If you’re a regular reader of this blog, then you are a keen follower of developments in labor and employment law. We hope you get your fill with Employment Law Daily. But we’d be remiss not to point out these new resources offered by some of the nation’s premier employment law firms:
• Littler Mendelson has recently released the FY 2015 edition of the firm’s Annual Report on EEOC Developments, its fifth installment. The comprehensive publication summarizes case law and litigation statistics in exhaustive detail, and provides an analysis of what the EEOC has and has not accomplished—and the implications of those successes and failures. “By focusing on key developments and anticipated trends,” the law firm notes, “the Report provides employers with a roadmap to where the EEOC is headed in the year to come.”
• Seyfarth Shaw offers its own detailed analysis of EEOC-Initiated Litigation, with a summary of key 2015 caselaw developments and a forecast of trends to watch in the coming year. Notes the firm: “We believe that the best way for any employer to stay out of the EEOC’s cross-hairs is to develop a deep understanding of its enforcement priorities.” The report was authored with that end in mind.
• Seyfarth Shaw also authors an ambitious Workplace Class Action Litigation Report each year; its twelfth annual edition was released last week. The publication includes detailed chapters on major settlements and federal and state decisions in discrimination, wage-hour, ERISA and contract class actions, and other decisions impacting Rule 23 employment litigation. Another feature: Seyfarth attorneys identify five key trends in workplace class litigation. Among them (spoiler alert!): The value of the top 10 class action employment settlements rose from $1.87 billion to $2.48 billion in 2015.
• Taking a more practical approach, Jackson Lewis has launched a quarterly Class Action Trends Report—more “how-to” than hornbook—to advise employers as they wade through the thicket of defending class claims. We’re proud to note that the newsletter is co-authored with the editors of Employment Law Daily. Check out the most recent issue here.
.• Filling a gap for employers that must navigate the inner workings of an emboldened National Labor Relations Board, Ogletree Deakins has just launched its Practical NLRB Advisor (also in conjunction with Employment Law Daily’s editorial team). The quarterly newsletter will offer practical guidance to employers on labor issues through the life cycle of a collective bargaining relationship, from initial union organizing campaign and beyond.
Are there other law firm resources that we should know about? Drop us a line.
The Federal Acquisition Regulatory Council (FAR Council) has implemented inflationary adjustments to the jurisdictional thresholds under Section 503 of the Rehabilitation Act (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), a recent update to OFCCP’s website page on jurisdiction notes. The Section 503 and VEVRAA statutes themselves have not been amended, but a law enacted in 2004 requires the FAR Council to review the dollar threshold amounts in certain federal agency procurement related laws every five years to determine whether they need to be adjusted for inflation. Executive Order 11246, also enforced by the OFCCP, is not subject to inflationary adjustment by the FAR Council.
Section 807 of the Ronald Reagan National Defense Authorization Act (41 U.S.C. Section 1908) requires the FAR Council to review the dollar threshold amounts in certain federal agency procurement related laws every five years to determine whether they need to be adjusted for inflation. As a result of these reviews, the FAR Council implemented inflationary adjustments of acquisition-related dollar thresholds for Section 503 and VEVRAA. In 2010, the FAR implemented an adjustment for Section 503 changing the threshold amount from $10,000 to $15,000, effective October 1, 2010 (75 FR 53129-53135; August 30, 2010). In 2015, a similar adjustment to the VEVRAA threshold was made increasing it from $100,000 to $150,000, effective October 1, 2015 (80 FR 38293-38306; July 2, 2015).
While the OFCCP’s regulations at 41 CFR 60 Parts 300 and 741 do not currently reflect these inflationary adjustments, the OFCCP has adopted the FAR Council’s adjusted thresholds for determining whether a contractor is covered by Section 503 and VEVRAA regulatory requirements. These adjusted thresholds are reflected in the OFCCP’s “Jurisdictional Thresholds” Infographic.
The Federal Acquisition Regulation is the principal set of rules in the Federal Acquisition Regulations System, which governs the acquisition process through which the federal government purchases goods and services. The agencies in the FAR Council – the Department of Defense (DoD), the Government Services Administration (GSA) and the National Aeronautical and Space Administration (NASA) – are the federal agencies most heavily involved in entering into contracts to procure goods and services for the federal government.
In two recent Court of Appeals decisions, enforcement provisions of the H-1B foreign worker program took center stage. First, in Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, the Eighth Circuit examined the breadth of the Secretary of Labor’s investigatory authority with respect to violations of the H-1B visa program. Was a single worker’s complaint sufficient to trigger a “full investigation” by the DOL? Following close on heels of that decision, was the Second Circuit’s ruling in Mantena v. Johnson. In that case, the appeals court was faced with the question whether the DOL was required to provide pre‐revocation notice either to a foreign worker or to a successor employer even though they were not the original petitioning parties of an I‐140 petition.
Investigation of H-1B visa violations. When faced with a complaint by a worker participating in the H-1B visa program, the standard procedure for the Department of Labor is to leverage that complaint into a comprehensive investigation into all aspects of an employer’s H-1B visa program. However, in Greater Missouri Medical Pro-Care, the Eighth Circuit rejected the Labor Secretary’s expansive view of his investigatory authority with respect to violations of the H-1B program. The appeals court concluded that a finding of reasonable cause to investigate just one allegation by an aggrieved party did not automatically justify a comprehensive investigation of the employer as a whole and authorize the DOL to inquire into other labor condition applications and the employer’s statutory and regulatory compliance with the H-1B program in general.
The INA generally provides four situations for initiating an investigation of potential violations: (1) investigations based on a complaint from an “aggrieved person or organization;” (2) “case-by-case . . . random investigations” of an employer within five years of a prior willful violation; (3) investigations where the Secretary “personally certifies” he “has reasonable cause to believe that the employer is not in compliance with subsection (n);” and (4) investigations based on “specific credible information” of a willful violation of certain requirements from a reliable source. That said, the court found no support for the Secretary’s contention that reasonable cause to investigate any single violation alleged by an aggrieved party “established a reasonable cause to investigate the employer” and every action the employer has taken with respect to the H-1B program and its H-1B employees. The court concluded that such an expansive reading of the Secretary’s investigatory authority was inconsistent with the plain language and structure of the Immigration and Nationality Act.
Immigration nightmare. The Second Circuit’s ruling in Mantena involved a foreign worker faced with the revocation of her H1-B visa, after the original petitioning employer, for whom she no longer worked, had filed the requisite I‐140 petition and was the only party to receive notice of both the intent to revoke the I‐140 petition and the ultimate revocation of that petition. Also in jeopardy was the worker’s filing of an I-485 application for adjustment of status to permanent residency.
The worker in Mantena, a computer program from India, was caught in an immigration nightmare. Nearly two years after she left the petitioning employer, the company’s president pleaded guilty to mail fraud in connection with an immigration petition filed on behalf of a different employee. As a consequence, the Customs and Immigration Service (USCIS) decided to initiate the revocation of all petitions filed by the company. However, USCIS’s Notice of Intent to Revoke (NOIR) the employee’s I-140 petition was sent only to the petitioning employer. Ultimately, the worker’s I‐140 petition was revoked. However, neither the worker, nor her current employer was informed of this action. By the time the worker learned of the revocation of her immigrant petition, her green card application had also been automatically denied.
Job flexibility of alien workers. Under the so‐called “portability” provisions of the American Competitiveness in the 21st Century Act (AC-21), foreign workers under the H1-B visa program are allowed to change jobs or employers while preserving the validity of not only the worker’s application for adjustment of status but also the underlying immigrant visa petition and alien labor certification filed by an earlier employer. Consequently, AC‐21’s job flexibility “portability” provisions made clear that the adjustment of status process was no longer tied to a single employer during the time that the alien worker waits for a permanent residency visa to become available.
What’s a worker to do? In this case, the worker filed multiple motions seeking to have the I‐485 denial reopened and reconsidered and the I‐140 revocation reversed. Ultimately, a district court dismissed her statutory and regulatory notice claims on jurisdictional grounds.
Notice to affected parties. Here, the Second Circuit observed that the worker’s case illustrated the importance of notifying affected parties of material changes in their proceedings and statuses and of giving them an opportunity to respond. The appeals court found that the district court’s denial of jurisdiction to be in error. It concluded that the Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1252(a)(2)(B)(ii), did not strip the district court of jurisdiction over procedural challenges. Rather, it pointed out that the INA’s procedural requirements were codified in the statute or in regulations. Thus, the district court had jurisdiction to determine whether USCIS complied with those procedural requirements that were mandated before it could revoke the worker’s I-140 petition.
During the filming of Midnight Rider: The Gregg Allman Story, one film crew member was killed and several others severely injured when an oncoming train raced through their shooting location. Film Allman, the production company, planned to film in and around Savannah, Georgia, in early 2014. On February 20, 2014, a number of its employees arrived at a shooting location – a train trestle spanning the Altamaha River – to film a scene on the trestle itself. Permission to use the trestle was never secured. The scene was a dream sequence which called for the character of Gregg Allman to wake up in a hospital bed placed across the trestle’s tracks. Tragically, while approximately 20 employees were located on the trestle, they realized a northbound train was fast approaching. A 27-year-old camera assistant was killed and several more severely injured in the resulting impact (Film Allman, LLC, Dkt. No. 14-1385).
Following a seven month investigation, the Secretary of Labor issued citations for violating 29 C.F.R. §§ 1910.23(c)(1) and (e)(1) for failing to adequately guard the sides of a trestle and also a willful violation of § 5(a)(1) (the General Duty Clause) for failing to implement safety procedures for filming on the trestle, exposing employees to the hazard of being struck by a train. The Secretary proposed penalties of $4,900 and $70,000, respectively. Regarding the § 5(a)(1) violation, Film Allman argued the Secretary failed to meet his burden of proving intentional disregard to the requirements of the Act or plain indifference to employee safety because the film company reasonably relied on a third party’s assurance that only two trains were expected the day of the accident.
However, the ALJ affirmed all citations, noting specifically that there were significant gaps in the record regarding the origins of the “‘two trains’ canard.” “The absurdity of Film Allman’s argument is highlighted by its failure to inquire, upon arrival at the…trestle site, whether any trains had passed by yet. This would appear to be crucial information for a filming schedule premised on the ‘two trains’ theory.” The ALJ concluded that all the evidence plainly demonstrated that the production company’s cumulative choices to ignore the track owner’s denial of permission to film on its tracks, forsake standard safety protocols, and withhold crucial information from employees reflect plain indifference to employee safety.
A recent OSHA development, while not yet tested by further litigation, should nonetheless be on the radar of employers that operate at more than one site. In what OSHA called an administrative precedent-setting decision, an administrative law judge determined that the Occupational Safety and Health Review Commission may have authority under the OSH Act to order abatement measures against Central Transport LLC that extend beyond the specific violations that OSHA identified in its citations. The privately owned, full-service, asset-based transportation provider offers supply chain solutions across North America. Depending on how the rest of the litigation pans out, employers could be subjected enterprise-wide abatement that includes sites not initially inspected by OSHA.
Citations and litigation. In November 2014, OSHA cited the company for 14 violations of workplace safety and health standards at the freight hauler’s Billerica, Massachusetts, shipping terminal and proposed a total of $330,800 in fines. The following month, Central Transport filed a notice of contest with the Occupational Safety and Health Review Commission and litigation commenced. In its complaint to the commission, the Labor Department alleged that Central Transport failed to comply with the OSHA standards for the safety of powered industrial trucks at locations other than the inspected worksite, and it requested an order compelling the company to comply with the standard at all of its locations.
In response, Central Transport filed a motion asking the commission to strike the DOL’s claim for enterprise-wide abatement, arguing that that relief is not permitted under the OSH Act. The company argued that Section 10(c) of the OSHA Act and Commission Rule 34, read together, preclude entry of an order for enterprise-wide abatement that would apply to sites never inspected by OSHA and that the commission’s authority is limited to remedying specific violations at individual sites based on findings of fact. The company relied on Delta Elevator Service Corp., No 12-1446, 20143 in support of its contention.
ALJ’s ruling. ALJ Carol A. Baumerich denied Central Transport’s motion, holding that the OSH Act’s provision authorizing “other appropriate relief” provides the basis for permitting the Labor Department’s claim for enterprise-wide abatement at all locations where like violations exist to proceed to trial. The administrative judge also denied Central Transport’s request for a discovery and litigation stay of the claim for enterprise-wide abatement, finding that it would jeopardize the litigation of the claim.
The ALJ refused to read the Delta case to authorize the extreme sanction of striking the DOL’s claim for enterprise-wide relief at this early stage of the proceeding. The parties in Delta had both had an opportunity to present evidence, and the case was fact-specific. Although it has precedential value as an unreviewed judge’s decision, it was not controlling. Here, where there had been no discovery or hearings, and a novel legal theory is advanced, the decision about that claim should be made on a complete record following discovery by both parties, the judge concluded.
Said Kim Stille, OSHA’s regional administrator for New England: “When an employer has hazards occurring at multiple locations, common sense and reasonable worker protection law enforcement both dictate that the employer take corrective action to safeguard the health and well-being of employees at all its worksites.”
The case, Secretary of Labor v. Central Transport LLC, was brought before the U.S. Occupational Safety and Health Review Commission; the docket numbers are 14-1452; 14-1612; and 14-1934.