January 1, 2015
In her fourth quarter legislative update of 2014 for the Society for Human Resource Management, HunterMaclean partner Sarah Lamar discusses recent changes in employment law:
Legislation: President Obama’s Immigration Executive Order
Introduced: N/A
Status: Signed by President Obama on 11/20/14
Purpose: To grant deferrals from deportation for 3 years for certain undocumented aliens, the largest group of which are parents of U.S. citizens or legal permanent residents who have been in the country for at least five years; expand the Deferred Action for Childhood Arrivals (DACA) policy from 2 years to 3, include undocumented immigrants who arrived before January 2010, and remove the requirement that they be under 31 years of age. The order also eases restrictions on highly skilled workers (H-1B visa holders) to promote mobility and specifically allows H-1B visa holders’ spouses to obtain work permits. Among other provisions, the order also broadens the scope of the optional practical training (OPT) program to allow foreign students in technical (STEM) fields to stay in the U.S. after graduation. Many of these provisions require regulatory action which is still in process.
Comment: The order is sweeping in its goal to modernize our immigration system and help both individuals and businesses. It has already been subject to litigation as opponents claim President Obama exceeded his constitutional authority by issuing the order.
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Legislation: Hire More Heroes Act (HR 3474)
Introduced: 11/13/13
Status: Passed by the House 3/11/14
Purpose: To amend the Affordable Care Act (ACA) to exempt employees with health coverage under TRICARE or the Veterans Administration from being taken into account for purposes of the employer mandate under the ACA.
Comment: This bill is one of many introduced in the House of Representatives aimed at curbing the effect of the ACA. Now that the Republicans control both the House and the Senate, Republican leadership has indicated an intent to revisit this bill, along with other legislation passed by the House to limit the scope of the ACA. See, e.g., HR 2575 (redefining a full-time worker as one working an average of at least 40 hours a week).
Regulatory Requirements: NLRB’s Quickie Election Rule Is Finalized
Issued: 12/12/14
Effective Date: 4/14/15
Purpose: Amidst ongoing controversy regarding the so-called “quickie election” rules proposed by the National Labor Relations Board (NLRB) several years ago and then struck down because the NLRB lacked a constitutional quorum, the Board has now issued a final rule on the subject. The new rules shorten the time between a union’s election petition and the election itself and limit pre-election objections, resulting in a more streamlined election process.
Comment: The quickie election rules are seen by many business groups as prejudicing employers and favoring unions, who may be working for months or even years to unionize a particular workforce before filing an election petition. Should these rules be upheld by the courts, employers will have little time to execute an anti-union campaign in the face of an election petition. Therefore, it is critical, more than ever, for employers to proactively address employee concerns and issues as they come up to avoid the attraction of union representation.
