Workplace FYI - Inside Washington & Beyond – What Employers Need to Know

There was a new development today in the litigation concerning the NLRB’s posting requirement.  As we previously reported, a federal district court in South Carolina ruled on April 13 in Chamber of Commerce v. NLRB that the Board had exceeded its statutory authority in requiring employers to post notices of employees’ rights under the National Labor Relations Act.  That ruling was in conflict with the decision of the District Court for the District of Columbia in National Association of Manufacturers v. NLRB, now pending on appeal before the Court of Appeals for the D.C. Circuit.  The question of whether employers must comply with the posting requirement as of April 30, 2012, the date on which the Board’s regulation was scheduled to take effect, was answered in the negative today when the court of appeals granted an emergency injunction pending appeal.

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The Court of Appeals for the District of Columbia Circuit has soundly rejected OSHA’s interpretation of the statutory requirement that an OSHA citation be issued no more than six months following a violation of the Occupational Safety and Health Act.  In a decision issued on April 6 in AKM LLC, d/b/a Volks Constructors v. Secretary of Labor, the court invalidated OSHA’s citation, issued in November 2006, for the company’s alleged failure to properly record certain workplace injuries between January 2002 and April 2006.  The court described OSHA’s arguments as “unreasonable” and leading to “absurd consequences.”

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The Supreme Court has agreed to hear a case raising the issue of whether pharmaceutical sales representatives (“PSRs”) are exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”).  The Court of Appeals for the Ninth Circuit, in Smithkline Beecham Corp., held that the PSRs were exempt as outside salesmen, thereby creating a split with the Court of Appeals for the Second Circuit, which had previously held in In re Novartis Wage & Hour Litigation that the outside sales exemption did not apply to PSRs. 

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The Department of Labor (“DOL”) announced yesterday the winner of the “informAction app” challenge to “empower consumer choices about the hotel, motel, restaurant and retail industries.”  The winning app, submitted by Rachel Moore, of Alexandria, VA, is called “Eat Shop Sleep.”  It combines enforcement data from the Occupational Safety and Health Administration (OSHA) and Wage and Hour Division (WHD) with consumer ratings web sites, such as Yelp and other tools, such as Google Maps. 

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President Obama has withdrawn the nomination of Leon Rodriguez for the position of Administrator of the Wage and Hour Division of the Department of Labor.  Rodriguez was the President’s second nominee for the top position in the Wage and Hour Division, a position that has remained vacant for the entire Obama Administration. 

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