The Obama Workplace Agenda

It has been over a year since President Obama's inauguration and, while his workplace agenda remains virtually unchanged, the political roadblocks he continues to face may eventually alter that agenda. We will continue to monitor the initiatives of both the administration and legislature and provide up-to-date information of those evolving issues that affect employers and their businesses.

Executive | Federal Agencies to Provide Legal Referral Services

During a Middle Class Task Force event on November 19, Vice President Joe Biden unveiled a new initiative that will help workers gain access to private legal services when they believe their rights have been violated under the Fair Labor Standards Act and the Family Medical Leave Act. 

The newly announced initiative launches a partnership between the Department of Labor (DOL) and the American Bar Association (ABA) to help workers resolve complaints received by the DOL’s Wage and Hour Division.  The DOL receives thousands of complaints each year regarding the wrongful denial of minimum wage, overtime and family medical leave that they are unable to pursue due to limited resources.  Beginning on December 13, 2010, the DOL will give complainants whose claims cannot be resolved a toll-free number that will connect them with an ABA-approved attorney referral service so they can contact an experienced lawyer in their geographical area.  Many of the lawyers contacted through this referral service will accept cases on a contingency fee basis. 

The Secretary of the DOL, Hilda Solis, stated the “announced collaboration with the ABA streamlines worker access to additional legal resources and builds on [the DOL’s] continued efforts to ensure that employers comply with America's labor laws.”

Executive | NLRB General Counsel's New Guidelines Regarding Injunctive Relief:  Is this "EFCA Lite"?

Last week, the Acting General Counsel for the National Labor Relations Board issued new guidelines to all field offices regarding injunctive relief under section 10(j) of the National Labor Relations Act.  Normally, General Counsel memos do not attract much attention.  This one, however, may deserve closer scrutiny because it looks in some respects like the stagnant Employee Free Choice Act (EFCA) that was introduced in the House and Senate in early 2009...more

Executive | DOL Releases Five-Year Strategic Plan

On September 30, 2010, the Department of Labor issued its 121-page Strategic Plan for Fiscal Years 2011-2016, which, according to Labor Secretary Hilda Solis, reflects her vision of “Good Jobs for Everyone.”  Specifically, the Plan lays out five strategic goals for the next five years:

• Preparing workers for good jobs and ensuring fair competition
• Ensuring workplaces are safe and healthy
• Assuring fair and high-quality work-life environments
• Securing health benefits, and for those not working, providing income security
• Producing timely and accurate data on the economic conditions of workers and their families

The DOL’s five-year roadmap forecasts the its enforcement priorities, which are directed at accomplishing these goals.  Employers can expect the DOL to use its increased resources under the Obama Administration to enforce compliance with FLSA, OSHA and the numerous other federal statues within the DOL's jurisdiction.

Legislative | EFCA Still a High Priority, But No Promises

On July 28, 2010, at a convention of the Communications Workers of America, House Speaker Nancy Pelosi told delegates that Congressional Democrats are still pushing to pass the Employee Free Choice Act (EFCA). Although Speaker Pelosi remained hopeful of the controversial bill's eventual passage, she stopped short of making any specific promises or discussing a timetable. The most recent version of the bill (H.R. 1409), has been stuck in legislative committee since March 2009. As of now, Democrats do not appear to have the votes to overcome Republican opposition. However, the Speaker's recent comments indicate that passage of EFCA, or some version of it, remains a high priority in the Obama Administration's legislative agenda.

Executive | NLRB Seeks Remand of Invalidated Decisions

In the wake of the Supreme Court's invalidation of the approximately 600 NLRB decisions issued by a two member panel, the NLRB is seeking to have roughly 90 of those cases (those that are currently pending on appeal) remanded to a three member panel for reconsideration. If so remanded, the decisions would be reconsidered by the two members who made the initial determination, and a randomly assigned third member.

Legslative | Senate Confirms Mark Gaston Pearce and Brian Hayes

On June 22, the U.S. Senate unanimously confirmed Mark Gaston Pearce and Brian Hayes as members of the National Labor Relations Board (NLRB).  Both Pearce and Hayes, in addition to nominee Craig Becker, had been nominated initially by President Obama in July 2009.  Following a Senate filibuster, President Obama named Pearce and Becker as recess appointments to the NLRB in March 2010.  With the appointment of Hayes, the NLRB will be at full five-member strength for the first time since December 2007.  The appointments follow closely on the heels of the Supreme Court’s decision in New Process Steel last week, which held that the NLRB does not have the authority to issue decisions without at least three members currently sitting on the NLRB. The appointments therefore make certain that the NLRB will continue to have at least three members following the expiration of Member Schaumber’s term in August 2010.

Executive | Veteran NLRB Attorney Named Acting General Counsel

President Obama has appointed long-time NLRB attorney Lafe Solomon to the position of Acting General Counsel of the NLRB, effective immediately.  Mr. Solomon replaces former General Counsel Ronald Meisburg, who was appointed by President Bush in 2006.  Mr. Solomon has served as the Director of the NLRB's Office of Representation Appeals for the last 10 years. As Acting General Counsel, Mr. Solomon will serve as the lead investigator and prosecutor of unfair labor practice cases and will supervise the NLRB field offices in the processing of those cases.

Legislative | Could the Supreme Court's Decision in New Process Steel v. NLRB Pave the Way for Confirmation of NLRB Nominations?

On June 17, 2010, the Supreme Court held that the National Labor Relations Board (the Board) was not authorized to decide cases during the 27 month period in which the Board had only two members. In addition to the question of what happens to the approximately 600 cases decided by the two member Board, one issue that surfaces is whether this decision will place pressure on the Senate to confirm the three pending nominations for Board seats. Earlier this year, President Obama placed former SEIU counsel Craig Becker on the Board as a recess appointment amid much grumbling from Congress which had previously voted against Becker's nomination. Will the Court's decision make Congress more apt to accept the appointment of Becker long term or will the President withdraw his current nominations and replace Craig Becker with someone less controversial and more likely to be confirmed? Without new Board appointments or Congress amending the National Labor Relations Act to allow a two person Board to decide cases, the Court's decision could cause the Board to come to a grinding halt at some point in the near future. Member Schaumber's term expires at the end of August 2010 and Member Liebman's term expires at the end of August 2011. Members Craig Becker and Mark Pearce are currently serving recess appointments that are set to expire at the end of 2011...more

Executive | NLRB and Electronic Voting Systems

Executive |  Meisburg's Departure Paves Way for New NLRB Leadership

Ronald Meisburg, the current Republican General Counsel for the NLRB, announced that he will be ending his four-year term eight weeks early on June 20, 2010 in order to return to private practice.  Meisburg's departure gives President Obama yet another opportunity to advance his labor agenda through a key agency appointment during the Senate's recess.  The General Counsel is responsible for investigating and prosecuting cases before the Board.   Obama's replacement could effectively relitigate controversial cases before the Board that were previously decided during the Bush Administration, such as Dana/Metaldyne and the Oakwood trilogy cases.

Executive | Will the DOL Take Employer Size Into Consideration When Issuing Rules on Employee Misclassification?

On May 21, Nancy Leppink, the Deputy Administrator for the Department of Labor’s Wage and Hour Division, while speaking at a forum at the DOL headquarters, confirmed that the Division is working on employee misclassification initiatives and related proposed new recordkeeping rules.  A few weeks ago, Leppink announced the Division’s proposed rule may require an employer who classifies a worker as an independent contractor to perform a classification analysis and disclose this analysis to the employee.  At last week’s forum, Leppink expanded on the Division’s initiative and declared that officials are taking into account that small employers may lack the expertise or the money to pay for the documentation of their rationale for classifying a worker as an independent contractor.  We will have to wait until the rules are released in August to know what obligations employers will face on this issue and whether employer size truly does matter.

Legislative | SEIU Names New President

Mary Kay Henry was recently elected to succeed Andy Stern as president of the Service Employees International Union (SEIU).  Henry began working with the SEIU in 1979 and ascended to the positions of chief healthcare strategist and executive vice president in charge of the union's healthcare division, which represents at least half the union's total membership.  Henry is also a member of the executive board of Families USA, a national nonprofit organization dedicated to the achievement of high-quality, affordable healthcare for all Americans. She was formerly a labor adviser to and member of the U.S. Catholic Conference of Bishops' Subcommittee on Catholic Health Care.

As an activist for healthcare reform, Henry has stated that she envisions a U.S. healthcare system that provides universal coverage and gives front-line caregivers a voice in patient care.  In recent interviews,  Henry confirmed that under her leadership the union will continue to press for legislative priorities that were set at the 2008 SEIU convention, including health care, immigration and tax reform.  She also confirmed that the proposed EFCA will continue to be a priority to SEIU until it is passed.  In the event EFCA is passed, internal SEIU documents have exposed the SEIU's plan to target the fast food industry for unionization.

Legislative | EFCA Still a High Priority

On May 13, Senate Health, Education, Labor, and Pensions Committee Chairman Tom Harkin (D-Iowa), admitted to audience members at a Corporate Counsel Conference that, as written, EFCA is not going to clear the Senate due to the election of Senator Scott Brown (R-Mass).  This comment echoed Harkin’s comments earlier this week at the annual legislative conference of the International Association of Machinists (IAM), where he blamed Brown’s election for derailing efforts to negotiate a compromise version of the bill.  Despite this roadblock, Harkin told the IAM he had “no higher priority” than passing EFCA and that the current union election system was “out of balance.” 

Executive | DOL Proposes New Compliance Burdens on Employers

The U.S. Department of Labor’s (DOL) 2010 spring regulatory agenda includes proposals containing bold new compliance burdens on employers.  The DOL’s strategy for preempting violations of the FLSA, OSHA and equal employment opportunity laws includes requiring employers to prepare and adopt compliance plans.  The DOL is hoping to reduce the number of overtime violations and misclassification of workers by requiring employers to document many of their decisions and to share that information with their workers and the government.  Deputy Labor Secretary Seth Harris stated that the agenda is focused on rooting out possible violations in industries such as restaurants and discount retailing (for wage violations) and coal mining and construction (for safety violations) where employers often determine that the cost of compliance is outweighed by the financial benefits of violating the laws and the perceived low risk of getting caught...more

Legislative | Proposed Legislation to Address Worker Misclassification

On April 22, members from the U.S. House and Senate introduced the Employee Misclassification Prevention Act in Congress.  The legislation would amend the Fair Labor Standards Act to require employers to keep records that reflect the accurate status of each worker as an employee or nonemployee and to increase penalties on employers that misclassify employees as independent contractors.  The bill also aims to reduce the number of misclassification violations by mandating that states conduct audits to identify employers that misclassify workers and by directing states to strengthen their own penalties for worker misclassification.  Supporters of the legislation stated that tens of thousands of employees are misclassified as independent contractors, and as a result, the employees are denied labor protections and benefits such as minimum wage and overtime, unemployment insurance and workers' compensation.  Misclassification of employees can also deny federal and state governments of tax revenues.

Executive | DOL Issues Its Regulatory Agenda

Technology and new legislation appears to be influencing the Department of Labor’s agenda in the form of new recordkeeping, union election and family leave rules, according to its semiannual regulatory agenda published in the Federal Register on April 26, 2010.  Some of the highlights include:

• By August 2010, the Wage and Hour Division expects to propose a rule updating employers’ recordkeeping regulations under the Fair Labor Standards Act (FLSA) to assist with the computation of wages and allow electronic recordkeeping for telecommuting and flex arrangements.  
• Also in August 2010, the Office of Labor-Management Standards plans to issue a notice of proposed rulemaking to revise Form LM-30 which is used to identify potential conflicts of interest between unions and their officials.  
• By November 2010, the agency anticipates that it will propose rules revising military leave provisions and applying the Family and Medical Leave Act (FMLA) to airline flight crews. 

The agenda also includes a review of child labor provisions and the home care industry and specific rules related to federal contractors and subcontractors.  Click here to see the DOL’s Semiannual Regulatory Agenda published in the Federal Register.

Executive | DOL Issues Fact Sheet to Help Determine Whether to Pay Interns

With summer break just around the corner, there are a significant number of students hoping to land internships in the private sector.  Given the slow economic recovery, many of these internships will be unpaid.  The Department of Labor (DOL) recently issued a fact sheet providing general information to help determine whether interns must be paid for the services they provide to “for-profit” private sector employers under the Fair Labor Standards Act (FLSA)...More.

Executive | Effect of Recess Appointments on Pending Supreme Court Case

On April 16, 2010, the U.S. Supreme Court ordered supplemental briefs to be filed in a pending case that challenges the authority of a two-member National Labor Relations Board.  The Court had heard oral argument in New Process Steel LP v. NLRB on March 23, at a time when the NLRB remained a two-member board.  On March 29, Solicitor General Elena Kagan notified the Court that the President had made two recess appointments to the NLRB, but stopped short of arguing what effect those appointments would have on the currently pending case.  The Court’s order requires the parties to file supplemental briefs that address the following question: “What should be the effect, if any, of the developments discussed in the letter submitted by the Solicitor General on March 29, 2010, on the proper disposition of this case?”  The Court established April 26 as the deadline for the receipt of these supplemental briefs. 

Legislative | Labor Powerhouse Andy Stern Announces Retirement From SEIU

Executive | A "New Sheriff" Is Enforcing Wage & Hour Laws

On April 1, 2010, Secretary of Labor Hilda Solis unveiled a campaign intended to enforce federal wage and hour laws by increasing public awareness.  Saying that "a new sheriff is in town," Solis laid out her plan to use public service announcements featuring prominent actors and activists to inform low-wage and immigrant workers of their rights with regard to minimum wage and overtime pay.  Over the past year, Solis has used bountiful federal funding to add 250 field investigators at the Department of Labor, and plans for her growing staff to implement the public awareness campaign, and to help workers assert their rights.  The "We Can Help" campaign, as labeled by Solis, will focus on employees in industries associated with employing immigrant and low wage workers, including the construction, apparel, manufacturing, food service, home health care, lodging, janitorial and agriculture industries.

Executive | NLRB and EEOC Recess Appointments

On Saturday, March 27, 2010, President Obama bypassed the Senate and made 15 recess appointments to key administration posts, including positions at the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC).  Included among the appointees was union attorney Craig Becker, whose nomination to the NLRB has generated widespread controversy and prompted strong opposition from employers.  Becker, whose appointment Senator John McCain has termed "payback" to union leaders for their support of President Obama, has worked as an associate general counsel for the SEIU since 1990, as staff counsel for the AFL-CIO since 2004 and has taught and written extensively about labor law.  In addition to Becker’s appointment, the President also named Mark Pearce, a New York labor lawyer and union side advocate, to fill the fourth seat on the NLRB.  With these appointments, the NLRB—operating with a Democratic majority for the first time since 2001—is poised to reconsider several decisions largely viewed as pro-management that issued in the last decade.  President Obama also named Jacqueline Berrien as the Chair of the EEOC, as well as Chai Feldblum and Victoria Lipnic as Commissioners...More.

Legislative | Is a Recess Appointment in the Cards for Becker?

Republican senators are pulling together in an effort to keep union lawyer Craig Becker from being named to the National Labor Relations Board (NLRB).  On February 9, 2010, the Senate rejected Becker’s nomination by a vote of 52 to 43.  However, with the Easter recess scheduled to begin this week, Republican senators fear that President Obama will use his executive powers to bypass the Senate and appoint Becker to the NLRB.  Such an appointment would circumvent the need for Senate confirmation and allow Becker to serve through 2011, or until the end of the next session of Congress.  The Republicans object to Becker based on what they feel would be his pro-union agenda, including his support for the Employee Free Choice Act (EFCA).   On March 25, all 41 Republican senators signed a letter to President Obama urging him not to overturn the bipartisan vote against the nomination of Becker.  The senators stated that “[t]o do so would bypass the advice and consent traditions of the Senate.”

Executive I  U.S. Department of Labor to Issue Broad New Interpretations of Wage and Hour Laws

On March 24, 2010, the U.S. Department of Labor’s Wage and Hour Division announced that it will begin issuing “Administrator Interpretations” of the statutes and regulations administered by the division, which include the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). According to the announcement, these Administrator Interpretations “will set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision at issue,” and will clarify the law “as it relates to an entire industry, a category of employees, or to all employees”....More.

Executive | Supreme Court Hears Oral Argument on Validity of Two-Member NLRB

On March 23, 2010, the Supreme Court heard oral argument in New Process Steel LP v. NLRB, a case questioning the authority and validity of a two-member National Labor Relations Board (NLRB).  Since 2008, the NLRB has consisted of only two members, who together have issued more than 500 decisions regarding private sector employees’ rights under the National Labor Relations Act (NLRA).  At issue is whether Section 3(b) of the NLRA, which provides in part that three members “shall, at all times, constitute a quorum of the Board,” authorizes the NLRB to delegate its decision-making authority to just two members.  There currently exists a 5-1 split among the federal courts of appeals regarding this issue, the majority of which have upheld the two-member board’s authority.  The Court’s decision is expected in June, and will likely impact the political wrangling in Congress that has affected NLRB appointments for decades.  A transcript of the oral argument is available here.

Legislative | Are Oral Complaints Enough to Protect Employees from Retaliation under the FLSA?

The U.S. Supreme Court is set to scrutinize the language used by Congress in the anti-retaliation provision of the Fair Labor Standards Act (FLSA).  On March 22, 2010, the Supreme Court agreed to consider whether the protections afforded under the FLSA’s anti-retaliation provision cover an employee who makes an oral complaint.  In Kasten v. Saint-Gobain Performance Plastics Corp., the Seventh Circuit Court of Appeals held that oral complaints made by an employee to supervisors did not constitute protected activity under the FLSA since the complaints were not made in writing.  The employee complained in this case that the location of time clocks prevented employees from being paid for time spent donning and doffing required protective gear.  The Seventh Circuit reasoned that the statute’s use of the words “filed a complaint” demonstrated Congress’ intent to require employees to submit written wage and hour complaints in order to be protected from retaliation.  The Supreme Court’s review of this decision may simply resolve the conflict in the federal appellate courts or, if Congress’ trend of expanding workplace legislation in favor of employees continues, we may see a response in the form of new or revised legislation.

Executive | President Obama Signs the Jobs Bill

On March 18, 2010, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act, known more commonly as the Jobs Bill, with hopes that the bill will prompt job growth by encouraging private businesses to hire new workers.  With aspirations of generating 250,000 jobs by the end of year, the bill creates approximately $8 billion in tax breaks for employers. 

In addition to the tax breaks, the bill also:

• Provides $20 billion for highway and transit programs;
• Exempts businesses from paying the 6.2% social security payroll tax through December 2010 for every worker hired for new positions in 2010 who has been unemployed for at least 60 days; these benefits cannot be used in situations where a HIRE Act employee replaces a current employee, unless the current employee quits or is terminated for cause;
• Provides an additional $1,000 credit for employers if new workers stay on the job for 12 months, were hired and began working during the tax year, and received at least 80% of the wages paid to them in the first 26 weeks during the second 26 weeks of their employment;
• Extends highway and mass transit programs through December 2010 and provides $20 billion in anticipation of the spring construction season;
• Extends tax breaks for small businesses buying new equipment; and
• Expands an initiative that helps state and local governments finance infrastructure projects.

Executive | EEOC Continues Crusade Against "Inflexible" Leave Policies

On March 2, 2010, the EEOC announced the entry of a consent decree in EEOC v. Beverage Solutions, Inc.  The consent decree resolves a class action lawsuit filed by the EEOC in Chicago federal district court alleging that Beverage Solutions, a beer and wine distributor, violated the Americans with Disabilities Act (ADA) by maintaining a policy that only permitted employees to take medical leave during slower business months.  According to the EEOC, Beverage Solutions automatically terminated employees who required leave outside these slower months without making reasonable accommodations.  The settlement underscores the EEOC's—and in particular, the Chicago district office's—vigorous campaign against so-called automatic or "inflexible" leave policies since the enactment of the ADA Amendments Act.

Executive | EEOC Boasts $11.7 Million Settlement of Sex Discrimination Lawsuit

On March 1, 2010, the EEOC announced an $11.7 million settlement in EEOC v. Wal-Mart Stores, Inc., a class action lawsuit filed in Kentucky federal court alleging that Wal-Mart's London, Kentucky, distribution center systematically excluded female applicants from consideration for certain order filler warehouse jobs based on gender stereotypes.  In addition to the large settlement, the court approved consent decree includes substantial injunctive relief including a requirement that the retailer offer the first 50 available order filler positions to female class members and a stipulated portion of available positions thereafter.  This case reflects the type of "big money" lawsuits attacking systemic discrimination that the EEOC is focused on, and prepared to litigate, with its increased budget and workforce.

Executive | Are Your Independent Contractors Really Employees?  The DOL Has Requested Resources To Find Out

The Department of Labor (DOL) has requested a $116.5 billion budget for FY2011, and Labor Secretary Hilda Solis explained that the increases sought will enable the DOL to crack down on employer misclassification of employees as independent contractors.  Approximately $25 million of the budget is devoted to coordinating federal and state efforts to deter employers from misclassifying employees as independent contractors, $12 million toward targeted investigations that focus on industries where misclassification is believed to be most likely, and $1.6 million to assist the Solicitor's Office work with states on litigation involving large multistate employers believed to routinely abuse independent contractor status.  The misclassification initiative also includes adding 90 new investigators to the Wage and Hour Division and 10 full-time employees in the Solicitor's Office.

Click here to view our eBulletin on employee misclassification and the Fair Labor Standards Act.

Legislative | President Obama's 2010 Legislative Initiatives

EFCA tends to “steal the show” when we talk about the workplace related legislation.  EFCA is only the beginning.  Obama and the legislature are contemplating so much more that will impact employers.  The following outlines briefly the other pending legislation that could reach Obama’s desk in 2010...More.

Legislative | Looking to Hire? Help May Be on the Way

On March 4, 2010, the U.S. House of Representatives passed H.R. 2847, a $15 billion jobs bill aimed at reducing the nation's unemployment rate through tax incentives. Among other things, the Hiring Incentives to Restore Employment (HIRE) Act would give private sector employers an exemption from Social Security payroll taxes for every person they hire in 2010 who has been unemployed for at least 60 days, as well as a $1,000 income tax credit for each new hire who is retained for at least a year. Passage in the Senate appears likely, since the Senate recently passed a similar bill by an overwhelming margin.

Legislative | COBRA Subsidy Extended

On March 2, 2010, President Obama signed into law a stop-gap measure that extends the federal COBRA subsidy through March 2010, and continues other federal subsidy programs.  The U.S. Senate voted 78-19 to pass the legislation after retiring Senator Jim Bunning (KY-R) backed down from his 5-day much publicized one-man opposition to the legislation.  The law extends the 65%, 15-month subsidy to COBRA coverage for workers involuntarily terminated between March 1 and March 31, 2010.  In the coming days, the Senate is expected to take up legislation that would extend the COBRA subsidy to December 31, 2010.

Legislative | Administration Implies EFCA Not Dead Yet

Despite losing the 60-seat supermajority in the U.S. Senate, Vice President Joseph Biden told the AFL-CIO at its annual winter meeting that the stalled Employee Free Choice Act (EFCA) was not dead yet. Speaking to the union leaders, Biden sought their continued support despite the Obama administration's inability to achieve two of labor's big ticket items in its first year:  EFCA and Craig Becker's nomination to the National Labor Relations Board (NLRB).  In terms of the NLRB, Biden was clear and confident, “…we’re going to get it done.”  Acknowledging that passing EFCA was a bit more difficult but still likely, Biden stated, “In the fight for EFCA, we’ve got to sit down and figure out where we go from here…I think we’re going to get it done.”  The Wall Street Journal – Washington Wire report available here.

Legislative | Recommendations on Increased Employer Retirement Plan Obligations

On February 26, 2010, Vice President Biden released recommendations resulting from the Middle Class Task Force’s year-long examination of the state of the middle class. The recommendations outline steps the administration is taking to address challenges facing the middle class throughout the nation. These recommendations included, among other things, that employers automatically enroll their employees in a retirement plan unless the employee opts out. The Task Force recommends that every employer automatically enroll employees in a 401(k) plan even if the employer does not have an established plan, with a proposed exemption for businesses with less than 10 employees, as well as tax breaks to help small businesses establish these requirements.  

The Deputy Secretary of Labor recently touted two new DOL regulations aimed at helping middle class workers with 401(k)s and IRAs.  One is a proposed rule that creates new requirements for investment advisors.  The other is a final rule, scheduled to take effect in April 2010, that is intended to increase information available related to multiemployer plans, or pension plans collectively bargained for by unions and groups of employers.  The new rule would require that if any of the workers or their unions ask for information about the health of the plans, the plan administrator will be obligated to provide that information.  Access proposed rule and final rule.

Executive | Obama and Stern Together Again

As reported by The Wall Street Journal, on February 26, 2010, President Obama named Andy Stern, president of the Service Employees International Union (SEIU), one of his appointments to serve on the newly created bipartisan National Commission on Fiscal Responsibility and Reform (which has been commonly referred to as the Deficit Reduction Commission).  The Commission, which is composed of 18 members with 12 of its slots named by party leaders in each chamber, has until December 1, 2010, to report any recommendations to Congress on how to reduce the federal deficit.  Stern's appointment has drawn much criticism from employer groups, which have not only complained about the culture of union favoritism in the White House, but also the incredulousness of Stern's appointment to a commission with the sole purpose of recommending how to reduce the deficit where SEIU's pension fund is in serious trouble.

Executive | E-Verify Not the Ultimate Safeguard

The Obama administration's focus on immigration enforcement policy is not going away any time soon. Unfortunately the systems being put in place, like E-Verify, are not necessarily helping employers better manage illegal employees. As reported by The Washington Post, Westat, a research company, has indicated that E-Verify, the system put in place for the Homeland Security Department, incorrectly clears illegal workers nearly 54 percent of the time. Although it appears this is occurring because E-Verify cannot detect identity fraud, the question arises as to whether this can be fixed before this now voluntarily system is made mandatory as has been speculated. It has been reported that some Republicans in Congress were aiming to make the system mandatory in the coming weeks. Employers should be aware that E-Verify, mandatory or voluntary, is not the single, effective remedy in halting the employment of illegal workers.

Legislative | Brown Flexes Muscles, Breaks GOP Ranks on Jobs Bill

Senator Scott Brown's (MA-R) election may not be the Republican backlash to the Obama agenda it was anticipated to be. On February 24, 2010, the Senate passed a $15 billion jobs bill, which, among other things, provides tax breaks for businesses (including a write off of equipment as a business expenses), and provides incentives to hire unemployed workers (including an additional $1,000 tax credit for workers retrained in a year and a social security payroll tax exemption for employees hired after they were unemployed for more than 60 days). Notably, Senator Scott Brown was one of five Republicans to vote for the bill, making good on his warning to Republican leaders not to take his vote for granted. 

Executive | Craig Becker's Nomination Defeated in the Senate

On February 9, 2010, the U.S. Senate blocked President Obama’s nomination of Craig Becker to the National Labor Relations Board.  By a vote of 52 to 33, Senate Democrats fell far short of the 60 votes needed to overcome a Republican-led filibuster and advance the nomination. Two Democrats, Senators Blanche Lincoln of Arkansas and Ben Nelson of Nebraska, broke party ranks and voted against Becker’s nomination.  The vote took place amid strong opposition to Becker’s nomination by management and employer groups, which have raised concerns that Becker would circumvent Congress by implementing portions of the proposed Employee Free Choice Act through NLRB decisions, and citing his radical views about union organizing campaigns and representation elections. The vote represents a tremendous setback for organized labor, which had hoped to achieve a Democratic majority on the NLRB for the first time since 2001.

Executive | Is Affirmative Action Working?

On February 5, 2010, as part of the Obama Administration's Open Government Initiative, the EEOC published extensive new data on private sector job patterns obtained from the EEO-1 affirmative action surveys collected from private employers. The data, which is current through 2008, contains comprehensive labor profiles on race, gender and ethnicity broken down by state, locality, industry and job category. Notably, the report found that minorities made up 34% of the national workforce in 2008, and that Hispanic or Latino employees experienced the fastest growth rate in the private sector over the past 40 years. Data reports available by clicking here. 

Executive | Key Moves on President Obama's Labor Nominees

On February 4, 2010, the U.S. Senate made two significant moves with the confirmation of the solicitor for the U.S. Department of Labor (DOL) and the Health, Education, Labor and Pensions Committee’s nomination of Craig Becker to the National Labor Relations Board (NLRB).  Through these actions, the Democratic Party appears to be taking steps that could ultimately give organized labor much of what it seeks in the Employee Free Choice Act, while sidestepping debate over the controversial legislation...More.

Executive | OSHA Would Like a Word with Your Employees' Chiropractors

After a seven year hiatus, ergonomics has returned to the agenda of the Occupational Safety and Health Administration (OSHA).  On January 28, 2010, OSHA proposed new rules that would require employers to track workplace related musculoskeletal disorders, including carpal-tunnel syndrome and rotator cuff problems.  The rules are identical to those issued in 2001 by the Clinton administration but removed in 2003 by the Bush administration.  Though the rules are yet to be adopted and only relate to record keeping, this is a troubling indication to employers of an agency trend toward enforcement relating to ergonomics in the workplace.  An OSHA news release on the topic is available by clicking here. 

Executive | Business is Booming for EEOC in Bad Economy

On January 6, 2010, the EEOC announced that 93,277 discrimination and retaliation charges were filed with the agency during fiscal year 2009, the second highest level ever. Complainants most frequently alleged retaliation and race and gender discrimination. Claims based on religion, disability and national origin also reached record highs. The staggering number in discrimination charges is likely due to economic conditions, shifts in the labor force and changes within the EEOC which make filing a discrimination charge easier. Data reports outlining these trends are available by clicking here.

Legislative | Card Check Provision Cut from EFCA?

The New York Times reported that Democrats have agreed to cut the "card check" provision from the Employee Free Choice Act. That provision would have required the National Labor Relations Board to certify a union after a majority of a company's employees signed union authorization cards, effectively ending the current secret-ballot union election process. The move comes as part of an effort by Senate Democrats to secure a filibuster-proof sixty votes on the legislation...More.

Legislative | What 60 Votes Means In The Senate

With 222 original co-sponsors for H.R. 1409, EFCA clearly has the votes to pass the House of Representatives. As a result, the real battle for passage of EFCA is in the Senate...More.

Legislative | Al Franken Wins Minnesota Senate Race

On June 30, 2009, the Minnesota Supreme Court ruled Al Franken the winner of the November 2008 Minnesota Senate race. Franken's victory gives Democrats control of 60 seats in the Senate - the critical number needed to overcome Republican filibusters. The Democratic Party now has a supermajority in the Senate, something that has not been held by either political party in more than 30 years...More.

Legislative | Democratic Senators Who Have Announced Opposition to EFCA

Senator Arlen Specter (D. Pa.) has stated that he will not support EFCA and has spoken out against binding arbitration and eliminating the secret ballot election.  Senator Specter supported the EFCA when it was introduced in the Senate in 2007 and represented a pivotal vote in unions’ hopes of obtaining the 60 votes needed to invoke cloture and avoid another Senate filibuster...More.

Legislative | Democratic Senators Who Are Wavering

• Senator Thomas Carper (D. Del.), although a co-sponsor of the bill, has suggested that he will not support EFCA if the bill's card-check provision remained.
• Senator Jim Webb (D. Va.), who voted for cloture on EFCA in 2007, has stated that he is unsure how he would vote on EFCA.
• Senators Michael Bennet (D. Co.) and Tom Udall (D. Co.), the press has reported that both Senators have recently sent mixed signals and both seem unenthusiastic about the bill as written.
• Senator Mark Warner (D. Vir.) has waivered in his support for EFCA, stating that his vote for cloture of the bill is questionable due to the unclear language of the bill at this point and the state of the economy.
• Senators Mary Landrieu (D. La.), Mark Pryor (D. Ark.) and Ben Nelson (D. Neb.), who voted for the “cloture” motion in 2007, have indicated they are inclined to vote against EFCA at this time given the state of the economy.

 

Legislative | Republican Senators Who Have Announced Support of EFCA

It appears that the Republican Party has remained unified, as no Republican Senator has publically announced his/her support of EFCA.

Legislative | Alternatives to EFCA: Bill Numbers and Status

• The National Labor Relations Modernization Act (H.R.1355)
• Secret Ballot Protection Act (H.R.1176 and S.478)
• Labor Relations First Contract Negotiations Act of 2009 (H.R.243)...More.

 

Legislative | Senator Arlen Specter: Will He or Won't He

In late April 2009, Senator Arlen Specter of Pennsylvania announced that he would join the Democratic Party and leave the Republicans. Specter’s move made him the 59th Democratic Senator; Al Franken subsequently became the 60th Democratic Senator in late June 2009 after the Minnesota Supreme Court ordered that he be certified as the winner of the state's gubernatorial election of November 2008...More.

Legislative | The Election Results Are In - What Are the Implications for EFCA?

The results are in for the off-year elections, and they may provide insight into the future of the Employee Free Choice Act (“EFCA”). The GOP was victorious in the governor elections in New Jersey and Virginia, while the Democrats gained a win in the special congressional election in the 23rd District of New York. Independent Michael Bloomberg maintained his seat as Mayor of New York and Democrats maintained their seat in California’s 10th Congressional District...More.

Legislative | The Employee Free Choice Act

First introduced in 2003, the Employee Free Choice Act ("EFCA") was passed in 2007 by the U.S. House of Representatives. The cloture vote in the Senate, however, fell short. On Tuesday, March 10, 2009, EFCA was reintroduced in both the House (H.R. 1409) and the Senate (S. 560)...More.