Anticipating the loss of a quorum next week, the National Labor Relations Board has issued a final rule (pdf) revising its representation case certification process. Specifically, the Board is amending its rule requiring the automatic impoundment of representation election ballots when a party files a request for review. Continue reading this entry at Littler's Labor Relations Counsel.
Photo credit: istockphoto
.jpg)
Days after a U.S. District Court judge for the D.C. Circuit suggested that the National Labor Relations Board postpone the effective date of its notice posting rule, the agency has agreed to do so. As announced in a press release, the Board:
has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.
Photo credit: sumak77
.jpg)
Ending a political stalemate, both the House and Senate on Friday approved a measure that provides a two-month extension of the payroll tax cut, emergency unemployment insurance benefits, and delay in the planned cut of Medicare reimbursement rates to doctors, commonly known as “doc fix” provisions. President Obama signed the Temporary Payroll Tax Cut Continuation Act of 2011 (H.R. 3765) into law hours later. This bill is similar to legislation (H.R. 3630) the Senate approved last Saturday, but includes provisions allowing businesses to use their current accounting structure to process the temporary payroll tax break, and will require the House and Senate to work together to draft a bill that would extend these provisions for all of 2012.
In a press release, bill sponsor Rep. David Camp (R-MI) said that the amended bill “fixes a critical flaw in the hastily passed Senate bill, which failed to provide employers with a workable mechanism with which to implement a partial-year payroll tax holiday.”
.png)
A day after the Department of Transportation issued final flight duty and rest requirements for commercial passenger airline pilots, the DOT’s Federal Motor Carrier Safety Administration (FMCSA) on December 22 released a final rule (pdf) establishing new hours of service (HOS) regulations for commercial truck drivers. Like the pilot rest rule, the truck driver HOS regulations were revised to combat fatigue-related accidents. The main changes to the HOS requirements are as follows:
.jpg)
On December 21 the Federal Aviation Administration (FAA) issued its long-awaited final rule (pdf) governing rest periods and work hours for commercial airline pilots. In sum, the rule mandates that pilots work fewer hours and be provided with longer rest breaks between flights. Commercial passenger airline operators will have two years to make potentially significant changes to their pilots’ work schedules. The rule does not apply to cargo-only flights.
The impetus for this rule was the February 2009 fatigue-related crash of Colgan Air 3407 in Buffalo, New York. In response, Congress included provisions in the Airline Safety and Federal Aviation Administration Extension Act of 2010 that directed the FAA to establish regulations to address pilot fatigue. To that end, the FAA’s rule requires the following, as outlined in an FAA fact sheet:
Continue Reading....jpg)
The same day the National Labor Relations Board (NLRB) released its final rule that radically alters union representation election procedures, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, announced his intention to challenge the rule under the Congressional Review Act (CRA). Pursuant to this law, the House or Senate can introduce a joint resolution of disapproval to prevent an agency from enforcing a rule.
According to Enzi:
The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law. I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. It is disappointing that union advocates believe their best chance to succeed, when it comes to union elections, is to ensure that only one side of the story is able to get out. Instead of using backdoor political maneuvers to boost anemic union memberships and smother our nation’s struggling economy, this Administration should help America regain its strong financial footing.
Continue Reading...
On December 12 Sen. Charles Schumer (D-NY) introduced a bill that would amend the Fair Labor Standards Act (FLSA) to make over-the-road bus drivers subject to the law’s maximum hours requirement. The Driver Fatigue Prevention Act (S. 1977) would revise Section 13(b)(1) of the FLSA, which exempts “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service” from the Act’s overtime provisions, to make an exception for over-the-road bus drivers. Over-the-road buses are those “characterized by an elevated passenger deck located over a baggage compartment.”
This bill has been referred to the Senate Committee on Health, Education, Labor and Pensions (HELP).
During oral argument in a lawsuit challenging the National Labor Relations Board’s notice posting rule, presiding judge Amy Berman Jackson of the U.S. District Court for the D.C. Circuit suggested that the agency postpone the rule’s January 31, 2012 implementation date. The rule at issue – Notification of Employee Rights under the National Labor Relations Act – mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance. Continue reading this entry at Littler's Labor Relations Counsel.
Photo credit: dra_schwartz
Both the House and Senate have passed a massive fiscal year 2012 appropriations package (pdf) that would allocate $14.5 billion for the Department of Labor and $278 million for the National Labor Relations Board, but includes a number of restrictions on this funding. The appropriations package is comprised of three separate bills, one of which is a consolidated measure that provides funding for a number of federal agencies, including the DOL and NLRB, for FY 2012.
Under the terms of the appropriations package, the DOL would receive $145.4 million more in FY 2012 than it received in 2011, although the boost in funding was largely due to a provision that fully funds Job Corps in the current fiscal year. According to a detailed summary (pdf) of the bill, without this provision, the DOL is actually receiving $545.6 million less than it received last year, and $942.2 million below the President’s funding request. The NLRB would receive $4 million less than it received last year, and an amount $8.9 million below the President’s budget request.
The funds come with strings attached. Essentially, the measure would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas. Specifically, provisions in the bill would accomplish the following:
Continue Reading....jpg)
On Thursday the House Subcommittee on Capital Markets and Government Sponsored Enterprises voted 19-14 in favor of advancing a bill that seeks to amend the whistleblower incentive provisions created by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The Subcommittee approved the bill on a party-line vote, with Republicans voting in favor of the legislation. Generally, the Whistleblower Improvement Act of 2011 (H.R. 2483) would require employees to first report potential misconduct through the company’s internal reporting system before relaying the information to the Securities and Exchange Commission (SEC) or the Commodity Futures Trading Commission (CFTC). Under the whistleblower incentive and protection program established by the Dodd-Frank Act, employees who contribute original information that leads the SEC or CFTC to recover monetary sanctions of $1,000,000 or more in criminal and civil proceedings are entitled to receive between 10% and 30% of any monetary sanctions that are imposed. In May of this year, the SEC issued a final rule governing these whistleblower protections. The CFTC followed suit in August.
Updated: January 5, 2012
.jpg)
Both the House and Senate have approved a conference report (pdf) to the National Defense Authorization Act for Fiscal Year 2012 (H.R. 1540), a bill that authorizes appropriations for the Department of Defense (DoD). The final measure includes a provision stipulating that in determining whether TRICARE network providers are to be considered subcontractors subject to affirmative action and other requirements governed by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), TRICARE managed care support contracts that include the requirement to establish, manage, or maintain a network of providers will not be considered to be a contract for the performance of health care services or supplies on the basis of that requirement. The conference report also contains provisions extending certain reemployment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) to members of the National Guard called to respond to domestic emergencies.
.jpg)
On December 15, 2011, the Department of Labor’s Wage and Hour Division (WHD) issued its much-anticipated proposed rule (pdf) that could make more than a million domestic caregivers eligible to receive minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). According to the WHD, the home healthcare industry has changed since the FLSA regulations governing home care employees were enacted more than 35 years ago. To that end, the proposal seeks to revise the FLSA’s companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to care givers employed by the individual, family or household using the services only. Third-party employers, including in-home staffing agencies, would not be entitled to claim the exemption even if the worker is jointly employed by the third party and the family/household.
President Obama has announced that he intends to nominate Sharon Block (D) and Richard Griffin (D) to fill two vacancies on the National Labor Relations Board. When Member Craig Becker’s term expires at the end of this year, the Board will be left with only two members, Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R). As the Supreme Court decided in last year’s New Process Steel decision, the Board must operate with at least three members to exercise its full authority. In January of 2011, Obama nominated Terence Flynn (R) to fill one of the vacant slots on the five-member Board, but the Senate has not yet acted on his nomination. It is expected that the Senate will similarly take no action on the latest nominees. The possibility of the President seating Block and Griffin by recess appointment is also low, as the House will likely take steps to block his ability to do so. Continue reading this entry at Littler's Labor Relations Counsel.
.jpg)
Less than two weeks after the Senate failed to advance two competing payroll tax cut bills, the House of Representatives on Tuesday passed its own measure. Approved by a vote of 234-193, the Middle Class Tax Relief and Job Creation Act of 2011 (H.R. 3630) seeks to extend by one year both the payroll tax cut and emergency unemployment insurance benefits, but also includes a number of sticking points that likely will prevent passage of this House bill in the Senate.
.png)
Multiple Employer Welfare Arrangements (MEWAs) are typically utilized by smaller employers as an alternative to other traditional forms of health insurance. In 2010, the Affordable Care Act amended ERISA to address certain perceived regulatory issues with respect to MEWAs. On Monday, December 5, 2011, the Department of Labor published proposed rules and regulations that clarify these changes to ERISA. The changes concern (1) the Secretary of Labor’s ability to issue “cease and desist” and “summary seizure” orders, and (2) the reporting and disclosure requirements for MEWAs.
Employers participating in MEWAs may wish to provide comments to the Department of Labor, as they may be impacted by these regulatory changes. Continue reading this entry at Littler's Employee Benefits Counsel.
.jpg)
On Thursday the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to discuss barriers that the unemployed face in the job market. During the hearing, Committee Chairman Tom Harkin (D-IA), along with other Democratic senators, promoted legislation introduced this term that would prohibit discrimination against job applicants based on their unemployment status. Ranking member Mike Enzi (R-WY), on the other hand, said that incidents of outright discrimination against the unemployed, including claims of job advertisements banning unemployment applicants, were “greatly exaggerated,” and that bills targeting unemployment in hiring were misguided. He further argued that Congress should instead focus its attention on the promotion of job training.
.jpg)
The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued its long-awaited proposed rule (pdf) amending the nondiscrimination and affirmative action requirements regarding individuals with disabilities for federal contractors and subcontractors. Specifically, the rule revises the regulations that implement Section 503 of the Rehabilitation Act of 1973, as amended. Section 503 requires most federal contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities, and prohibits discrimination against them. According to the notice to be published in the December 9 edition of the Federal Register, the proposed regulations would strengthen these affirmative action requirements, describe the specific actions a contractor must take to satisfy its obligations, increase the contractor’s data collection obligations, and establish specific utilization benchmarks to help measure the effectiveness of the contractor’s affirmative action efforts. In addition, the proposal revises the nondiscrimination provisions to conform to changes made by the ADA Amendments Act (ADAAA) of 2008.
.jpg)
On December 7 the House of Representatives passed the latest bill targeting regulations that have significant adverse economic impacts on businesses. Approved by a 241-184 vote, the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2011 (H.R. 10) would require congressional approval of any major rulemaking effort, defined in the bill as a rule or interim final rule that has or will likely result in an annual economic impact of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or U.S. competitiveness. Under current law, a rule will automatically take and remain in effect unless Congress passes and the President signs a joint resolution disapproving the rule.
By David Kadela
.jpg)
In an unprecedented development, and by a 2-1 vote, the National Labor Relations Board on November 30, 2011, approved a resolution to prepare a final rule adopting a subset of the controversial election rule amendments the Board published for comment in June 2011. The two-member majority was made up of Chairman Mark Pearce and Member Craig Becker, both of whom come from union backgrounds. The Board's lone Republican, Member Brian Hayes, voted against the resolution, criticizing the proposed amendments and the process by which they had been vetted as fundamentally flawed.
What makes this development unprecedented, and radical in the eyes of many, is that it defies a decades-old practice of the Board, regardless of the political party in the majority. Continue reading about this development here.
Photo credit: ericsphotography
.jpg)
Neither side of the Senate was able to muster the 60 votes needed to advance their respective payroll tax cut bills on Thursday. The Middle Class Tax Cut Act of 2011 (S. 1917) introduced by Sen. Robert Casey (D-PA) failed by a 51-49 vote margin, while the Republican countermeasure introduced by Sen. Dean Heller (R-NV), the Temporary Tax Holiday and Government Reduction Act (S. 1931), failed by a vote of 20 – 78.
While both bills would have extended the payroll tax cut set to expire at the end of the year, the measures differed in how to pay for this tax break. The Middle Class Tax Cut Act would have reduced from 6.2% to 3.1% the Social Security payroll tax paid by employers on the first $5 million of taxable payroll for 2012. Under the current tax holiday, this tax rate is set at 4.2%. In addition, the bill would have eliminated the Social Security payroll tax paid by employers on the first $12.5 million of an employer’s increased taxable payroll for the 4th quarter of 2011 and $50 million in increased payroll for 2012 as an incentive to promote hiring. The cost of these changes would be offset by a 3.25% tax on individuals making more than $1 million.
In contrast, the Temporary Tax Holiday and Government Reduction Act would have extended the current temporary payroll tax holiday for one year primarily by reducing the size of the federal workforce and extending the current federal employee pay freeze for three additional years.
The popularity of the tax holiday increases the likelihood that a bipartisan compromise will be reached before the benefit expires.
Photo credit: MBPHOTO, Inc.
.jpg)
On December 1, 2011 the Senate passed 93-7 the National Defense Authorization bill that extends reemployment rights to members of the National Guard mobilized for domestic emergencies, and stipulates that certain health care providers under the TRICARE network are not to be considered subcontractors subject to Office of Federal Contract Compliance Programs (OFCCP) requirements.
USERRA Rights
Introduced by Sen. Roy Blunt (R-MO), Amendment 1133 to the National Defense Authorization Act for Fiscal Year 2012 (S. 1867) would amend sections of the Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides certain employment and reemployment rights to returning service members, and prohibits employers from taking adverse actions against them. Specifically, the amendment would extend these rights to members of the National Guard who have been called up to carry out homeland security missions in the United States. Current law does not afford National Guard members serving domestically the same USERRA protections it does for those serving overseas. The amendment revises section 4312 of USERRA to include full time National Guardsmen called up for federal homeland security missions for possible exemption from the Act’s 5-year limit on service. This amendment had been introduced as a standalone bill – the National Guard Employment Protection Act (H.R. 1811, S. 1823) – in both the House and Senate this year, but had failed to advance.
Continue Reading....jpg)
The Department of Agriculture’s Office of Procurement and Property Management has issued a direct final rule that would require its contractors to attest that they and their subcontractors, to the best of their knowledge, are in compliance with all applicable labor laws, and report any violations to their contracting officer. Specifically, the rule would add a subpart and clause entitled “Labor Law Violations” to the Agriculture Acquisition Regulation (AGAR) providing the language that must be included in all UDSA solicitations and contracts exceeding the simplified acquisition threshold (currently $150,000). If adopted, the provision would read as follows:
On November 29 the House of Representatives voted overwhelmingly in favor of passing the Fairness for High-Skilled Immigrants Act (H.R. 3012), bipartisan legislation that would abolish the per-country numerical limits on employment-based immigrant visas. Introduced by Rep. Jason Chaffetz (R-UT) on September 22 and approved by a vote of 389-15, the measure would incrementally change the current system, whereby the annual number of employment-based immigrant visas allocated to natives of any single foreign country cannot exceed 7 percent of the total number of such visas issued that year. As previously discussed, the following transitional rules would apply to employment-based visas:
Add this blog to your feeds or put your e-mail in the box below and hit GO to subscribe by e-mail.
Enter keywords: