Monthly Archives: February 2014

THE NLRB PROPOSES NEW “AMBUSH” ELECTION PROCEDURES

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By: Jonathan T. Swain

On February 5, 2014, the National Labor Relations Board (NLRB) announced its intention to reintroduce its proposed revised union election rules which are designed to substantially shorten the time from petition to election. These rules, originally proposed in June of 2011, were invalidated by the federal courts in the Spring of 2012.

Make no mistake about it. These rules, when adopted, will act to facilitate a union organizing drive and make it much more difficult for an employer to resist the union by limiting the employer’s opportunity to speak out against the union and about unionization.

As a result, employers that wish to remain non-union will have to act proactively. They will need to have lawful union avoidance policies and procedures in place well in advance of a possible unionization drive. Indeed, employees will need to be ready to act at the very first sign of a union drive.

Some of the proposed changes include:

  • Speeding up the election cycle timeframe from petition to voting to 10-21 days from the current 42 days.
  • Disputes over voter eligibility will generally be delayed until after the election.
  • Any pre-election hearing will be within 7 days of the petition.
  • Employers will be required to immediately furnish the union with a list of voters, including names, classifications, shifts, and work locations by the hearing date.
  • Once the election is set, a final version of this list will be due in 2 days. The final list will also include employee home addresses, personal email addresses, and phone numbers.
  • Procedures for expedited post-election review by the Regional Directors that include discretionary appeals to the full Board.

Employers and others are invited to comment on these rules and have until April 7, 2014 to do so. A public hearing will be held in Washington, D.C. on April 7, 2014. Reply comments are due by April 14, 2014.

If you have any questions about these rules and their implications, please contact your Lindner & Marsack attorney for further discussion. For information on the rules and the procedures for commenting, please see the following link: http://www.nlrb.gov/news-outreach/fact-sheets/amendments-nlrb-election-rules-and-regulations-fact-sheet.

MUCH OF OBAMACARE EMPLOYER MANDATE HAS BEEN POSTPONED TO 2016

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By: Alan M. Levy

Most employer mandate penalties for not satisfying Obamacare coverage requirements have now been waived until December 31, 2015. On February 10, 2014, the Internal Revenue Service filed final regulations on “Employer Shared Responsibility” under the Affordable Care Act (“ACA”), Agency Document Number 2014-03082 (official publication date January 12, 2014). The new regulations announced that employers with 50 to 99 full-time employees and/or full-time equivalents (“FTEs”) have until 2016 before any penalties will be applied to them for failure to provide affordable and adequate health insurance as defined in the Act. In addition, employers with 100 or more employees will not be penalized during 2015 if they provide adequate, affordable insurance for at least 70% (instead of 95%) of their employees. Final rules were also provided as to how to determine which employers and employees are covered by the ACA, how to calculate employer penalties under the law, and how those penalties will be collected. They also state that volunteers such as firefighters and EMTs are not to be counted as full-time employees under the ACA.

The principal requirements for employers of 50 to 99 FTEs to retain the waiver are that they:

1. Must employ, on average, at least 50 and no more than 99 FTEs for all business days in 2014;

2. May not reduce the size of their workforce or the overall hours of service of their employees in order to qualify for this transitional relief/waiver; and

3. May not eliminate or materially reduce coverage nor reduce employer contribution amounts below 95% of what was in place on February 9, 2014.

Employers of 100 or more FTEs lose the waiver if one of their covered employees obtains a premium tax credit in 2015. Thus, the “transitional relief” is cancelled if any full-time employee of the employer with more than 100 FTEs receives a premium tax credit from a Marketplace/Exchange because the plan which was offered to at least 70% of the workforce is not affordable or not adequate for that individual. Cancellation will also occur if an employer of 50 to 99 FTEs does not maintain its workforce’s size or hours, or if the health care coverage it does offer falls below that which it had in place as of February 9, 2014.

These new rules are clearly a relief to many employers. However, they are complex; the need for further clarification is inevitable. For the moment, Treasury and IRS has simply said:

“While about 96 percent of employers are not subject to the employer responsibility provision, for those employers that are, we will continue to make the compliance process simpler and easier to navigate . . . [these] regulations phase in the standards to ensure that larger employers either offer quality coverage or make an employer responsibility payment starting in 2015 . . . .”

Should you have any questions about these new rules, please contact Alan Levy, the Lindner & Marsack attorney who focuses on employee benefits issues.