efforts.  He also highlighted the agency’s “YouthRules!” information campaign.

Norma Flores, a former child worker, testified about her experiences as a migrant worker on farms in the South and Midwest.  She testified that during the six years she worked in the fields, she never saw an inspector. She recalled deplorable conditions including a lack of bathrooms, nowhere for workers to clean pesticides off their hands, and no clean drinking water.  Flores testified that she and other child workers were regularly exposed to hazardous chemicals and dangerous tools and machinery, but had no health insurance.

David Strauss, Executive Director of the Association of Farmworker Opportunity Programs, testified that his staff had observed many child labor violations, and testified in favor of increased enforcement efforts and strengthening existing protections.  For example, he noted that California has heat illness prevention standards, but there is no such federal hazardous occupation order for excessive heat.

Sally Greenberg, Executive Director of the National Consumers League and Co-Chair of the Child Labor Coalition, testified that recent reports by her organization made recommendations to the Department of Labor (DOL) about how to strengthen protections for children in 2005 and 2006, but the DOL has implemented only a handful of those revisions. Greenberg noted that the number of child-labor investigations have declined drastically.  She recommended focusing enforcement efforts on the agriculture and meat-packing industries.  Greenberg also recommended increased funding for Wage and Hour investigators, eliminating special statutory exemptions for agricultural employment, and raising the minimum age for particularly hazardous work to 18.