President Obama's five recent nominees to the National Labor Relations Board (NLRB) were voted out of committee yesterday, and their names are being sent to the full Senate for a package vote, up or down.

The vote will require 60 Senators in favor for cloture should the Republicans decide to filibuster.

Most contentious are the nominees who were recess appointees in January 2012 and whose appointments were ruled unconstitutional by the U.S. Circuit Court of Appeals for the District of Columbia (that decision is now before the Supreme Court). Recess appointees Richard Griffin and Sharon Block, both Democrats, survived the vote in the Senate Committee on Health, Education, Labor and Pensions (HELP) along party-line tallies, 13-9, suggesting potential trouble with Senate Republicans. 

The other three current nominees — Chairman Mark Gaston Pearce, a Democrat, and Republicans Harry I. Johnson III and Philip A. Miscimarra — were unanimously approved.

HELP Committee Republicans have long argued that Block and Griffin should resign in favor of new appointees.

Complicating matters is that Chairman Pearce's term expires at the end of August.

The Equal Employment Opportunity Commission (EEOC) has released draft principles for the Quality Control Plan (QCP) for public feedback, the agency announced recently. The QCP will revise criteria to measure the quality of agency investigations and conciliations throughout the nation.

The plan is being drafted by an internal work group chaired by EEOC Commissioner Chai Feldblum, Dallas District Director Janet Elizondo and Chicago District Director John Rowe. Chair Jacqueline Berrien appointed the group of experienced agency staff to develop a draft plan for commission review and approval.

This latest request for input is part of an effort to ensure that the views of the public and agency staff are incorporated into the agency's implementation of its Strategic Plan for Fiscal Years 2012-2016. In February, the agency requested written input into the development of the QCP, and in March the commission held a public meeting featuring three roundtables of internal and external experts on the EEOC's investigatory process.

Comments on the draft principles for the QCP must be submitted by 5 p.m. EDT on May 24, 2013, at strategic.plan@eeoc.gov or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507.

The agency is seeking participation from individuals, employers, advocacy groups, agency stakeholders and other interested parties.

According to the Federal Judicial Center, which tracks lawsuit statistics at the federal level, employees filed 7,764 federal wage-and-hour lawsuits between April 1, 2012, and March 31, 2013, a 10 percent jump over the previous year.

In contrast, such lawsuits rose only 1 percent year to year in the 2012 reporting period.

Wage-and-hour lawsuits arise under provisions of the Fair Labor Standards Act (FLSA) and generally involve overtime violations, off-the-clock, uncompensated work, and misclassification as independent contractors when working as employees.

Also, according to a National Economic Research Associates' report, employers nationwide paid 18 percent more in wage-and-hour settlements in 2012 that they did in 2011, totaling $467 million. Since many of these settlements are from class-action lawsuits, the average payout was $4.8 million.

Employers of every size are subject to FLSA-based lawsuits and complaints. Protect yourself and stay in compliance. Get your copy of Personnel Concepts' FLSA Compliance Prrogram today.

Wellness programs are an increasingly common feature of employee benefits programs, and guidance is needed to avoid violations of federal equal employment opportunity laws, a panel of experts representing business, advocacy groups and providers told the Equal Employment Opportunity Commission (EEOC) at a meeting held recently.

"We appreciate the valuable insights and diverse perspectives provided by today's panelists," said EEOC Chair Jacqueline A. Berrien. "There has been broad bipartisan support for the expanded use of wellness programs to reduce health insurance and healthcare costs, but today's meeting underscored the importance of insuring that those programs are designed and implemented in a manner that is consistent with federal equal employment opportunity laws."

A majority of employers now offer some sort of wellness program: 94 percent of employers with over 200 workers, and 63 percent of smaller ones, according to Karen Pollitz of the Kaiser Family Foundation, which researches issues relating to health care. Pollitz added that many of these programs offer some sort of financial incentive for participation, which can range from gift cards to higher employer contributions for insurance premiums, or penalties like additional surcharges to employees for health insurance.

The most common intersection of these programs and the statutes EEOC enforces occurs when the programs require medical exams or ask disability-related questions, both of which would ordinarily give rise to a violation of the Americans with Disabilities Act (ADA), EEOC Acting Associate Legal Counsel Christopher Kuczynski told the commission. He explained that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of "voluntary" merits further clarification by the commission.

Continue reading “EEOC Convenes Panel to Discuss Challenges, Pitfalls of Wellness Programs” »

Throwing all decisions of the National Labor Rrelations Board (NLRB) since 2010 into doubt, the Third Circuit Court of Appeals has ruled that the recess appointment of Craig Becker on March 27 of that year was unconstitutional.

As with the D.C. Circuit Court of Appeals and its recent decision ruling that President Obama's three NLRB recess appointments on Jan. 4, 2012, were unconstitutional, the issue hinged on when the Senate is in recess and not just adjourned. The Third Circuit ruled that the Senate was not in full recess and threw out Becker's appointment as unconstitutional.

Since an earlier Bush-era decision by the Supreme Court that NLRB rulings are unconstitutional unless passed by a duly appointed quorum of three of five members on the board, the Third Circuit's decision threatens to roll back all NLRB decisions since March 27, 2010.

At immediate issue was a NLRB ruling in New Vista Nursing and Rehabilitation, which allowed licensed practical nurses (LPNs) to unionize. New Vista had argued unsuccessfully that LPNs are supervisors not allowed to organize. At the time of the New Vista ruling, Becker was one of only three voting members. That decision has now been thrown out, and the lack of a constitutional quorum from Becker's recess appointment onward looms big.

New York will greet New Year's Day 2014 with a new state minimum wage law in effect, the rate rising from $7.25 an hour to $9 an hour over a three-year period. The legislation was signed into law this past April 1.

The minimum wage will first rise to $8 an hour, then to $8.75 by the end of 2014 and to $9 by the end of 2015.

Meanwhile, under threat of a veto, the New York City Council is nonetheless passing a mandatory sick day ordinance that would require five sick days for all employees working in the city — paid as well if there are 20 or more employees in the company. Though Mayor Bloomberg has vowed to veto the bill, the council has enough votes for an override. The law is slated for an April 1, 2014, implementation date.

Utah and the Department of Health and Human Services (HHS) this past week agreed to a fourth model for what the Patient Protection and Affordable Care Act (PPACA) once called insurance exchanges but are now dubbed health insurance marketplaces.

Under the new model, Utah will continue to operate its Avenue H Program, an exchange for employers with up to 50 eligible full-time employees (working at least 30 hours a week), while HHS will set up an exchange solely for individual health insurance consumers in the state.

Most insurance marketplace arrangements are either solely state or federal run. A third arrangement allows for joint operation, but Utah's is the first instance — breaking new ground — in which separate exchanges will be operated.

Avenue H is a defined contribution model, in which employers contribute a set amount for their employers, who then get to choose from three insurers. If employees choose a high-deducatible health plan, they can invest the difference in a Health Savings Plan (HSA).

A jury recently awarded $7.5 million each to 32 mentally disabled Iowa plant workers who were abused for years, giving the Equal Employment Oppotunity Commission (EEOC) a short-lived historical verdict of $240 million.

This past Friday, however, both the EEOC and defendant Henry's Turkey Service agreed in legal briefs that federal law caps the recovery for each plaintiff at $50,000, reducing the total judgment to $1.6 million.

The Department of Labor (DOL) is floating a notice of proposed rulemaking (NPRM), published in the Federal Register this past week, that would require administrators of defined-benefit plans, such as 401(k)s, to project a lifetime income stream based on investment level, along with an account balance as is currently required.

The publication opened up a 60-day public commentary period.

The proposal also is floating ideas to allow participants to set up a partial annuitization as an alternative to taking a lump sum or stream of payments. The proposal also seeks to permit retirees to use some of their savings to buy longevity insurance.

Colorado legislators have passed and the governor has signed HB 1136, which allows workers at small businesses, defined as those companies with fewer than 15 employees, to take discrimination charges to court and win compensatory and punitive damage judgments as well as attorneys' fees.

Prior to the legislation, employees at small firms suffering discriminatory actions could only win back pay and job reinstatement, making it virtually impossible to get a lawyer to represent them.

HB 1136 caps damages at $10,000 for companies with four or fewer employees and at $25,000 for businesses with five to 14 workers.

The business community lobbied Gov. Hickenlooper hard to veto the measure, but he signed it with this explanation:

“As passed, we believe [HB 1136] strikes the appropriate balance between protecting small business employers from costly and frivolous litigation and providing the victims of intentional and unacceptable discrimination with appropriate remedies.”

Those in the business community, however, noted that the lack of any cap on attorneys' fees could sink many small businessowners.