Federal Employment Law Update – September 2016

Federal

WHD Releases Final Rule Increasing Minimum Wage for Federal Contractors

On September 20, 2016, the U.S. Department of Labor’s Wage and Hour Division (WHD) released a final rule implementing Executive Order 13658, Establishing a Minimum Wage Rate for Contractors, signed by President Barack Obama on February 12, 2014.The order raised the hourly minimum wage paid by contractors to workers performing work on covered federal contracts to $10.10 per hour beginning January 1, 2015; and beginning January 1, 2016 and annually thereafter, an amount determined by the Secretary of Labor. The current minimum wage for federal contractors is $10.15 per hour, effective since January 1, 2016.

Pursuant to the final rule, effective January 1, 2017, the minimum wage for covered federal contractors will increase to $10.20 per hour for hourly workers. For tipped employees, the minimum wage for federal contractors will increase to $6.80 per hour.

The minimum wage requirement only applies to certain federal contracts. Specifically, the order only applies to:

  • Procurement contracts for services or construction.
  • Service contracts exceeding $2,500 covered by the Service Contract Act.
  • Contracts for concessions.
  • Contracts that are both:
    • Entered into the with the federal government in connection with federal property or lands; and
    • Covered by the Fair Labor Standards Act, Service Contract Act, or Davis-Bacon Act.

Read the Final Rule

H-2B Employers Should Continue to Identify “Returning Workers” in Petitions for FY2017

United States Citizenship and Immigration Services (USCIS) is urging prospective H-2B employers seeking to hire potential “returning workers” with employment start dates in fiscal year (FY) 2017 to continue to identify these workers and provide the H-2B Returning Worker Certification.

The H-2B returning worker provisions of the Consolidated Appropriations Act of 2016 (Public Law 114-113) are set to expire on September 30, the last day of FY 2016, and Congress may or may not reauthorize them. These current provisions exempt eligible returning workers from the FY 2016 cap if they were counted toward the H-2B limit during fiscal years 2013, 2014, or 2015.

These provisions, which amend section 214(g)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)), do not apply to the FY 2017 cap. If reauthorized, either before or after September 30, the provisions for FY 2017 would likely exempt returning workers who were counted toward the H-2B limit during fiscal years 2014, 2015, or 2016. Any action is in the discretion of Congress and the President.

USCIS has already started to receive H-2B petitions requesting employment start dates in FY 2017. Continuing to identify and certify returning workers will enable USCIS to keep an accurate count of H-2B nonimmigrant workers for the FY 2017 cap regardless of whether the provisions are reauthorized. If Congress reauthorizes the provisions, and if employers continue to identify and certify returning workers in H-2B filings, then USCIS will be able to identify cap-exempt cases and adjust its counts accordingly. This will make more visa numbers available to other workers.

Read the USCIS Press Release

OSHA Issues New Guidance on Settlement Approval in Whistleblower Cases

On September 9, 2016, the Occupational Safety and Health Administration (OSHA) issued new guidelines for approving settlements between employers and employees in whistleblower cases to ensure that settlements do not contain terms that could be interpreted to restrict future whistleblowing. The guidelines make clear that OSHA will not approve a whistleblower settlement agreement that contains provisions that may discourage whistleblowing without outright prohibiting it, such as:

  • Provisions that require employees to waive the right to receive a monetary award from a government-administered whistleblower award for providing information to a government agency about violations of the law.
  • Provisions that require the employee to advise the employer before voluntarily communicating with the government or to affirm that the employee is not a whistleblower.

OSHA also reserves the right not to approve settlements with liquidated damages provisions that it believes are excessive. The new guidance responds to a March 2015 petition for rulemaking from the Government Accountability Project.

View the Guidelines

EEOC Issues New Guidance on Retaliation and Related Issues

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. The guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

The EEOC has also issued two short, user-friendly resource documents to accompany the new guidance: a question-and-answer (Q&A) publication that summarizes the guidance document, and a short Small Business Fact Sheet that condenses the major points in the guidance in nonlegal language.

The guidance addresses retaliation under each of the statutes enforced by the EEOC, including:

  • Title VII of the Civil Rights Act of 1964.
  • The Age Discrimination in Employment Act (ADEA).
  • Title V of the Americans with Disabilities Act (ADA).
  • Section 501 of the Rehabilitation Act.
  • The Equal Pay Act (EPA).
  • Title II of the Genetic Information Nondiscrimination Act (GINA).

Topics explained in the new guidance include:

  • The scope of employee activity protected by the law.
  • Legal analysis to be used to determine if evidence supports a claim of retaliation.
  • Remedies available for retaliation.
  • Rules against interference with the exercise of rights under the ADA.
  • Detailed examples of employer actions that may constitute retaliation.

Since 1998, the last time the EEOC issued formal guidance on retaliation, the U.S. Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws, and the filing of EEO claims that include a retali­ation allegation has continued to grow. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by the EEOC in FY 2015. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015.

Read the Enforcement Guidance
View the Small Business Fact Sheet
Read the Q&As