Moms Get Breaks to Nurse; Tax Holiday, Credit for Employers; EEOC and NLRB Appointments

27 April 2010 Publication

Health Care Reform Act Provides Breaks for Nursing Mothers

As of March 23, 2010, federal law requires employers to provide nursing mothers "reasonable break time" to express breast milk for up to one year after the birth of a child. While this break time is unpaid, there is no limit on the number of breaks that an employee may take for such purposes. The United States Department of Labor has not yet defined what a "reasonable break" is or what penalties may be imposed for a violation. There is a hardship exemption for employers with fewer than 50 employees. Usually an exemption is based on a difficulty or expense in relation to the size of the business and its financial resources, but it is not clear how it will be interpreted under this new law. Of course, this law does not preempt state laws that provide increased benefits. Additionally, as part of this new law, employers must provide a private place other than a bathroom for nursing mothers to express milk.

HIRE Act Provides Tax Holiday and Credit for Employers Who Hire the Unemployed

On March 18, 2010, President Barack Obama signed into law the Hiring Incentives to Restore Employment (HIRE) Act. This law provides a payroll tax holiday and up to a $1,000 credit for employers who hire unemployed workers. The purpose of the bill is to encourage employers to hire unemployed workers by providing a tax break in the form of an exemption from the matching portion of FICA, currently 6.2 percent. For any employee hired from February 3, 2010 through the end of 2010 who was unemployed for at least 60 days prior to being hired, an employer would not need to match FICA withholdings for any wages earned after March 18, 2010. Note that the employer would still withhold the employee's portion of FICA for 2010 but there would be no matching requirement in 2010. The matching contributions would begin January 1, 2011. Also note, HIRE does not alleviate an employer's obligation to match the 1.45 percent withheld for Medicare.

An employer is eligible for the tax holiday provided that the individual was hired after February 2, 2010, and provided that the individual does not replace someone who performed the same job unless the prior employee resigned or was terminated for cause. There is no definition of cause; one might certainly argue that poor performance constitutes cause, but the issue is not well settled.  Until there is further guidance, a more conservative definition of cause is advisable — insubordination, failure to attend work, embezzlement, violation of company policy, etc. — as opposed to failure to make quota and other similar types of offenses.

Provided that the other criteria have been met, there is no minimum number of weekly hours that the hired individual needs to have worked to be considered eligible.  For a hiring to qualify under HIRE, however, the hired individual must sign an affidavit, under penalties of perjury, stating that he meets the specific eligibility criterion - that he or she has not been employed for more than 40 hours in the 60 days preceding the start of employment. (A link to IRS form affidavit is below.)

Additionally, there is a non-refundable tax credit of $1,000 to employers for any of the above employees who remain on the payroll for 52 weeks (to be taken on the 2011 tax return); to be eligible for this credit, the employee's pay in the second 26-week period must be at least 80 percent of the pay in the first 26-week period.

Finally, an employee cannot use the tax break provided under HIRE and the Work Opportunity Tax Credit. (The Work Opportunity Tax Credit is a federal tax credit incentive that Congress provides to private-sector businesses for hiring individuals from12 target groups who have consistently faced significant barriers to employment.) If an individual is hired who meets both, then the company will need to select one tax credit or the other.

HIRE affidavit - Form W

Employers Should Keep a Close Eye on Obama's Recess Appointments to NLRB and EEOC

President Barack Obama bypassed the U.S. Senate by issuing recess appointments for six labor-related posts, two on the National Labor Relations Board (NLRB) and four with the Equal Employment Opportunity Commission (EEOC). Employers should keep a close eye on these appointees as they shift both organizations more to the left and promise aggressive policy-making at the NLRB and increased enforcement from the EEOC. At minimum, the NLRB appointments mean that employers should revisit their needs concerning union-avoidance training.

According to the U.S. Constitution, the President can circumvent the U.S. Senate confirmation process and fill administration positions through recess appointments whenever the Senate is in recess — most recently when Congress adjourned for a two-week break. For these recess appointments to remain, the Senate must approve them before a congressional session ends — on or before December 31, 2010. Otherwise, the positions will become open again when a new Congress reconvenes in January 2011. Until that time, these individuals hold their appointments.

The appointment of labor attorney Craig Becker to the NLRB generates the most controversy. Obama first nominated Becker to the NLRB in July 2009 and Republican senators have fiercely opposed this confirmation through filibuster (blocked 52-33 on February 9, 2010) and by letter directly to the President urging him not to use a recess appointment to place Becker on the NLRB and requesting the withdrawal of Becker from consideration.

Becker is a former associate general counsel for the AFL-CIO and currently serves as an associate general counsel for the Service Employees International Union. Although strongly supported by organized labor leaders, many have questioned whether Becker can be "objective" in administering his duties on the NLRB verses promoting an agenda. Becker helped draft the Employee Free Choice Act (EFCA) and his views on EFCA have drawn sharp criticism from business and Republican leaders. The controversy surrounding Becker's appointment centers on his view that the NLRB can implement portions of EFCA through rulings circumventing the legislative process, such as shortening the time frame for elections after a petition and expanding union access to information and the employer's premises. Becker has previously opined that "employers should have no legally sanctioned role in union elections," and many fear that his influence on the NLRB may result in the issuance of more bargaining orders against employers for alleged misconduct during the organizing process, which would result in forcing employers to accept the equivalent of a card check without a secret ballot election.

Obama also used a recess appointment to place Democrat Mark G. Pearce, an attorney with the Buffalo, N.Y. law firm of Creighton Pearce Johnsen & Giroux (a union-side labor and employment firm) to the NLRB. A third final spot on the NLRB remains open; however, Obama did not use a recess appointment to fill that opening. Brian Hayes, the third nominee to the NLRB who serves as the labor policy director for the Republican members of the Senate Health, Education, Labor and Pensions Committee, did not receive a recess appointment because he is not viewed as a controversial nominee.

The President used recess appointments to fill four open spots at the EEOC, returning to the commission the ability to operate with a quorum. Jacqueline A. Berrien, the associate director of counsel for the NAACP Legal Defense and Education Fund, will serve as chair of the EEOC, while law professor Chai Feldblum and attorney Victoria Lipnic will fill the remaining open positions as commissioners. P. David Lopez, a supervising trial attorney for the EEOC, will be elevated from his post in Phoenix to become the EEOC's general counsel.

Of the EEOC appointments, Feldblum draws the most attention. Feldblum, a professor with Georgetown University Law Center, is well known for her support of the rights of lesbian, gay, bisexual and transgender workers. She helped draft the controversial proposed Employment Nondiscrimination Act and her views on same-sex marriage have drawn sharp criticism from conservatives.

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