Washington Update – May 17, 2012
May 17, 2012 

By Josh Ulman, chief government relations officer, and Christi Layman, manager of government relations, CUPA-HR 

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NLRB’s Ambush Election Rule Invalidated Days After Taking Effect 

On May 14, the U.S. District Court for the District of Columbia ruled in a lawsuit brought by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace that the National Labor Relations Board (NLRB) did not have a quorum when it purported to finalize its ambush election rule making changes to union election procedures. The court held that “two members of the Board participated in the decision to adopt the final rule, and two is simply not enough.” The court went on to state that without at least three members participating, the Board lacked the authority to issue the rule.

The final rule had actually already taken effect on April 30 after the judge denied a request to stay the rule. The rule would empower hearing officers to limit the pre-election hearing to questions of representation and forgo post-hearing briefs. The rule would also eliminate pre-election appeals and the related 25-day waiting period, restrict the circumstances surrounding the NLRB’s special permission to appeal aspects of an election, and change appeal procedures themselves.

As it stands currently, the Board may not conduct an election using the procedures set forth in the rule. We expect, however, the Board will appeal. The earliest a court would rule on the appeal would be in October or November. The Board also may attempt to reissue the rule. This would invite an additional legal challenge, particularly since the legality of three of the current Board members’ recess appointments remains in question.

A few days before the rule took effect, the Board’s general counsel released a guidance memo on implementing the rule (memo number GC 12-04), which urged hearing officers to hold pre-election hearings within seven days of the petition (the same requirement that was in the proposed rule, but removed from the final). Experts on the subject have estimated that this would create a situation where elections may occur within as few as 17-20 days following a petition.

The Senate attempted to intervene and stop the rule from taking effect; however, those efforts were not successful. On April 24, the Senate voted down Sen. Michael Enzi’s (R-WY) resolution of disapproval (S.J. Res 36) challenging the rule. The vote on the motion to proceed to S.J. Res 36 failed with a near party-line vote of 54 to 45.

NLRB’s Posting Rule Enjoined 

On April 17, the National Labor Relations Board (NLRB)’s posting rule requiring almost all private-sector employers to post a notice of labor rights was enjoined by the U.S. Court of Appeals for the D.C. Circuit as part of the appeal to NAM v NLRB, a case challenging the rule. The injunction will remain in effect until the court issues a decision on the pending appeal, which may not occur until the end of the year.

In NAM, the lower court — a federal district court in D.C. — upheld the NLRB’s authority to issue the rule (although some remedies were struck down). Within weeks, however, the U.S. District Court for the District of South Carolina struck down the rule in Chamber of Commerce of the United States v NLRB. Faced with split decisions by the lower courts, the court of appeals decide to enjoin the rule pending appeal.

The NLRB postponed the implementation of the rule twice. It was originally set to take effect on November 14, 2011, then delayed until January 31, 2012, and most recently by request of the U.S. District Court during the NAM proceedings again delayed until April 30, 2012. The Board issued a notice on April 30 informing the public the rule was now delayed pending outcome of litigation in the D.C. Circuit.

The NLRB poster uses the same language as the Department of Labor (DOL) poster that government contractors are required to display, explaining workers’ labor rights. The administration issued a 2009 executive order requiring contractors to hang the poster. That requirement was unaffected by the litigation and still in place. The final rule goes farther than the DOL requirement or other posting requirements, however, in that it would impose additional obligations on employers that regularly communicate with employees by posting information on an intranet or internet site.

EEOC Issues Criminal Background Check Guidance 

On April 25, the Equal Employment Opportunity Commission (EEOC) approved, by a vote of 4 to 1, new enforcement guidance related to consideration of arrest and conviction records in employment decisions. The use of such records by employers may constitute unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964. According to the EEOC, the guidance “discusses various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.”

The guidance also addresses:

  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
  • Federal court decisions analyzing Title VII as applied to criminal record exclusions;
  • The differences between the treatment of arrest records and conviction records;
  • The applicability of disparate treatment and disparate impact analysis under Title VII;
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.

Soon after the guidance was issued, CUPA-HR’s chief government relations officer, Josh Ulman, sat down with the EEOC’s Jim Paretti to discuss the new guidance and its implications. Paretti offers clear definitions and excellent examples of the situations the guidance is intended to address. Watch the interview here. 

Prior to the new guidance being issued, on April 18, CUPA-HR sent a letter to the EEOC, along with nearly 50 other employer groups, with concerns about the pending criminal background check guidance changes. CUPA-HR, and many of these same organizations, had previously sent a letter to the Commission on February 1 expressing concerns that the EEOC will make it more difficult for employers to review criminal histories of job applicants and requested the EEOC make any revisions with a fair and transparent process, allowing for constructive input from all stakeholders.

The EEOC has been looking at revising its guidance on criminal background checks for some time and held a hearing on the issue last summer as it began the revision process. Along with the new guidance, the Commission also released a Q & A document related to the guidance.

In other EEOC news, Commissioner Stuart Ishimaru (D) announced his resignation effective at the end of April, two months short of when his term was set to expire. Ishimaru’s departure leaves the EEOC with two Democratic commissioners, Chair Jacqueline Berrien and Chai Feldblum, and two Republican commissioners, Constance Barker and Victoria Lipnic, who will now have to work on a bipartisan basis.

CUPA-HR Files Comments on Proposed FMLA Changes 

On April 30, CUPA-HR, along with the National Coalition to Protect Family Leave (NCPFL), filed comments on the Department of Labor (DOL)’s Notice of Proposed Rulemaking (NPRM) proposing changes to the Family and Medical Leave Act (FMLA).

Most of the proposed changes in the NPRM were required by the passage of the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act, both of which were enacted after the most recent FMLA regulatory changes in 2008. However, some of the proposed changes were not necessitated by changes to the law, such as changes to tracking intermittent leave and the “physically impossible” exception.

The comments discussed why these aspects of the NPRM are unnecessary and burdensome for employers to implement and specifically requested that they be withdrawn from the NPRM. The comments also provided the DOL with information on the sufficiency of exigency leave descriptions and shared our opposition to the proposed removal of FMLA forms from the regulatory structure.

CUPA-HR Submits Letter for the Record at House Committee Hearing on OFCCP Regulatory Actions 

On April 18, the House Education and Workforce Committee’s Subcommittee on Health, Employment, Labor and Pensions held a hearing entitled “Reviewing the Impact of the Office of Federal Contract Compliance Programs (OFCCP)’s Regulatory and Enforcement Actions.” CUPA-HR submitted a letter for the record with SHRM highlighting our concerns with the OFCCP’s recent activities and included our detailed comments on five of its regulatory actions in the last 18 months.

For more details on the OFCCP’s latest actions, see the “On the Hill” column, titled “OFCCP in Overdrive,” in the latest issue of CUPA-HR’s The Higher Education Workplace magazine (log in with your Knowledge Center username and password).

Senate Committee Holds Hearing on Work Flexibility Issues  

On May 10, Sen. Tom Harkin (D-IA), chairman of the Senate Health, Education, Labor and Pensions Committee, held a hearing titled “Beyond Mother’s Day: Helping the Middle Class Balance Work and Family,” which focused on work flexibility issues, including mandatory paid sick leave (S. 984, Healthy Families Act), mandatory “right to request” workplace flexibility (S. 2142, Working Families Flexibility Act) and living wage issues.

The hearing follows Sen. Harkin’s introduction of the “Rebuild America Act” (S. 2252), a broad legislative package that includes his paid sick leave mandate, a minimum wage increase, a fair trade rule and a Wall Street trading tax. The Harkin legislation is not expected to move forward in the Senate but was likely drafted to serve more as a political statement or agenda of what he hopes to move forward under his chairmanship.

Juanita Phillips, director of HR with Intuitive Research and Technology Corp. in Huntsville, Alabama, testified in the hearing on behalf of the Society for Human Resource Management. Phillips testified that “one-size-fits-all, government-knows-best policies” make it more difficult for employers to meet the needs of their employees and that the same workplace flexibility policies will not work well for all employers and all employees. The three other witnesses testified on behalf of the Center for American Progress, the National Partnership for Women and Families and the Retail Action Project.

IRS Issues Guidance on Normal Retirement Age Rules for Public Plans  

On April 30, the Internal Revenue Service (IRS) published a notice (2012-29) that it is considering guidance that “would clarify that governmental plans that do not provide for in-service distributions before age 62 do not need to have a definition of normal retirement age.”

In May 2007, IRS issued regulations that prohibited retirement benefits from being conditioned on years of service, and instead requiring a normal retirement age. The regulations took effect for the private sector, but the effective date for the public sector has been extended a couple of times because the change would turn public plans on end — likely requiring state legislative action and changes to collective bargaining agreements.

The new guidance would modify the age-50 safe harbor for qualified public safety employees and extend the effective date of the normal retirement age regulations for governmental plans from January 1, 2013, to January 1, 2015. The notice resolves many of the longstanding issues with the 2007 regulations, particularly the looming effective date, but there are still some issues that need to be addressed. The IRS will be accepting comments on the guidance through July 30.