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The Regulatory Avalanche From Washington, D.C.

Published Date: 
June 10, 2010

Proposed Changes Will Affect Employers' Obligations Under Various Federal Laws

The federal government has served notice that it will soon be creating an avalanche of new regulatory and enforcement actions from Washington, D.C., which will place enormous new burdens on employers. Worse, several of the new regulatory strategies will mandate that employers, in effect, demonstrate and document their compliance with employment laws and regulations to all employees, which then can lead to federal enforcement actions, private lawsuits or union organizing.

"Plan/Prevent/Protect"

One example is the U.S. Department of Labor's (DOL) so-called "Plan/Prevent/Protect" strategy, which is a cross-department regulatory and enforcement initiative. The new regulatory approach was announced as part of the DOL's Spring 2010 Regulatory Agenda.

The new regulatory strategy mandates that all employers prepare, implement and share with employees a series of comprehensive compliance programs for wage and hour, workplace safety and health, affirmative action, and pensions. In place of what the DOL terms the traditional "catch me if you can" enforcement philosophy, where federal agents inspect workplaces either randomly or through complaints, the new DOL strategy will place the onus on employers to, in effect, certify their own compliance.

The new strategy will cover the laws and regulations of the DOL's Wage and Hour Division (WHD), Office of Federal Contract Compliance Programs (OFCCP), Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), and Employee Benefits Security Administration (EBSA).

While each of the five divisions listed above will develop its own regulations or other mandates under the "Plan/Prevent/Protect" enforcement strategy, the DOL has identified the following general components required of employers:

  • "Plan": The DOL will propose a requirement that employers and other regulated entities create a plan for identifying and remediating potential violations and other risks to workers - for example, a plan to search their workplaces for safety hazards that might injure or kill workers. The employer or other regulated entity would provide their employees with opportunities to participate in the creation of the plans. In addition, the plans would be made available to workers so they can fully understand them and help to monitor their implementation. Of course, employees who doubt their employer's compliance likely will contact the DOL, a plaintiff's trial lawyer, a union, or all three.

  • "Prevent": The DOL will propose a requirement that employers and other regulated entities thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. The employer or other regulated entity cannot draft a plan and then put it on a shelf. The plan must be fully implemented for the employer to comply with the "Plan/Prevent/Protect" compliance strategy.

  • "Protect": The DOL will propose a requirement that the employer or other regulated entity ensure that the plan's objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.

As stated by the DOL in its Spring 2010 Regulatory Agenda: "Employers and other regulated entities who fail to take these steps to address comprehensively the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and, depending upon the agency and the substantive law it is enforcing, subject to remedial action."

Specific Program Requirements

Wage and Hour: The WHD has announced a "Public Classification Analysis" that will begin with the publication of a Notice of Proposed Rule-making, planned for August 2010, to increase employers' recordkeeping obligations under the Fair Labor Standards Act (FLSA). At a minimum, the WHD has suggested that the new recordkeeping rule will include:

  • "A requirement that employers provide workers with information about their employment, including how their pay is calculated."

  • "A requirement that employers that seek to exclude workers from the FLSA's coverage perform a classification analysis, disclose that analysis to the employees, and retain that analysis for WHD enforcement personnel."

Why is this important? Washington Ogletree Deakins Shareholder Alfred Robinson, formerly the Acting Wage and Hour Administrator at the DOL, warns:

"Consider the litigation risk of having to provide each employee with an analysis of the basis for classifying their job as exempt, or of classifying them as independent contractors. This could then become evidence in a subsequent enforcement action - perhaps even a collective action on behalf of all similarly situated employees - or used as fodder in a union organizing campaign. The new regulations may even seek to evade privileged audits, done with the advice of legal counsel, if such compliance audits are required as a matter of routine regulations mandating that the results must be disclosed to employees."

OSHA: OSHA has declared it a high priority to propose a new standard that would require employers to adopt an Injury, Illness, and Prevention Program (I2P2) that likely will require proactive and continuous processes to address safety and health hazards. OSHA has identified the following likely com-ponents of I2P2: management duties; employee participation; hazard identification and assessment; hazard prevention and control; education and training; and program evaluation and improvement.

Beyond mandating safety and health programs, the I2P2 standard, in turn, could allow OSHA to avoid the lengthy promulgation of new safety and health standards for specific hazards through formal rulemaking such as the failed OSHA ergonomics standard that Congress rejected under the Congressional Review Act during the Clinton Administration. Instead, OSHA is expected soon to require that employers create a new column to identify musculoskeletal disorders (MSDs) on the OSHA 300 Log (reports of accidents and illnesses). The I2P2 standard could provide a mechanism for OSHA to require employers to remedy conditions that create MSDs identified on the Log.

Why is this important? Ogletree Dea-kins' Washington Shareholder Steve Yohay, an OSHA specialist, warns:

"Consistent with its many new enforcement programs intended to expose employers to public ridicule and significantly raise penalties when major violations are alleged, the I2P2 program would impose broad new obligations on employers. Effectively, the new program, if adopted, would impose most of the same requirements on employers that advocates of OSHA reform legislation have sought for years, including increased employee involvement and written certification of hazard identification and abatement efforts. It could also be a way for OSHA to regulate ergonomic hazards by asserting that employers must identify and correct them."

MSHA: Reacting to recent mine disasters, MSHA has announced in the Spring 2010 Regulatory Agenda, as part of its "Plan/Prevent/Protect" strategy, the following regulatory initiatives:

  • Pattern of Violation Regulation Review: "MSHA will review its existing Pattern of Violations regulation. The goal will be to assure that mine operators . . . with large numbers of serious and substantial violations of the Mine Act and its implementing regulations will be subjected to significantly enhanced enforcement activities. The regulation will simplify and improve consistency in the procedures and criteria for placing mine operators into the pattern of violations program."

  • Safety and Health Management Programs for Mines: "MSHA currently requires development and approval of plans for control of specific hazards. . . . MSHA will work on regulations to improve the effectiveness of these existing plans, but MSHA will also publish a Request for Information (RFI) about the possible imposition of a new requirement of a comprehensive health and safety management program for all mines."

OFCCP: OFCCP already requires covered contractors and subcontractors to develop written affirmative action programs (AAPs) which may be audited by the agency. To further support its mission of equal employment opportunity, however, OFCCP has established the following goals:

  • Continued focus on pay equity, likely focusing on individual pay differences rather than historically unsuccessful attempts to find systemic problems.

  • Increased scrutiny of hiring decisions through both disparate treatment and disparate impact analyses, focusing on low-wage and entry-level jobs.

  • Targeting recidivism of contractors entering into conciliation agreements, including greater scrutiny of progress reports and possible consideration of follow-up on-site reviews.

  • Revamping and updating construction contractor regulations and increasing compliance reviews for these employers.

  • Emphasizing outreach to and recruitment of veterans and individuals with disabilities.

  • Developing a more robust statistical model to target alleged violators and determine which contractors to audit.

In addition, as part of the "Plan/Prevent/Protect" strategy, OFCCP has announced plans for a Notice of Proposed Rulemaking (NPRM) requiring that federal and federally assisted contractors take steps to properly classify "independent contractors" similar to the initiative being developed by the WHD.

OFCCP is "definitely reenergized and refocused," says Leigh Nason, a Shareholder in Ogletree Deakins' Columbia, South Carolina office who has a national affirmative action/OFCCP compliance practice. "The agency is better funded and certainly more motivated than in any previous Administration in recent history. OFCCP's renewed vigor - coupled with its active pursuit of both individual and systemic discrimination claims - could exponentially increase the cost of compliance. To combat this possibility, we strongly recommend that contractors develop and implement consistent, well-documented employment practices; conduct internal compliance audits, preferably under the direction of an attorney to preserve privilege; and ensure that any information produced to OFCCP is accurate and defensible."

EBSA: In addition to the previously announced emphasis by the IRS and WHD calling for stepped-up enforcement of independent contractor classification, the DOL's Spring 2010 Regulatory Agenda calls for the following initiative as part of its "Plan/Prevent/Protect" strategy: "EBSA will work with the WHD to ensure that employee benefit plan issues are addressed in settlements with employers regarding mis-classification of employees as independent contractors. WHD will require settling employers to review their benefit plans, resolve the benefit rights of misclassified employees and report related violations of plan provisions and ERISA to EBSA." This is on top of the DOL's joint initiative with the IRS, as part of workplace investigations, to identify employees who are misclassified as "independent contractors."

Other Regulatory Initiatives

The DOL's "Plan/Prevent/Protect" strategy is merely the "tip of the iceberg." Throughout the government, and inside Congress, there has been a major emphasis on promoting union-only Project Labor Agreements (PLAs) in federal construction projects, especially for construction of nuclear power plants and so-called "green jobs." For example, the Final Rule implementing Executive Order 13502, which "encourages" the use of PLAs, was published in the Federal Register on April 13 and went into effect on May 13.

Another rule, implementing Executive Order 13495 ("Non-displacement of Qualified Workers under the Service Contract Act"), was published on March 18, with the deadline for filing public comments on May 18. The Executive Order requires contractors under the Service Contract Act to offer union employees of a contractor they displace the right of first refusal for continued employment.

Also, a rule implementing Executive Order 13497 ("Non-reimbursement of Labor Relations Costs") was proposed on April 14, with the deadline for filing public comments on June 14. The Executive Order prohibits contractors from seeking reimbursement of costs for communicating with employees during a union organizing campaign.

Another rule implementing Executive Order 13496 ("Notice of Employee Rights under Labor Laws") will go into effect on June 21. The Executive Order requires contractors to post a workplace notice of employee rights to organize, bargain collectively, and engage in other concerted activities.

"High Road" Government Contracting
The business community should carefully monitor development of a new federal regulation being considered within Vice President Biden's Middle Class Task Force. The "High Road" Government Contracting proposal, which is expected to be released as an Executive Order, will mandate that contractors pay a "living wage," along with health insurance, retirement benefits, and sick leave. It also is expected to take into account a contractor's compliance record with labor and employment laws in determining a preference for the award of federal contracts. Finally, it is also anticipated that an additional requirement to receive a contracting "preference" will be an employer's "neutrality" in union organizing campaigns.

Equal Employment Opportunity Commission (EEOC)
The EEOC is finalizing several long-outstanding regulations. It has completed action on a final rule implementing the Genetic Information Nondiscrimination Act (GINA), and is finalizing a rule to implement the equal employment provisions of the Americans with Disabilities Act Amendments Act. EEOC also has initiated rulemaking on the definition of "reasonable factors other than age" under the Age Discrimination in Employment Act (ADEA).

Newly sworn-in EEOC Chair Jacqueline Berrien recently testified before the Senate HELP Committee in support of the "Protecting Older Workers Against Discrimination Act" (S. 1756), which would supersede the U.S. Supreme Court's 2009 decision in Gross v. FBL Financial Services. The Supreme Court in Gross held that "mixed-motives" claims are not cognizable under the ADEA, and that older workers cannot prevail on a claim of age discrimination unless they prove that age was the "but for" cause of the employment practice at issue. Speaking for the EEOC, Chair Berrien stated that legislation is needed to restore and bolster the basic protections that applied to ADEA claims pre-Gross.

National Labor Relations Board (NLRB) Next?
Now that the NLRB has a full majority of former union lawyers it is widely expected that many of the Board's precedents in recent years will be reversed through decision-making. However, it is also widely expected that the Board will engage in rulemaking to make it easier for unions to organize and attain first contracts.

Since the new majority has been seated, the first two areas in which the Board has invited amicus curiae briefs involve "compound interest" and electronic posting of Board orders. The former will determine whether the Board compounds interest on back pay awards on a daily, weekly, quarterly or annual basis. Of course, compounding interest could greatly increase financial pressures on employers to settle unfair labor practice complaints.

The latter - electronic posting - could be a precursor to other uses of email and the Internet in matters involving labor relations, such as union organizing and even electronic ballots for union representation elections. At present, the issue is limited to whether employers may be required to post Board Orders in unfair labor practice decisions on the employer's electronic equipment, and whether unions should be required to do the same on their websites when the union loses an unfair labor practice decision.

Conclusion

What unions, plaintiffs' trial lawyers and others are unable to achieve through Congress, especially following the November mid-term elections, they will seek to achieve through federal agencies by rulemaking and new enforcement programs. According to Hal Coxson, who leads the Ogletree Deakins Government Relations Practice Group in Washington, "The DOL's `Plan/Prevent/Protect' initiative may result in challenges for privileged audits done by counsel subject to the attorney-client privilege, but at the same time it could be an opportunity for employers to prepare non-privileged documents that could serve as the basis for a `good faith' defense under the FLSA."

Business must be engaged in the rulemaking process, challenging new regulations in court, as well as preparing for what will be the continuing avalanche of anti-business rules and regulations coming from Washington.

Note: This article was published in the May/June 2010 issue of The Employment Law Authority.