As anticipated, the Obama administration has initiated steps to reverse the former administration’s midnight regulation governing health care providers. The Office of Management and Budget (OMB) announced today that it is reviewing a proposal to revoke the provider conscience rule. Once that process is complete, the proposal will be published in the Federal Register, followed by a 30-day public comment period.
Continue Reading...Embedded in the massive House Appropriations bill (H.R. 1105) that was approved on Wednesday by a vote of 245-178 are provisions extending the E-Verify and EB-5 investor visa programs until September 30, 2009. Both programs are set to expire on March 6, 2009.
Continue Reading...On February 26, President Obama unveiled his proposed $3 trillion budget. A detailed summary can be found on the White House website. (pdf) As expected, the budget includes increased funding for various agencies tasked with oversight of employers.
Of interest to employers, highlights of this proposal include the following:
Organized labor has repeatedly and forcefully stated that it will push for the reintroduction of the Employee Free Choice Act (EFCA) as soon as possible. As previously discussed, EFCA could fundamentally alter the way employers do business in this country. To further expound upon EFCA’s likelihood of enactment and in what form, we invited resident labor expert Bob Battista, a Shareholder in Littler’s Washington, DC office, to answer some questions. In addition to serving as Chairman of the National Labor Relations Board for five years, Mr. Battista has practiced labor and employment law for nearly four decades.
Continue Reading...President Obama has announced his intention to nominate John Morton to be the Assistant Secretary for Immigration and Customs Enforcement (ICE), and U.S. Department of Homeland Security Secretary Janet Napolitano named Esther Olavarria as Deputy Assistant Secretary for Policy.
Secretary Napolitano said:
John Morton and Esther Olavarria are tremendous additions to our Homeland Security team. Both have demonstrated an extraordinary commitment to public service and both will be able and effective partners as we tackle the very complex issues surrounding immigration and securing of our borders.
As reported at Workforce.com, Rep. Ken Calvert, R-California, who authored the bill that established E-Verify, was unhappy that a provision requiring companies receiving stimulus funding to sign up for E-Verify did not survive in the $787 billion stimulus package. Representative Calvert stated that “there is no assurance that the jobs created will go to American workers,” and asserted that E-Verify was “stripped out of the bill without discussion or debate.” A separate provision, which would have reauthorized E-Verify, also was excluded from the final stimulus package.
Even though E-Verify did not make it into the stimulus package, Congress is likely to find a way to maintain the program (due to expire on March 6, 2009) until it can be addressed as part of a comprehensive immigration bill.
The Equal Employment Opportunity Commission (EEOC) announced that it will seek public comment on proposed regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA). The proposed regulations are expected to be published in tomorrow’s edition of the Federal Register. Comments will be due 60 days after the publication date.
GINA – which, among other things, prohibits employment discrimination based on genetic information, bars the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements – mandates that the EEOC issue implementing regulations by May 21 of this year. Title II of GINA, which governs the employment provisions of the Act, takes effect on November 21, 2009.
For more information on GINA, see Littler’s ASAP: Genetic Antidiscrimination Law Creates New Compliance Challenges for Employers by: Philip L. Gordon and Jennifer L. Mora.
On February 24, the Internal Revenue Service (IRS) published in the Federal Register its final rule regarding automatic contributions to 401(k) plans and similar types of defined contribution plans. Such automatic enrollment features were established by the Pension Protection Act (Pub. L. No. 109-280), which amended the tax code to facilitate automatic enrollment for 401(k) plans, Section 403(b) tax-deferred annuity plans, Section 457(b) governmental plans, and similar arrangements. These regulations affect administrators of, employers maintaining, participants in, and beneficiaries of section 401(k) plans and other eligible plans that include an automatic contribution setup. Among other things, the regulations clarify minimum percentage requirements for qualified automatic contribution arrangements (QACA), expand uniformity requirements, and establish a notice timing requirement.
The final regulations relating to qualified automatic contribution arrangements apply to plan years beginning on or after January 1, 2008. The regulations relating to eligible automatic contribution arrangements apply for plan years beginning on or after January 1, 2010.
In a preemptive move in anticipation of the re-introduction of the Employee Free Choice Act (EFCA), a group comprised of both House and Senate Republicans have introduced legislation aimed to preserve secret ballot union elections. The Secret Ballot Protection Act (SBPA) was introduced in the Senate by Jim DeMint (R-S.C.), Chairman of the Senate Steering Committee, and Mike Enzi (R-Wyo.), Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee, with 16 co-sponsors. In the House, a companion bill was introduced by Reps. John Kline (R-Minn.) and Tom Price (R-GA), with 101 co-sponsors.
Continue Reading...President Obama has selected academic and former Department of Labor (DOL) policy aide Seth Harris to serve in the second-highest position within the DOL. If confirmed as deputy secretary, Harris will be yet another alum from the Clinton era to join the new administration.
Prior to his nomination, Harris served as an agency working group leader on President Obama’s transition team. Harris was selected as a transition team member while working as a professor and director of the Labor and Employment Law Program at New York Law School. Harris spent nearly seven years serving under the Clinton administration as a senior advisor on policy, legal management, and strategy issues for two U.S. Secretaries of Labor.
While a law professor, Harris wrote a number of articles critical of the Department of Labor under the Bush administration. In particular, Harris criticized Labor Department regulations that were perceived as expanding the white-collar exemptions from the overtime requirements of the Fair Labor Standards Act. A strong proponent of flexible work arrangements, Harris is currently a member of the National Advisory Commission on Workplace Flexibility. In addition, Harris is a senior fellow of the Life Without Limits Project of the United Cerebral Palsy Association.
Harris holds degrees from the Cornell University’s School of Industrial & Labor Relations, and New York University School of Law.
Correction: June 25, 2009
The Washington D.C. Employment Law Update blog entry posted February 25, 2009 stated that Seth Harris taught at the New York University School of Law. The current entry correctly reflects that Harris was a professor at New York Law School.
The massive,1,122-page omnibus bill (H.R. 1105) introduced by House Democrats on Monday would provide significant funding increases for government agencies dealing with labor and employment issues. (pdf) This $410 billion spending measure consists of nine fiscal 2009 appropriations bills that would spread a considerable amount of funds throughout several domestic agencies.
Continue Reading...After a nearly two-month delay, Rep. Hilda Solis (D-CA) has been confirmed as the next U.S. Secretary of Labor. Her nomination was supported by a Senate vote of 80-17. The Senate Health, Education, Labor and Pensions (HELP) Committee had already voted to approve her nomination by voice vote on the evening of Wednesday, February 11. Only two Republican Senators – Pat Roberts (R-KS) and Tom Coburn (R-OK) – opposed her nomination at the time. The HELP confirmation cleared the way for a vote on her nomination before the entire Senate this afternoon. Before Congress adjourned for the President’s Day recess, Senate Majority Leader Harry Reid (D-NV) had filed a motion to invoke cloture on her nomination. This cloture vote – which had been slated to occur this morning – would have staved off further objections to her nomination so long as Democrats could garner at least 60 votes in her favor. At the eleventh hour, however, Reid decided to forgo this procedural test vote and move right to a full confirmation vote.
Continue Reading...Immigration-related bills are being introduced at a rapid pace. While many of these bills are destined to languish in committee, the sheer volume of immigration legislation introduced by both parties barely two months into the new Congress increases the chance that at least one bill will eventually receive real consideration. The latest bill – Electronic Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 1096) – would amend the Immigration and Nationality Act to create an electronic employment eligibility verification system and a detailed employment verification process, expand the verification system to apply to previously hired individuals, and increase employer penalties for violations, among other things. If passed, this bill would amend the Immigration and Nationality Act to require E-Verify for all employers. The E-Verify system is currently voluntary, unless mandated by applicable state law.
Continue Reading...As expected, many of the failed labor and employment-related bills from the 110th Congress are being recycled this year. Just last week, the Eagle Employers Act (H.R. 989) was reintroduced by Rep. Jim Gerlach (R-PA). This bill would use the tax code as an incentive to encourage U.S. companies to create and maintain domestic jobs instead of outsourcing positions abroad. The Act would provide a 1% tax credit to employers with 50 or more employees that do the following:
The bill may garner wider appeal and pass in some form during this legislative session for the following reasons: 1) the choice to become an “Eagle Employer” is completely voluntary; 2) the bill had bi-partisan support in the last Congress; and 3) President Obama has emphasized the need to create jobs for Americans.
This bill was referred to the House Committee on Ways and Means.
As economic conditions decline, scrutiny over executive compensation increases. On February 17, President Obama signed into law the massive stimulus package (Pub. L. No. 111-5) containing a number of provisions limiting executive compensation for entities receiving funds under the Troubled Asset Relief Program (TARP). A new bill introduced last week would augment these provisions by creating additional government oversight for companies receiving TARP assistance.
Continue Reading...A bill introduced on February 12 would significantly restrict the ability for employers to arbitrate employment disputes. The Arbitration Fairness Act of 2009 (H.R. 1020) -- introduced by Rep. Henry “Hank” Johnson (D-GA) and cosponsored by 36 others – would amend the Federal Arbitration Act to invalidate all predispute arbitration agreements that require the arbitration of any employment, consumer, or franchise dispute, or conflict arising under any statute intended to protect civil rights. This Act would not apply to arbitration provisions contained in collective bargaining agreements.
This legislation broadly defines “employment dispute” as “a dispute between an employer and employee arising out of the relationship of employer and employee as defined by the Fair Labor Standards Act.” The definitions of “consumer dispute” and “franchise dispute” are similarly broad enough to encompass virtually any legal conflict. If enacted, this bill would essentially eliminate arbitration as a litigation alternative for employee claims – as well as those brought by clients/customers – unless the parties agree to the arbitral forum post-dispute. The provisions of this bill would take effect on the date of enactment, and would apply to any dispute or claim arising on or after that date.
This bill has been referred to the House Committee on the Judiciary.
The stimulus legislation signed into law as the American Recovery and Reinvestment Act of 2009 (ARRA) by President Obama contains sweeping revisions to the group health plan continuation coverage provisions contained in the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The ARRA also impacts other areas of employment law. For an in-depth analysis of these changes, see Littler's ASAPs: Stimulus Package: An In-Depth Look at the New COBRA Subsidy in the ARRA by: Steven J. Friedman, Susan K. Hoffman, and J. René Toadvine, and Besides COBRA: What Does the Stimulus Package Have for Employers by: Ellen N. Sueda, GJ Stillson MacDonnell, Patricia A. Haim, and Chadwick M. Graham.
A large and powerful new union has formed from the merger of three nursing associations to create the 150,000 member United American Nurses-National Nurses Organizing Committee, UAN-NNOC (AFL-CIO). According to a joint statement issued by the United American Nurses, California Nurses Association/National Nurses Organizing Committee, and the Massachusetts Nurses Association, the goals of this new union are to:
Now the largest nurses’ labor union, the UAN-NNOC will have the clout and finances to pursue its “guiding principle” that all registered nurses be represented by an RN union.
For more information on this development, see Littler's ASAP: Major Merger of Nursing Unions to Shake Up Health Care by Anita M. Polli, John D. Doran, Jenna S. Barresi, and Jennifer L. Mora.
The massive $787.2 billion economic recovery package signed into law as the American Recovery and Reinvestment Act of 2009 (ARRA) by President Obama on Tuesday will impact employers in several ways. Embedded in this stimulus package are provisions relating to COBRA, business tax credits, executive compensation, and H-1B visas, among others areas.
Continue Reading...The nation’s economic troubles have inspired a number of new employment-related bills. One immigration bill seeks to promote hiring Americans by limiting the incentives for illegal aliens to move to the United States to live and work, while another bill would facilitate the hiring of foreign workers under the H-2B guest worker program. A third bill would provide employers with a tax credit for hiring unemployed veterans.
Continue Reading...Lawmakers in the 111th Congress continue to introduce employment-related legislation. The following bills appeared on the docket within the past week:
Family and Medical Leave
A bill passed by the House on February 9 by voice vote would close a Family and Medical Leave Act (FMLA) loophole for airline pilots and flight attendants. The Airline Flight Crew Family and Medical Leave Act (H.R. 912) would change the hours of service requirement to enable more airline industry employees to take such leave.
Continue Reading...On Tuesday, February 10, 2009, Rep. Cathy McMorris Rodgers (R-WA) reintroduced the Family-Friendly Workplace Act (H.R. 933), a bill that would amend the Fair Labor Standards Act (FLSA) to permit private-sector employees to chose compensatory leave in lieu of cash wages for overtime hours worked. This “comp time” option has long been available to public sector employees, and has proven to be very popular.
Continue Reading...A couple of recently-introduced bills would amend the Employee Retirement Income Security Act (ERISA). The Pension Security Act of 2009 (H.R. 712) would amend title I of ERISA to require that the annual report of a defined benefits pension plan disclose any hedge fund investments.
If enacted, the disclosures would need to be included in the annual reports for plan years beginning on or after the date of enactment. The Secretary of Labor – in consultation with the Securities and Exchange Commission – would be charged with issuing initial regulations within one year.
This bill has been referred to the Committee on Education and Labor.
Continue Reading...On February 6, President Obama issued yet another labor-friendly executive order encouraging the use of project labor agreements (“PLA”s) for large-scale, federally-funded construction projects. Ostensibly to “promote economy and efficiency in Federal procurement,” the order stipulates that executive agencies, in awarding a contract in connection with a construction project costing $25 million or more, or obliging funds pursuant to such a contract, may, on a project-by-project basis:
Continue Reading...The Senate has approved a modified amendment to the massive stimulus bill (H.R. 1) that substantially limits employers that receive Troubled Asset Relief Program (TARP) funds from hiring employees who hold H-1B work visas. This amendment was sponsored by Senators Bernard Sanders (I-VT) and Charles Grassley (R-Iowa). According to a press release from Senator Grassley’s office, Senate Amendment 306, referred to as the Employ American Workers Act:
Continue Reading...As predicted, Rep. George Miller (D-CA), chairman of the House Education and Labor committee, Rep. John Barrow (D-GA), and Rep. Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee, have reintroduced a bill that would regulate combustible dust exposure at industrial sites. The Worker Protection Against Combustible Dust Explosions and Fires Act (CDEFA) (H.R. 849), introduced on Wednesday, would require the Occupational Safety and Health Administration (OSHA) to issue interim rules on combustible dust within 90 days, followed by final rules within 18 months. CDEFA also would direct OSHA to revise the Hazard Communication Standard to include combustible dusts.
Continue Reading...A bill that would expand the Family and Medical Leave Act (FMLA) for both private and federal employees was introduced last week. The Family and Medical Leave Enhancement Act of 2009 (H.R. 824) would amend the FMLA to allow employees to take time off from work to participate in their children’s or grandchildren’s school or community organization activities (such as parent/teacher conferences, scouting or sports events), attend regular medical/dental appointments, or attend to the needs of an elderly relative, such as visiting them in a nursing home. Perhaps more importantly, this act would expand who would be considered an employee “eligible” to take FMLA leave. Under this legislation, the FMLA would apply to employers with 25 or more employees within the prescribed radius, not 50 as is the current law. This expanded definition would greatly increase the number of employers that would be impacted by this law.
Continue Reading...On February 4, 2009, President Obama signed into law the State Children’s Health Insurance Program (SCHIP). This expansion of children’s health insurance includes provisions amending the Employee Retirement Income Security Act (ERISA) by adding new clauses to the end of Section 701(f). In essence, group health plans and insurers are required to allow employees and their dependents who are eligible for coverage—but are not enrolled in the group plan—to enroll if they become ineligible for Medicaid or a state child health plan, or if they become eligible for financial assistance from Medicaid or a state child health plan. The employee or dependent must exercise this option within 60 days. This law also imposes new notice requirements regarding an employee’s options for financial assistance to pay for their employer-sponsored health coverage. Plan administrators must also be prepared to provide to the state, if requested, detailed information about the benefits available under the group health plan.
The Secretary of Labor and the Secretary of Health and Human Services will develop the initial model notices and provide them to employers no later than February 4, 2010. Each employer must give these initial annual notices to employees beginning with the first plan year that begins after the date on which the notices are first issued.
Both the House and Senate versions of the 2009 Stimulus Bill include sweeping revisions to ERISA’s continuation of coverage provisions (commonly known as “COBRA”). While the exact form that these provisions may take in the final package is unknown, it is almost certain that some version of the current drafts will be included. The new provisions will impose additional burdens and hidden costs on employer-sponsors of group health plans.
Continue Reading...Pursuant to the January 20, 2009 memo by Chief of Staff Rahm Emanuel directing all federal agency heads to consider extending the effective dates of regulations that had been published in the Federal Register but had not yet taken effect, the Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a notice. The notice proposes an extension of the effective and applicability dates of final regulations on investment advice provided to participants and beneficiaries of 401(k) plans and IRAs. The regulations, which apply to transactions occurring on or after March 23, 2009, would be extended 60 days until May 22, 2009.
Continue Reading...The U.S. House of Representatives will begin consideration this week of Senate amendments to the Children’s Health Insurance Program Reauthorization Act of 2009 (H.R. 2), which has already cleared both houses of Congress. This bill, which expands the State Children’s Health Insurance Program (SCHIP), contains provisions in both the House and Senate versions that would amend the Employee Income Retirement Security Act (ERISA).
Continue Reading...Thousands of union members are expected to blanket Congress tomorrow, lobbying hard for the passage of the Employee Free Choice Act (EFCA). Union officials have promised to provide 1.5 million signatures in support of the “card check” legislation that would – among other things – enable the National Labor Relations Board to certify a union as the exclusive bargaining representative for employees in the absence of a secret ballot election and mandate binding arbitration for a first contract if the parties cannot agree to terms in a specified period of time.
Despite having received gifts in the form of three union-friendly executive orders last Friday, organized labor continues to push EFCA as its main legislative goal. The increased lobbying efforts may be due to the fact that lawmakers who once supported the measure now appear noncommittal, and that the business community has launched its own awareness campaign highlighting EFCA’s flaws. Even the President seems to be distancing himself from the fray, and has remained tellingly silent on the issue of late.
The union rally is expected to convene at 12:30 p.m. at Upper Senate Park in Washington, D.C.
On January 30, 2009, President Obama issued three labor-related executive orders that will have a significant effect on federal contractors and send a strong signal of the new administration’s pro-labor positions. For more information on these orders, see Littler's ASAP: President Obama Issues Three Executive Orders That Dramatically Affect Labor Relations for Federal Contractors by Gavin S. Appleby and C. Scott Williams.
In what has gone relatively unnoticed, President Obama has endowed the incoming Secretary of Labor with sweeping enforcement powers via the executive orders signed this past Friday.
Continue Reading...In what may be considered a gift to organized labor, President Obama issued a series of executive orders on Friday aimed at undoing Bush-era policies involving federal contractors. Issuing executive orders is a quick way to implement labor policy – and appease unions – without enduring the time and uncertainty inherent in the legislative process. Moreover, reversing the prior administration’s executive orders has become a tradition whenever a new party takes over the White House.
Continue Reading...While it is expected that business and labor interests will have differing opinions on the Employee Free Choice Act (EFCA), it is generally anticipated that the president and vice president would be on the same page. Some off-the-cuff remarks by Vice President Biden last week, however, appear to indicate a rift in thinking between the two.
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