And the beat goes on….
Wellness on Trial
As I noted last week, a hearing in the Senate HELP committee convened to address the EEOC’s attack on employer wellness programs. The "EEOC is sending a confusing message to employers—reliance on Obamacare's authorization of wellness programs does not mean you won't be sued," according to Chairman Lamar Alexander (R-TN). He went on to say "we want to make sure we don't have a countervailing move going on in the government to discourage [wellness programs]." Witnesses at the hearing testified to the value of such programs and expressed concern with the issues raised by the EEOC’s recent litigation. Former EEOC General Counsel Eric Dreiband of Jones Day said the "EEOC's flip-flopping, ongoing and seemingly never ending 'examination,' and litigation [of wellness programs] perpetuate confusion and uncertainty," and recommended that "if the executive branch of the government will not end this regulatory mess, the Congress should do so by enacting appropriate legislation." Senator Alexander vowed to work on legislation to clarify the law and enable employers to offer voluntary wellness programs with financial incentives if the EEOC’s general counsel continues to sue employers. It’s been reported that EEOC chair Jenny Yang recently said "We know it's important for us to provide guidance in this area," and "we are working to get something out as soon as we can, but it's hard to predict exactly when that will be." Truly a shame they can file a lawsuit quicker than they can provide guidance to prevent one. Hmmmmm.
When the NLRB passed down its ruling on the "quickie election", the business community clearly voiced its displeasure as expected. Now, as reported by Littler and others, House and Senate Republicans are considering whether to employ the Congressional Review Act procedures for overturning the NLRB's rule. This could at least get the measure to the President's desk. Under the Congressional Review Act, Congress can pass a resolution nullifying a rule by a federal agency under an expedited procedure that would only require a majority vote in both houses. So, the normal sixty-vote floor in the Senate needed to shut off a filibuster is not necessary. Also, the Senate HELP Committee Chairman Lamar Alexander has reintroduced the NLRB Reform Act (S. 288), which includes increasing the NLRB from five to six members with each party controlling three seats. Technically, this would alleviate the wide swings that take place when the party majority changes after elections.
Regardless of outcomes, this is getting interesting!