OFCCP Issues Proposed Rule for Federal Contractors Prohibiting Policies/Practices Under Which Employees May be Disciplined For Discussing Pay

By Edwin S. Hopson

On September 15, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) proposed a new rule that would prohibit federal contractors from discharging or otherwise disciplining employees who discuss, disclose or inquire about their pay or the pay of another employee or applicant for employment.

“Workers cannot solve a problem unless they are able to identify it. And they cannot identify it if they aren’t free to talk about it without fear of reprisal,” said OFCCP Director Patricia A. Shiu in her press release. “Pay transparency isn’t just good for workers. It’s good for business. Fairness and openness are great qualities for a company’s brand.”

Back in April 2014, the President signed Executive Order 13665, which instructed Secretary of Labor Perez issue a proposed rule within 160 days that required “pay transparency” by federal contractors. The rule proposed would amend the Equal Opportunity clauses in Executive Order 11246. The new rule adds definitions for “compensation,” “compensation information,” and “essential job functions,” terms which appear in the revised clauses of the Executive Order. The proposal also establishes two types of defenses that contractors can use against allegations of discrimination under EO 13665.

The proposed rule will be published in the September 17 issue of the Federal Register and will be open for public comment for 90 days. See  http://www.dol.gov/ofccp/PayTransparencyNPRM.

Minimum Wage and Overtime Laws to be Applied to Home Care Employees

By Douglas L. McSwain

The U.S. Department of Labor (DOL) has adopted a new final regulation that extends minimum wage and overtime protections to direct care employees of home care agencies and other third parties.  Direct care workers include those who provide essential home care services such as home health aides, personal care aides, and certified nursing assistants.  An estimated two million additional direct care workers in the U.S. are expected to be covered by this new rule.

The final regulation will take effect January 1, 2015, so employers have time to consider its implications unless their direct care workforces are already covered by a state minimum wage or overtime law.  Fifteen states extend both minimum wage and overtime protection to direct care workers, and an additional six states, plus the District of Columbia, extend minimum wage protection. 

The DOL’s new regulation does not sweep within its protection every person who provides companionship services or assists another within a home setting.  Many comments were submitted to the DOL raising questions about the potential scope of the proposed rule, particularly as to its potential impact on those who merely provide companionship. The result in the DOL’s final rule was to extend protection to those performing medically-related services for which training is typically a prerequisite, but not to workers who are employed only by the person receiving services or his/her family or household and who primarily perform fellowship and protection activities, or care incident to these activities, such as providing company, visiting or engaging in hobbies, etc., with the person receiving services.

Former Recess-Appointed NLRB Member Griffin Nominated to be NLRB General Counsel

By Edwin S. Hopson

On August 1, 2013, President Obama nominated Richard Griffin to be General Counsel of the National Labor Relations Board.  Griffin was one of the NLRB recess-appointed Members whose nomination was withdrawn by the President as part of the filibuster deal in mid-July.  The other recess-appointed NLRB Member, SharonBlock, whose nomination was also withdrawn, has been appointed as senior counselor to U.S. Labor Secretary Thomas Perez, according to an article in today’s New York Times.  Lafe Solomon continues to be Acting General Counsel at the NLRB.

NLRB Nominees in the Middle of Senate Dispute Over Proposed Changes to Filibuster Rules

By Edwin S. Hopson

On July 11, 2013, Senate Majority Leader Harry Reid (D-NV) filed cloture on seven nominations including Richard Griffin, Sharon Block and Mark Pearce, all Democrats, to be Members of the National Labor Relations Board.  His motion also included Thomas Perez to be Secretary of Labor.  Republican Minority Leader Mitch McConnell (R-KY) then asked consent for the Senate to vote on Pearce, and NLRB nominees Harry Johnson and Philip Miscimarra, both of whom are Republican (the Republican Senators’ opposition to Members Griffin and Block centers on the fact that they were recess appointed at a time when Republicans contend the Senate was in session).  Reid objected to McConnell’s request setting up a debate over changing the filibuster rules in the Senate, sometimes called the “nuclear option.”

Reid publicly stated that he wants to amend the filibuster rule to exclude the President’s nominations to positions in Executive Departments and Agencies.  Reid contends that it takes only 51 Senators to pass such an amendment to the Senate’s rules.

McConnell and other Republican Senators have come out in strong opposition, indicating that if that takes place, the Senate will evolve into a simple majority institution, like the House of Representatives.

The final outcome may not be known until late on July 15 or sometime the next day.

In the meantime, the NLRB and the two recess appointees, Members Griffin and Block, have come to be in the center of what may turn out to be a major crisis in the Senate.

Senate Committee Approves Perez to be Secretary of Labor and Holds Hearing on NLRB Nominees

By Edwin S. Hopson

On May 16, 2013, the U.S. Senate Health, Education, Labor and Pensions Committee voted 12 to 10 along party lines in favor of Thomas Perez’ nomination to be Secretary of Labor. 

The committee also on that date held a hearing on the five nominations by President Obama to the National labor Relations Board.  A vote by the committee on the NLRB nominations is expected on May 22, 2013.  It can be anticipated that Republican senators will oppose the Perez nomination, and several of the nominations to the NLRB once the Democrat majority seeks to move for a vote by the entire Senate on these nominations.

Senate Committee to Hold Executive Session on Thomas Perez’ Nomination to Labor Secretary

By Edwin S. Hopson

The Senate Committee on Health, Education, Labor & Pensions has announced it is going to conduct an executive session on May 8, 2013, starting at 10 a.m. on the nomination of Thomas Perez to be U.S. Secretary of Labor.  A number of Republican Senators have voiced possible opposition to Perez’ nomination.  Since the Democrats constitute the majority on the HELP committee, it is assumed that Perez’ nomination will ultimately be voted favorably out of committee.

Secretary of Labor-Designate Thomas Perez Faces Questioning at His Confirmation Hearing Over Deal Made in Whistleblower Case

By Edwin S. Hopson

On April 18, 2013, the U.S. Senate Health, Education, Labor and Pensions Committee held a hearing on the nomination of Thomas Perez to be the U.S. Secretary of Labor.  The ranking Republican on the committee, Senator Lamar Alexander (R-Tenn.), questioned Perez regarding his role in the Justice Department’s deciding not to intervene in a whistleblower case pending in Minnesota during the time Perez has been in charge of the Civil Rights Division at the Department of Justice.  Under the federal False Claims Act, if a recipient of federal funds misuses or misappropriates federal funds, it can be prosecuted under that law and any person (relator) who pursues that case can receive a portion of the recovery.  At the outset of such cases, the federal government is permitted time to consider whether it wants to intervene as a party to the case.

Senator Alexander asked Perez if there had been an agreement with city officials in St. Paul, Minnesota that they would not appeal a specific case to the Supreme Court that could have resulted in a decision unfavorable to the Civil Rights Division’s position on discrimination law in exchange for not intervening in the pending whistleblower case against St. Paul. Perez indicated that while he had requested the St. Paul officials to not appeal the discrimination case, it was not his decision as to whether the government would intervene in a whistleblower case. Perez testified that that was a decision to be made by a colleague—the head of the Justice Department’s Civil Division.  Perez did indicate that such an agreement was ultimately reached, however, but that it had been initially proposed by St. Paul officials and the decision not to intervene had been made by the Civil Division not his Division . Perez further testified that it was his understanding that the Civil Division had concluded that the St. Paul case lacked merit.

Alexander contended that by not intervening in the whistleblower case in Minnesota, the federal government had in fact missed out on a $200,000,000 recovery that ultimately resulted in the St. Paul False Claims Act litigation.

During the hearing, Alexander stated:

“Here is the way it looks to me: You are in one division of the Department of Justice. You see St. Paul in the Supreme Court with a case that you are afraid would produce the wrong result. To me it is an extraordinary thing that you would then become involved with the city of St. Paul – with another division of the Department of Justice and with the Department of Housing and Urban Development which had originally recommended that the whistleblower case be taken by the Department of Justice. And the end result after you’re involved with all this is that the Department of Justice declines to become involved in the whistleblower case.  We know that 90 percent of the time, when the Justice Department does get involved, the case succeeds. So it declines to become involved, the case doesn’t collect the money. St. Paul agrees to withdraw the lawsuit that might produce the result that you don’t like. That seems to me to be an extraordinary amount of wheeling and dealing outside the normal responsibilities of the Assistant Attorney General for Civil Rights.  It seems you have a duty to the government to collect the money [owed to taxpayers], a duty to protect the whistleblower who is left hanging in the wind, and at the same time it seems to me that you are manipulating the legal process to try to get the result you want in the Supreme Court in a way that seems inappropriate for the Assistant Attorney General of the US.”

Alexander also called on Perez to provide emails and other documents for which there is an outstanding subpoena.  Additionally, Alexander has requested copies of transcribed interviews obtained during the Department of Justice Inspector General’s earlier investigation of these allegations.