April 28th, 2009 | By Paul Cherner
President Obama has announced his intention to nominate two union attorneys to be Board members of the NLRB. They are Craig Becker and Mark G. Pearce.
Becker has been Associate General Counsel for the Service Employees International Union for 17 years and holds the same position at the AFL-CIO. He has practiced and taught labor law for 27 years.
Pearce practices labor law at a law firm in Buffalo, NY that represents unions and individual employees. He previously taught labor law and began his career at the NLRB.
The NLRB has a total of five Board Members. Traditionally, the President appoints three Members from his party to the staggered terms of the NLRB and designates one of them to be Chairman. The two other Board Members are traditionally from the opposition party. At the present time, there are two Board Members serving on the NLRB who were appointed during the prior administration- Chairman Liebman (D) and Member Schaumber (R). If these two new appointments by President Obama are confirmed by the Senate, there will be a Democratic majority for the first time in many years.
The President also nominates the General Counsel of the NLRB.
Update re : EFCA – Senator Arlen Specter (R – PA) previously announced that he would vote against a cloture motion on EFCA thereby making it unlikely that a filibuster could be ended. Today, Senator Specter announced that he will run for reelection to the Senate next year as a Democrat. This will likely change the playing field for the pasage of EFCA. Stay tuned for new developments.
Update re NLRB Nominees: On December 28, 2009, the Washington Post reported that the nomination of Craig Becker to the NLRB has been returned by Congress to the White House for “reconsideration.” Speculation is that Becker may request that his nomination be withdrawn in view of the strong likelihood that Senator John McCain will not allow this nomination to be passed out of the Senate committee for a vote by the full Senate. On January 7, 2010, the NY Times reported that President Obama will resubmit Becker as a nominee to the NLRB.
April 22nd, 2009 | By Paul Cherner
On January 17, 2009, the Economic Stimulus Plan was enacted, a part of which provided for subsidies of COBRA premiums pursuant to certain criteria. See the postings in this blog of March 5 and 20, 2009 for a brief description of that criteria.
The U.S. Department of Labor and the Internal Revenue Service have continued to update information concerning this subsidy and employers should check these websites with respect to complying with the mandates of this program.
April 18, 2009 was the deadline for mailing Notices to all employees who have been involuntarily separated since September 1, 2008, whether they elected to take COBRA coverage or not. The DOL website contains model notices to be sent to former employees, as well as to employees who are involuntarily separated during the remainder of 2009.
April 22nd, 2009 | By Paul Cherner
As of April 3, 2009, all U.S. employers are required to use a new revised Form I-9. This new form contains several changes in accordance with final rules issued by the Department of Homeland Security. You can download the new I-9 form by clicking on the website of the U.S. Citizenship and Immigration Services Agency (f/k/a the INS). The form is also available in Spanish.
The USCIS has also prepared a 45 page handbook for employers that should be helpful for any questions that you may have concerning the new I-9 form,
March 26th, 2009 | By Paul Cherner
The U.S. General Accounting Office (“GAO”) recently issued a scathing report about the DOL’s handling of FLSA investigations. The title of the report is “Wage and Hour Division’s Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft.”
In response, the new DOL Secretary, Hilda Solis, issued a News Release stating that she takes the issues raised by the GAO report seriously and will be hiring 250 new field investigators to refocus their efforts on enforcement of wage-hour laws. This is a one-third increase in that investigative staff. Employers can anticipate more vigorous enforcement of these laws and should prepare now by conducting an audit of thier compliance with the FLSA
March 20th, 2009 | By Paul Cherner
The U.S. Department of Labor has issued updated information for employers on complying with the new COBRA subsidy provisions that were contained in the Economic Stimulus Plan. You can review this information at the DOL web page on this subject.
There are model notices which must be sent to former covered employees (and their qualified beneficiaries) who were involuntarily terminated after September 1, 2008, whether or not they previously elected COBRA coverage. Individuals who were not eligible for COBRA, but were eligible for continuation of health care coverage under state or local law are also entitled to this subsidy and must also be sent an appropriate notice.
A notice must also be given to all covered employees (and their qualified beneficiaries) who are involuntarily separated from February 17, 2009 through December 31, 2009. For a detailed discussion of this subsidy see our posting of March 5, 2009. The DOL webpage also provides links to Frequently Asked Questions about this subsidy from the DOL and the IRS, as well as from the House Ways & Means Committee.
On March 24, 2009 at 11:30 (EDT), the DOL will be presenting a webcast about compliance with these new rules. You may register online for this free webcast.
March 10th, 2009 | By Paul Cherner
The Employee Free Choice Act (EFCA) was introduced today in the House and the Senate with much fanfare and rhetoric.
In our January 19, 2009 post, we set out the key provisions of this legislation from the prior effort to pass it in Congress. This bill will essentially allow unions to organize workers on the basis of the workers signing union authorization cards and will, in effect, obviate the usual process of the NLRB holding a secret ballot election on the issue of union representation. Additionally, the original bill set a short timetable for bargaining the first union contract and provided for binding arbitration when the parties had not reached an agreement within the proscribed time limits.
This new legislation contains essentially the same provisions of the prior EFCA bill. There will be a vigorous campaign within Congress by unions and employers over this legislation. It is too early to predict what will be contained in the final version of this important piece of legislation.
In the coming months you will be reading about this legislative battle in the papers and hearing about it from the broadcast media, since it is a “hot button” topic for many interest groups.
It is currently expected that the process of trying to enact this legislation may take until sometime this summer before it goes to a final vote. However, Senate leadership has announced that they intend to try to have it voted on after the Easter recess. We will keep you advised of further significant developments.
March 5th, 2009 | By Paul Cherner
In our February 19, 2009 post, we alerted you to new COBRA rules that have been passed as part of the Stimulus Plan.
The U.S. Department of Labor (“DOL”) is required to provide guidance and a model notice to be used by no later than March 19, 2009. In the interim, the DOL has issued some preliminary guidance, including a COBRA Premium Reduction Fact Sheet, Frequently Asked Questions About COBRA Continuation for Employers, and Frequently Asked Questions for Workers and Their Families. The House Ways and Means Committee of the U.S. House of Representatives has also issued a list of Frequently Asked Questions about the provisions of this law.
The Internal Revenue Service (“IRS”) has issued an expanded list of Questions and Answers pertaining to the mechanism of funding the government subsidy for COBRA through a credit on the employer’s quarterly federal tax report.
Please click on any of these highlighted items and you will be directed to these documents on the government’s website on the COBRA subsidy issues.
All employers covered by COBRA need to promptly begin reviewing which former employees may be covered under this subsidy program, including which may need to be offered a “second chance” to elect COBRA at the subsidized rate. Within the next two weeks, there should be additional guidance and a model notice form issued by the DOL.
February 19th, 2009 | By Paul Cherner
The American Recovery and Reinvestment Act of 2009 (a/k/a “the stimulus plan”) contains several provisions intended to assist unemployed workers maintain their health insurance coverage pursuant to their COBRA rights. Essentially, the law provides that unemployed workers will only have to pay 35% of the cost of their COBRA coverage, with the remaining 65% to be subsidized by the federal government. This subsidy can last for a period of up to 9 months, unless certain specified events shorten the time period.
These provisions apply to almost all unemployed workers who are involuntarily terminated between September 1, 2008 and December 31, 2009. A “second chance” is provided to those individuals who were terminated during that time period but may have declined COBRA. These workers are allowed 60 days after receiving a new notice of these enhanced rights to decide to take COBRA coverage at the subsidized rate. It is very important that these workers receive a detailed “enhanced notice” about their rights under this new law as soon as possible. The Secretary of Labor is directed to issue a model enhanced notice by March 19, 2009 and employers must send an enhanced notice by April 18, 2009. All COBRA notices issued after February 17, 2009 must also include an explanation of the rights granted under this new law.
Employees who previously elected COBRA, if eligible for this subsidy, will be entitled to reimbursement or a credit for the 65% of COBRA premiums that they may pay for the period beginning February 17, 2009. High income individuals are not eligible for this subsidy.
There are many additional details included in these provisions and the Secretary of Labor will also be issuing regulations to further define these rights and obligations and the procedures to follow. Employers should consult with legal counsel or a knowledgable COBRA administrator as to how to proceed to implement these new requirements.
Pursuant to IRS requirements, you are hereby informed that this information is not intended to be tax advice that should be relied upon for purposes of avoiding taxes and/or penalties.
February 10th, 2009 | By Paul Cherner
President Obama has issued an Executive Order that encourages federal government agencies to require Project Labor Agreements (“PLA”) on large scale construction contracts. This Order revokes two prior Executive Orders issued by President George W. Bush, which had reversed a memorandum issued by President Clinton to federal government agencies encouraging PLA.
A “PLA” is a pre-hire collective bargaining agreement with one or more unions that establishes the terms and conditions for a specific construction project. If required by an agency, the PLA is binding on all contractors and subcontractors, prohibits strikes, lockouts and similar job disruptions, and sets forth a prompt and mutually binding procedure for resolving labor disputes. Agencies will have discretion, but are encouraged, to require a PLA on construction projects that are for $25 million or more.
February 4th, 2009 | By Paul Cherner
On January 30, 2009, President Obama issued three Executive Orders that impact federal contractors. These Orders are pro labor and are intended to reverse positions taken during President Bush’s administration.
Nondisplacement of Qualified Workers Under Service Contracts - this Executive Order provides for the continuation of employment of employees who are working pursuant to a service contract with the federal government, when that contract is awarded to a new contractor or subcontractor who will be performing the same or similar services at the same location. The successor contractor and/or subcontractor will be required to offer the existing nonmanagerial and nonsupervisory employees the right to continue their employment under the new contract before being permitted to hire other employees. The Order exempts certain contracts and permits a contracting agency to exempt other contracts or subcontracts if the agency determines that the application of these rules would impair their ability to procure services on an economic and efficient basis.
Notification of Employee Rights Under Federal Labor Laws - this Executive Order requires all federal contractors and subcontractors to post a notice in all places where employees covered by the National Labor Relations Act work, informing them of their rights under the federal labor laws. The Secretary of the U.S. Department of Labor has 120 days to initiate rulemaking to specify the size, form and contents of this notice, which is to be posted during the term of the contract.
Economy in Government Contracting - this Executive Order requires that costs associated with activities undertaken to persuade employees to exercise or not exercise their rights to bargain collectively through representatives of their own chosing (e.g. unions) should be treated as “unallowable” and a federal contractor may not be reimbursed for such costs. The Federal Acquisition Regulatory Council has 150 days to adopt rules and regulations needed to implement this Order.
