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Washington Update

October 2, 2013

The federal government is currently shut down while lawmakers debate funding for fiscal year 2014. 

IPMA-HR urged the EEOC to update the EEO-4 reporting form in a letter on August 7 sent to Chair Jacqueline Berrien and to the leadership of the House and Senate committees with jurisdiction over workforce issues. The letter notes that the private sector form (EEO-1) was updated several years ago to allow workers to chose "two or more races" when identifying themselves but the EEO-4 only allows workers to choose one race/ethnicity. The EEOC responded that due to procedural issues it could not update the form until 2017 or beyond. 

Protecting Older Workers Against Discrimination Act (POWADA) - On July 30, 2013 Senator Tom Harkin (D-IA) and Representative George Miller (D- CA) introduced the POWADA (H.R. 2852, S. 1391). The legislation would overturn recent Supreme Court opinions that require employees to show that discrimination was the sole motivation for an adverse action under the Age Discrimination in Employment Act (Gross v. FBL Financial Services, Inc. (2009)) or in a retaliation suit (University of Texas Southwestern Medical Center v. Nassar (2013)). The legislation would lower the standard so that an employee alleging discrimination need only show that discrimination was one of several motivating factors. 

Employment Non-Discrimination Act - The Senate Health, Education, Labor and Pensions committee passed ENDA out of committee on July 10, 2013. Introduced in the House and Senate on April 25, 2013, the Employment Non-Discrimination Act (ENDA) (H.R. 1755, S. 815) would prohibit employers from using sexual orientation or gender identity for the basis of employment decisions. The bill does not apply to religious organizations or those with fewer than 15 employees but would apply to federal, state and local governments in addition to private companies. Twenty-one states and the District of Columbia already prohibit discrimination based on sexual orientation and 16 of those also include gender identity. The full Senate is expected to consider the bill in the fall but passage remains uncertain. 

Equal Pay - The Paycheck Fairness Act (S. 84, H.R. 377) was introduced on January 23, 2013, by Senator Mikulski (D-MD) and Representative Rosa DeLauro (D-CT). The bill amends the FLSA and provides for unlimited compensatory and punitive damages in gender-based wage discrimination cases. The bill would also make it more difficult for employers to defend against these suits. In additon the Fair Pay Act (S. 168, H.R. 438) was reintroduced on January 29, 2013 by Senator Harkin (D-IA) and Representative Holmes-Norton (DC). That bill also prohibits wage discrimination and would require equal pay for "equivalent jobs" rather than equal pay for equal work. IPMA-HR and NPELRA wrote to the Senate Health Education Labor and Pensions Committee and the House Education and Workforce Committee urging them to consider the impact of the Paycheck Fairness Act on public employers. 

Healthcare Reform–   On July 2, the Obama Administration announced that it would delay implementation of penalties against large employers who fail to provide health insurance to full-time employees until January 2015. Lawmakers have introduced legislation, called the "Forty Hours is Full-Time Act" that would change the definition of a full-time employee under the ACA. There are four bills that contain the change in hours (S. 701, S. 1188, H.R.2575, H.R. 2988). On May 29, 2013 three agencies issued final regulations on wellness programs. On May 8, the Department of Labor issued model employee  notices that all employers must provide to all employees by October 1, 2013. Sample notices and more information are available on the DOL's website. On December 28, 2012 the IRS released a notice of proposed rulemaking on the employer requirements. The notice incorporates earlier notices, particularly the one on August 31, notice 2012-58 defining full-time employees and allowing employers a look-back period of between 90 days and 12 months. The extended period allows employers to avoid providing healthcare to seasonal employees if the work an average of less than 30 hours per week over a 12 month period. Check here for a clearinghouse of information on healthcare reform. 

Healthy Families Act - On June 25, IPMA-HR and NPERLA sent a letter to lawmakers urging them to oppose the Healthy Families Act because it is unnecessary as state and local governments already provide generous benefits to employees. The Healthy Families Act was reintroduced on March 20, 2013 by Senator Harkin (D-IA) and Representative DeLauro (D-CT). The bill, (H.R. 1286, S. 631) would require employers to provide up to one hour of paid sick leave for every 30 hours worked to all employees regardless of part-time or temporary status. The leave may be used for an employee's own illness, to care for a sick family member, to obtain preventive care or to address the impacts of domestic violence. Employers with sick leave programs would not have to change their current policies as long as the leave time is as generous and can be used for the same purposes. Employers would not be able to ask for documentation until after three consecutive days of absence.  

Immigration Reform - On June 27, 2013 the Senate passed a comprehensive immigration reform bill by a vote of 68-32. Despite the strong support in the Senate, immigration reform has been stalled in the House of Representatives. House leaders are considering moving the bill through on a piece-meal basis rather than as one large bill.  The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, (S. 744)  was introduced on April 17, 2013. A summary of the bill is available online. The bill enhances border security, creates a path to citizenship for the approximately 11 million undocumented workers currently in the U.S. and makes mandatory and permanent the E-Verify system. There would be a phase-in of E-Verify over five years with the largest employers required to begin using it within two. There is no obligation to re-verify existing workers. S. 744 does include the use of biometric photographs. Non-citizens will have biometric photos on their green cards or work authorization card. Citizens will use a passport or a drivers' license. The photos will be stored in an E-verify database. 

Minimum Wage -   President Obama's fiscal year 2014 budget proposal, released on April 10, 2013, included a proposed increase in the minimum wage to $9.00 per hour. On March 5, 2013 Senator Tom Harkin (D-IA) and Representative George Miller (D-CA) introduced legislation, the Fair Minimum Wage Act of 2013, to raise the federal minimum wage to $10.10 per hour from the current rate of $7.25 - in three steps of 95 cents - then provide for automatic annual increases linked to changes in the cost of living. The Senate Health, Education, Labor and Pensions, held a hearing on Thursday, March 14. 

OHSA - Mandatory coverage for state and local government employers is included in two recently introduced bills, (H.R. 1648, S.665). The bills are similar but not identical. They would apply OSHA coverage to all states and localities. Currently 22 states and jurisdictions have opted for OSHA coverage. An additional five states provide OSHA coverage for public employees only. States and localities were excluded from OSHA when it was passed in 1970.  Bills mandating coverage of state and local governments have been introduced in every session of Congress  for at least the past 17 years. IPMA-HR has opposed mandatory coverage because states and localities are in the best position to determine safety and health regulations for their citizens. 

Pension Reform – A number of public sector organizations including IPMA-HR sent a letter to members of the House of Representatives in opposition to the Public Employee Pension Transparency Act (PEPTA), (H.R. 1628). The measure was introduced on April 18, 2013 and requires state and local government pension plans to report pension liability in two ways -  one using current assumptions and the second using private sector assumptions. IPMA-HR and other state and local groups oppose the measure as it would make the liabilities appear larger than they are and because the Governmental Accounting Standards Board (GASB) already adopted new procedures governing public pension reporting.  See below under "Regulatory Issues." 

SAFE Retirement Act - Senator Hatch (R-UT) introduced the Secure Annuities for Employee (SAFE) Retirement Act of 2013 (S. 1270) on July 9, 2013. The bill would allow, but not require, states and localities to move their defined benefit pension plans to annuities. The annuities would be managed by private insurers and the private insurers would provide an annuity to retirees that would be portable. The bill does not have any co-sponsors or a companion bill in the House of Representatives but it is receiving attention in the press. 

Regulatory Issues

Criminal Background Checks –In April 2012 the EEOC issued a guidance document on the use of criminal records in employment. Recently an EEOC commissioner said that the agency will look at creating additional safe harbors for employers.  On Wednesday, May 22, 2013, the House Subcommittee on Workforce Protections, chaired by Rep. Tim Walberg (R-MI), held a hearing entitled, “Examining the Regulatory and Enforcement Actions of the Equal Employment Opportunity Commission.” Commission Chair Jacqueline Berrien was the only witness. During the hearing Rep. Walberg asked Chair Berrien why employers and other stakeholders were not given the opportunity to comment on the proposed guidance document. He also asked why there was no safe harbor for employers complying with state and local laws. IPMA-HR will be following up to encourage the creation of additional safe harbors. 

Classification of Independent Contractors – The Department of Labor announced that it is focusing on the misclassification of employees as independent contractors. The Labor Department is working with the IRS and several states on this issue. The Department is considering launching a survey of 10,000 workers that would guide its effort to create new rules. One outcome may be that employers will be required to provide notice to employees of their status and a description of how pay is computed. 

Disabilities Discrimination - On May 15, 2013, the EEOC issued four revised documents on     protection against disability discrimination. The documents address how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancerdiabetesepilepsy, and intellectual disabilities. These documents are available on the agency's website at Disability Discrimination.   

FMLA - Final regulations implementing the military caregiver leave  provisions were issued on February 6, 2013. The DOL has a separate web page set up with details. The new rules are effective March 8, 2013. 

Genetic Information Nondiscrimination Act (GINA) –  On May 16, 2013, the EEOC signaled its commitment to enforcing the GINA by filing a class action lawsuit against a skilled nursing and rehabilitation center in Corning, NY. The suit alleges that the facility required post-offer pre-employment medical exams that asked for family medical history in violation of the law. The case, EEOC v. Founders Pavilion, is pending in the US District Court for the Western District of NY.

Normal Retirement Age – The IRS has delayed until 2015 the implementation of regulations concerning the normal retirement age. The regulations would have required state and local government pension plans to adjust or abandon their use of years of service when determining normal retirement age. The IRS has said it will make appropriate changes to address public sector concerns before finalizing the regulations. IPMA-HR joined the Public Pension Network (PPN) in a letter July 30, 2012 urging the IRS to defer to state and local rules concerning the definition of normal retirement age.  

GASB – Although not a government agency, the Governmental Accounting Standards Board (GASB) sets policy that state and local governments voluntarily follow. On June 25, 2012 the GASB released two new statements designed to improve the accounting and reporting by public pensions. Statement No. 67, Financial Reporting for Pension Plans, revises existing guidance for the financial reports of most pension plans. Statement No. 68, Accounting and Financial Reporting for Pensions, revises and establishes new financial reporting requirements for most governments that provide their employees with pension benefits.  Statement 68 requires for the first time governments that provide defined benefit plans to recognize long-term obligations as a liability it also calls for the reporting of net liability and the inclusion of more pension expenses than is currently required.