2015 Employment and Labor Law Legislation
A summary of the 2014 Midterm Elections results in Michigan:
Michigan’s Senate has the Republicans gaining one seat to increase their majority to 27 -15.
The Michigan House sees the Republicans also increasing their majority from 59-50 (with one independent) to 63-47.
The Republican Governor, Rick Snyder is re-elected for a second term, beating Democrat and pro-labor challenger Mark Schauer.
Former U.S. Congressman Gary Peters, a Democrat, is now Michigan’s junior U.S Senator
On the Federal side:
The Republicans picked up nine Senate seats to bring their total to 54 from 45. Thus Republicans hold a majority in the Senate for the first time since 2006.
In the U.S. House of Representatives, where Republicans already held a majority, the midterm election saw the GOP strengthen its majority in the House to 245 seats vs. 188 seats for the Democrats. Republicans will hold their largest majority since the late 1940s.
For detailed information on 2014 federal and state proposed and passed legislation as well as federal and state regulatory changes see the archived 2014 Employment and Labor Law Legislation page here.
What follows is a summary of major federal and state bills and regulations that are under consideration or pending to date in 2015 (updated 5/27/15)
NOTE: More recent legislative or regulatory initiatives can be found at the end of the section. If the law or regulation is ongoing, it can be found at the end of the section on that law or regulation.
IMPORTANT NOTE: SINCE 20I4 MARKED THE END OF THE LEGISLATURE'S SESSION, THE FOLLOWING PROPOSED LEGISLATION HAS BEEN REMOVED FROM CONSIDERATION. HOWEVER, LEGISLATORS TYPICALLY RE-INTRODUCE SIMILAR PROPOSALS AT THE START OF THE NEW SESSION.
NLRB Reform Act
This bill is designed to rein in the General Counsel to the National Labor Relations Board, end partisan advocacy by splitting board members between parties, and encourage timely decision-making by including budgetary disincentives for gridlock. It would turn the NLRB from an advocate to an umpire and keep the general counsel from operating as an activist for one side or the other.
Paid Sick Leave
The Healthy Families Act (H.R. 1286/S. 631 would require employers with 15 or more employees to allow workers to earn up to seven days of paid sick time per year. Employees would be able use this time for themselves or for a family member. This Act would require employers to post a notice of a summary of the Act in conspicuous locations on the employer's premises or in employee handbooks.
National Legalized Medical Marijuana Law
On March 10, 2015, a Senate bill with bipartisan support was proposed to allow those states with legalized medical marijuana to operate without risk of federal law violations. The Compassionate Access, Research Expansion and Respect States (CARERS) Act, was introduced by Sens. Cory Booker (D-N.J.), Rand Paul (R-Ky.) and Kirsten Gillibrand (D-N.Y.). If passed, the bill would have primarily four effects:
It would allow those states with legalized medical marijuana (23 states, along with 12 others that allow limited use of low THC products for medical treatment) to operate their programs without risk of federal prosecution.
It would reclassify marijuana under the Controlled Substances Act from a Schedule I drug to a Schedule II drug. Schedule II drugs are those that are accepted as less dangerous and seen as having some medical value. Thus, it would allow for more research into the potential medical benefits of marijuana.
Banks would not have to fear legal challenges to working with medical marijuana businesses. Medical marijuana retailers in other states have faced challenges working with financial institutions, obtaining lines of credit and the ability to accept credit cards. These challenges have led to the operations of cash-only businesses, which have, in turn, led to increased risks of crime. Without the risk of charges pertaining to money laundering, financial institutions can work with medical marijuana retailers as they would any other business.
Physicians with the Department of Veteran Affairs could prescribe medical marijuana. Many of the illnesses for which medical marijuana is prescribed (e.g., PTSD, spinal cord injuries, traumatic brain injuries, residual limb pain) are suffered by military veterans. However, because they operate under the umbrella of the federal government, physicians with the Department of Veteran Affairs have been unable to prescribe medical marijuana, even if they are located in a state that has legalized the product.
The 2013/1014 legislative session wrapped up December 31, 2014. Any legislation pending at the time must be reintroduced in the 2015/2016 and start the legislative process over again.
IMPORTANT NOTE: SINCE 20I4 MARKED THE END OF THE LEGISLATURE'S SESSION, THE FOLLOWING PROPOSED LEGISLATION HAS BEEN REMOVED FROM CONSIDERATION. HOWEVER, LEGISLATORS TYPICALLY RE-INTRODUCE SIMILAR PROPOSALS AT THE START OF THE NEW SESSION.
Prevailing Wage Law – Last year the Michigan House Republican caucus (which spearheaded the passage of Right-to-Work) announced its plan to pick up repeal of Michigan’s prevailing wage law. This was one of the first legislative priorities the state GOP set when it won control of the Michigan legislature and the governorship.
The prevailing wage law requires state-financed or sponsored projects for which a state agency, university, community college or school district is the contracting agent to pay workers a wage of at least the level of other construction workers in a given region.
Opponents of the law estimate that it costs Michigan upwards of $250,000,000 each year. Organized labor sees this as a further attack on it.
Advocates for small business continue to oppose this law. In its Small Business Agenda for 2014, the Michigan branch of the National Federation of Independent Businesses calls for the repeal of the state’s Prevailing Wage Law, saying in part
. . . The state’s current prevailing wage law acts as a “super minimum wage” that sets wages much higher than local construction wages determined by fair competition in the free market. NFIB will be supporting legislation that will eliminate the prevailing wage requirement on public construction projects financed with state taxpayer dollars.
In the runup to the November elections, Senate Majority leader Richardville and Governor Snyder stated this issue was not high on their agendas. However, Richardville’s tenure as Senate Majority leader ended December 31, 2014. The current Majority Leader, Arlan Meekhof, was a sponsor of Michigan’s Right-to-Work law and has expressed interest in eliminating the prevailing wage law. (Updated 11/17/2014)
Repeal of Prevailing Wage Law
Three bills (S 1 and HR 4001, 4002 and 4003) were introduced in January 2015 to repeal the fifty-year old law requiring state and local governments to require contractors doing work for them to pay a wage higher than market rate for work they use private businesses for. Prevailing wage is used primarily in the construction industries doing state government projects.
Governor Snyder opposes the bill and agreed not to sign any bill repealing prevailing wage in exchange for Democrat support for road funding. Michigan House Speaker Kevin Cotter stated that this legislation will be tabled until after Summer 2015. (Updated 2/14/2015).
On May 13, 2015 the Senate Michigan Competitiveness Committee reported out a package of bills that would repeal the Prevailing Wage laws. On May 14 the Michigan Senate passed the bills. This legislation now awaits the Michigan House’s attention but at this time is has not been scheduled for action there. (updated 5/14/115).
In May the Protecting Michigan Taxpayers organization announced it was leading a petition drive to put the issue of repealing Michigan’s Prevailing Wage laws to a ballot vote. This approach if passed would take final approval of repeal out of the Governor’s hands and place it with the Legislature. Though this approach is separate from the repeal efforts going on in Lansing its true purpose is to force a final decision one way or another.
The petition must get 252,523 signatures by about September 24th to get on the ballot in November.
At last report the House Speaker stated this move may delay the passage of the bill by the legislature. This is because if the petition is ultimately passed in the November election, it will not require the signature of Governor Snyder, who opposes the bill. Politically this outcome would take both the Republican legislators and the governor off the hook on this legislation. (Updated 5/27/2015).
Parolee Hiring Assistance Legislation Introduced in 2014 (HB - 5216, 5217, 5218) –
A package of bills designed to encourage businesses to hire parolees was introduced in the House on January 9, 2014. HB 5216 allows the state Department of Corrections to issue a “Certificate of Employability” to parolees just prior to their release. Under 5217, hiring someone with such a certificate would provide certain protections to employers from either civil or criminal liability for negligent hiring in the event the individual runs into legal problems in the context of his or her employment. HB 5218 offers similar protections to licensing boards to encourage them to issue licenses to otherwise-qualified ex-convicts.
With bipartisan support, all three bills were passed by the House. On December 3rd the Michigan Senate voted to pass bills 5216 and 5217 with immediate effect upon signature by the governor. Governor Snyder signed the bills December 16, 2014 (Updated 12/17/2014)
Michigan authorizes veterans’ preference in private employment
Governor Rick Snyder has signed into law a bill authorizing private employers to adopt and apply a veterans’ preference employment policy.
The law, which defines a “private employer” as a sole proprietor, corporation, partnership, limited liability company, or other private entity with one or more employees, provides that a veterans’ preference employment policy shall be in writing and shall be applied uniformly to employment decisions regarding the hiring or promotion of veterans or the retention of veterans during a reduction in the workforce.
Public Act 508 (H. 5418), is effective immediately. (Updated 1/19/2015)
Paid Sick Leave
On February 5, 2015 Democrats introduced bills that would require Michigan employers to provide one hour of paid sick leave for every thirty hours of work. The bills would allow workers to take sick time off to care for themselves or loved ones, including a same-sex partner, grandparents, children and other close family members.
On a related issue, the Michigan GOP has initiated legislation that would prohibit local “sick pay” ordinances intended to create wage and benefit boosts in local municipalities potentially causing a patchwork of employment laws throughout the state. (Updated 2/6/2015)
Michigan Public Act 14 (H. 4119), L. 20157 amends Michigan’s garnishment law. The law is applicable to writs of garnishment issued after September 30, 2015 so that a garnishment made after that date would remain in effect until the balance of the judgment is satisfied. It also requires a plaintiff to pay a $35 fee (up from $6) to the employer at the time the garnishment is served. New procedures will include allowing the garnishee to cure an identified failure after an entry of default but before a default judgment is entered; making a garnishment or a notice of failure invalid or unenforceable unless it is served on the garnishee in accordance with the Michigan Court Rules; and specifying that garnishments have priority in the order in which they are received, with three exceptions: An order of income withholding for child or spousal support under the Support and Parenting Time Enforcement Act; a levy to satisfy a tax liability; and a levy of restitution for overpayment of benefits under the Michigan Employment Security Act would all have priority over a garnishment. (updated 5/19/15)
Payroll Deductions Public Act 15 (H. 4120), L. 2015 amends Michigan’s law regulating payment of wages and fringe benefits to allow an employer to deduct from an employee’s wages without the employee’s written consent an amount the employer paid of an employee’s debt under a default judgment, provided: (1) the employer gives the employee a written explanation of the deduction at least one pay period before the wage payment affected by the deduction was made; (2) the deduction was not greater than 15% of the gross wages earned in the pay period the deduction was made; (3) the wage deduction was made after the employer had made all deductions expressly permitted or required by law or a collective bargaining agreement, and after any employee-authorized deduction; and (4) the deduction did not reduce the regularly scheduled gross wages otherwise due the employee to a rate that was less than the state minimum wage rate or the federal minimum wage rate, whichever was greater. (updated 5/19/15)
Job Training Bills
(SB 69, SB 70 and SB 71) The Senate Education Committee unanimously recommended a bill package modifying the state's New Jobs Training Program to the Senate floor last Tuesday.
The program began in 2008 and pairs community colleges with Michigan businesses by allowing participating colleges to sell bonds to fund skilled training, which is repaid by withholding payments to the Department of Treasury for each employee in a new job.
SB 69, SB 70 and SB 71, sponsored by Sens. Darwin Booher (R-Evart), Peter MacGregor (R-Rockford) and Phil Pavlov (R-St. Clair), respectively, would eliminate a 2018 sunset, remove a $50 million cap on the program after 2016 and grandfather in program participants to allow them to pay their employees 175% of the minimum wage in place at the time the agreement was signed.
Bills taken up by Michigan House as HB 4404.
(HB 4404) - The bill would amend the Michigan Employment Security Act (MESA) to expand the allowable use of the Contingent Fund to include administration of the Talent Investment Agency in the Department of Talent and Economic Development, created by Executive Order 2014-12. Under current law, the Contingent Fund may be used for the administration of the Unemployment Insurance Agency (UIA), which was moved to the Talent Investment Agency by Executive Order 2014-12. The proposed change also would allow for Contingent Fund revenues to be used to support workforce training programs.
The Contingent Fund is split into two effective accounts. The first account contains Solvency Tax collections. These are collected from employers with negative unemployment insurance experience account balances if the State has outstanding Federal unemployment insurance (UI) advances under Title XII. These taxes have not been collected since Michigan's most recent Title XII loans were repaid in early 2012. The second account contains collections from penalties and interest paid by UI claimants and employers who engage in activities not permitted under MESA.
This bill was passed by the House 4/29/2015 Passed in the Senate 5/26/2015 and signed by Govenor 6/11/2015 (Updated 6/12/2015)
Employment Non-Compete Agreements
Representative Lucido (R-Washington Township) introduced HB 4198 which would severely restrict non-compete clauses in employment agreements. The bill has been referred to the House Commerce and Trade Committee, and Representative Lucido is interested in moving the bill through committee as soon as possible.
Right to Work – Public Employment
State Rep. Gary Glenn, (R-Midland), introduced two bills expanding Right to Work in public employment further. The first bill would extend Right to Work provisions to public safety personnel, the only group exempted in the 2012 Michigan law that bans a requirement that employees pay union dues as a condition of employment. The other bill, which would impact even more workers statewide, would ban all public sector unions from representing anyone who is not a dues-paying member of that union.
"It would amend state law for government employee unions and would say that government employee unions can represent only employees who voluntarily join and pay dues," Glenn said.
He said the bill would impact anyone employed in the public sector, including public school teachers and all state, county and city employees. He's current seeking co-sponsors for the two bills before they are introduced in the state House.
Payment of Salary to Union Officials and Elimination of Pension Calculation from Union Salaries – Public Employment
SB 279 and 280 would end the practice of school districts paying the salary of employees on leave to serve as union officials.
Bill 279 would no longer have union official state funded pensions calculated of their union salaries.
SB 280 would prohibit paid release time for union officials — for instance, a paid period of time where a teacher leaves the classroom to serve as the head of his or her local union or in the Michigan Education Association or American Federation of Teachers — from being included in collective bargaining agreements.
The bills would apply to all state and local government employees who are not firefighters or police officers. (Updated 6/10/2015)
Bill SB 213 removes a provision that requires an employer to notify the Michigan Occupational Safety and Health Administration within eight hours of a workplace fatality or of any hospitalization of three or more employees suffering from a workplace-related accident, illness or health hazard.
Ms. Schuitmaker (R-Lawton) the bills sponsor said her bill represents something that has already been changed in federal law and implemented as of January 1, and the state's Department of Licensing and Regulatory Affairs asked her to make the change.
This bill is in the Senate Commerce Committee for review and discussion. (April edition)
HB 4052 - This legislation was reintroduced from the prior session. It is intended to combat a national trend of local governments passing local mandates on employers. HB 4052 is intended to prevent local governments from creating a patchwork of regulatory requirements by passing ordinances that mandate things like sick leave, fringe benefits, wage level and conditions of employment.
Two amendments were added before passage on June 17th. One amendment grandfathers existing Living Wage ordinances passed through January 1st. The second amendment allows cities to negotiate terms and conditions of vendor contracts outside of wages and benefits The legislation was signed by Governor Snyder June 30,2015 (Updated 6/30/2015)
Increase Minimum Wage for Tipped Workers
Coordinating with the April 14, 2015 Equal Pay day that symbolizes how far into the year a women must work to earn what men earned in the previous year, Michigan Democrats introduced a set of bills intended to address pay disparity in Michigan:
SB 373 Proposed legislation is in the works by State Senate Democrats to increase and eventually eliminate the tipped worker minimum wage which is currently set at $3.10/hour. This is $5.05/hr. less that minimum wage workers in this state.(Updated 6/3/2015)
Accelerates Minimum Wage Increase
SB 391 amends Michigan’s minimum wage law to increase the minimum wage from $8.50/hour beginning 1/1/2016 to $11.20/hr. from $8.90/hr. to $13.10/hr. in 2017 and from $9.25/hr. to $15.00/hr. in 2018. Referred to committee. (Updated 6/11/2015)
HB 4482 - (Plawecki) Requires an employer to disclose certain wage information upon requests. Amends 1978 PA 390 by amending section 13a (MCL 408.483a), as added by 1982 PA 524.To Commerce and Trade
HB 4537 - (LaFontaine) Protects employee who was absent from work to provide emergency civil air patrol services from adverse employment action. To Commerce and Trade
HB 4483 and SB 272- (Hovey-Wright) Modifies provision regarding wage discrimination based on sex, and increases fine. Amends 1931 PA 328 by amending section 556 (MCL 750.556).To Commerce and Trade
HB 4486, SB 269, 273 & 285 - (Love) Establishes commission on pay equity and specifies duties. Amends 1976 PA 453 (MCL 37.2101 to 37.2804) by adding section 202b
HB 4488 SB 269, 273 & 285 - Driskell) Requires pay equity compliance certification for private businesses that contract with the state. Amends 1976 PA 453 by amending section 209 (MCL 37.2209), and by adding section 209a.
HB 4489 SB 269, 273 & 285 - (Pagan) Requires posting in workplace of state and federal pay equity laws.
HB 4490 SB 269, 273 & 285 - (Guerra) Establishes survey of compensation practices within public and private sectors. Amends 1978 PA 609 by amending section 3 (MCL 408..903), as amended by 1981 PA 131.
HB 4491 SB 269, 273 & 285 - (Brinks) Expands prohibition of discrimination in the workplace for purposes of minimum wage. Amends 2014 PA 138 by amending section 13 (MCL 408.423).
HB 4492 SB 269, 273 & 285 - (Durhal) Allows additional remedies under the Elliott-Larsen Civil Rights Act for discrimination actions under the workforce opportunity wage act. Amends 2014 PA 138by amending section 9 (MCL 408.419).
All Bills were referred to the committee on Commerce and Trade
HB 4486 SB 269, 273 & 285 - (Hovey-Wright) Creates Michigan award for equal pay in the workplace program. Referred to the committee on Commerce and Trade.
HB 4538 - ELLIOTT-LARSEN (Hoadley) Includes sexual orientation and gender identity or expression as categories protected under the Elliott-Larsen Civil Rights Act. Amends 1976 PA 453 To Commerce and Trade
NPRN to Change Salary Requirements for Exempt Classifications
On July 6, 2015 the Wage and Hour Division of the DOL published a Notice of Proposed Rule Making (NPRM) to change the salary requirements for exempt classifications:
The minimum guaranteed salary level will be increased from $455 per week to the 40th percentile of weekly earnings for full-time salaried workers (currently $921 per week, or $47,892 annually);
The "highly compensated employee" exemption, which enables employers to meet a simpler "duties" test as long as a higher minimum guaranteed salary is met, will be increased from $100,000 to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers ($122,148 annually); and
The DOL will establish a mechanism for automatically updating the minimum guaranteed salary calculations on a going-forward basis. If adopted, using the standard of the 40th percentile of weekly earnings for full-time salaried workers (based on certain other assumptions) will result in the minimum guaranteed salary increasing to approximately $970 a week ($50,440 a year) in 2016.
Although the NPRM does not make any specific changes to the duties tests, the DOL invited public comments on the extent to which the "duties" test should be adjusted, particularly in light of the proposed changes to the minimum salary level. Specifically, the DOL requests public input on the following:
What, if any, changes should be made to the duties tests?
Should employees be required to spend a minimum amount of time performing work that is their primary duty in order to qualify for exemption? If so, what should that minimum amount be?
Should the DOL look to the State of California's law (requiring that more than 50% of an employee's time be spent exclusively on work that is the employee's primary duty) as a model? Is some other threshold that is less than 50% of an employee's time worked a better indicator of the realities of the workplace today?
Does the single standard duties test for each exemption category appropriately distinguish between exempt and nonexempt employees? Should the DOL reconsider its decision to eliminate the long/short duties tests structure?
Is the concurrent duties regulation for executive employees (allowing the performance of both exempt and nonexempt duties concurrently) working appropriately or does it need to be modified to avoid sweeping nonexempt employees into the exemption? Alternatively, should there be a limitation on the amount of nonexempt work? To what extent are exempt lower-level executive employees performing nonexempt work?
Although any changes of the duties test should come from a new NPRM, it is unclear whether the duties test will be included in the final regulations.
The DOL also noted that it is considering whether to include additional examples of specific occupations to provide further guidance in administering the exemptions, particularly within the computer-related fields. In addition, the DOL stated that it is considering whether to allow nondiscretionary bonuses to satisfy some portion of the standard salary requirement.
The DOL's public comment period runs through September 4, 2015. However, any final regulations are expected not to be effective until 2017.
Blacklisting Federal Contractor Regulations and DOL Guidance
President Obama issued Executive Order (EO) 13673, “Fair Pay and Safe Workplaces,” on July 31, 2014. The EO applies to federal contractors and subcontractors. The Department of Labor (DOL) published a proposed guidance to help other federal agencies implement the EO. The agencies are the Federal Acquisition Regulatory Council (FAR Council), the Department of Labor (Department), the Office of Management and Budget (OMB), and the General Services Administration (GSA) who also published proposed regulations as well. Specifically, the EO requires federal contractors with $500,000 or more in federal contracts to report whether during the preceding three-year period there have been any administrative merits determination, civil judgment, or arbitral award or decision rendered against them for violations of 14 identified federal labor laws and executive orders or equivalent State laws. They must also report the same for any covered subcontractors working under the contract. They must do this reporting at pre-award as well as during the contract period. The EO requires the contracting agency or agencies to include this requirement in their solicitations.
In addition, contractors and subcontractors will be required to provide their workers on federal contracts with information each pay period regarding how their pay is calculated (a wage statement) and provide notice to those workers whom they treat as independent contractors. Each contracting agency will have a Labor Compliance Advisor (LCA) to assist in any determination of serious, repeated, willful and pervasive violations by federal contractors or subcontractors. Contractors will be required to report on themselves and their subcontractors (if the subcontract exceeds $500,000 and is not for commercially off-the-shelf items). These advisors will liaise with the DOL for assessing the level of the violation.
During the performance of the covered contract, the EO requires contractors to update their disclosures semi-annually and obtain similarly updated information from their subcontractors. The proposed FAR regulations propose a phased-in approach to subcontractor reporting.
The FAR regulations and DOL Guidance were published May 28th and the comment period was extended to August 11, 2015 from July 27th. ....
Proposed Rule Changes Impacting Employer Union Organizing Response and Elections
On June 20 and 21 of 2011 the Department of Labor and the National Labor Relation Board proposed rules changing a decades-long interpretation and application of the National Labor Relations Board. On June 20, 2011 the Department of Labor (DOL) issued proposed regulation tightening the interpretation of “advice” under the Labor-Management Reporting and Disclosure Act (LMRDA). On June 21st, the National Labor Relations Board (NLRB) issued proposed rules that it says will “streamline” the union election process
NLRB Ambush/Quickie Election Rules (Formally Known as “Streamlined” Elections) – (Note: Final rules published December 12, 2014.)
New Rules went into effect April 14, 2014.
On April 30, 2012 the NLRB Quickie Election Rule was promulgated. One of the NLRB’s primary duties under the law is to protect the free and fair secret ballot election to determine whether employees choose to be represented by a union or not. The new rules do the following:
Provide an NLRB hearing officer the ability to limit the evidence that could be introduced at a representation case hearing
Provide the hearing officer the authority to deny a party the right to file a brief
Eliminate a party’s right to have the NLRB review a decision by a regional director to direct an election
Eliminate current language that requires an election to be conducted within 25-30 days, thereby permitting elections to be held before the 25-day period. The amended rules call for 21 days or fewer
Eliminate a party’s right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes
Prohibit pre-election appeals and consolidate all appeals to be heard only after the election takes place
Allow direct election appeals to the Board before an election only in “extraordinary circumstances”
The Board believes that the proposed rule amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation; that they would simplify representation-case procedures and render them more transparent and uniform across regions; eliminate unnecessary litigation and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request; and would allow the Board to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret ballot election.
On January 22, 2014 the Federal Register reported that the National Labor Relations Board rescinded its Quickie Election rule. This meant the rules governing organizing elections went back to the way they were previous to December 11, 2011. The restoration pertained to 29 CFR Parts 101 and 102, and confirmed the NLRB’s statements of procedures and rules and regulations to the D.C. District Court’s “mandate that ‘representation elections will have to continue under the old procedures,’” the Board said. Given the circumstances, the NLRB found it unnecessary to provide notice and comment on the restoration.
On February 6, 2014 the National Labor Relations Board issued new proposed “Quickie” Election rules under the reconstituted Board. See above summary. These rules are virtually the same as the previous rules that had been rescinded
On March 27, 2014 new legislation was introduced that would change the rules surrounding NLRB elections and establish legal protections for how NLRB oversees elections. The bill would:
Guarantee workers the time to gather all the facts to make a fully informed decision in a union election. No union election will be held in fewer than 35 days.
Ensure that employers are able to participate in a fair union election process. The bill provides employers at least 14 days to prepare their case to present before an NLRB election officer and protects their right to raise additional concerns throughout the pre-election hearing.
Reassert the board’s responsibility to address critical issues before a union is allowed to represent workers. The board must determine the appropriate group of employees to include in the union before the union is certified, as well as address any questions of voter eligibility.
Empower workers to control the disclosure of their personal information. Employers would have seven days to provide a list of employee names and one additional piece of contact information chosen by each individual employee.
See more information above at the Federal Legislation update section. (Updated 5/5/14)
DOL LMRDA Rulemaking Proposal – Persuader Regulations
The DOL states that its new rulemaking allows for more transparency by requiring employers to disclose whom they are using to provide advice on influencing employees in connection with union organizing and bargaining. Currently employers are only required to disclose consultants they have hired who speak directly to employees on these matters. They are not required to file reports identifying outside consultants who are only giving advice to the employer.
Under the proposed rule, employers will have to report any arrangements with consultants that issue communications on behalf of an employer designed to “directly or indirectly persuade workers concerning their rights to organize or bargain collectively.”
This proposed disclosure requirement, the Labor Department states, also includes information about “union avoidance” seminars and conferences offered to employers by lawyers and labor consultants. This is because the Labor Department states such seminars “involve reportable persuader activity.”
ASE’s position is that both rules significantly curtail employers’ rights to communicate to and inform employees about what unionization means and how it may adversely affect them. ASE is in opposition to any restrictions or the imposition of regulations that curtail the employer’s right to maintain its business free from union influence or organization.
The Persuader Rules remain under review by the White House and the latest information from the Department of Labor on when they may be issued is December, 2015 (updated 5/27/15)
Wage and Hour update definition of “spouse” in FMLA
The Department of Labor issued a Final Rule on February 25, 2015 revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA). The rule change updates the FMLA regulatory definition so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into, whether inside or outside the US. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages. The effective date for the rule is March 27, 2015.
With the Supreme Court’s decision in Obergefell et. al. v. Hodges, all states must recognize same sex marriage. It is likely that the regulations will be updated one more time to incorporate the decision. To access forms under the current rule, click here.
OFCCP issues Proposed Sex Discrimination Guidelines Regulations
On January 28, 2015, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) announced a Notice of Proposed Rulemaking (“NPRM”) to update its Sex Discrimination Guidelines (the “Guidelines”). It is a total rewrite of the current regulations. The NPRM was published in the Federal Register on January 30, 2015, followed by a sixty-day comment period.
The OFCCP had not substantively updated the Guidelines since 1970 despite forty-five years of changes in discrimination laws through legislation and court decisions. While the proposed regulations seek to update requirements in accordance with “existing law and policy,” many of the provisions go beyond the parameters of current statutory and other legal obligations, including:
The adoption of the “implicit bias” theory of discrimination because “[r]esearch clearly demonstrates that widely held social attitudes and biases can lead to discriminatory decisions, even where there is no formal sex-based (or race-based) policy or practice in place” despite the Supreme Court’s explicit rejection of the implicit bias theory in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54;
A new requirement that aligns with the EEOC’s controversial guidance that contractors must provide light duty to all pregnant employees regardless of whether an impairment substantially limits a major life activity even though the issue is pending before the Supreme Court in Young v. UPS;
A new requirement that contractors allow transgendered individuals to use the restroom of his or her choice (despite Congress’s decision not to enact Employment Nondiscrimination Act);
A prohibition on contractors imposing a shorter maximum amount of pregnancy leave as compared to the maximum time off allowed for other types of medical or short-term disability leave;
More robust protections regarding compensation discrimination which include Equal Pay Act protection.
A final rule is expected by end of 2015. (updated 6/30/2015)
OFCCP issues final rule on LGBT Executive Order
On December 3, 2014, the OFCCP announced its final rule on regulations to implement an Executive Order (EO) signed this summer by President Obama which bans discrimination against LGBT workers by federal contractors. The final rule, which was published December 9, 2014, revises the OFCCP’s regulations at 41 CFR Parts 60-1, 60-2, 60-4, and 60-50. It does not require contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees. Nor does it require contractors to collect any information about applicants’ or employees’ sexual orientation or gender identity. However, contractors may ask applicants to voluntarily provide this information, although doing so may be prohibited by state or local law. In any event, the rule prohibits contractors from using any information gathered to discriminate against an applicant or employee based on sexual orientation or gender identity. The rule was slated for publication in the Federal Register on December 9, 2014, to take effect 120 days thereafter. It will apply to covered contracts entered into or modified on or after that date. The final rule and related information, including a FAQ, is available on the OFCCP’s website. This rule may be subject to multiple litigations once effective by Faith based organizations for an exception based on the Hobby Lobby Supreme Court Case as well as employer groups for violating the Administrative Procedure Act process.
EEOC issues Wellness Regulations
Many different laws govern wellness programs, including HIPAA, ACA, Civil Rights Act, Equal Pay Act, Age Discrimination in Employment Act, Genetic Information Nondiscrimination Act, and the ADA. On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) released proposed regulations covering wellness programs that involve disability-related inquiries or medical examinations. The DOL, Treasury and HHS jointly issued regulations related to the Wellness Program exception to the nondiscrimination rule in 2006, and these regulations were updated in 2013 following the passage of the ACA. The EEOC did not participate in these regulations.
The EEOC proposed regulations diverge from the DOL regulations in important respects. First, in contrast to the DOL regulations, which do not restrict the size of reward under a participatory wellness program, the proposed EEOC guidance seeks to extend the 30% maximum award to participatory wellness programs that require employees to answer a health questionnaire with disability-related inquiries or take medical examinations.
A second difference relates to how the proposed regulations apply the 30% limit in general. The EEOC proposed regulations set the maximum reward at 30% of the self-only cost of coverage (taking into account both the employee and employer share of the cost). The DOL regulations allow a reward to be a maximum of 30% of the cost of family coverage if the wellness program is extended to covered dependents. Additionally, the ACA allows the DOL to increase the 30% limit to 50%, and the DOL has done so by expanding the 30% limit by an additional 20% to the extent that the additional percentage is in connection with a program designed to prevent or reduce tobacco use. The EEOC regulations do not contain similar flexibility.
Last, the EEOC regulations require that employers provide a detailed notice to participants separate from other notices already required under the HIPAA.
Comments were to be submitted by June 19th. A final rule is expected by end of 2015. (updated 6/30/15)