Thursday, March 17, 2016

Federal Agencies Behaving Badly….Or Just Not Making Sense

NLRB Violates the NLRA? Really??

It is so very amusing when a regulatory agency that has dedicated itself (at least recently) to punishing and attacking businesses for normal and accepted business practices, fails to follow its own rules and then bitches about the penalty.

So, the Federal Labor Relations Authority (the body that has authority over public employers and unions) has ruled that the NLRB engaged in an unfair labor practice when it refused to continue bargaining with the Board employees’ union in regard to the Board’s move to another location within Washington, D.C. (Now, why bargaining should be required when a business sees it necessary to relocate operations within the same city, is quite beyond me, but there it is.)

Apparently, after bargaining for two days, the NLRB declined to continue bargaining into the next week, while at the same time, the union declined to stay through the night to further narrow down the issues.  Then, the Board refused to engage in mediation initiated by the union; refused to furnish relevant information to the union and delayed the start of bargaining until many important decisions regarding the new headquarters had already been made. Seriously. Had this been just another business caught in the crosshairs of the NLRB, it would most likely had faced serious monetary penalties, rather than just the normal public-shaming requirement of having to post a notice that it violated the law.  As stated by the Labor Relations Authority, the posting "will emphasize to employees that the agency that enforces labor laws in the private sector must itself comply with labor laws in the public sector."

What’s required for the goose is not required for the gander? Hmmmm??

And then we have the DOL, who apparently can’t seem to get its timetable straight – at least in terms of the new overtime regulations. 

In review, last fall the DOL’s Solicitor of Labor M. Patricia Smith said that the finalized changes to the FLSA’s overtime eligibility rules likely won’t be issued until late 2016. Shortly after that, the DOL released its fall 2015 regulatory agenda, which said the agency was targeting a July 2016 release date for the final rule. Then DOL Secretary Thomas Perez told Bloomberg BNA in an interview that the agency is "confident we’ll get a final rule out by spring 2016." Got it so far?

Not long after that statement went public, the Congressional Research Service, a branch of the Library of Congress, released a report that suggested the DOL had until approximately May 16 to release the rule to avoid giving the next Congress and president the power to overturn the rule. (The report referenced a mechanism created by the Congressional Review Act that gives Congress 60 legislative session days to pass a joint resolution that would invalidate any major rule. If the rule is submitted to Congress with fewer than 60 session days remaining on the legislative calendar, then the next Congress will have a similar 60-day period to consider the rule.)

Then, Smith, while speaking at another meeting of the American Bar Association, said the rule would be published in July 2016. Smith also stated that the rule will become effective 60 days after it’s published. About a week later, she backtracked some and said that the final rule could be published in or before July. She also said the rule will take effect at least 60 days after it’s published.

On Monday, March 14th, the DOL sent the final rule to the Office of Management and Budget (OMB). That is the final step in the process before it gets published in the Federal Register. The OMB’s average review period runs four to six weeks, which would put the effective date sometime this Spring. Conventional wisdom again suggests the timing is political in nature, hoping to avoid the Congressional Review Act and the possibility the rule would be nullified.

Thanks to HR Morning for the above info.

Let’s move on to the EEOC, shall we? If your business is required to file the annual EEO-1 (or other related versions) Form, your life is about to get even more complicated. Next year’s form will include the requirement for a massive amount of additional data. You can get the details from this National Law Review article. The EEOC has said that this data will help to identify and remove pay discrimination practices.

According to the US Chamber, the new form will require some 3,360 cells (of a spreadsheet) to record the data. Camille Olson, of Seyfarth Shaw law firm, testified on behalf of the Chamber before the EEOC this week. In part, she testified that the EEOC has not "identified the specific benefit that the collection of aggregated wage and hours data would provide to the agency,"

While the EEOC has said it recognizes that differences in education, experience, training, shift differentials, job classification systems, temporary assignments, "red circling," revenue production, and market factors, etc., can explain compensation differences, it is requiring that jobs be lumped into broad categories and employers will be forced to categorize employees who perform wildly different work into these groupings. The groupings are so broad, that they will necessarily capture a wide range of positions that will not lead to meaningful compensation comparisons.

An example the Chamber article cites is noteworthy if only because it would be a very common occurrence in many businesses. In a hospital both nurses and lawyers would be lumped together as "professionals." But, of course, these are very different jobs that require different education, experience, skills and are quite naturally paid very differently. It is also true that nursing attracts more females than males. The EEOC’s proposal seriously fails to account for these and other legitimate, non-discriminatory factors that affect employee pay. 

Ms. Olson goes on to say that the statistical analysis EEOC will perform on it "may not identify actual pay differences that are consistent with discrimination when it truly exists, and may incorrectly conclude that there is evidence consistent with discrimination when employees are actually paid equivalently."

In sum, Olson said, "There is simply no circumstance under which broad-brush, aggregate compensation and hours data can be used effectively on a grand scale to target employers for review."  But that is exactly what the EEOC intends to do with this data.

Both behaving badly and making no sense.

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