CUPA-HR eNews

PUBLIC POLICY NEWS YOU CAN USE – July 14
July 14, 2010

House Passes Public Safety Collective Bargaining Bill, DOL Issues Clarifications to FMLA Definitions, Hayes and Pearce NLRB Nominations Confirmed by Senate, More Healthcare Regulations Issued by Administration, Jobless Benefits Remain Stalled in Congress, Executive Order Requires New NLRA Posting for Federal Contractors, President Signs Defined Benefit Funding Relief Into Law
By Josh Ulman, chief government relations officer, and Christi Layman, manager of government relations, CUPA-HR

House Passes Public Safety Collective Bargaining Bill
On July 1, the U.S. House of Representatives passed by a vote of 239 to 182 the Public Safety Employer-Employee Cooperation Act (PSEECA, S. 3194) as Amendment 2 to HR 4899, a war supplemental appropriations bill. The amendment contained various domestic spending provisions and some non-spending provisions, including the PSEECA. This bill would require nearly all state and local governments to allow collective bargaining with public safety employees including police, fire and emergency medical personnel over wages, hours and terms of employment. Public universities that employ police and EMTs would be affected. 

The Senate is expected to take up the bill in the coming weeks, prior to the August recess. However, the White House did not approve of some of the last-minute changes to the bill in the House and have threatened to veto the bill if changes are not made. Senate Republicans have also voiced concerns and have warned that they will filibuster the House bill. 

CUPA-HR, along with a growing list of more than 200 other organizations, has come out in opposition to the PSEECA. CUPA-HR will continue to monitor the legislation closely.

DOL Issues Clarifications to FMLA Definitions
On June 22, the Department of Labor’s Wage and Hour Division issued an Administrator’s Interpretation (AI) on the definition of “son or daughter” under the Family and Medical Leave Act (FMLA). Specifically, the guidance clarifies how the FMLA applies when there is no legal or biological parent-child relationship. The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave for, among other reasons, “the birth of a son or daughter of the employee and in order to care for such son or daughter,” “the placement of a son or daughter with the employee for adoption or foster care,” or to “care for a son or daughter with a serious health condition.” The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”

According to the AI, whether someone is “in loco parentis” under the FMLA depends on multiple factors, including, “the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.” The AI states that “[e]mployees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child [and that the] regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.”

The AI provides several examples of possible “in loco parentis,” such as where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child’s parents. Another example provided is where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child. Finally, the AI says “in loco parentis” would also apply to an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child; and where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child (the AI notes that “[n]either the statute nor the regulations restrict the number of parents a child may have under the FMLA”).

Hayes and Pearce NLRB Nominations Confirmed by Senate
On June 22, the Senate cleared more than 60 stalled nominations by unanimous consent, including Mark Pearce (D) and Brian Hayes (R) to full terms on the National Labor Relations Board (NLRB). Many of President Obama’s nominations had been stalled in the Senate for more than a year because of the controversy over the nomination of Craig Becker (D) to the NLRB. The Becker nomination failed on February 9 to receive the Senate votes necessary for confirmation; consequently, the president used recess appointments on March 27 to put Becker and Pearce on the board. Unlike nominations confirmed by the Senate, recess appointments are valid until the end of the next session of Congress — which, in this case, is December 2011. Now Hayes and Pearce will serve terms until December 16, 2012, and August 27, 2013, respectively, and Becker’s recess appointment will expire when the Senate adjourns in 2011. Pearce is a labor attorney in private practice in Buffalo, New York, and Hayes is a Republican labor counsel in the U.S. Senate. Hayes was sworn in on June 29, so the NLRB has returned to a full five-member board.

In other NLRB news, on June 17, the Supreme Court ruled in a 5-4 decision that the NLRB lacked the statutory authority to issue orders once its membership fell to two members. The five-member board operated with two members from January 2008 until March 2010, when the president made two recess appointments. The NLRB announced on July 1 that it will seek to have all of the 96 cases pending on appeal in the Supreme Court and various courts of appeals remanded to the board for further consideration. Each of the remanded cases would then be considered by a three-member panel of the board, including Chairman Liebman and Board Member Schaumber, who initially ruled on the cases, in addition to a third member chosen at random. Consistent with NLRB practice, the two other board members not on the panel will have the opportunity to participate in the case if they choose.

More Healthcare Regulations Issued by Administration
Over the past few months, the Departments of the Treasury, Labor, and Health and Human Services — the three agencies responsible for implementing the Patient Protection and Affordable Care Act (PPACA) provisions related to group health plans — have jointly issued interim final rules on several significant provisions in the new law. 

On June 28, interim final rules addressing the issues of preexisting condition exclusions, lifetime and annual limits, rescissions and patient protections were published in the Federal Register. The changes discussed in the rules are effective August 27, 2010. Comments are also due on or before August 27, 2010. On June 17, interim final regulations were published in the Federal Register regarding a plan’s status as a “grandfathered” health plan. The rule provides guidance on the changes that can be made to a plan without losing “grandfathered” status. The rule is fairly restrictive and may make it difficult for many plan sponsors to retain a “grandfathered” status for long.

In addition, regulations on preventive services and external appeals processes are expected to be released soon. 

Jobless Benefits Remain Stalled in Congress
Congress continues to encounter major difficulties in extending jobless benefits. The increased 65% Consolidated Omnibus Budget Reconciliation Act (COBRA) health insurance subsidies expired on May 31, and the emergency unemployment insurance (UI) extension expired on June 2. Budget hurdles and a lack of offsets to pay for the spending have prevented the Senate from passing several versions of an extender bill considered since the Memorial Day recess. COBRA benefits have been stripped from the latest versions of the bill in the House and the Senate, so it appears that the increased subsidy may have expired for good. In recent weeks, House Majority Leader Steny Hoyer (D-MD) and Senate Majority Leader Harry Reid (D-NV) have both looked at moving slimmed down bills that would extend UI benefits until November 30, potentially with an extension of the Homebuyers Tax Credit. 

Both bodies had hoped to pass a slimmed down bill before Congress adjourned for the Fourth of July recess, but that, once again, did not occur. The Senate fell short of passing its bill on June 30 with a vote of 58 to 38. Now, the Senate is expected to wait for the late Senator Robert Byrd’s seat to be filled, likely in the next week, before moving forward with any unemployment benefits extension. Reid reportedly believes he will get the 60th vote he needs to pass a bill from the West Virginia interim senator.

Executive Order Requires New NLRA Posting for Federal Contractors
On, June 21, the final rule implementing President Obama’s executive order from January 30, 2009, took effect. The rule is aimed at ensuring that workers in the private sector involved with federal government contracts are informed of their rights to join a union and collectively bargain. Federal contractors and subcontractors are now required to post a new DOL notice listing employees’ rights under the National Labor Relations Act (NLRA). The notice must be posted physically and electronically where employees covered by the NLRA perform contract-related activity.

President Signs Defined Benefit Funding Relief Into Law
On June 25, President Obama signed into law the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 (H.R. 3962). The law includes temporary defined benefit plan funding relief for both single-employer and multiemployer plans. However, employers that elect the temporary pension funding relief will be required to make additional matching contributions to the plan if they award excessive employee compensation, dividends or stock redemptions during the first part of the relief period.