A second slam against President Obama’s recess appointments to the National Labor Relations Board has pundits talking not just about the appointments, but about the overall impact on the notion of recess appointments altogether.

The decision Thursday by the U.S. Court of Appeals for the Third Circuit in NLRB v. New Vista Nursing and Rehabilitation is the second decision by a circuit court to hold that intracession recess appointments (those made during a recess within a session) violate the Recess Appointments Clause of the U.S. Constitution.

As this alert from Ballard Spahr points out, in the earlier ruling in Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit concluded Obama acted unconstitutionally when he made three recess appointments to the NLRB. As Ballard Spahr noted previously, ”if upheld by the Supreme Court — which is considering the NLRB’s petition for certiorari [or the high court's review] — Noel v. Canning will invalidate the hundreds of board decisions in which the three appointees participated,” its latest alert states.

One issue at stake in this most recent New Vista ruling is the legitimacy (make that the illegitimacy) of the appointment of former NLRB board member Craig Becker, who was appointed during an intrasession recess of the Senate and was part of the panel that ruled against New Vista. At the Third Circuit, says the Ballard Spahr alert, “essentially adopting the reasoning of Noel Canning, a divided panel concluded that the words ‘the Recess’ in the RAC refers only to an intercession [between-sessions] recess of Congress … .”

Michael Lotito, employment attorney and co-chair of San Francisco-based Littler’s Workplace Policy Institute, cites what you might call the crux of the ruling in this comment on a LinkedIn group site: “Footnote 22 beginning on page 61 [of the New Vista ruling] sums it  up: The president could not do what he did. The recess appointments are toast.” (Look it up in my link above.)

For additional background on all this, including case synposes, here is Morgan Lewis’ take, as posted on the National Law Review website, and here is my latest post on this blog, with links to past posts explaining the controversy around Noel Canning. Also, though the NLRB has not issued a statement about this latest ruling on its website, it does provide this link to a video and opening statements “for the May 16, 2013, Senate committee hearing on pending nominations to the National Labor Relations Board.”

As for the implications of the two rulings, Morgan Lewis paints a pretty clear picture:

The Third Circuit’s decision, particularly when paired with Noel Canning, is far-reaching and critically important, particularly for employers involved in [NLRB] proceedings since March 2010. The invalidation of Becker’s appointment also affects a number of board actions during that time, including the ‘quickie’ election rules — providing for a much faster [union] election process — and the decision in D.R. Horton — invalidating class and collective-action waivers in employment-arbitration agreements. The Third Circuit and the D.C. Circuit have drawn a roadmap for challenging the validity of three years’ worth of board decisions and are now the likely forums of choice for such challenges.”

More succinctly, as this release on the Hot Air site puts it, the rulings have “the potential, not just to mess with these appointments, but with the tradition of the recess appointment, more broadly.”

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From our neighbors to the north comes some insight into what employees really want when it comes to rewards and recognition. Spoiler alert: it’s not money.

Well, it’s not just money.

Ceridian Canada’s Pulse of Talent 2013 survey recently asked more than 800 employees from three generations—baby boomers, Generation X and Generation Y—for their perceptions of job security, technology, performance reviews, job recognition and career satisfaction.

When discussing the rewards they would like to see their companies offer, the majority of respondents in each group said they would prefer non-monetary awards. Seventy-four percent of Generation Y employees indicated as much, with 65 percent of Gen Xers and 56 percent of boomers saying the same.

What specifically would they like to receive for a job well done?

Preferred non-monetary awards included:

• Free personal days off (37 percent)

• Free food/meals (20 percent)

• Event tickets (19 percent)

• Club memberships (17 percent)

• Technology resources (15 percent)

An iPad, the occasional comp day or tickets to the ballgame, however, may not be enough to hang on to your talent. Indeed, 29 percent of surveyed employees who said they expect a salary increase, bonus or promotion within the next year said they would look for other opportunities if they didn’t receive one. And, take special note if your workforce skews younger: That number jumped to 52 percent among Gen Y respondents.

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OK, first off, this is not a political post. Not in the least. I had simply heard about these rules for government, business and life that former Secretary of Defense Donald Rumsfeld had scripted and decided to take a look.

Which prompted me to share.

Not to mention the fact that HRE also just received a complimentary copy of his book, Rumsfeld’s Rules: Leadership Lessons in Business, Politics, War, and Life … more fodder for sharing (though I’ll let you go find it on Amazon.com if you’re prone to purchase).

Not sure I agree with absolutely every one of his rules, but there are enough in there under his “business” banner that seem to resonate with what we’ve been reading and writing about over the years to make it worth a scroll. Here are his top six for business leaders:

When you initiate new activities, find things you are currently doing that you can discontinue — whether reports, activities, etc. It works, but you must force yourself to do it. Always keep in mind your “teeth-to-tail ratio.”

Watch the growth of middle-level management. Don’t automatically fill vacant jobs. Leave some positions unfilled for six to eight months to see what happens. You will find you won’t need to fill some of them.

Reduce the layers of management. They put distance between the top of an organization and the customers.

Find ways to decentralize. Move decision-making authority down and out. Encourage a more entrepreneurial approach.

Prune — prune businesses, products, activities, people. Do it annually.

Know your customers!

In fact, if you go through all his tips, a.k.a. “rules,” for success, you can come away with some real gems to lead your HR organization simply by replacing the words “White House,” “government” and “secretary of defense” for “HR leadership” and “business leadership” in general.

Take his first five under “Serving in the White House” and tell me these aren’t great rules to operate by in a corporate setting (you’ll need to replace “president” with “CEO” and “administrations” with “CHRO positions”):

Don’t accept the post or stay unless you have an understanding with the president that you’re free to tell him what you think “with the bark off” and you have the courage to do it.

Visit with your predecessors from previous administrations. They know the ropes and can help you see around some corners. Try to make original mistakes, rather than needlessly repeating theirs.

Don’t begin to think you’re the president. You’re not. The Constitution [or, in your case, company bylaws] provides for only one.

In the execution of presidential decisions work to be true to his views, in fact and tone.

Know that the immediate staff and others in the administration [i.e., workforce] will assume that your manner, tone and tempo reflect the president’s.

I’m leaving a ton of good ones out.

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Although it’s been 35 years since the Pregnancy Discrimination Act was signed into law, pregnant women can still face a tough time in the workplace, particularly in occupations where being on your feet most of the day and/or lifting heavy objects are part of a regular day’s work. Although it met with little success last year, Senators Robert Casey (D.-Pa.) and Jeanne Shaheen (D.-N.H.) are reintroducing the Pregnant Workers Fairness Act in the Senate — just two days after Mother’s Day, not coincidentally — while several of their counterparts in the House are reintroducing it in that chamber as well.

More than three in five pregnant women in the United States (62 percent) are in the labor force, according to the National Partnership for Women & Families, which is actively promoting the legislation.

The PWFA would make it an unlawful employment practice for certain public and private employers to not make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of a job applicant or employee, unless a covered entity can demonstrate that the accommodation would impose an undue hardship on its operations or business. It would also prohibit employers from requiring pregnant workers to take leave from their jobs if another reasonable accommodation is available that would allow them to continue working.

Proponents say the PWFA is necessary because, although existing laws prohibit organizations from discriminating against pregnant workers, the laws do not recognize pregnancy as a disability and do not compel employers to provide accommodations for expectant mothers. The new law would offer pregnant workers the same protection that other disabled employees — such as those who’ve injured their backs or suffered heart attacks — currently enjoy, supporters say.

PWFA advocates point to incidents in which pregnant workers have been denied bathroom breaks or compelled to take unpaid leave as examples of why the new law is needed.

“In a country that claims to value family and fairness, having a baby should not mean losing a job and jeopardizing family financial stability,” said NPWF president Debra L. Ness in a statement supporting the Act.

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What better way to start a new work week with than with words of praise about the human resource function from, of all places, Forbes?

Contributor Victor Lipman positively glows about HR, calling it the “by far the most valuable” organizational division he ever worked with during his career:

I never worked in HR but often worked with HR.   I never hesitated to call on them.  When faced with a challenging  job, which management invariably is, my philosophy was: Get all the help you reasonably can.   Bottom line, my Human Resources colleagues were a great help.

Lipman goes on to list four main reasons why he is so full of the HR love (and it’s not just because Hollywood’s current HR stereotype, Toby Flenderson from NBC’s “The Office,” will be looking for work after the show’s finale  May 16). From adroitly dealing with difficult employee issues to being “a sounding board” for all kinds of management issues, Lipman doles out the credit where it’s certainly due.

Read this, then get to work proving Lipman correct!

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Generally speaking, we all know how so-called coercive wellness programs work. The essential idea is to reward employees—or impose consequences on them, depending on how you look at it—for adopting certain healthier behaviors.

A common example is what’s sometimes known as the “smoker’s surcharge.” Companies hit tobacco-using employees with a higher insurance premium, ostensibly encouraging them to stop smoking, be healthier and more productive, and cut down on healthcare costs.

Such programs may be well-intentioned, but aren’t always embraced by the workforce.

Comcast Corp., however, seems to have found a way to get its nearly 120,000 employees on board with its efforts to stub out cigarettes.

At GlobalFit’s 7^th Annual Innovations in Wellness Summit, held yesterday in Philadelphia—just blocks from the cable giant’s headquarters—Lauren Gemberling, wellness coordinator with Comcast, shared some details on how they’re doing it.

In July of this year, the company begins charging a $25 per-paycheck premium to employees who smoke. This past November, Comcast employees were asked to indicate whether they used tobacco, and if so, whether they planned to enroll in the company’s smoking cessation program by July.

Planning to enroll and actually doing it are two different things, of course. But to date, 8,430 Comcast employees have done just that, and the overall results have been extremely positive, says Gemberling.

She showed the audience some examples of Comcast employees saying so themselves, through video testimonials the company has collected since November.

For example, one employee recalled his reservations upon learning of the company’s implementation of the premium, questioning his employer’s role in his personal health decisions.

In the four months since, however, he says he’s joined the program, quit smoking, gotten a gym membership, lost weight and bought a new car—which may have been made easier with the $600 he estimates he’s saved per month since giving up cigarettes.

Such examples aside, any organization introducing such a program is bound to see resistance from some workers who feel their employers are crossing a boundary, not to mention unfairly taking money out of their pockets.

Gemberling, however, says they’ve gotten largely “great feedback” from the workforce at Comcast. A key, she told the audience, is not to spring such changes on the workforce. Give employees plenty of time to process the premium change and consider their options, she said, and assure them the program’s overarching goal is to offer an incentive—and assistance—that helps them kick a dangerous and difficult-to-break habit.

“This is the first time I’ve rolled out a program where employees have said, ‘Thank you. I’ve been trying to change this behavior on my own for years, without success. I’m thankful for the help.’”

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The afternoon session of the LINK 2013 conference at the Fairmont Hotel in Washington was all about prognostication, with HR leaders from a cross-section of industries — including retail, healthcare and financial services — discussing their views on how to, as moderator and CEB Executive Director Jean Martin put it, move HR “from [being simply] inputs to drivers of strategy” within an organization.

The most startling — and obviously ominous — prediction came from Kevin Donavan, VP of finance, HR and administration at Japan-based Otsuka Pharmaceuticals, who said bluntly that “it may not be popular, but outsourcing is the future of HR.”

Donavan said outside consultants can bring a much-needed business perspective to HR problems, and “I need HR to bring business solutions to my business.”

“There’s simply no way I can build a scalable model to deal with all our data,” he said in defense of his use of outside consultants. “That’s why IBM bought Kenexa.”

But Rich Hughes, SVP of human capital at UnitedHealth Group, pushed back on that idea, saying that outsourcing isn’t always the right decision for every situation. He then recalled his organization’s decision a few years back to go that route to meet some talent needs.

“It was a mistake to outsource our talent acquisition,” he said, adding that the company eventually brought the function back in-house.

Meanwhile, Anthony Ponsiglione, SVP of HR Operations for Genworth Financial, said the core principles of HR are “timeless”  and therefore will not change much in the future.

“People will always be part of the equation,” he said. But he added that expense management is currently the most important driver of change in HR these days, and the function needs to become better business people if they hope to thrive and advance in an organization.

“HR needs to have a business perspective,” he said.

Hughes said that while big data and data analytics may be helping to push  HR onto the cusp of becoming a real “decision science,” there is still much more to be done.

“We’re not there yet,” Hughes said, “but we’re headed in the right direction.”

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Just in case you missed this, the U.S. Court of Appeals for the District of Columbia struck down yesterday a federal rule that would have required employers to nail posters to their bulletin boards or common-area walls informing employees of their rights to unionize.

This Associated Press account on the Newsday site calls the decision against the National Labor Relations Board in National Association of Manufacturers v. NLRB “another blow to the nation’s dwindling labor unions.”

It also specifies details of the ruling, stating that the NLRB violated employers’ free-speech rights in trying to force them to display the posters or face charges of committing an unfair labor practice.

“The court’s ruling is the latest success for business groups that have worked to prevent the NLRB from shifting the legal landscape in favor of labor unions, despite President Barack Obama’s appointment of several labor-friendly board members,” the AP account says.

Here is my latest blog post on this poster controversy, containing links to my previous posts, which should give you a good chronological journey through this tussle.

Meanwhile, this legal alert on the Arent Fox site reminds us that Tuesday’s appeals-court decision on the poster rule comes less than four months after the same court invalidated Obama’s recess appointments of three NLRB members.

Here are three separate blog posts by me on this recess-appointments controversy — from April 2, March 20, and Feb. 19 — for your reading pleasure.

Lastly, this link from Practical Law Co. spells out the reasons behind the DC Circuit decision regarding posters. The court, it says, “held that the NLRB’s poster rule is invalid because each of the three ways in which the NLRB would enforce its poster rule was invalid. In particular, the court found that the NLRB could not lawfully:

• Make a failure to post the notice an unfair labor practice (ULP).
• Interpret a failure to post the notice as evidence of anti-union animus in NLRB proceedings.
• Toll the six-month statute of limitations indefinitely for employees to file ULP charges against an employer that fails to post the notice.”

As always, I will try to keep you posted on developments.

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Momentum continues to build in the European Union to give shareholders greater powers of oversight on executive-pay practices.

A release from New York-based Mercer announcing its latest perspective on the topic details some of what’s going on “across the pond”: In the United Kingdom, binding say-on-pay votes will be implemented starting in October; in Switzerland, a March referendum to introduce binding say-on-pay votes was just supported; and, with similar measures being discussed in France, German and Spain, the EU is planning to introduce legislation later this year to require all 27 EU countries to implement mandatory, binding say-on-pay votes. (The link takes you to Mercer’s “Perspectives” landing page; the April special issue, Executive Pay Regulation: The Potential Impacts of Proposed European Reforms, is at the top right.)

As the perspective notes, there’s a certain European “hardening of attitudes” going on:

The political impetus to regulate executive pay has accelerated in Europe. Recent regulatory developments that would give shareholders greater oversight of executive pay and cap bonuses in the financial services sector, reflect a hardening of attitudes among European politicians and the public. In an era of low or nonexistent economic growth, consumer price inflation, and falling average real wages, executive remuneration will continue to be a sensitive issue.

This is particularly true in the banking sector, where the continued payment of bonuses, in the face of taxpayer-funded bailouts and revelations such as the Libor fixing scandal in London, has sparked outrage. But with other countries and regions taking a less prescriptive approach, an unlevel playing field is emerging and may result in executives leaving the EU for less regulated markets.

These proposed regulations, which have, for the most part, been supported by shareholders, will nevertheless require them to be more active in their oversight of executive pay. One consequence of this greater investor workload may be to extend the influence of proxy advisory firms.

The piece goes on to note exactly what’s going on globally, including in the United States, where say-on-pay votes are still non-binding but have, nonetheless, “influenced executive pay practices [by eliminating] many problematic practices and [increasing] shareholder-engagement efforts.”

Indeed, in this blog post written by Senior Editor Andrew R. McIlvaine about a session at the recent WorldatWork Total Rewards 2013 conference, he goes into much more detail about some of the ways say-on-pay is impacting — pro and con — the business community.

One of the most notable quotes in his post comes from John England, managing partner of Philadelphia-based Pay Governance, who fears what the European binding-vote wave landing on U.S. shores might mean. (He is clearly not a fan.)

“When CEO pay escalates sharply against average worker pay, it will inflame things,” England says in the post. “I do believe we are just one or two scandals away from the prospect of a binding say-on-pay law … in this country.”

What are employers to do with this information? I ran that by two Mercer thought leaders. Here’s what they both had to say. First from Vicki Elliott, Mercer’s senior partner and global financial-services consulting leader:

Companies should not let tighter regulation in financial services and other sectors define their objectives for compensation and talent-management effectiveness. Be creative and don’t succumb to a one-size-fits-all. Companies will [also] need to rethink their employee value propositions and the power of non-pay methods — it can no longer be all about pay.

And from Gregg Passin, senior partner and executive rewards leader for North America:

As say-on-pay develops, it is very important to simplify and clearly communicate remuneration strategies and programs to shareholders. It is [also] likely that there will be more focus on building talent from within so processes for managing talent pipelines such as succession planning and career development will be critical.

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For all the talk about encouraging workers to take more control of their healthcare decisions, it seems many employees are neither prepared or all that eager to grab the reins.   

For that matter, nearly three-quarters of the workforce (72 percent) have not even heard the phrase “consumer-driven healthcare,” according to the 2013 Aflac WorkForces Report, which recently surveyed 1,884 benefits decision makers and 5,299 employees.

More signs that HR and benefits leaders may have a tough road ahead in helping employees better understand healthcare reform and their increasingly complex healthcare coverage options:

• More than half (54 percent) of workers would prefer not to have greater control over their insurance options, because they don’t have the time or knowledge to effectively manage it.

• Thirty-two percent of employees indicated they are “not very” or “not at all” knowledgeable about health-savings accounts. More than three-quarters (76 percent) of workers said the same about federal and state healthcare exchanges, with 49 percent describing themselves as “not very” or “not at all” knowledgeable about health-reimbursement accounts.

Educating workers on the changes coming with the Affordable Care Act doesn’t seem to be a top priority for some employers, either:

• Despite 75 percent of employees saying they think their employer would educate them about changes to their coverage as a result of healthcare reform, just 13 percent of employers said educating employees about healthcare reform was important to their organizations.

“It’s time for consumers to face reality,” said Audrey Boone Tillman, executive vice president of corporate services at Aflac, in a statement.

Tillman advises employees and HR to sit down together to address questions and explain policies, key terms, deductible limits and co-pay and co-insurance requirements, as a first step toward helping workers make sensible decisions going forward.

“The bottom line,” she says, “is if consumers aren’t educated about the full scope of their options, they risk making costly mistakes without a financial back-up plan.”

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