Governmental Affairs News And Articles

Governmental Affairs - News & Articles

It’s All In The Timing: President Obama’s Recess Appointments to the NLRB

President Obama, on January 4th, took advantage of the U.S. Senate’s recess to appoint three controversial and previously blocked nominees to the vacancies at the National Labor Relations Board (NLRB). These appointments restore the Board’s quorum and enable it to issue decisions. The new Board members are:

Sharon Block is Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. She also previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from and as an attorney in the appellate court branch. Prior to government service she was in private practice. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.
Terrence E. Flynn currently serves as Chief Counsel to NLRB Board Member Brian Hayes. He previously was Chief Counsel to former Board Member Peter Schaumber. Prior to joining the NLRB, Flynn was in private practice. He holds a B.A. degree from the University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.
Richard Griffin is the General Counsel for the International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee. Mr. Griffin also served as a member of the board of trustees of the IUOE’s central pension fund and as a counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

Recess Appointments
Article II, Section 3 of the U.S. Constitution provides:

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

President Obama’s recess appointments will be in effect until January 4, 2014 unless they are approved by the Senate for a longer term or are dismissed by a legal challenge. The U.S. Constitution requires that appointments of senior federal officials must be confirmed by the Senate before the appointee assumes office; however, while the Senate is in recess, the President can act alone by making a recess appointment. This is what President Obama did. However, recess appointments are not final. An individual who is appointed during a recess must have his or her nomination approved by the Senate by the end of the next session of Congress or the position becomes vacant again. Unless confirmed or challenged, these recess appointments will be in effect until January 4, 2014.

Recess appointments are nothing new. Beginning with George Washington, presidents have made many recess appointments, including Supreme Court Justices William Brennan and Earl Warren, as well as Secretary of State Lawrence Eagleburger following James Baker’s resignation. According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of December 8, 2011, President Barack Obama had made 28 recess appointments.

Legal Challenge
Senate republicans are challenging the constitutionality of the appointments by claiming that Congress was not actually in recess, that they had been holding pro forma sessions. A pro forma session occurs when a local member of Congress reports to Capitol Hill to quickly gavel in and out of session every three days to keep the legislative session active. At the heart of the legal challenge is how long the Senate must be in recess for such appointments to be valid and whether the pro forma sessions were legitimate sessions or merely a sham to prevent recess appointments. This issue will be presented to the courts because the Constitution does not specify a minimum length of time the Senate must be in recess before the president can make a recess appointment. In fact, President Theodore Roosevelt was one of the most liberal of all recess appointers, making several appointments during one-day Senate recesses. White House legal counsel asserts that the appointments are valid, because the pro forma sessions were designed to, "through form, render a constitutional power of the executive obsolete," and that the Senate was for all intents and purposes recessed. The president has maintained that congressional gridlock justified his recess appointments. There is little case law on this subject so the dispute will likely move quickly through the lower courts and come before the U.S. Supreme Court for a final decision.

In the meantime, the NLRB has been restored to full power and will be able to make decisions on cases before it. Key issues before the Board include:

Social media communication: Because all employees covered by the National Labor Relations Act (NLRA) have the right to join together in the workplace, the NLRB is evaluating whether and how employees can be disciplined for posting messages regarding work concerns on Facebook.
Rights to organize and collectively bargain: Two major cases pending before the Board involve whether graduate student employees can form a union and whether taxi drivers are independent contractors. Both decisions could ultimately impact thousands of workers beyond those bringing the charges.
Mandatory arbitration agreements: Mandatory arbitration agreements require parties to resolve employment disputes through binding arbitration rather than taking their disputes to court. A case pending before the Board alleges that enforcement of a mutual arbitration agreement by the employer denies employees their right to engage in concerted activity under the NLRA.

If you have any questions about these topics or any other employment or labor law issue, please call me at 414-988-8404 or contact me via e-mail at: mailto:tpk@kclegal.com. Thanks.

Posted 1/9/2012.

Win/Win: Immediate Tax Credits For Employers Who Hire Veterans

October data from the Bureau of Labor Statistics reveals that more than 850,000 veterans were looking for work, most of them from service duties post-9/11. Further, an additional one million U.S. troops will be seeking work when they return home from Iraq and Afghanistan between now and 2016. As part of the American Jobs Act, on November 21, 2011, President Obama signed into law a bill to help both unemployed veterans and employers. The bill received unanimous support from both the House (422-0) and the Senate (95-0).

The Returning Heroes Tax Credit will provide tax credits to firms that hire unemployed veterans. The amount of the tax credit increases based on the length of time that the veteran has been unemployed:

Veterans out of work at least one month: a credit of 40% of the first $6,000 in wages up to $2,400
Veterans out of work at least six months: a credit of 40% of the first $12,000 in wages up to $5,600

The Wounded Warriors Tax Credit will increase the existing tax credit for firms that hire veterans with service-connected disabilities who are searching for work, as well as those who have been unemployed for a significant length of time. The tax credits are:

Disabled veterans looking for work: a credit of 40% of the first $12,000 in wages up to $4,800
Disabled veterans out of work at least six months: a credit of 40 percent of the first $14,000 in wages up to $9,600

The tax credits go into effect immediately, which gives employers a financial incentive to hire applicants with military experience. White House officials estimate that the tax credits alone could help create more than 25,000 jobs for veterans in the next few years.

Other Provisions
The bill also expands an education and jobs retraining program for unemployed veterans. It will provide an extra year of GI Bill benefits for 100,000 unemployed veterans of all ages to retrain them for jobs in “high-demand sectors,” which is worth about $1,300 per month to cover the cost of classes, certification and living expenses. This program is anticipated to begin on July 1, 2012 and initially will be limited to 45,000 veterans.

Not So Fast: Waiting Period For Unemployment Benefits Begins January 1

When the Wisconsin Legislature passed a bill in August 2011 that authorized the state to use federal funds to extend unemployment insurance benefits by 13 weeks, it also included a provision to establish a one-week waiting period for new claims for unemployment benefits. That measure goes into effect on January 1, 2012.

So, how does this requirement actually work and how will it affect employers who implement more than one layoff during a year in which employees return to work for a period of time between layoffs? Below is a summary of how the one-week waiting period will work:

Summary of Requirements

During the first week of a given employee's "benefit year," the employee will not receive any unemployment benefits.
The one-week waiting period will apply only once during a given employee's benefit year.
The one-week waiting period will only apply to a given employee's benefit year that starts on or after January 1, 2012.
A given employee's "benefit year" is a total of 52-weeks -- an employee's benefit year starts the week of claimed benefits and includes the next 51-weeks after that (regardless of how many subsequent weeks of unemployment occur during this time period).

Remember that you have to take into consideration when a benefit year begins for each employee when determining when there is a waiting period for benefits will begin.

Legislative Update
A number of pieces of legislation have been introduced this year that, if passed, would impact employers. Most important is the new poster required by the NLRB, which has been discussed in detail in prior issues. Below is an update that was issued on October 5, 2011 delaying the implementation of the bill.

I. NEW: Implementation of NLRA Posting Delayed
The National Labor Relations Board has postponed the date by which employers are required to post its new notice advising employees of their rights under the National Labor Relations Act by more than two months. The new effective date is January 31, 2012. The delay was implemented to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

According to the NLRB, the decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.

II. The Electronic Employment Eligibility Verification and Illegal Immigration Control Act (HR 483)
This bill would establish a toll-free telephone or electronic media-based employment eligibility verification system to ensure that all workers in the United States are legally able to work. The system would be required to:

(1) provide verification or tentative non-verification of an individual's identity and employment eligibility within three days of an inquiry, and
(2) provide, in the case of tentative non-verification, a secondary process for final verification or non-verification within 10 days

Among the provisions of the bill, If passed, it would require the Commissioner of Social Security to develop a process for comparing names and social security numbers against appropriate databases in response to employer inquiries, and also require development of a process for comparing names and alien identification or authorization numbers and to investigate uses of the same social security number that suggest fraud. It would also provide immunity from civil or criminal liability for a person or entity who takes action in good faith reliance on verification system information. In addition, it would set forth employer verification requirements with respect to an affirmative defense to liability for employment of unauthorized workers, including revision of attestation and retention of verification form provisions. There would be limits on the collection and use of data from the verification system. It would also expand the employment eligibility verification system to include: (1) previously hired individuals, and (2) recruitment and referral.

Employer Requirements
Under the Act, there would be (1) voluntary employer verification using such system two years after enactment of this Act for previously hired individuals, (2) mandatory employer verification three years after enactment of the Act by federal, state, and local governments, and the military for employees not verified under such system working at federal, state or local government buildings, military bases, nuclear energy sites, weapons sites, airports, or critical infrastructure sites, and (3) mandatory employer verification six years after enactment of this Act for all employees not previously verified under such system.

III. Living American Wage (LAW) Act of 2011 (HR 283)
If passed, the LAW Act would: 1) Adjust the federal minimum wage every 4 years so that a person may earn an annual income at least 15% higher than the federal poverty threshold for a family of two; 2) set the wage at a level high enough to allow two full-time minimum wage workers to earn an income above the national housing wage; and 3) allow Congress, any state or U.S. territory or possession, any Indian tribe, or local or state government to establish a higher minimum wage requirement than that established in this Act.

IV. Protecting Jobs From Government Interference Act (HR 2587)
HR 2587 was introduced on July 19, 2011 by Rep. Tim Scott of South Carolina in response to the NLRB complaint against the Boeing Co. for its decision to place an assembly line at a non-union plant in South Carolina. The NLRB claims that Boeing's decision was illegal retaliation for prior strikes by unionized worker's at the Company's operations in Washington state.

On September 15, 2011, the House proceeded with 10 minutes of debate on the Bishop (NY) motion to recommit with instructions. The instructions contained in the motion seek to require the bill to be reported back to the House with an amendment prohibiting the Act from limiting the National Labor Relations Board's authority to order an employer to maintain or restore jobs within the United States that have been or will otherwise be outsourced to a foreign country in violation of the National Labor Relations Act. The bill was then Received in the Senate on September 15, 2011 and placed on Senate Legislative Calendar.

New Poster Advises Employees Of Their Right To Unionize

The National Labor Relations Board (NLRB) issued a ruling on August 25, 2011 that requires all employers subject to the National Labor Relations Act (NLRA) (including manufacturers and virtually all other private sector employers) to inform employees of their right to unionize. The rule is scheduled to be posted in the Federal Register on August 30, 2011, and will take effect 75 days later, on November 14, 2011. The ruling requires employers to post a notice in all locations where notices are usually posted, including electronic posting on employee intranet sites.

The 11x17” poster, which will be available soon, will be provided to employers at no cost. The poster can also be downloaded from the NLRB’s website and printed in color or black and white. Translated versions of the poster will be available and those versions must be posted at workplaces where at least 20% of employees are not proficient in English. Once the NLRB poster is available, all private sector employers should take steps to have the poster put up this fall. Although there will be no monetary fines assessed, failure to post the notice by November 14 is considered an unfair labor practice.

This latest ruling is largely in answer to the ongoing decline in union membership seen over the past 30 years. Unions, which rely on member dues to keep afloat and pay big salaries to union leaders, need to boost membership to stay alive. Today, less than seven percent of private sector workers are unionized compared to the 1980s when approximately 20 percent of the workforce was comprised of card-carrying union members. Although the number of union elections conducted increased by 26 percent from 2009 to 2010, the win percentage held steady at 69 percent. Although unions have been devoting substantial financial resources to organizing activities they have not achieved the results they are seeking and have been turning to legislation and rule-making to help their cause. By informing all employees of their right to unionize, unions hope there will be more certification elections with a win for the union.

To keep your workplace union-free it is important to understand why employees to seek out unions. Simply put, employees who are worried about job security, who feel that their concerns have fallen on deaf ears, who think they are not being treated fairly, who were passed up for a promotion or who believe they are not being fairly compensated for their work, are prime targets for unions. It may be time to audit your workplace policies and practices and identify any areas in which your organization may be vulnerable to a union organization effort.

If you have any questions about these topics or any other employment or labor law issue, please call me at 414-988-8404 or contact me via e-mail at: mailto:%20tpk@kclegal.com. Thanks.

Posted 09/02/2011.

Time Off To Grieve: The Parental Bereavement Act (SB 1358)

The Farley-Kluger Amendment to the Family Medical Leave Act (FMLA) of 1993 petition, born from The Grieving Dads Project, a grass-roots initiative led by two fathers who tragically experienced the death of their child, was the impetus for the Parental Bereavement Act. When Kelly Farley, one of the group’s founders, realized that he could not take FMLA-protected leave upon his daughter's death he instead requested FMLA leave to care for his wife, who was dealing with depression in the aftermath of this life-altering event. Introduced in Congress on July 13, 2011 by Senator Jon Tester of Montana, the bill would amend the federal FMLA by adding a category of job-protected leave due to the death of an employee's son or daughter. Realizing that the current law does not address this issue, Senator Tester said he introduced the bill because the "last thing [parents] should be worrying about is whether they’ll lose their jobs as they deal with life-changing loss."

If passed, an eligible employee would be entitled to a total of 12 workweeks of unpaid leave during any 12-month period due to the death of a child. This is the same amount of leave provided for the birth or adoption of a child, the serious health condition of the employee or immediate family member, and for military exigency leave. The other provisions of the FMLA would not be changed (e.g., applies to employers with 50 or more employees, notice, intermittent leave scheduling, substitution of paid leave, certification, etc.).

The bill has no co-sponsors and has been referred to the Committee on Health, Education, Labor, and Pensions for review and consideration.

Protecting Jobs From Government Interference Act (HR 2587)

Introduced on July 19, 2011, the Protecting Jobs From Government Interference Act is moving uncharacteristically swiftly through the legislative process. Representative Tim Scott of South Carolina introduced the bill in response to the National Labor Relations Board’s (NLRB) complaint against the Boeing Co. for its decision to place an assembly line at a non-union plant in South Carolina. The NLRB claims that Boeing’s decision was illegal retaliation for prior strikes by unionized worker’s at the Company’s operations in Washington state.

The bill would amend the National Labor Relations Act to deny the NLRB any power to:

order an employer (or seek an order against an employer) to restore or reinstate any work, product, production line, or equipment;
rescind any relocation, transfer, subcontracting, outsourcing, or other change regarding the location, entity, or employer who shall be engaged in production or other business operations; or
require any employer to make an initial or additional investment at a particular plant, facility, or location.

Supporters of the bill claim it would remove an impediment to job creation while opponents argue that it would hamper the NLRB’s ability to protect workers from unfair labor practices and would eliminate the Board’s authority to restore jobs when companies eliminate work to get rid of pro-union employees.

Within just six days of its introduction, the bill was referred to the House Committee on Education and the Workforce where it was recommended, without a hearing and by a vote of 23-16, to be considered by the House as a whole.

Full Steam Ahead: Hearings Held on The NLRB’s
Proposal for Quickie Elections

Just one month after the NLRB’s June 21, 2011 proposal to speed-up union elections, the agency held hearings to hear from the business community, union advocates and researchers about the proposed changes. Under the new rule, the window of time from when an employer receives an election petition to the pre-election hearing would be reduced to just seven days. As expected, business advocates argued that seven days is not enough time to employers to consider their options, perhaps seek legal advice, and have meetings with their employees about union membership. Union supporters countered that employers use the current time allowance to manipulate the voting process to scare and intimidate workers away from unions.

The NLRB is taking online comments about the changes until August 22. However, it will likely be quite some time before all the comments are considered and any changes made and put into place.

If you have any questions about these topics or any other employment or labor law issue, please call me at 414-988-8404 or contact me via e-mail at: tpk@kclegal.com. Thanks.

Posted 08/01/2011

If you have any questions or comments, please contact me at 414-988-8404 or via e-mail at: tpk@kclegal.com

Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
http://www.krukowski.com/

Legislative Partner