Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

In addition to biological and adopted children, the FMLA’s definition of “son or daughter” includes foster children, stepchildren, a legal ward, or a child of a person standing “in loco parentis.”  The DOL’s recent guidance focused on the definition of in loco parentis, which has been understood to mean “in place of a parent.” 

Federal regulations define in loco parentis as those with day-to-day responsibilities to care for and financially support a child.  The DOL’s June 22 opinion, however, clarified that the definition is not intended to require that an employee standing in loco parentis both provide day-to-day care and financial support to the child.  Either factor, standing alone, can be enough to qualify that employee for leave if the employee intends to assume parental responsibilities for the child.

This clarification potentially entitles aunts, uncles, grandparents, or same-sex partners who are helping raise their partners’ adopted children, to 12 weeks of unpaid leave to care for a child who is newly adopted, born, or suffering from a serious health condition. 

While employers are entitled to request that an employee provide written documentation verifying an in loco parentis relationship when applying for FMLA leave, employers are cautioned that the DOL’s guidance requires only “a simple statement asserting that the requisite family relationship exists.”  The DOL fails, however, to give any further guidance regarding the requirements for that “simple statement.”  Employers are encouraged to contact legal counsel should any questions arise regarding an employee’s entitlement to FMLA leave based on in loco parentis standing.

The Department of Labor’s “We Can Help” campaign, is two-fold: (1) It intends to raise awareness of workers’ rights among “vulnerable” classes of workers; and (2) it adds 250 field investigators who will target employers in communities that have a history of labor problems.  The campaign will focus on violations under the Fair Labor Standards Act (“FLSA”) and related federal rules governing minimum wages, overtime payments and hours worked.

These vulnerable classes include low-wage employees, immigrants (regardless of legal status), women in male dominated professions, young workers, subcontractors, and the disabled. The Department will target industries it believes are known for employing vulnerable workers including construction, apparel, manufacturing, restaurants, home health care, hotels and motels, janitorial, food service, and agriculture.

To inform workers of their rights and ways they can report violations to the Department, Solis said the Department will partner with labor and religious organizations across the nation to offer advice and steer workers to federal investigators. Solis said,

“[T]he campaign will inform workers of their rights and encourage them, regardless of their immigration status, to report violations of wage and hour laws on the job.”

The campaign will also involve public service announcements featuring prominent actors and activists, billboards, videos, internet-based resources, and a toll-free hotline. Information will be available in several languages including Spanish, Chinese, and Polish.
 
While this campaign intends to target certain categories of workers and employers, it will undoubtedly raise awareness of wage and hour laws among employees generally.  Thus, all employers should take note of the campaign and audit their compliance with wage and hour laws.  Depending on the situation, either the employer or an independent consultant can conduct the audit, but it is important to have legal counsel involved throughout this process.
 
A thorough audit will address time-keeping policies and procedures, recordkeeping, required workplace postings, and overtime pay requirements.

During a Department investigation, there are several points to keep in mind:

• Get legal counsel involved.
• Assuming the investigator wants to be fair and being responsive to the investigator will likely create a positive tone for the employer’s relationship with the investigator.
• Be sure to gather basic information first: Ask the investigator for documentation proving they are an investigator; ask if a complaint was filed; and determine the scope of the investigation.
• If an investigator seems unprofessional, have a third-party witness involved in interactions with the investigator and be sure to document those interactions soon after they occur.
   

Becker Appointed To NLRB

The President filled two of the three vacant seats on the NLRB with Democratic nominees Craig Becker and Mark Pearce.  The President cited the need to promote "the basic functioning of government" as the reason for issuing the appointments.  However, he chose not to appoint Republican Brian Hayes, whose uncontroversial nomination has been pending along with those of Becker and Pearce, to fill the remaining vacancy.  As a result, the NLRB is still not fully constituted.
 
By statute the NLRB is to have five members.  Traditionally, three of the members come from the sitting president's political party and the other two are from the other party.  However, the Board has been functioning for more than two years with only two members--its Chairperson Wilma Liebman (Democrat) and member Peter Schaumber (Republican).  The two have decided more than 500 cases.  The authority of the NLRB to decide cases with only two members was the subject of an argument before the U.S. Supreme Court just last week.  All parties to the case agreed that the Board had the statutory authority to act if it had three or more sitting members.

Before leaving Washington for a two-week, post-healthcare debate recess, 41 Senators, all Republicans, wrote the President requesting that he not issue a recess appointment to Mr. Becker.  Twenty business groups, including the U.S. Chamber of Commerce, echoed the sentiments of the Senate Republicans.

Becker's nomination has been hotly contested since it was announced last fall, as a result of what some call his "extreme" views about the union selection process.  Because of that controversy, just before the Christmas 2009 recess, Senator McCain exercised his Senatorial privilege to put Becker's nomination on hold, although Republicans and Democrats indicated that the nominations of both Pearce and Hayes would be approved without significant debate.  However, the President did not seek a vote on Pearce or Hayes at that time.

Mr. Becker will leave his post as counsel for the Service Employees International Union (“SEIU”) to take his seat on the NLRB; he will remain a Board member until his recess appointment runs out at the end of 2011. With a 3-to-1 pro-labor majority and with no particular timetable for action on Mr. Hayes' nomination, the NLRB is poised to reverse numerous decisions made by the Bush appointed Board on a number of controversial issues.

As we have written in this column on several occasions, Mr. Becker's views are of grave concern to many in the business community.  For example, Mr. Becker opposes participation by employers in the process by which employees decide whether to choose union representation.  Becker does not believe that employers should be allowed to express an opinion, provide any relevant information to their employees, or otherwise participate in the process in any way.

It is difficult to tell whether Becker's appointment signals the President's intent to defer action on the so-called Employee Free Choice Act (“EFCA”).  Some will speculate that the appointment indicates a compromise between the President and Andy Stern, who runs the SEIU and has visited the White House more than anyone else in the last year.  Stern is a staunch supporter of both EFCA and his employee, Mr. Becker.  The President and Secretary of Labor Hilda Solis have repeated their support for passage of EFCA.  However, the proposed law, which would eliminate the right of employees to vote on the question of union representation, has been mired in controversy since the President took office.  Like health care reform legislation, it may require the President to muster all forces at his command to get it passed.

Becker has made clear his view that the NLRB can engage in both rule making and rule changing, which could accomplish much of what EFCA is designed to do without Congressional action.  By failing to appoint Hayes, the NLRB now has a decidedly pro-labor majority which could enact sufficient changes to the union selection process to allow the President to avoid the firestorm which would accompany the debate over EFCA. 

Feldblum Appointed To EEOC

The President also announced that he would use recess appointments to fill slots on the EEOC with controversial Georgetown University law professor Chai Feldblum, Jacqueline A. Berrien, Victoria A. Lipnic, and David Lopez. 

The appointment of Feldblum drew immediate criticism from conservative Republicans.  Feldblum, who will be the first openly gay member of the EEOC, is best known for her support of the rights movement for lesbian, gay, bisexual, and transgender (“LGBT”) persons.  She helped craft the Employment Non-Discrimination Act (“ENDA”), which would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian non-religious employers with 15 or more employees. 

The EEOC nominees were approved by a Senate committee in early December, but their confirmation vote was put on indefinite hold by Senate Republicans who viewed Feldblum and other Obama nominees as too extreme.  Supporters of the President’s move to exercise the recess appointment option cite the EEOC’s backlog of discrimination claims and the current absence of a quorum needed to effectively address claims.  In a statement issued with the recess appointments, President Obama said, “The United States Senate has the responsibility to approve or disapprove of my nominees.  But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”

Recess appointments last until the end of the next session of Congress.  The White House announced, however, that the nominees will remain in the Senate for confirmation by regular procedures. 

We know from NLRB numbers over the last ten years that union win rates in these elections have increased from just over 50% in the first half of the decade to about 55% or more in each of the years of the second half.  So, let's see what those numbers tell us when compared to the rhetoric over EFCA.  

Union membership continues to decline and that's why unions say that EFCA or something like it should be made law. In 2009, as in previous years, unions initiated far fewer elections even though statistics show they win more than half of the ones in which they participate.  But absent passage of EFCA, unions can't win new members if they don't organize and hold elections.  Their strategy for passage of the EFCA free ride appears to amount to a self fulfilling prophecy.  That is, if unions refuse to engage in the election process, their numbers will continue to dwindle, which to some creates a problem in need of EFCA as the solution.  And the Obama administration seems to be making the same argument.  On January 22nd Hilda Solis, Secretary of Labor, said the membership numbers make "clear why the Administration supports the Employee Free Choice Act. "     

The Secretary's adherence to this stance in the face of statistics to the contrary is grounded in her sincere belief that employees are better off with a union.  However, with  a 55% win rate, why don't unions use the election mechanism available to them? The  unions say the deck is stacked against them and they can't win. The numbers reported for the last decade or more refute that claim. They also say that top down, corporate campaigns work better. The continuing drop in membership casts doubt on that assumption as well. But one certainly can believe that, if an employer can be forced  into a card check and neutrality agreement through a corporate campaign  publicly attacking its corporate image, the union win rate should vault into the 80 to 90% range.  EFCA in either its current or modified form will accomplish nearly the same thing.

As has been said from the outset, this proposition is not about better workplace democracy… it is about pre-ordaining union victory irrespective of free choice.

The Occupational Safety and Health Administration (“OSHA” or the “Agency”) recently announced its intent to reinstate the “musculoskeletal disorder” column on its injury and illness 300 Form.  The Agency is also developing a proposed rule to add a definition of musculoskeletal disorders to the Occupational Safety and Health Act (the “Act”).  A notice of the proposed rule-making and opportunity for public comment will be issued in January 2010.

Ergonomic-related regulations were implemented in 2000, but were revoked in 2001.  The Bush Administration also repealed the Ergonomics Standard in 2001.  Since then, OSHA has evaluated ergonomic issues by using the General Duty Clause of the Act.  Elimination of the musculoskeletal disorder checkbox on the 300 Form resulted in part from a 2001 settlement agreement between OSHA, the National Association of Manufacturers, and the U.S. Chamber of Commerce, which resolved an industry challenge to the Agency’s recordkeeping requirements.

It does not appear that the new regulations will fully reinstate all the provisions that were repealed in 2001, particularly the recordkeeping provisions, which if fully reinstated likely would be challenged in court.  Although Secretary of Labor Hilda Solis said the Agency does not intend to propose new ergonomics regulations at this time, employers should not conclude that ergonomics is not on the agenda for Obama’s Department of Labor.  The Obama Administration is under heavy pressure from the unions to move forward during this term.  The AFL-CIO, the largest federation of labor unions, pressed for new recordkeeping requirements at its annual convention in September as well as in documents it provided to President Obama’s transition team, and it has been relentless in its pressure regarding new ergonomics rules.

Several officials within OSHA have made statements suggesting that new regulations may be coming.  For example, the current Deputy Assistant Secretary of Labor for OSHA, Jordan Barab (who also headed the ergonomics issue during the Clinton Administration), spoke about ergonomics at a May 2009 legislative conference of union nurses held in Washington, D.C.  In that speech, Barab pledged that the Obama Administration was committed to bringing back regulation in the area of ergonomics.  The new Assistant Secretary of Labor for OSHA, Dr. David Michaels, also has spoken in favor of instituting new ergonomic standards.  In the past, he has conducted epidemiologic studies examining the repetitive motion hazards facing printers, construction workers, bus drivers and other groups of workers.

In light of all these factors, it seems clear that regulation of ergonomics is coming soon.  It will be very interesting to see how any new regulations compare with those previously enacted and rescinded.  Regulations that are substantially similar to those put in place during the Clinton Administration would require specific authorizing legislation by Congress.  Stay tuned for additional developments in this area.