Although the effort to usher in new and expansive labor and employment legislation is expected to slow in 2011, significant regulatory changes could still be on the horizon. As 2011 begins, Blank Rome LLP's Employment, Benefits and Labor Practice Group will be keeping a close eye on the following:
Final Regulations for the Americans with Disabilities Act Amendments Act (ADAAA)
In late December of 2010, the United States Equal Employment Opportunity Commission (EEOC) unanimously approved final regulations implementing the ADAAA and forwarded the regulations to the Office of Management and Budget (OMB) for review and approval. OMB's review could take up to ninety (90) days and there is speculation that the EEOC revised the proposed ADAAA regulations issued in September 2009.
Right to Know Under the Fair Labor Standards Act (FLSA) Proposal
The Right to Know Under the FLSA is a proposed measure to update the recordkeeping regulations under the FLSA. The proposal is intended to foster more openness and disclosure to employees about their status as employees or something else, such as independent contractors. The measure would help to ensure employer compliance with the FLSA and assist with FLSA enforcement. The proposal also seeks to clarify the requirement to prepare "homeworker" handbooks for employees performing homework in certain industries. A notice of the proposed rulemaking is expected in April 2011.
Occupational Safety and Health Administration (OSHA) Proposed Rule on Injury and Illness Prevention Program
OSHA has been working on developing an Injury and Illness Prevention Program Proposed Rule, referred to as "I2P2," to ensure employer compliance with safety regulations. I2P2 would require employers to develop and implement programs that would minimize employee exposure to health and safety hazards. I2P2 may include the following elements: management duties (including establishing policies and setting goals); employee participation (such as employee access to health information); hazard identification and assessment; hazard prevention and control; education and training; and program evaluation and improvement. A final proposed rule could be expected in 2011.
Department of Labor Revision To Form LM-30 Report
The Department of Labor's Office of Labor-Management Standards (OLMS) has published a notice of proposed rulemaking to revise the Form LM-30 Labor Organization Officer and Employee Report. This Form lists almost every labor organization officer or employee who has held a legal or equitable interest, received payment, or engaged in transactions with certain employers or businesses. The proposed revisions to the Form address the complexity of the Form, its instructions, and the scope and extent of the LM-30 reporting obligations. The changes for consideration include the coverage of shop stewards under the LMRDA reporting requirement, the requirement to report union-leave/no-docking payments, the requirement to report certain loans, the requirement to report payments from certain trusts and unions, and the scope of reporting for higher level union officials. The OLMS intends to publish a final rule revising the Form LM-30 in July 2011.
Employment Non-Discrimination Act (ENDA)
Although the prospects for a significant labor and employment bill making it through Congress appear slim, a revised version of the ENDA is still a possibility. Originally introduced to prohibit intentional employment discrimination on the basis of actual or perceived sexual orientation or gender identity, the current bill would ban employment discrimination based on an individual's sexual orientation only. The bill seeks to protect workers from discrimination in hiring, firing, compensation, or other employment decisions, as well as from retaliation for reporting these practices. ENDA could be debated in Congress during the coming year.