The House and Senate have both passed a fiscal 2012, $14.5-billion appropriations bill for the Department of Labor (DOL) that represents $145.4 million in additional funding.

Since those additional funds derive solely from a provision to fully finance the Job Corps, however, the DOL is actually receiving $545.6 million less than fiscal 2011 and $942.2 million less than requested by the White House.

The National Labor Relations Board (NLRB) is being funded at $278 million, $4 million less than fiscal 2011 and $8.9 million below the president's request.

The appropriations bill also comes with a few restrictive provisions that are aimed at preventing implementation of certain initiatives. Among the initiatives being barred by the appropriations bill are an Occupational Safety and Health Administration (OSHA) proposal to add a musculoskeletal reporting column to the yearly Log 300 injury and illness report; an NLRB proposal to allow electronic or off-site voting in union organizing elections; and an Employee Benefits Security Administration (EBSA) proposal to redefine "fiduciary" for the purposes of offering investment advice.

In a move that seemed to please neither side of the argument, President Obama has agreed to let the states decide benefit levels for health insurance policies that will be sold on the exchanges being set up for 2014 to service individuals and small groups.

As initially envisioned in the Patient Protection and Affordable Care Act (PPACA) of 2010, the Department of Health and Human Services (HHS) would set the benefit packages for the state exchanges, but now the states are being awarded some flexibility.

Insurers selling plans in the state-based exchanges, however, must still cover a basic set of benefits, including hospitalizations, emergency care, and newborn and maternity care and pediatric services, as set forth in the PPACA legislation.

Rather than issue a proposed regulation, the administration chose to advise the states through a “pre-rule bulletin,” which does not have the force of law. Unlike a rule, however, the "bulletin" cannot be overruled by Congress. The administration also does not have to provide definitive economic estimates of the proposal or determine its regulatory impact on small businesses because it is not an official rule. Official rule-making is expected to occur sometime next year.

As reported by the Los Angeles Times, the new approach seems to have left activists on both sides of the issue less than satisfied.

"What's to guarantee that the state's choice of a benchmark plan will be affordable?" asked National Retail Federation Vice President Neil Trautwein, who is helping lead a coalition of business and insurance groups. "If coverage is unaffordable today, this doesn't change the equation."

Families USA Executive Director Ron Pollack, a longtime advocate for federal health reform, also expressed reservations.

"We understand the inclination to balance flexibility, comprehensiveness of coverage, and cost," he said. "However, flexibility must yield to reliable, comprehensive coverage of benefits for consumers.… It is essential that HHS provide strong oversight and enforcement."

To keep your workforces informed of their rights and obligations under PPACA, Personnel Concepts offers a Health Care Reform Employee Information Poster. Get yours today and display it conspicuously.

A 1974 ruling by the Department of Labor (DOL) grouped adult home health care workers with teenage babysitters as "companions" not entitled to the wage protections of the Fair Labor Standards Act (FLSA). In 2007, the Supreme Court upheld that interpretation, saying it was up to Congress or the DOL to change the interpretation.

Yesterday (Dec. 15, 2011), the DOL did just that with a Notice of Proposed Rulemaking (NPRM) that will fold home health care workers (but not babysitters) into the wage-and-hour protections of the FLSA. There will be a 60-day public commentary period before the department moves to finalize and publish the rule.

Currently, there are 1.9 million home health care workers in the United States, of whom 1.59 million work for staffing agencies.

Joining in on the announcement, President Obama noted,“Today’s action will ensure that these men and women get paid fairly for a service that a growing number of older Americans couldn’t live without.”

To understand all the requirements and regulations of the FLSA, please procure a copy of Personnel Concepts' informative but easy-to-use FLSA Compliance Program.

Come New Year's Day, barring approval of new appointees, the National Labor Relations Board (NLRB) will be stripped of its authority to issue rulings due to a lack of majority representation.

Two board members' appointments have already expired, and a third expires on Dec. 31, 2011, leaving the NLRB with just two of five members for the New Year. In New Process Steel, L.P v. NLRB, the Supreme Court in 2010 ruled that the board could not issue rulings with just two members.

So far, the Senate has refused to act on President Obama's dilemma, led by Senator Lindsey Graham of South Carolina, who is still seething over the NLRB's assault on the Boeing plant in his state and who is blocking consideration of all nominees.

Yesterday (Dec. 14, 2011), President Obama announced the nomination of two Democrats to the NLRB, Sharon Block and Richard Griffin, to go along with a previous appointment of a Republican, Terence Flynn. (The NLRB is composed of three members from the president's party and two from the opposition.)

One thing this stalemate won't stop, however, is the NLRB's earlier mandate that virtually all U.S.-based businesses display the new National Labor Relations Act (NLRA) Employee Rights Poster by Jan. 31, 2012. Get your NLRA Poster today to stay in compliance.

The Department of Justice (DOJ) has announced the filing of a lawsuit against the University of California, San Diego Medical Center, alleging that the medical center discriminated in the employment eligibility verification process against people who are authorized to work in the United States.

The department’s independent investigation revealed that the medical center engaged in a pattern or practice of subjecting newly hired non-U.S. citizens to excessive demands for documents issued by the Department of Homeland Security in order to verify and re-verify their employment eligibility, but did not require U.S. citizens to show any specific documentation.  The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin. 

“All workers who are authorized to work in the United States have the right to work without encountering discrimination because of their immigration status or national origin,” said Thomas E. Perez, Assistant Attorney General for the Justice Department’s Civil Rights Division. “We are committed to vigorously protecting authorized workers from discrimination in the hiring process and ensuring that employers uphold their obligations under the law.“

The complaint seeks a court order prohibiting future discrimination by the respondent, monetary damages for any individuals harmed by the respondent’s actions, and civil penalties.

Employers, remember that you cannot specify which documents a job applicant can supply for residence and work eligibility verification; you can merely show them a list and let them pick. Personnel Concepts' I-9 Compliance Kit will guide you through all the steps of the I-9 process so you can stay in compliance and keep the DOJ and Immigration and Customs Enforcement (ICE) agents away from your door.

The Department of Labor (DOL) has issued a proposed final rule on Multiple Employer Welfare Agreements (MEWAs) regarding provisions in the Patient Protection and Affordable Care Act (PPACA), allowing the DOL Secretary to issue cease and desist orders and/or seize MEWAs that aren't fulfilling their obligations.

A MEWA is an alternative method of providing health insurance coverage sometimes used by small employers.

The proposed rule allows the Labor Secretary to seize a MEWA under two circumstances: if the MEWA is in danger of being unable to pay its claims and if the MEWA has sustained or is sustaining a "significant loss of assets." No court order would be required.

The proposal also allows the Secretary to issue a cease and desist order if there is fraudulent conduct, or if there is “immediate danger to the public safety or welfare” or “conduct that causes or can be reasonably expected to cause significant, immediate, and irreparable injury.”

Interested employers are invited to submit comments until March 5, 2012.  Comments may be submitted electronically through the federal eRulemaking portal, by e-mail to  E-OHPSCAMEWARegistration.EBSA@dol.gov, and by regular mail to: Office of Health Plan Standards and Compliance Assistance, Employee Benefits Security Administration, Room N-5653, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, Attention: RIN 1210—AB51; MEWA Registration Proposed Regulation.

After a collective bargaining agreement at Boeing's Seattle plant raised wages and increased job security, the National Labor Relations Board (NLRB) yesterday dropped its action against the company for opening a $750 million Dreamliner plant in South Carolina, a right-to-work state that limits union power.

The Boeing union—the International Association of Machinists and Aerospace Workers—had originally requested the NLRB action in April. In then charging Boeing with retaliation for opening the South Carolina plant, the NLRB cited alleged comments made by Boeing officials about the "militancy" of union workers in Seattle. As Boeing and the union negotiated a new collective bargaining agreement, however, the International Association was the very one to request the NLRB to drop its case against the company.

Meanwhile, the NLRB action has become a cause celebre among Republicans in Congress. One GOP U.S. Senator, Lindsey Graham of South Carolina, though pleased by the NLRB's dropping of the case, said he will continue to place a hold on all nominees to the NLRB, meaning that come Jan. 1, the board will have just two members and will be legally unable to take any action. (The NLRB, due to the expiration of appointments, at that time will have just two or five members and cannot act without a majority of members present.)

One thing that won't change, however, is the NLRB-mandated poster that must be displayed by virtually all U.S. businesses come Jan. 31, 2012. Don't wait. Get your NLRA Employee Rights Poster today from Personnel Concepts.

The Office of Federal Contract Compliance Programs (OFCCP) is publishing a final rule today on its long-awaited regulations regarding affirmative action for the disabled by federal contractors and subcontractors. Specifically, the rule being published in the Federal Register updates and strengthens the provisions of the Rehabilitation Act of 1973 that require federal contractors and subcontractors to affirmatively consider for hiring and promotion qualified disabled individuals.

The proposed regulations aim to describe specific actions the employers must take to achieve affirmative hiring and promoting, increase the contractor's data collection obligations, and establish specific utilization benchmarks to help measure the effectiveness of the contractor's affirmative actions.

If you're a federal contractor or subcontractor, you should obtain a copy of Personnel Concepts' All-On-One Federal Contracts Poster and display it prominently. The poster will communicate  your commitment to affirmative action in all your employment practices.

Businesses often and routinely require job applicants to possess a high school diploma for certain positions, but a Dec. 2 opinion letter from the Equal Employment Opportunity Commission (EEOC) indicates that this requirement may be in violation of the Americans with Disabilities Act (ADA).

The reasoning behind this, according to the author, EEOC attorney-advisor Aaron Konopasky, is that some individuals are unable to obtain high school diplomas because of learning disabilities.

The author opines: “Even if the diploma requirement is job-related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job with or without a reasonable accommodation.”

Though such informal letters do not carry the weight of  law, this one could indicate that the EEOC is moving in the direction of saying that requiring a high school diploma could have a disparate impact on a certain class of individuals.

Employers and HR professionals should avail themselves of Personnel Concepts EEO Compliance Program to ensure they're observing all job applicants' and employees' rights under federal law. Get yours today.

The Occupational Safety and Health Administration (OSHA) has released its annual list of the most frequently cited standards violations, along with its list of the most heavily fined OSHA standards violations.

The most frequently cited violations comprise fall protection; scaffolding; hazard communication standard; lockout/tagout; electrical; powered industrial trucks; ladders; electrical systems design; and machines.

The most heavily fined violations encompassed fall protection; scaffolding; lockout/tagout; machines; ladders; excavations; powered industrial trucks; general duty clause; electrical; and electrical systems design.

The period covered was from Sept. 30, 2010, to Oct. 1, 2011.