Washington Update
February 17, 2012
Members of Congress reached a rare bipartisan deal to extend the payroll tax cuts through the end of the fiscal year. The deal includes an extension of jobless benefits. Lawmakers will recess for the week of February 20th in observance of President's Day.
The Department of Labor released a notice of proposed rulemaking to codify changes made to the Family and Medical Leave Act in 2010 expanding military caregiver leave. Comments are due April 16.
Unemployment Discrimination - Bills prohibiting discrimination based on unemployment were introduced this summer in both houses of Congress. The Fair Employment Opportunity Act of 2011 (H.R. 2501, S. 1471) prohibits employers from refusing to hire an individual based on his or her unemployed status or to post a job opening that says an individual's unemployed states will disqualify him/her from consideration. More recently, the Fair Employment Opportunity Act was included in President Obama’s proposed American Jobs Act of 2011 (S.1549).
The Healthy Families Act (H.R. 1876, S. 984) was reintroduced on May 12 by Congresswoman DeLauro (D-CT) and Senator Harkin (D-IA). The Act, which was introduced with 83 House and 18 Senate co-sponsors, would require employers to provide up to seven days of paid sick leave per year to employees who could use the time off for their own illness or that of a family member.
Break Time for Nursing Mothers - The Department of Labor issued a request for information on employers' responsibility to provide breaks and a place for nursing mothers to express milk. The request was issued on December 21, 2010. The DOL's request clarifies the language regarding breaks, the space that must be provided and penalties for failing to comply. IPMA-HR analyzed the request and that document is available on the government affairs pages under “fact sheets” http://www.ipma-hr.org/public-sector-hr-community/public-policy/fact-sheets
Pension Reform – Reforming public pension plans and in particular the reporting of liabilities has taken a back seat to jobs creation legislation. The measures may still be considered this year but are not likely to pass except possibly as part of a larger omnibus bill. On February 9, 2011, Representative Nunes (R-CA) reintroduced the "Public Employee Pension Transparency Act" that would require states and localities to report the level of pension funding using private sector assumptions. The private sector reporting requirements do not reflect the realities of the public sector. Public sector plans are already heavily regulated and follow the Governmental Accounting Standards Board (GASB) recommendations for reporting liabilities.
The House Subcommittee on Oversight of the House Ways and Means Committee held a hearing on Thursday, May 5 on the Public Employee Pension Transparency Act. IPMA-HR joined NLC, NACo, and other state and local groups in opposing the measure. On February 1, 2011, IPMA-HR joined several other state and local groups on a joint fact sheet on state and local government pensions, setting the record straight regarding the operations and funding of public pensions, the degree to which they fit in the overall budget picture at the state and local level, and the steps state and local governments are taking to bring their pension plans into long-term solvency. The fact sheet and letters are available on the IPMA-HR government affairs website under the heading “advocacy.”
Mandatory Social Security– A measure requiring Social Security coverage of all state and local government employees is expected to be introduced this year. Proponents of the legislation believe it will generate revenue and often frame it as an issue of “fairness.” IPMA-HR opposes the measure because it would undermine current pension plans and is unlikely to provide long-term retirement security. While not expected to move independently, the proposal could become part of the larger omnibus bill that will be considered in December 2011.
E-Verify - IPMA-HR sent a letter to the sponsor of the Legal Workforce Act, Representative Lamar Smith expressing concern with the bill's requirement that states and localities re-verify the employment eligibility of their existing workforce using E-Verify. The bill, H.R. 2164 was marked-up by the Judiciary committee on September 15, 2011. The Ways and Means Committee shares jurisdiction over the bill and is not expected to pass the measure in its current form.
Employment Non-Discrimination Act- The Employment Non-Discrimination Act, H.R. 1397, was reintroduced on April 6, 2011 by Representative Barney Frank (D-MA). The bill would prohibit employment discrimination on the basis of sexual orientation or gender identity. It has 120 cosponsors in the House of Representatives. A companion bill, S. 811, was introduced on April 16, 2011 by Senator Merkley (D-OR) and has 39 co-sponsors.
Paycheck Fairness Act- Bills (H.R. 1519, S. 797) that would allow for unlimited punitive and compensatory damages for violations of the Equal Pay Act was reintroduced on April 12 by Representative DeLauro (D-CT) and Senator Milkulski (D-MD). Passage this year is very unlikely. IPMA-HR remains opposed to the measure as it would increase litigation and not address any underlying issues that contribute to the wage disparity.
Mandatory Collective Bargaining – The Public Safety Employer-Employee Cooperation Act (PSEECA) is unlikely to be considered during this session of Congress. The Senate failed to invoke cloture on December 8, 2010, falling short of the 60 votes needed to advance the bill. IPMA-HR and several other local government associations have been active opponents of the measure which would require states to create collective bargaining laws for public safety and authorize a federal agency to determine when states are in compliance with a federal law – an unprecedented intrusion into state and local government police power. If a state fails to create a satisfactory bargaining law, that state will be subject to regulations developed by the Federal Labor Relations Authority (FLRA).
IPMA-HR joined other public sector groups in submitting testimony in opposition to H.R. 413 at the March 10, 2010 hearing before the House Subcommittee on Health Employment Labor and Pensions. IPMA-HR executive director Neil E. Reichenberg testified against the bill before a house subcommittee in the 110th Congress.
Employer Provided Educational Assistance- Section 127 of the Internal Revenue Code was extended for two years as part of a tax extender bill signed into law by President Obama on December 17, 2010. Section 127 allows employees to exclude up to $5,250 of employer-provided educational assistance for both graduate and undergraduate programs. In June 2010, Representatives Earl Pomeroy and Sam Johnson introduced H.R. 5600 to make Section 127 permanent. IPMA-HR joined the Coalition to Preserve Employer Provided Educational Assistance.
Healthcare Reform– One-Stop Information on healthcare reformfrom our members at the TN MTAS! http://www.mtas.tennessee.edu/public/web.nsf/Web/Health_care?Opendocument#
In June, 2011 IPMA-HR joined the coalition of Employers for Flexibility in Health Care comments on the definition of a large employer. The comments urged the IRS to create sensible rules that take into account seasonal and temporary workers who may have coverage from another employer or through the exchanges. The comments are available on the IPMA-HR advocacy pages.
Age Discrimination– The EEOC issued a notice of proposed rulemaking on February 18, 2010 addressing the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA). The proposed rule emphasizes the need for an individualized, case-by-case approach to determining whether an employment practice is based on reasonable factors other than age. It also emphasizes that the RFOA defense applies only when an employment practice is not based on age. In addition, it provides lists of factors relevant to determining whether an employment practice is “reasonable” and whether it is based on a factor “other than age.” http://www.eeoc.gov/laws/regulations/qanda_resonable_factors.cfm
IRS/Cell Phone– On September 27, 2010 President Obama signed into law the small jobs bill that included a provision removing cell phones from "listed property." As a result, employers do not have to charge employees for calls made on employer-provided cell phones. Prior to the change, employers were subject to penalties for not charging employees because cell phones were treated as an employment benefit.
Genetic Information Nondiscrimination Act– IPMA-HR filed comments on the EEOC’s proposed regulations. The final regulations were issued on November 9, 2010. The law prohibits employers from discriminating against employees and applicants on the basis of genetic information and bans the collection of genetic information except in very limited circumstances. The EEOC created model language employers may use to warn healthcare providers against including genetic information in a response to a request for medical information:
Safe Harbor Model Language: “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”
The Genetic Information Nondiscrimination Act became effective November 21, 2009.
ADA Amendments Act– Final regulations were released on March 24, 2011. IPMA-HR, NPELRA and IMLA filed comments on November 23, 2009 in response to the EEOC’s proposed regulations. The comments urge the Commission to consider employer issues in the final regulations. The ADA Amendments Act reversed several Supreme Court opinions that narrowed the definition of a disability; the new law clarifies that “disability” should be interpreted broadly and provides a non-exhaustive list of major life activities. Disabilities should also be considered in their untreated states without the ameliorative effects of medication. Articles and information and are available on the IPMA-HR government affairs website under fact sheets & advocacy.
Normal Retirement Age– the IRS issued a notice announcing that it is delaying implementation of the normal retirement age regulations until 2013. The regulation would require state and local government plans to adjust or abandon their use of years of service when determining retirement age. The notice is available here: http://www.irs.gov/pub/irs-drop/n-08-98.pdf