Workplace FYI - Inside Washington & Beyond – What Employers Need to Know

Because of Monday’s court decision favoring the Chamber of Commerce in its challenge to the National Labor Relations Board (NLRB)’s new election rules, the NLRB has “temporarily suspended” the rules and withdrawn its instructions on the implementation of these representation case process changes that were effective on April 30. (link).   See U.S. Chamber of Commerce et al. v. National Labor Relations Board, No. 11-cv-2282 (D.D.C. May 14, 2012).

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On April 18, 2012, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing with the august title of "Reviewing the Impact of the Office of Federal Contract Compliance Programs' Regulatory and Enforcement Actions."

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The US Department of Labor on January 30 released a notice of proposed regulations (NPRM) to implement amendments to the military leave provisions of the Family and Medical Leave Act (FMLA) made by the National Defense Authorization Act for Fiscal Year 2010. The statutory amendments extended the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies due to the servicemember’s deployment; define the deployments covered by the new regulations; and extend FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses. The proposed regulations also include changes concerning the calculation of leave and reorganize and make technical changes to the current regulations covering military FMLA. This NPRM also proposes to amend the regulations to implement the Airline Flight Crew Technical Corrections Act, which established new FMLA leave eligibility requirements for airline flight crewmembers and flight attendants. The Department has indicated that comments will be due to DOL on or before 60 days after date of publication in the Federal Register.

On December 30, the National Labor Relations Board (NLRB) will publish in the Federal Register that it is postponing its requirement that employers subject to NLRB jurisdiction post a notice informing its employees of their rights under federal labor law. It first announced this decision on December 23. This delay, until April 30, 2012, is the second time the NLRB has changed the rule’s effective date. The August 30 rule required the posting in November. The NLRB first extended the effective date to January 31, stating that additional time was needed “in order to allow for enhanced education and outreach to employers.” This extension is due to lawsuits questioning the legitimacy of the NLRB regulation.

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On August 30, the National Labor Relations Board (NLRB) will publish a new rule in the Federal Register that requires all employers to post a notice in all workplaces informing employees of their rights to form unions, bargain collectively over wages, hours, and conditions of employment; inform employees of employer unfair labor practices which they are protected from, and inform employees how to file NLRB charges. There also is brief mention of the employee right to refrain from engaging in union activity. The rule sets the size, form, and content of the notice, and advises regarding the enforcement of the rule. Here are the highlights:

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In May 2010, the OFCCP abruptly announced that it was no longer accepting requests for or renewals of Functional Affirmative Action Plans (FAAPs).  No reason was given and none has been forthcoming.  The absence of any explanation led to considerable speculation as to the reason for the suspension of what most federal contractors thought was a useful program: based on the employer’s actual distribution of its employees; reducing the number on facility-based plans; with no diminution of affirmative action.  Some practitioners suggested that the new leaders of OFCCP were suspicious of the FAAP program for no other reason than it was established during the Bush II administration. The speculation may stop now that the agency has issued a new Directive continuing the FAAP program, with revised procedures. 

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The EEOC just published its Notice of Proposed Rulemaking (NPRM) with the august title of “Recordkeeping and Reporting Requirements under Title VII, the ADA, and GINA.”  The NPRM, in fact, deals entirely with GINA, the Genetic Information Non-Discrimination Act.

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On April 5, 2011, the Department of Labor ("DOL") published final regulations under the Fair Labor Standards Act (“FLSA”).  In an earlier posting, I discussed DOL’s interpretation of the method for calculating overtime for employees on a fluctuating workweek.  The subject of today’s post is the treatment of tip pooling arrangements and tip credits under the new regulations.

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