President Obama Uses Recess Appointments to Fill NLRB, EEOC Seats
This week President Obama announced that he would make recess appointments to fill vacancies on the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). The move allows the White House to bypass the Senate confirmation process, which promised to be extremely contentious.
The appointments will add two Democratic members to the NLRB: Craig Becker and Mark Pearce. Both appointees were strongly opposed by Republicans because of their anticipated pro-labor viewpoints. Becker, a labor law professor, has been associate general counsel for the Service Employees International Union (SEIU) since 1990 and has also served as an AFL-CIO staff counsel since 2004. Pearce is a partner with the firm of Creighton, Pearce, Johnsen & Giroux in Buffalo, New York, where he represents unions and employees. President Obama's recess appointments do not include Republican nominee Brian E. Hayes, the Republicans' labor policy director for the Senate Committee on Health, Education, Labor and Pensions, but Hayes' Senate confirmation is not expected to encounter any significant roadblocks.
The EEOC appointments will bring the agency up to a full compliment of five directors. The new appointments include: Jacqueline Berrien as EEOC chair, Chai Feldblum and Victoria Lipnic. Berrien has served as associate director of the NAACP Legal Defense and Educational Fund Inc. (LDF) in New York since 2004 where she has worked on voting rights and political participation issues. Feldblum, a Georgetown University law professor, played a leading role in drafting the original Americans with Disabilities Act and more recently worked on the ADA Amendments Act. She has also worked on the proposed Employment Non-Discrimination Act, which would ban employment bias based on sexual orientation or gender identity. Lipnic is a lawyer with Seyfarth Shaw in Washington, D.C. and served in President George W. Bush's administration as assistant secretary of labor for employment standards from 2002 until 2009. In addition, EEOC supervisory attorney P. David Lopez will appointed to the post of EEOC general counsel.
What will these appointments mean for employers? First, expect to see more rule changes. Both the EEOC and the NLRB have for some time operated without quorums, meaning that the agencies have not been able to take on any controversial cases or make significant rule changes. Now that they have enough members, expect a flurry of activity from both bodies. For the NLRB in particular, this may mean reversals of many pro-employer decisions made during the Bush years. Second, expect both agencies to get a lot more employee-friendly. President Obama's appointments will appease labor unions and employee advocates who adamantly supported his campaign but until now have not received much in return. Those groups expect to get a return on their investment, and these appointments will go along way towards making that happen.
President Obama to Sign Jobs Bill Today
President Obama is today expected to sign the Hiring Incentives to Restore Employment (HIRE) Act, which in its final form passed The House of Representatives 217-201 on March 4 and the Senate 68-29 on March 17. Click here to download the final version of the HIRE Act.
Key provisions of the HIRE Act include:
- An exemption from Social Security payroll taxes for private employers for each worker hired in 2010 who previously had been unemployed for at least 60 days;
- A $1,000 income tax credit, or a credit of 6.2% of total wages paid, for private employers for each new employee hired in 2010 and retained for at least 52 weeks and claimed on the employer's 2011 income tax return;
- An extension of the small business “expensing” tax break for one year, allowing small businesses to continue writing off up to $250,000 of certain capital expenditures instead of depreciating them over time;
- A $4.6 billion Build America Bonds program, which would provide an optional direct subsidy payment in lieu of a tax credit for tax credit bonds issued for certain school and energy projects; and
- Expanded federal aid for highway programs estimated to save or create 1 million jobs.
As previously reported in the Stoel Rives World of Employment, a slightly different version of the HIRE Act passed through the Senate on February 24. While the bill was in the House, several changes were to the Act, including increased funding to the Build America Bonds program and greater flexibility to the hiring tax credit program.
Oregon Legislature Passes Five Employment-Related Bills in Special Session
The Oregon Legislature recently completed its 2010 Supplemental Session. Among the bills passed by the legislature include five employment-related bills. Click on the bill number to download a copy of the actual bill:
- SB 996: Expands protections for public employees who report law violations or safety dangers to include discussions on those topics with elected officials and auditors (effective March 4, 2010)
- SB 1045: Prohibits employers from using credit histories for pre-employment screenings or promotions (effective July 1, 2010) (click here to read the Stoel Rives World of Employment's coverage of the bill)
- HB 3651: Applies prevailing wage law to construction and installation of solar energy systems on public property (effective January 1, 2011)
- HB 3652: Allows electrical apprentices to work without direct supervision after completion of 5,000 hours of training for a license requiring 6,000 hours of training (effective January 1, 2011)
- HB 3686: Allows the wearing of religious dress while engaged in the performance of duties as a public school teacher, and amends undue hardship test under the 2009 Workplace Religious Freedom Act as it applies to a classroom environment (effective July 1, 2011)
Ninth Circuit Issues Split Decisions on Compensation for Travel Time and "Off-the-Clock" Work
Employees who drive company vehicles between home and work will find little to cheer about in a recent Ninth Circuit decision . . . unless they live in California. In Rutti v. Lojack Corporation, a three-judge panel refused to relax the rule that commuting time is non-compensable under the Fair Labor Standards Act (FLSA).
The employee, who installed vehicle recovery systems, contended that his travel time between home and worksites was compensable under the FLSA and California law because his employer required him to drive company vehicles and significantly restricted his activities while doing so. For example, the employer prohibited the employee from transporting passengers and engaging in personal pursuits, and required him to drive directly to and from the worksite with his cell phone turned on.
All three judges rejected that argument under the FLSA, holding that use of an employer's vehicle to commute is non-compensable even if it is a condition of employment and that the restrictions placed on the employee's activities were incidental to his principal job activities. The unanimous panel also rejected the employee's argument that his commuting time was compensable under the "continuous workday doctrine," under which an employee's workday generally lasts until he has completed all of his principal activities during the day.
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