By: David S. Fortney 

The U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) signed a memorandum of understanding (MOU) on September 19 that will enable DOL to share information and coordinate law enforcement with the IRS and participating states to address workers misclassified as independent contractors, rather than employees. 

 By: Kathleen J. Raynsford

Entry-level hiring continues to be a hot topic for the food distribution industry.  Just this week, Tyson Fresh Meats, a Tyson Foods subsidiary, reached two settlements with OFCCP and agreed to pay over $2 million to over 1,500 female applicants for laborer jobs (called "no-jobber" positions) at four meat processing plants in Illinois, Iowa and West Virginia to resolve alleged gender discrimination claims.  Review a copy of the first Consent Decree dated September 13, 2011.  Review a copy of second Consent Decree dated September 14, 2011.

National Labor Relations Board Chairman Wilma B. Liebman, who has served on the Board for nearly 14 years and under three presidents, left the agency at the completion of her third term at midnight on August 27.  The White House has designated Member Mark Gaston Pearce to be Board Chairman upon Chairman Liebman's departure.

By: Leslie Stout-Tabackman

On Friday, August 26, the U.S. Department of Labor issued its long-awaited Final Rule to implement Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Obama on January 30, 2009.

By: David S. Fortney

**UPDATE: The ANPRM was published in the Federal Register on August 10th. 

On August 4^th the Office of Management and Budget (OMB) approved the Advance Notice of Proposed Rulemaking (ANPRM) for compensation data collection by OFCCP from federal contractors.  OFCCP will seek input from stakeholders on issues relating to the scope, content and format of the tool to ensure that it is an effective and efficient data collection instrument.  

We anticipate publication of the ANPRM in the Federal Register during the week of August 8^th.  For more information, please visit FortneyScott's blog, Workplace FYI.

By: Susan M. Webman

**UPDATE: The comment period has been extended 30 days according to the Notice that was published in the Federal Register on July 29, 2011.  Comments are now to be submitted by September 21, 2011.

On June 21, 2011, the U.S. Department of Labor (DOL) Office of Labor-Management Standards (OLMS) published a proposed rule in the Federal Register to narrow the interpretation of the advice exemption for the employer and labor relations consultant persuader reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). As predicted, under the new rule, labor relations consultants and persuaders will be required to file more reports, whether or not they have direct contact with employees, when they engage in actions or communications deemed to be beyond mere advice being given to employers regarding employees organizing or collective bargaining efforts. The proposal defines the term “advice,” as “an oral or written recommendation regarding a decision or course of conduct.”

By: Burton J. Fishman 

OFCCP announced on June 28, 2011 that it issued a new Directive regarding Functional Affirmative Action Plans (FAAP) on June 14.  The Directive presents the criteria for new FAAPs, the procedures for modification and renewal of existing FAAPs, and the way in which a FAAP will be terminated.

By: David S. Fortney

The National Labor Relations Board (NLRB) proposed significant changes to the procedures governing union elections in a Notice of Proposed Rulemaking that was published in the Federal Register on June 22.  The proposed changes are designed to expedite how quickly elections are held, after a representation petition is filed by a union.  The rule primarily focuses on how challenges involving union representation elections will be handled.  Under the proposed rule, the NLRB would not sort out most election challenges until after union representation elections were completed.  For example, a basic question of whether an employee is either eligible to vote in the election or is considered a supervisor who cannot vote, would not be addressed until after the election is held.  Under the current procedures, these eligibility questions are ruled on before the election is held, which can sometimes delay the election and provide an additional period of time for election campaign activities. Additionally, under the proposed rule many challenges would be decided by career civil service employees, with NLRB review of election issues being narrowly circumscribed.

By: Leslie Stout-Tabackman

The Department of Labor just released its annual memorandum (dated June 10, 2011), noting a rate increase for Service Contract Act (“SCA”) Health and Welfare Fringe Benefits.  These obligations apply to federal contractors performing service contract work.  A copy of the DOL’s memorandum, which has not yet been posted by the DOL on its website, is available here.