Thursday, March 26, 2015

What a Week (NLRB, EEOC, SCOTUS, Congress, ADA, ACA, GINA, PDA and OMB)!

A wild ride!

Actually, I think it’s just the beginning of a very long, wild ride. What does it all mean?

The NLRB’s General Counsel comes out with a report to give employers some guidance on standard handbook-type policies and what the NLRB will view as lawful/unlawful. Big problem? This guidance is more than just a bit inconsistent and contradictory. Not particularly surprising to me, though. The folks at Littler and Jon Hyman at The Ohio Employer Law Blog give us insightful analyses of this……….mess.

As a nice counterpoint, Littler also reports that on March 24, the National Labor Relation Board’s Chairman Mark Pearce and General Counsel Richard Griffin, Jr. came under fire from a group of House members during a budget subcommittee hearing.  Members pressed Griffin and Pearce on recent NLRB policies that will have a significant impact on labor policy and the ability of employers to manage their businesses. It was very interesting that Griffin had to defer to Pearce on several "facts" of Board decisions and was incorrect in at least a couple of statements made during the hearing. Must be tough to keep all these rules straight.

To continue the NLRB theme, in the words of House Education and the Workforce Committee Chairman John Kline (R-MN), "Today, Congress voted to stop an unelected board of bureaucrats from trampling on the rights of America’s workers and job creators." The House, following the Senate, voted to send a resolution to President Obama blocking the National Labor Relations Board’s Ambush Election Rule. We can hope he’s listening and heeds the call Congress has made. Unfortunately, I don’t think he will. It’s going to take more voices, and even louder voices to make the President and other elected officials understand that they’ve allowed various regulatory agencies far too much leeway in their actions. It past time to rein them in.

And, as promised – finally - The EEOC’s much-awaited proposed rule on employer wellness programs, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act may be close. According to Law360, a proposed rule has been approved 4-1 by the Commission, and is being reviewed by the Office of Management and Budget. Once approved by the OMB, the proposed rule will be published, and there will then be a 60-day period for interested parties to comment. It will be interesting to see if the EEOC heeded Congress’ call to action when they voted to relieve employer wellness programs of the burden of potential violation of the ADA and GINA.

And then, the Supreme Court handed down its decision in Young v. UPS, a case dealing with pregnancy discrimination and accommodations. In short, the SCOTUS didn’t really resolve the issue in a way that either side wanted, but presented a "blended" approach that doesn’t fully satisfy anyone. *sigh* I had hopes on this one. Jeff Nowak at FMLA Insights and Eric Meyer over at The Employer Handbook give two of the best explanations of the decision I’ve seen. Certainly, far better than I could explain it! Enjoy. A little tidbit: I do so love that the SCOTUS slapped the EEOC on this one. They deserved it.

Next time, we’ll come back closer to home and see which employment-related bills made it through the Maryland General Assembly, and which have probably died (at least for this session).

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