The new notice must be posted for all covered government contracts or subcontracts that result from solicitations issued after June 21, 2010.  Go to the DOL’s website  for more specific information about the size and placement of the notice and about possible electronic posting.  Click here to see a sample of the new notice.  Please note that the notice posted must be at least 11″ by 17″.  Covered government contracts will mandate that  the prime contractor require subcontractors performing services or goods under the covered contract for $10,000 or more to also post this notice.

Prime contracts for less then $100,000 or those for work performed exclusively outside the U.S. do not required the posting of  this notice.  The notice requirement does not apply to contracts resulting from solicitations issued prior to June 21, 2010.

This notice has an extensive explanation of workers’ rights to organize and take collective action. It also sets forth examples of  adverse conduct by an employer (or a union) against an employee that would be  unlawful under the NLRA.  It  informs employees of possible remedies that can be ordered by the NLRB to correct unlawful conduct and tells them how to contact the NLRB to file a charge. 

This new Executive Order also revoked an Executive Order by President George W. Bush that federal contractors had to post informing employees of their rights concerning the payment of union dues or fees

Eligible employees who are involuntarily terminated on or before May 31, 2010 can now apply for the 65% COBRA premium subsidy in the event that they exercise their right to continued health insurance coverage under COBRA (or pursuant to a similar state law that provides for coverage continuation).  The US Dept. of Labor has issued a new “Fact Sheet” that should be consulted with respect to any questions that you may have regarding this subject.

A number of questions have arisen concerning what impact, if any, the new Health Care Reform Act may have with respect to COBRA and the COBRA ARRA subsidy law.  The US Dept. of Labor has also issued a publication of  ”Frequently Asked Questions” about this issue.

The following summary is based on our review of the relevant provisions of the HIRE Act and the IRS’s preliminary guidance:

1.            Employers -

               Taxable and tax-exempt employers are eligible for these tax benefits if they hire “qualified employees ” and meet the other requirements of the HIRE Act.  Public employers, with the exception of public colleges and universities, are not eligible for these tax benefits.

2.         ”Qualified Employees”  -

               a.)        In order to qualify for the tax benefits under the Hire Act, an employer must hire an employee (after February 3, 2010 and before January 1, 2011) who has been unemployed or employed for less then 40 hours during the 60 day period ending on the date that the new employment begins. 

            b.)        Family members and certain employees related to the employer do not qualify. 

            c.)        A qualified employee must sign a sworn affidavit stating that they meet the qualification with respect to the 60 day period.   The IRS has prepared an affidavit form [form W-11] to be used for this purpose.  This form is to be retained by the employer and not filed with the IRS.

            d.)        The payroll tax exemption benefit does not apply to an employee hired to replace an existing worker, unless the existing worker terminated employment voluntarily or was terminated for cause.  [Note: special rules may apply to employees hired to replace laid off employees].

3.         Payroll Tax Exemption –

            a.)        An employer who hires a “qualified employee” during the relevant time period will be entitled to a Payroll Tax Exemption (“PTE”) on all wages paid to that “qualified employee.”  The PTE is an exemption from the employer’s 6.2% share of social security taxes on all wages paid to the “qualified employee(s)” from March 19, 2010 through December 31, 2010,

            b.)        The PTE does not apply to Medicare tax or any other tax withholdings.  It also will not impact on the amount of social security benefit that the “qualified employee” may eventually be entitled to receive.

            c.)        The IRS is developing forms and guidance with respect to how to handle the PTE for the first calendar quarter of 2010, which will allow appropriate credit to be taken when the employer pays taxes due for the second calendar quarter of 2010.

4.         Business Retention Tax Credit Benefit –

            a.)        There is also a general business tax credit for qualified employers to retain new hires.  An employer may claim this credit for each “qualified employee” it hires for purposes of the PTE and who remains an employee for 52 consecutive weeks (a “retained worker”).  The “retained worker’s” pay may not significantly decrease during the second half of the 52 week period.

            b.)        The Business Retention Tax Credit (“BRTC”) is the lesser of $1,000 or 6.2% of the wages paid to the retained worker during the 52 week period.

            c.)        Caveat:  Employers who are eligible for the more generous Work Opportunity Tax Credit (“WOTC”) must opt out of HIRE if they want to continue receiving the WOTC credit.

 Note:  The preceding summary highlights the key portions of this new law.  However, specific situations and questions should be referred to legal counsel and tax advisors, rather then relying on this general summary.  Additionally, the IRS will be issuing further guidance and forms which need to be taken into account with respect to the application of the provisions of this new law.

IRS Tax Advice Compliance Disclosure: To ensure compliance with the regulations governing the issuance of advice on Federal tax issues, we advise you that any tax advice in this communication (and any attachments) is not written with the intent that it be used, and cannot be used, to avoid penalties that may be imposed under the Internal Revenue Code

Craig Becker and Mark Pearce have been appointed to be Board Members of the National Labor Relations Board.  While both had been approved by the Senate Labor Commitee, a vote on their confirmation has been delayed in the Senate.  There is still one vacancy on the five member NLRB Board.   No action was taken on the third nominee to the NLRB, Bryan Hayes, that President Obama had previously sent to the Senate.

Chai R. Feldblum, Victoria A. Lipnic and Jacqueline A. Berrien (Chair) were appointed Commissioners of the Equal Employment Opportunity Commission.  P. David Lopez was appointed General Counsel of the EEOC.

The recess appointments will expire in December, 2011 when the Senate next has a recess.  In the interim, all of these nominations for a full term will be awaiting a Senate vote.

Legislation is pending in the House and will be introduced in the Senate to extend the current deadline that employees must be involuntarily separated on or before Feb. 28, 2010 in order to be eligible for this subsidy.    The current House version extends the date to June 30, 2010, while President Obama’s recent federal budget submission suggested extending the date to December 31, 2010.   Given continued high unemployment rate reports, it is likely that an extension will be enacted this month.

            The following are some of the key points of this new legislation, which becomes effective December 31, 2009:

            1.)  The subsidy (65% of the COBRA premium which is paid by the federal government through payroll tax credits) will be offered to employees who are involuntarily terminated and become eligible for COBRA before February 28, 2010.

            2.)  The length of time that an individual can receive the COBRA subsidy has been increased from the prior limit of nine (9) months to a new limit of fifteen (15) months.

            3.)  The extension to fifteen (15) months is retroactive to all individuals currently receiving the subsidy and will apply to any individuals whose initial nine (9) month subsidy expired.  

            4.)  The extension is also retroactive to those individuals who lost COBRA coverage because they stopped paying premiums after their nine (9) month subsidy expired.  Those individuals may be able  to re-enroll in COBRA and receive the additional subsidy without any gaps in coverage.  Plan Administrators will need to identify such individuals and send them a notice of their right to this option.

            The U.S. Department of Labor continues to issue: updated Fact Sheet, FAQs, Job Lost Poster and Poster for Employees and new Model Notices.  It is important for employers and plan administrators to carefully review and monitor the situation for any individuals who are or were eligible for the COBRA subsidy or who become eligible for it before February 28, 2010 and to ensure that timely notices of their rights are being sent.  On January 22, 2010, the USDOL held a compliance webcast re the extension of the COBRA subsidy, which you can view by clicking on this archive.

In July, 2009 President Obama nominated Jacqueline A. Berrien, associate director-counsel of the NAACP Legal Defense and Educational Fund, to serve as Chair of the EEOC.  In September, 2009, the President nominated Chai R. Feldblum, a professor of law and director of the Federal Legislation Clinic at the Georgetown University Law Center in Washington, D.C., to be an EEOC Commissioner.

Recently, the President nominated Victoria A. Lipnic, the former Assistant Secretary of Labor for Employment Standards, to be an EEOC Commissioner.  Lipnic’s nomination, if confirmed by the Senate, would fulfill the requirement that two of the five commissioners not be from the President’s political party.  Constance Barker, whose term expires in 2011, is the other Republican Commissioner.

In late July, 2009, the Senate confirmed President Obama’s nomination of EEOC Vice Chair Christine Griffin as Deputy Director of the Office of Personnel Management, but, according to the rules governing the EEOC, Griffin will remain an EEOC Commissioner until her successor is confirmed by the Senate.  On October 22, 2009, President Obama nominated P. David Lopez to be General Counsel of the EEOC .  Lopez has worked for the EEOC for 13 years and is currently a Supervising Trial Attorney in the EEOC’s Phoenix District Office.

                 An excellent reference source for most questions pertaining to this pandemic  is the federal government’s website http://www.flu.gov., which contains very useful and specific information, as well as links to issues of specific concern to various businesses.

                The U.S. Department of Labor has just issued two sets of questions and answers concerning the impact of the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) on issues pertaining to employees absences from work and payment to employees who are directly or indirectly affected by the H1N1 flu virus.  Additional guidance is provided by the EEOC with respect to the impact of the Americans with Disabilities Act (“ADA”) on this pandemic situation. 

                As this situation has evolved, the federal government has continued to issue additional information and guidelines, some of which modified prior guidance.   Accordindly, continued monitoring of the main website -  www.flu.gov is advised.

Employers may obtain the new required postings by either :

1. Printing the EEOC’s supplemental posting  and posting it next to the EEOC’s September 2002 “EEO is the Law” poster or the OFCCP’s August 2008 “EEO is the Law” poster, or 
2. Printing and posting  the EEOC’s comprehensive November 2009 version of the “EEO is the Law” poster, or 
3.  If you need multiple copies and/or non-English language versions, ordering the new poster through the EEOC Clearinghouse  (the posters are on “back order” now, but are expected to be available before GINA becomes effective on 11/21/09.)