U.S. Legislative Updates

Agencies Finalize Rule Governing Allowability of Contractor Whistleblower Costs

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule adopting, with some changes, an interim rule that establishes when a federal defense contractor or subcontractor can recover the amount of legal costs incurred in successfully defending against an employee's whistleblower action. Specifically, the rule amends the Federal Acquisition Regulation (FAR) to implement the section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 that addresses the allowability of such legal expenses.  The interim rule was published on September 30, 2013. Read the full post here

Senate Committee Approves Bill Making ERISA Clarifications

On July 23, 2014, the Senate Committee on Health, Education, Labor and Pensions unanimously approved S. 2511, a measure that aims to clarify the definition of "substantial cessation of operations" under Section 4062(e) of ERISA.  According to a statement issued by the committee, "this legislation will bring clarity to the pension downsizing liability rules and will ensure that there is a workable mechanism to protect pension benefits when employers show symptoms of financial distress." Read the full post here

Paid Leave, Flexible Work Scheduling Continue to Receive Attention

While the chance of both chambers approving bills this term that would significantly alter workplace wage and hour law is extremely low, members of the House and Senate continue to draw attention to this area. On Wednesday, Democratic members of both Houses of Congress introduced the Schedules that Work Act (H.R. 5159, S. 2642), a bill that would give hourly workers the right to request flexible and/or regular work schedules without reprisal.  Senator Tom Harkin (D-IA) introduced the Senate bill and Rep. George Miller (D-CA) sponsored the House version. The bill would establish an interactive process for requesting and considering such schedule changes. Read the full post here

Senate Advances Insourcing Bill

The Senate has voted overwhelmingly in favor of advancing a bill that would provide a tax incentive to employers that move their overseas jobs back to the United States, and eliminate a tax credit for moving operations outside the country.  The chamber voted 93-7 to send the Bring Jobs Home Act (S. 2569) to the Senate floor for consideration. Read the full post here

House Hearing Focuses on Federal Wage & Hour Enforcement

Members of the House Subcommittee on Workforce Protections held a hearing on Wednesday to discuss the exponential rise in Fair Labor Standards Act (FLSA) litigation, and the Department of Labor's employer compliance assistance efforts.  According to Subcommittee Chairman Tim Walberg (R-MI), the FLSA and its regulations are "exceptionally complex and outdated . . . promot[ing] the interests of trial lawyers" over employees. Moreover, the "patchwork of conflicting interpretations and a complex regulatory structure have created an environment of legal uncertainty." Read the full post here.

House Approves Job Training Bill; President Expected to Sign

One of the few employment-related bills considered this term is on its way to the President’s desk.  On July 9, the House overwhelmingly approved the Workforce Innovation and Opportunity Act (H.R. 803) by a vote of 415-6 (with 11 not voting). As previously discussed, last month the Senate approved this bill, which primarily reauthorizes and consolidates a number of federal job training programs. Read the full post here

Paid Sick Leave, Liens on Employers Still Possible From California Legislature

This blog post provides an update on the legislation signed by the California Legislature and the pending bills during the month of July 2014. Read the full post here.

President Signs Executive Order Banning Federal Contractor LGBT Discrimination

Over a month after the White House first announced an impending measure preventing federal contractors from discriminating against their employees on the basis of sexual orientation or gender identity, President Obama has officially signed the Executive Order (E.O.) to achieve this end. The E.O. generally prohibits employment discrimination against federal employees and contractors on the basis of sexual orientation and gender identity, and does not include a carve-out for religious-affiliated entities. Read the full post here

Senators Introduced Bill Providing Tax Incentives for Offering Paid Leave

As more states institute mandatory paid leave laws, two U.S. Senators have introduced legislation that would provide employers with a tax incentive for offering paid time off. On July 16, Senators Deb Fischer (R-NE) and Angus King (I-ME) introduced the Strong Families Act (S. 2618), a bipartisan measure that would create a 25% non-refundable employer tax credit for each hour of paid leave provided to employees, capped at $4,000 per year for each qualified employee.  To be eligible, the employer must offer at least four weeks of paid leave.  Such leave would have to be available on an hourly basis, and distinct from vacation or sick leave. Employers of any size would qualify for the tax credit.  Finally, the bill includes anti-retaliation provisions. Read the full post here

Amendments to Appropriations Bills Increase Chances of Federal Contractor Debarment

With roughly two weeks left to the House's legislative calendar before its summer recess, many businesses are not paying attention to the chamber's activities. This would be a mistake for many federal contractors, as lawmakers have been slipping amendments into several appropriations bills under consideration that could have significant implications for their operations.  Notably, Rep. Keith Ellison (D-MN) has successfully introduced amendments to various agency funding bills that would effectively debar contractors that have committed Fair Labor Standards Act (FLSA) violations within the past five years. Such violations could include a finding of fault and liability in any civil, criminal, or administrative proceeding, including entering into wage and hour conciliation agreements or consent decrees that include a “finding of fault.”  Read the full post here

Democratic Lawmakers Introduce Measure to Counter Hobby Lobby Decision

As expected, Democratic members of the House and Senate have introduced legislation in response to the U.S. Supreme Court’s recent ruling in Burwell v. Hobby Lobby. The Court in this contentious decision held that closely-held for-profit entities with religious objections to certain aspects of the birth control mandate imposed by the Affordable Care Act could avoid the mandate by invoking the Religious Freedom Restoration Act (RFRA).  Read the full post here

EEOC Issues New Enforcement Guidance on Pregnancy Discrimination over Commissioner Objections

The Equal Employment Opportunity Commission (EEOC) has issued new enforcement guidance on pregnancy discrimination and related issues, despite reservations expressed by some Commissioners.  In general, the five-part guidance explains Title VII's prohibition against pregnancy discrimination, describes individuals to whom the Pregnancy Discrimination Act (PDA) applies, discusses the expanded definition of "disability" under the Americans with Disabilities Act (ADA) and how it applies to pregnancy-related impairments, and sets forth examples of best practices and reasonable accommodations.  The guidance was approved by a 3-2 vote along party lines, with Commissioners Constance Barker and Victoria Lipnic voting against it. Read the full post here

House Passes Bonus Depreciation Bill

On Friday the House of Representatives approved a measure that would make an employer's 50% bonus depreciation permanent. The bill, (H.R. 4718), would permit businesses to expense half the cost of qualifying new equipment purchases, and allow certain tax credits to be used for capital reinvestment.  A similar, temporary provision expired for property placed in service before January 1, 2014. Read the full post here

President Obama Re-Nominates Recess Appointee to the NLRB

Two weeks after the U.S. Supreme Court held in Noel Canning that the three January 4, 2012 recess appointments to the National Labor Relations Board were invalid, the President has re-nominated one of these recess appointees to the Board.  On July 10, President Obama announced his intent to nominate Sharon Block to once again be a member of the Board.  Block, along with Richard Griffin and Terence Flynn, was seated on the Board while the Senate was still holding brief pro forma sessions every three days. The Court in Noel Canning determined that these sessions did not constitute a recess for appointment purposes. Read the full post here

NLRB General Counsel Outlines Priorities, Provides Noel Canning Update During Webinar

National Labor Relations Board General Counsel Richard Griffin discussed various steps the Board is taking in light of the Noel Canning decision, as well as his office’s priorities during a July 9 webinar sponsored by the American Bar Association. Read the full post here.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.