Posts belonging to Category legislative

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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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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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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The U.S. Supreme Court decision Tuesday in the case of US Airways v. McCutchen appears to be a big one for those handling or administering benefit claims and reimbursements under the Employee Retirement Income Security Act. So say legal experts already weighing in.

Hogan Lovells, the law firm representing US Airways, said in a statement released Wednesday that the decision “provides clear guidance to employer sponsors that reimbursement provisions will be enforced by the courts as written. In essence, the Court ruled that an employee (James McCutchen) who receives medical payments for an injury pursuant to an employer-sponsored health-benefits plan may not avoid the reimbursement requirements of that plan by arguing (as McCutchen’s lawyers had) that such reimbursement is “inequitable.”

Neal Katyal, co-director of Hogan Lovell’s appellate practice and former acting solicitor general of the United States who argued the case, calls the decision “a victory not only for US Airways, but for all ERISA employee-benefits plans, because it prevents individual judges from rewriting plan terms according to their own notions of equity,” which he argued the Third Circuit Court of Appeals had done.

According to this analysis by Michelle Anderson of Fisher & Phillips summing up the decision and its impact, ”the supremacy of a written ERISA-governed plan still reigns as [the Court] reversed the ruling of an appellate court which had held that a court in equity can ignore unambiguous subrogation reimbursement language, and simply rewrite the terms of an ERISA-governed plan in line with its own ideas of what was ‘fair and equitable.’ ”

Here’s what she says the ruling means for employers:

Although this is a win for those self-funded plans governed by ERISA, plan fiduciaries and administrators are wise to review with their counsel the subrogation, reimbursement and attorney fee and costs provisions in the written documents to ensure conformity to the law in this area.

Undoubtedly, those who litigate in the personal-injury arena will continue to develop new theories to test the sufficiency of ERISA, since taking the claim of injured persons who have had their expenses paid by a medical plan will be less attractive if the ability to collect fees and recover damages for their client will be secondary to the rights of the plan.

Her analysis offers a complete synopsis of the case, which many of you probably already know. This piece by Allison Bell on the LifeHealthPro site also sums up the facts of the case, saying the decision basically now establishes that “a federal court can use equitable law principles when a group health plan contract governed by [ERISA] is silent about a legal issue.”

And finally this, from Mayer Brown, stresses the need by employers – in light of this case – to review their ERISA-plan paperwork very carefully:

The Court’s decision in McCutchen establishes that contractual provisions requiring reimbursement of benefits paid according to an ERISA plan will be enforced according to their unambiguous terms. The ruling will thus be of interest to all businesses that offer such plans to their employees or administer them on behalf of other entities. At the same time, the Court’s decision highlights the need to draft reimbursement provisions in ERISA plan documents that are as clear and comprehensive as possible. Doing so will minimize (although likely not eliminate) the potential for courts to apply equitable rules as “gap fillers” when the plan language is silent or ambiguous.

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After months of negotiation, the Gang of Eight has finally emerged to introduce its long-awaited plan to revamp U.S. immigration laws.

On April 16, the bi-partisan group of eight U.S. senators unveiled The Border Security, Economic Opportunity and Immigration Modernization Act of 2013, which traces a 13-year path to citizenship for many of the 11 million individuals currently in the United States illegally, earmarks billions of dollars for border security and, of course, includes provisions with significant ramifications for the workplace.

First and foremost, the legislation contains stipulations that “would serve to increase employers’ access to authorized workers,” says Leigh Ganchan, a Houston-based attorney with Ogletree, Deakins, Nash, Smoak & Stewart.

For example, the Senate bill mandates that all employers use the E-Verify system to check the immigration status of new employees. Employers with less than 5,000 employees must phase in the system over a five-year time frame, while those with more than 5,000 must do so within two years.

The E-Verify program itself could be in for an overhaul as well, with proposed enhancements including a photo-matching tool and capabilities for employees to essentially lock their Social Security numbers in the system to prevent misuse. Non-citizens would be required to carry biometric work authorization cards, with pictures that employers would have to certify as matching with photos in the E-Verify system.

The bill also proposes increasing the cap on the number of H-1B visas from 85,000 to 205,000, and creates up to 200,000 “W visas” per year, issued for individuals to work in retail, construction, hospitality and janitorial jobs.

Immediate reaction to the bill—which the U.S. Senate could act on as early as this June—has been mixed. Opponents say the bill’s passage would add to an already crowded pool of candidates for American jobs. Business and labor groups such as the U.S. Chamber of Commerce and the AFL-CIO, however, have thrown their support behind proposed efforts to usher in new visa programs for low- and high-skilled workers. President Obama, who on Tuesday described the legislation as a “compromise,” but containing “common-sense steps that the majority of Americans support,” has urged Congress to move swiftly.

The legislation’s fate remains to be seen, but its prospects for passage “seem very good,” according to Ganchan.

“With heavy hitters in the Senate such as Senator Leahy (D-VT), chair of the Judiciary Committee, and Senator Reid (D-NV), Senate majority leader, committed to making time to get the immigration bill debated and voted on, the outlook is more favorable than we’ve seen in years,” she says. “Moreover, House leaders such as House Judiciary Committee Chair Rep. Goodlatte (R-VA) have signaled their readiness to engage in meaningful debate. With both parties and both sides of Congress working together, we might see results sooner than later.”

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I know I’ve been writing a lot about the National Labor Relations Board on this blog, but I am truly no authority. Just a curious observer, especially considering the weight the board’s decisions hold and the impact they have on the readers of our magazine.

So my latest curiosity has to do with this recent post on the HR Policy Association’s website, detailing the House Education and the Workforce Committee’s passage during the week of March 18 to 22 of a bill requiring the NLRB to cease all decision-making until the legal status of the Board’s members has been resolved.

As the post states, the “Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) was prompted by the recent decision in Noel Canning by the D.C. Circuit effectively nullifying the recess appointments of two of the three sitting Board members, thus bringing the Board below the three-Member quorum required for Board decisions.”

For reference sake, here is my latest blog post on the NLRB’s decision to seek the U.S. Supreme Court’s review of Noel Canning v. the National Labor Relations Board, along with a link to the actual decision in that case. As I note there, the NLRB has until April 25 to get its review petition to the highest court. The HRPA says in its post that the Supreme Court review probably won’t happen until “next fall at the earliest.”

Here’s how Committee Chairman John Kline (R-Minn.) sums it up in the HRPA piece:

The best way to avoid further damage is for the President to work with the Senate to confirm a full slate of qualified nominees.  In the meantime, Congress must take action to prevent a bad situation from becoming much worse.  H.R. 1120 is an appropriate congressional response that will help ensure America’s workplaces aren’t forced to confront even more uncertainty.

Meanwhile, and this is where my curiousity comes in, here is the NLRB’s summary of decisions for the week of March 25 through 29. Looks like there’s no slowing down there. And I’m not hearing or seeing any evidence that this committee’s bill passage has gotten the NLRB’s attention or raised its concern. No statements or news stories there that I can find.

Just curious. Just sayin.

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In case you haven’t heard, the sticky wicket involving those recess appointments to the National Labor Relations Board that President Obama made back in January 2012 will be going to the U.S. Supreme Court for final resolution.

No surprise really. Just official.

Here’s the NLRB’s very brief statement on the matter. It says its review petition (a.k.a.,  certiorari) must be to be on the top court’s desk by April 25.

I was alerted to this through this commentary from Tom Donohue, president and CEO of the Washington-based United States Chamber of Commerce, which appeared in the Weekly Standard and the Washington Examiner, stating that clarity could be on the way for those regulated by the NLRB.

As Donohue writes:

Finally heeding calls by the business community to address the issue soon, the NLRB announced last week that it will seek U.S. Supreme Court review of the decision. This is an important step toward resolving the tremendous confusion created by the controversial recess appointments. In the meantime, the NLRB and other affected agencies should hold off taking major actions that they know may be invalidated in the future.”

For review’s sake, here’s my most recent blog post on the appointments and how the recent appeals-court decision in Noel Canning v. the National Labor Relations Board invalidating them came into play in a subsequent court case.

Could get dicey. Donohue’s commentary sounds like he’s up for a fight:

Our preference is always to work within the legislative and regulatory processes to protect the interests of job creators and employers. But when the administration oversteps its bounds, when it tramples the rights of businesses and individuals, when it seeks to bypass other branches of government, we’ll take the fight to the courts. And we’ve got a pretty good record of winning.”

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Just got word from a source close to this subject that the Massachusetts Board of the Connector (the state agency that administers the state healthcare-law requirements) just approved a measure on Thursday that could mean big penalties for Massachusetts employees in 2014, when healthcare reform mandates kick in, and could affect employers there as well.

Rich Stover, a principal at New York-based Buck Consultants, who testified before the Connector Board back in January about this, tells me the board’s approval of amendments to the state’s idividual-mandate requirements will result in Massachusetts employees being subject to significant penalties even if they have comprehensive health coverage that satisfies the ACA requirements.

Employers there, he says, will have to revise their plan designs or complete an uncertain certification process with the state in order to ensure their employees aren’t hit with such penalities.

Since it’s involved and a bit confusing, here’s his rundown of the whole affair:

In 2006, Massachusetts enacted a health reform law that requires Massachusetts residents age 18 and older to have health coverage that meets certain minimum creditable coverage (MCC) requirements or be subject to tax penalties. This reform law was the model for the federal Patient Protection and Affordable Care Act. Although the MCC requirements only apply to residents and do not apply directly to employers, if an employer plan does not satisfy the MCC requirements, employees and family members enrolled in that employer plan may be subject to these Massachusetts’ tax penalties.  The maximum annual individual penalty for 2012 is $1,260.

With the ACA employer and employee mandates and penalties going into effect in 2014, Massachusetts had to decide whether to continue the individual mandate and MCC requirements [then].  On March 14, the Board of the Connector … met and decided to continue, and strengthen, the individual mandate in 2014. The 2014 requirements could subject Massachusetts residents participating in large employer plans to significant penalties if their employer coverage does not satisfy the new MCC requirements, even though the employer plan fully complies with the federal ACA requirements.

In 2014, Massachusetts will require that medical coverage provide 100 percent coverage for preventive-care service and limit out-of-pocket amounts paid by enrollees to certain maximum amounts.  ACA requires that non-grandfathered plans meet these requirements, but not grandfathered plans or certain retiree plans. In addition, ACA has a special transition rule in 2014 for prescription-drug benefits that Massachusetts is not providing.  So employees in grandfathered plans under ACA may be subject to Massachusetts penalties, even though the plan is fully in compliance with the ACA. Employers can help employees avoid these penalties by filing their plans with the Connector and seeking approval for the plan.

Here, by the way is a helpful link from Stover recapping the board’s Thursday meeting and actions, as well as previous ones.

In essence, Stover says, “employers who had assumed that the Massachusetts requirements would no longer apply with federal reform being effective in 2014 will be very disappointed to learn that the compliance efforts, administration and penalties will continue under state law.”

So what does all this mean for human resource professionals in Massachusetts and possibly beyond?

“As they plan for 2014,” says Stover, “human resource officers will need to make sure they address both the federal and state requirements, which [obviously and apparently] will put an additional burden on Massachusetts employers.”

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The U.S. Department of Labor has set a deadline for posting the new federal Family and Medical Leave Act regulations.

The DOL issued a final rule on Feb. 6 implementing the FMLA amendments passed in 2010 and adding the new regulations, which went into effect Friday, March 8.

Those changes to a new poster you must immediately tack to your wall include (courtesy of the Atlanta-based Burr & Forman employment law firm):

• Extended coverage for service members with serious injuries or illnesses;
• Extended coverage for family members of service members with serious injuries or illnesses;
• Expansion of the definition of injuries and illnesses from pre-existing conditions aggravated during active duty;
• Expanded exigency leave to cover employees with family members in the Regular Armed Forces;
• Clarification that the military member must be deployed to a foreign country;
• Allowance that medical certifications can now come from healthcare providers who are not affiliated with the military;
• Allowance for employees who are family members of deployed service members, to take leave to care for the military member’s parent who is incapable of self-care; and
• Increased leave for employees to spend with deployed service members on short-term leave from five to 15 days.

And special note: The poster is required for all employers covered by the FMLA and must be displayed at all locations, even if there are no eligible employees. Covered employers are those with 50 or more employees. Public agencies and public and private elementary and secondary schools are also covered, regardless of the number of employees.

The DOL, on its site, issues this additional mandate: “The poster must be displayed in a conspicuous place where employees and applicants for employment can see it.”

Here is a piece that ran recently on the CNBC site for additional information about what’s required and why. This piece on the Tree Care Industry site includes links to the actual poster on the DOL’s website and a side-by-side comparison of the prior regulations and the new regulations.

Don’t say you weren’t warned!

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Had an interesting chat recently with Ron Chapman — Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart, and outside counsel for D.R. Horton Inc.

Horton, a Fort Worth, Texas-based homebuilder, is appealing the National Labor Relations Board’s January 2012 ruling that its individual-arbitration mandate every employee was required to sign, waiving their rights to class action, violated Section 7 of the National Labor Relations Act protecting employees’ rights to take such action to improve their working conditions.

Chapman had argued before the Fifth Circuit Court of Appeals in Horton’s behalf on Feb. 5 and said the hearing “went well.” (Here is a link to recordings of all the oral arguments presented in that case that day. Scroll down; you’ll find it. Here, too, is a piece that ran recently in the Dallas Business Journal offering some additional background.) Chapman expects the court to rule within 60 to 90 days.

What was especially interesting, Chapman told me, was the follow-up he received from the court three days after the argument. The court, he said, was directing both sides’ attorneys to draft additional briefs arguing whether they think the constitutionality of the NLRB board make-up at the time of its decision needs to be addressed before a ruling can be made. (As you’ll recall, in its recent decision in Noel Canning v. the National Labor Relations Board, a panel of the U.S. Court of Appeals for the D.C. Circuit invalidated the recess appointments of three members of the NLRB because, the court found, the U.S. Senate was not in recess at the time President Barack Obama made the appointments.)

For reference, here is an HREOnline^™ blog post by Web Editor Mike O’Brien about that appeals-court ruling declaring Obama violated the Constitution when he bypassed the Senate to fill the NLRB vacancies. Here, too, is a Q&A O’Brien conducted with Joel S. Barras of Reed Smith on the ramifications and implications of that ruling.

Interestingly, this is the first case I’ve come across in which attorneys for both sides are being asked for their opinions as to whether a ruling can go forward or not without first addressing the constitutionality of the NLRB make-up in question.

Obviously, if Chapman and his counterpart both rule the appeals court’s decision should proceed without any bearing from the Canning case, then it will proceed. But, as Chapman told me, “if we both were to say it should not proceed until the constitutionality issue is addressed, then the board would not decide this case at this time.”

If you consider Barras’ description of such scenarios and multiply them out to all the cases decided by the NLRB with the Obama appointees, it could get messy:

It is important to note that, even if [regional] cases are invalid and the NLRB members lack the authority to take direct action, many of the board’s processes will continue. The various NLRB regions will continue to investigate unfair labor practice charges, issue complaints and try cases. Administrative law judges will continue to issue decisions and find violations of the Act.

The losing party, however, will likely appeal the decision to the board, which will effectively stay the [administrative law judge's] decision. That case will then be left in limbo until a quorum is properly appointed and rules on the decision, which would likely be delayed given the tremendous backlog of cases. In some limited instances, the board’s general counsel may seek injunctive relief in federal court to force a losing party who has appealed the decision to comply with the [administrative law judge’s] order, pending the NLRB’s eventual decision.

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