February 5th, 2010 | By Paul Cherner
The U.S. Dept. of Labor has been updating its website on a weekly basis offering additional information re the COBRA Subsidy (65% of COBRA premium) under the ARRA and should be referred to if you have any questions about administering this benefit.
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.
December 22nd, 2009 | By Paul Cherner
On December 21, 2009, President Obama signed the Department of Defense appropriations bill. Buried within that lengthy legislation are provisions that extend the COBRA subsidy for certain employees who have been or will be involuntarily terminated during a designated period of time.
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.
November 23rd, 2009 | By Paul Cherner
The EEOC, like the NLRB, has several presidential nominees to the agency who are waiting for confirmation by the U.S. Senate.
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.
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.
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.
January 28th, 2009 | By Paul Cherner
On January 27, 2009, the House and Senate reconciled their versions of the Lilly Ledbetter Fair Pay Act of 2009 and send the agreed bill to President Obama, who signed it into law on January 29, 2009.
The final version of this law is substantially broader than newspaper accounts, which often refer to it as being necessary to allow female employees to be able to proceed with respect to their claims of unequal pay. This law covers all categories of prohibited discrimination under Title VII, as well as under the ADA, ADEA and the Rehabilitation Act. Additionally, the law refers to decisions which may discriminatorily impact upon benefits and other forms of compensation. This latter provision may result in additional challenges with respect to benefit payments that are based upon compensation decisions that were made many years ago.
The law is intended to have a retroactive effect and apply to all charges that were pending on or after May 28, 2007.
January 26th, 2009 | By Paul Cherner
President Obama has appointed Stuart J. Ishimaru as Acting Chair of the Equal Employment Opportunity Commission and Christine M. Griffin as Acting Vice Chair of the EEOC.
President Obama has also appointed Wilma Liebman as Chairman of the National Labor Relations Board.
January 19th, 2009 | By Paul Cherner
There has been a substantial amount of debate concerning the proposed federal legislation entitled the Employee Free Choice Act (“EFCA”).
In 2007, EFCA was passed by the U.S. House of Representatives, but failed to win a cloture vote to end a filibuster in the Senate. Labor unions have listed the passage of EFCA as one of their top priorities. There has been fierce debate about this legislation, often accompanied by statistics supporting either the necessity or the lack of necessity for passing this law.
This law is intended to expedite the process by which unions can organize workers. For the past 60 years, unions were recognized as the collective bargaining representative of a group of employees by either an employer voluntarily agreeing that a majority of their employees wanted the union as their representative (usually through a “card check”) or by the NLRB conducting a secret ballot election. Initially, employees sign union authorization cards, which are then used by a union to obtain voluntary recognition or to petition the NLRB to conduct a secret ballot election. In an overwhelming majority of the situations involving union organizing, the NLRB conducts a secret ballot election.
EFCA would allow a union to have the NLRB certify them as the representative of a group of employees based solely on a card check, which would determine whether a majority of employees in the group have signed cards. This proposed change would have the practical effect of obviating the need (or opportunity) for an NLRB secret ballot election and would expedite the procees of unionization.
According to the NLRB ’s 2008 Operations Report, it conducted elections within 56 days after a petition was filed in 95% of the cases. Where there were post-election matters to consider, the NLRB finalized these elections within 100 days after the petition was filed in 84% of their cases. The unions argue that undue delay has allowed employers to coerce employees into voting against the union. In contrast, employers argue that a secret ballot election is needed to allow employees to weigh the pros and cons of union representation and permit them to vote in privacy without coercion.
EFCA would also expedite the first collective bargaining process by providing a short time (10 days) for the parties to meet and then 90 days to reach an agreement. If an agreement is not reached at that time, either party may request an FMCS Mediator, who has an additional 30 days to persuade the parties to reach an agreement. If a contract has not been agreed to within that time period, the dispute would be submitted to an FMCS Arbitration Panel, which has the authority to resolve the dispute and impose the resolution on the parties for a 2 year period. There would also be enhanced penalties and fines in this new law to protect employees against discrimination during the organizing period until the first contract is entered into.
It will be interesting to see what happens to this legislation during the next Congressional term given the current state of the economy.
