One of a President’s most effective tools to change labor law to his liking without passing legislation is by appointing members to the National Labor Relations Board who support his view of the National Labor Relations Act. The National Labor Relations Act (the federal law that governs labor law in the private sector) provides for a five-member Board with each member serving a 5-year term. As the terms expire, the President nominates replacements, which must be approved by the Senate before they are seated on the Board. By tradition, three of the members are from the same political party as the President in the White House.
Since January 2008, the Board has been operating with only two of its five allotted members. President Obama nominated three replacements after taking office, but none had been confirmed by the Senate.
One of the replacements Obama nominated, Craig Becker, was highly controversial. Becker was serving as associate general counsel for the Service Employees International Union (SEIU) and the AFL-CIO, one of the most aggressive unions in lobbying for legislation, including the Employee Free Choice Act. The President of the SEIU, Andy Stern, has been in the news for being the most frequent visitor to the Obama White house.
Much of the controversy over Becker stems from two of his law review articles. Becker has expressed the view that employers should have only very restricted, if any, role in union elections. He believes that employers have no legitimate interests in union organizing. Because of this, and other, controversial positions, Becker’s nomination was hotly contested in the Senate. Many employers and employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, were concerned that Becker would try to implement provisions of the Employee Free Choice Act through Board decisions since the EFCA had bogged down in Congress. Many Senators shared these concerns about Becker’s pro-labor bias and refused to approve his nomination. The Senate agreed to pass on Obama’s other two less controversial nominations (one Democrat and one Republican), but the Senate Democrats insisted that the nominees be considered as a package. Therefore, the nominees were never confirmed by the Senate.
Now that the healthcare reform bill has passed and Congress is in recess, Obama took the opportunity to make two recess appointments to the Board. Recess appointments do not require approval from the Senate. Last Saturday (March 27th), Obama announced the recess appointments of Craig Becker and Mark Gaston Pearce, the two Democrat nominees. Obama did not nominate Brian Hayes, his Republican nominee, for a recess appointment. Accordingly, the Obama Labor Board currently consists of four members: three Democrats and one Republican.
Following the announcement of the recess appointments, pro-labor groups were expectably pleased. One such group, American Rights at Work, congratulated President Obama and asked its members to send him electronic “thank you notes.” According to the group's email distribution, President Obama “used his executive power to held the NLRB tackle its backlog of critical cases, making ‘recess appointments’ when Congress left town.” The email also quoted Obama as saying “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”
Some commentators suspected that the two-member Board consisting of one Democrat (Liebman) and one Republican (Schaumber) were deciding only the “easy” cases – the ones they could agree on – while leaving the more significant, and more contested cases until the Board had at least a three-member quorum. Now that the Board has its three-member quorum, it will likely start deciding those more significant and contested cases. With a strong pro-union majority, it is reasonable to expect decisions that will heavily favor organized labor.
We will continue to monitor the recess appointments and the Board’s activity with its new pro-union majority. If you have any questions about the Board decisions we see coming down the pike and how they could affect your business operations, please don’t hesitate to contact us.
Thursday, April 1, 2010
Thursday, March 25, 2010
COBRA, ARRA and IT
A rash of calls recently from clients with a common question brings about this post.
If you have an employee who does not return to work after a leave of absence, and that employee is considered terminated from employment when that occurs, then the employee is entitled, according to the U.S. Department of Labor, to elect the COBRA premium subsidy as provided by the ARRA.
And yes, IRS Notice 2009-27 does state, "An involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services." While the "willing and able to continue performing services" appears to conflict with a situation facing an employee who does not return from a leave of absence, nonetheless, the employee is an assistance eligible individual.
If you have an employee who does not return to work after a leave of absence, and that employee is considered terminated from employment when that occurs, then the employee is entitled, according to the U.S. Department of Labor, to elect the COBRA premium subsidy as provided by the ARRA.
And yes, IRS Notice 2009-27 does state, "An involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services." While the "willing and able to continue performing services" appears to conflict with a situation facing an employee who does not return from a leave of absence, nonetheless, the employee is an assistance eligible individual.
Thursday, March 4, 2010
[UPDATED] A gentle reminder. . .
Hey, where have you been? Okay, okay--it's more like where have we been. Sorry for the lack of posts in the month of February.
This is a quickie: remember that if you are not covered by federal COBRA (20 or more employees), you may still have obligations under your respective state's "mini-COBRA" law. For example, in Tennessee, employees can get three months of health insurance continuation if their employer is not covered by federal COBRA.
One other quickie: the federal COBRA subsidy that was in effect under the American Recovery and Reinvestment Act expired on February 28, 2010. The President and Congress have implemented a stop-gap measure extending the subsidy to March 31, 2010--the Temporary Extension Act of 2010.
This is a quickie: remember that if you are not covered by federal COBRA (20 or more employees), you may still have obligations under your respective state's "mini-COBRA" law. For example, in Tennessee, employees can get three months of health insurance continuation if their employer is not covered by federal COBRA.
One other quickie: the federal COBRA subsidy that was in effect under the American Recovery and Reinvestment Act expired on February 28, 2010. The President and Congress have implemented a stop-gap measure extending the subsidy to March 31, 2010--the Temporary Extension Act of 2010.
Monday, February 1, 2010
Speaking of giving . . .
The U.S. Department of Labor requested $117 billion for its fiscal year 2010 budget. Most of the money is to be used for unemployment insurance funds and job restructuring initiatives, but it shouldn't be overlooked what the DOL is requesting for its own staff: more than 350 new hires, including 177 investigators and enforcement staff. The DOL will emphasize hiring bilingual staff members "to better communicate with employees in the changing workplace."
The allocation request breaks down to half a billion for OSHA, and $244 million for Wage & Hour (with funding earmarked for 90 new investigators in that division), with $25 million of that for a Misclassification Initiative aimed at looking more closely into whether an individual is an employee incorrectly classified (hence, the name) as an independent contractor.
One carrot for States: a $50 million State Paid Leave Fund to "encourage" states to apply for competitive grants to launch paid-leave programs and offset start-up costs.
The allocation request breaks down to half a billion for OSHA, and $244 million for Wage & Hour (with funding earmarked for 90 new investigators in that division), with $25 million of that for a Misclassification Initiative aimed at looking more closely into whether an individual is an employee incorrectly classified (hence, the name) as an independent contractor.
One carrot for States: a $50 million State Paid Leave Fund to "encourage" states to apply for competitive grants to launch paid-leave programs and offset start-up costs.
A time for giving
Recent natural disasters have caused several clients to revisit their non-solicitation policies--particularly when the policies are an absolute ban on soliciting for causes. With the continued, albeit greatly diminished, life of the Employee Free Choice Act, by no means are we encouraging anyone to eliminate the policy altogether.
Yet in times when the devastation in Haiti is front and center on the news and websites; when the snow storms in the Midwest have left so many without power; the rock and mud slides and various disasters on the West coast have left many homeless; it is a natural instinct for those of us with so much to ask, "What can I do?"
We caution our clients about making exceptions to their policies. When an exception is real and easily defined, though, then bending the policy a bit becomes more easily explained should the exception be challenged in the future. Likewise, some clients are considering implementing new policies on a temporary basis, such as a temporary leave of absence policy for those employees who want to travel for relief efforts on their own time and money. If you are one of those businesses that is either recovering from the economic downturn or found yourself fortunate to not be hit in the gut, you may be considering even sponsoring a relief team for any number of charitable causes.
Whatever your situation, document. If you make an exception, delineate the who, what, when, where and why. If you allow for the leave of absence, be clear on your expectations. For example, if there are times of the year/production cycle when you just can't allow the absenteeism, let the employees know that upfront.
And if you simply want to open the break rooms, e-mail and intranet for solicitation of worthy causes, well, lather, rinse, repeat: document, delineate the exception, and be clear on your expectations.
Yet in times when the devastation in Haiti is front and center on the news and websites; when the snow storms in the Midwest have left so many without power; the rock and mud slides and various disasters on the West coast have left many homeless; it is a natural instinct for those of us with so much to ask, "What can I do?"
We caution our clients about making exceptions to their policies. When an exception is real and easily defined, though, then bending the policy a bit becomes more easily explained should the exception be challenged in the future. Likewise, some clients are considering implementing new policies on a temporary basis, such as a temporary leave of absence policy for those employees who want to travel for relief efforts on their own time and money. If you are one of those businesses that is either recovering from the economic downturn or found yourself fortunate to not be hit in the gut, you may be considering even sponsoring a relief team for any number of charitable causes.
Whatever your situation, document. If you make an exception, delineate the who, what, when, where and why. If you allow for the leave of absence, be clear on your expectations. For example, if there are times of the year/production cycle when you just can't allow the absenteeism, let the employees know that upfront.
And if you simply want to open the break rooms, e-mail and intranet for solicitation of worthy causes, well, lather, rinse, repeat: document, delineate the exception, and be clear on your expectations.
Tuesday, January 26, 2010
Down, set. . . wait, wait just a minute.
Sports can provide some of the best HR analogies. Take for example the NFL playoffs and the contemplated future of two of the games iron horses: Kurt Warner of the Arizona Cardinals and Brett Favre of the Minnesota Vikings.
At the conclusion of the last several seasons, much of the buzz with these two gentlemen centers on whether they will retire. The question gets asked in the press conference immediately following the game that ends the season for them, and the QBs consistently give a "I'm not sure what I want to do right now" response as they flex their appendages with huge ice bags taped to them and grimace from the internal bleeding they have surely suffered at the hands of opposing defenses. And when pressed to give a more definite answer, again usually during that same press conference, Warner and Favre have more recently said they probably won't be back.
Of course, if they stuck with that decision, then this blog entry wouldn't have any use. What those players realize, and what we teach our HR clients to practice, is that decisions with an emotional tilt to them shouldn't be made in haste. More importantly, they shouldn't be made in close time to the event that spurned the need for a decision.
When our clients encounter an HR decision that will have a reverberating effect, we encourage them to take a few steps back before deciding on the proper course. Thinking with a clearer head and cooler emotions will often place the event in perspective and even create opportunities for alternative courses that might be more appropriate. If my husband, a head coach, has one golden rule for his players and parents, it is that his door is always open except immediately after a game. You put so much time, energy and emotion into that setting that level-headedness often takes a back seat to knee-jerk reactions. Creating space from the event is the best way to ensure HR is making a decision based on the facts and not the heart.
Unlike sports, you luckily have unlimited time outs. Use them to your advantage.
At the conclusion of the last several seasons, much of the buzz with these two gentlemen centers on whether they will retire. The question gets asked in the press conference immediately following the game that ends the season for them, and the QBs consistently give a "I'm not sure what I want to do right now" response as they flex their appendages with huge ice bags taped to them and grimace from the internal bleeding they have surely suffered at the hands of opposing defenses. And when pressed to give a more definite answer, again usually during that same press conference, Warner and Favre have more recently said they probably won't be back.
Of course, if they stuck with that decision, then this blog entry wouldn't have any use. What those players realize, and what we teach our HR clients to practice, is that decisions with an emotional tilt to them shouldn't be made in haste. More importantly, they shouldn't be made in close time to the event that spurned the need for a decision.
When our clients encounter an HR decision that will have a reverberating effect, we encourage them to take a few steps back before deciding on the proper course. Thinking with a clearer head and cooler emotions will often place the event in perspective and even create opportunities for alternative courses that might be more appropriate. If my husband, a head coach, has one golden rule for his players and parents, it is that his door is always open except immediately after a game. You put so much time, energy and emotion into that setting that level-headedness often takes a back seat to knee-jerk reactions. Creating space from the event is the best way to ensure HR is making a decision based on the facts and not the heart.
Unlike sports, you luckily have unlimited time outs. Use them to your advantage.
Wednesday, January 6, 2010
Holiday expansion
Most of us think of the holidays as a time to celebrate, be with the ones we love, and, unfortunately, put on a few pounds. This year, thanks to our Executive and Legislative Branches, any waistline gain wasn't the only expansion going on.
On December 19, 2009, President Obama signed a bill that allows the COBRA premium subsidy law to continue beyond its original sunset date of December 31, 2009. In the course of passing this extension, provisions were also added which expands the group of Assistant-Eligible Individuals ("AEIs").
Some highlights:
On December 19, 2009, President Obama signed a bill that allows the COBRA premium subsidy law to continue beyond its original sunset date of December 31, 2009. In the course of passing this extension, provisions were also added which expands the group of Assistant-Eligible Individuals ("AEIs").
Some highlights:
- The subsidy period is increased from 9 to 15 months
- A qualifying event for the subsidy is now covered by the period of September 1, 2008 through February 28, 2010.
- If a former employee is now an AEI due to this amendment, that former employee has a transition period.
- If you have an AEI who (1) did not timely make a COBRA premium payment prior to the passing of this amendment or (2) paid a full premium when now it could be a subsidized premium, you must give that AEI a notice of the new law. This notice is to be issued within the first 60 days of the AEI's transition period.
- If you have a former employee who became an AEI after October 31, 2009, you must provide that former employee with the new notice.
The amendments include other provisions which will be of interest to employers. Employers should consider contacting their third-party administrators or legal counsel to discuss how the amendments might impact them.
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