Monthly Archives: January 2013

Authority of the NLRB In Question . . . Again

Last week, the federal Court of Appeals for the D.C. Circuit decided an appeal of an unfair labor practices case from the National Labor Relations Board (NLRB). (The case is Noel Canning v. NLRB.) The facts of the case are not complicated: An employer and a union had a dispute as to whether the two had reached an agreement, in their final negotiating session, about how much of a proposed pay raise would go into the pension fund. The employer claimed no agreement had been reached, and it rejected the union’s vote on the matter. The union claimed an agreement had been reached, and that the employer committed an unfair labor practice by refusing to treat it as a collective bargaining agreement.

As to those facts, the union won the appeal. But the rest of the opinion eclipsed the victory. The Court found that three of the NLRB’s five members were appointed in violation of the Constitution. If this interpretation is adopted by the Supreme Court, it means not only that the Board lacks a quorum and has no authority to do anything (the Supreme Court decided that two members won’t cut it in 2010); it probably also means the NLRB won’t have enough Board members to act any time soon — unless and until the Democrats get a filibuster-proof majority in the Senate.

Why? The Board has been extremely active in trying to enforce and expand employee rights of late — and one side of the Congressional aisle is not happy about it. As I’ve posted recently, the NRLB has made a recent priority of enforcing employee rights to speak to each other about the terms and conditions of employment, whether on social media sites or during workplace investigations that the employer would prefer to keep confidential. The NLRB also tried to issue a couple of regulations that would have benefited employees, one to require employers to post a notice of labor rights and the other to speed up union elections. Both regulations were stopped by lawsuits filed by pro-business groups. How do Congressional Republicans feel about the NLRB? Here’s John Boehner’s view: “The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace and telling businesses where they can and cannot create jobs.” In fact, most of the Republican Senators and Speaker Boehner filed briefs in last week’s lawsuit, on the side of the employer.

Republican opposition to President Obama’s nominees to the Board led to the case last week. Presumably because he felt his nominees would be subjected to a filibuster (and therefore, not confirmed), the President appointed them pursuant to the recess appointments clause of the Constitution, which doesn’t require Senate confirmation. (This has become common practice by frustrated presidents of late, both Democrat and Republican.) However, the Court of Appeals found that the President’s appointments didn’t meet the constitutional requirements. First of all, the Court found that such appointments may be made only during “the” recess — in other words, the break between Senate sessions — not during any recess in Senate business. Because the President appointed his nominees during an “intrasession” recess, those appointments were not truly recess appointments. Second, the Court found that the recess appointment power may be used only to fill vacancies that arise during that same recess, which was not the case for the three seats the nominees were appointed to fill. This second requirement will limit the recess appointment power to near extinction.

This is one Court of Appeals’ opinion. Notably, the Board itself has said that it “respectfully disagrees” with the decision, and will continue to perform its duties. It will take a Supreme Court decision to decide the issue once and for all. But if the Court upholds this decision, recess appointments will be much less common. Which means nominees will get to their posts only if confirmed by the Senate, where filibusters and threats of same have held up even routine appointments. If you were thinking the change to the Senate filibuster rules would solve this problem, it won’t: Despite being called “filibuster reform,” those rules don’t do much to the filibuster. They speed up debate on lower-level nominees, but the debate has to start before it can gain steam — and the rules still require a cloture vote (60 votes or more) for that.

Caring for an Adult Child Under the FMLA

This week, the Department of Labor’s Wage and Hour Division issued its first Administrator’s Interpretation of the new year. The Interpretation clarifies who qualifies as an adult “son or daughter” for whom an employee may take time off under the Family and Medical Leave Act (FMLA).

The FMLA allows employees to take time off to care for a son or daughter with a serious health condition. If the child is 18 or older, however, additional requirements apply. The child must not only have a serious health condition for which he or she is in need of care, but must also have a disability (as defined by the Americans with Disabilities Act) that renders the child incapable of caring for him- or herself.

These requirements were already in place, set out in the law and regulations. The Interpretation makes these additional points:

  • The adult child’s disability may begin after the child turns 18. Previously, there was some confusion about a parent could take FMLA leave to care for a child who became disabled as an adult or only for a child who was under the age of 18 at the onset of the disability. The Interpretation makes clear that the age of onset isn’t a factor. For example, an employee may take FMLA leave to care for a 30-year-old child who becomes disabled as the result of a car accident or cancer diagnosis. 
  • The more lenient standards adopted in the ADA Amendments Act (ADAAA) apply to the FMLA. The ADAAA eased the requirements for proving a disability in order to ensure coverage for more people. For example, a disease that would be disabling when active counts as a disability, even when it is in remission. (For more on the ADAAA, see Nolo’s article ADA Amendments:  More Protections Against Disability Discrimination.) This broader standard is to be used when determining whether an adult child has a disability.
  • Not every disability will qualify under the FMLA, however. The adult child must also be incapable of self-care, which will not be the case for every disability. Someone is incapable of self-care only if that person requires “active assistance or supervision” in at least three activities of daily living. These include basic activities such as grooming and hygiene, bathing, dressing, and eating. They also include things like cooking, shopping, maintaining a home, using public transportation, and so on. An adult child whose disability is in remission or controlled by medication may be fully capable of self-care; therefore, the child’s parent would not be entitled to time off under the FMLA.
  • Employees may be able to use regular FMLA leave to care for an adult child who is injured in military service. Currently, the FMLA gives employees whose children suffer a serious illness or injury while serving in the military the right to take 26 weeks of leave in a single 12-month period. However, this leave entitlement doesn’t renew every year, like the other types of FMLA leave (for which an employee may take only 12 weeks off per year). Unless the adult child suffers a new injury, or another of the employee’s children is also injured, the employee’s right to take 26 weeks off is a one-time-only entitlement. The Interpretation clarifies that an employee who has used up this leave may, in the following year, be entitled to take regular FMLA leave if the adult child’s serious injury qualifies as a disability and renders the child incapable of self-care. This will be a significant relief to parents of wounded service members, whose injuries often require extended or even life-long assistance.

You can find detailed information on every aspect of the FMLA, including how it dovetails with the requirements of the ADA, in The Essential Guide to Family and Medical Leave.

Farewell, CLASS Act — We Hardly Knew Ye

If you’ve gotten a paycheck since the beginning of 2013, you’ve no doubt noticed one effect of the fiscal cliff deal Congress reached last week: It did not extend the payroll tax holiday. Employees had been getting a break on their Social Security taxes, but now it’s over. The tax on Social Security went back up by 2% to its former level, resulting in lower paychecks for everyone.

I’ve fielded a few questions this week from people wondering if there’s anything else in the 11th hour deal that should interest them, given that they don’t earn enough to be affected by the expiration of the Bush tax cuts on very high earners. The answer, as always, is that it depends. There were certainly extensions and changes that trickle down to the 99%, starting with the extension of the Bush tax cuts for the rest of us. Here are a few of the job-related items:

  • If you are out of work, you no doubt know about this one: The federal government extended its emergency unemployment benefits program. For unemployed people who have exhausted the benefits available from their state, this program provides additional weeks of benefits. The program was set to expire at the end of 2012. 
  • Employees can continue to exclude from their income — and therefore,  not pay tax on — certain benefits paid by their employers, including educational assistance and adoption assistance. The bill also allows employers to continue claiming tax deductions or credits for certain benefits, such as child care.
  • The CLASS Act is gone. This program was part of the larger healthcare reform legislation. It created a long-term care insurance program to be paid by payroll withholding from employee paychecks, if employers opted to participate in the program. Critics claimed it was inadequate at both ends, from the funding to be paid in to the benefits to be paid out. I don’t know enough about it to weigh in, but no matter: The program got killed.

Finally, a very restricted group of employees — the ones who created this mess in the first place — got a pay freeze. So if you are a Senator or Congressperson, you will just have to continue living on your $174,000 annual salary. If you are the majority or minority leader of either house, you get $193,400. And if you are John Boehner, you will have to budget yourself to only $223,500 a year. Performance-based salaries? You be the judge.