HR Policy Fall Labor Relations Conference Examines Home Stretch for Obama Administration's Agenda

December 12, 2014

At our annual Fall Labor and Employment Relations Conference this week, our Labor Relations Advisory Board Chairman John Steele, Senior Vice President, Human Resources at HCA, Inc. set the tone, noting, "Given the results of the last election, the dearth of new employment law enactments is expected to continue for at least the next two years, yet that void has been more than filled with regulatory activity, especially for those of us who are government contractors."  HR Policy member companies gathered in record attendance at the conference to examine the myriad issues coming to a head as the Obama Administration enters its final two years.  Highlights from the conference follow.

  • Regulatory and Legislative Deep Dive  Johnna G. Torsone, Executive Vice President and Chief Human Resources Officer at Pitney Bowes Inc. and Chair of HR Policy's Employment Rights Committee, led Robert J. O'Hara, Director, Employment Law and HR Compliance at United Technologies Corporation and the HR Policy staff in a discussion of the various workplace regulation issues in play.  In particular, the uncertainties in Obama's "Fair Pay and Safe Workplaces" executive order, which will require federal contractors to disclose "serious, repeated, willful or pervasive" labor violations and face potential suspension and debarment, generated considerable interest.  Many participants represented federal contractors and are among those awaiting clarity on key terms, such as whether the requirement to report all "administrative merits determinations" will include such preliminary decisions as an NLRB complaint.  The panel also addressed an attack by the Equal Employment Opportunity Commission on corporate wellness programs, modernization of the FLSA, scheduling rights, and changes to U.S. immigration policy.

  • The Impact of the 2014 Election on the Workplace Regulatory Agenda  Former Congressman Rob Andrews addressed the impact of the 2014 elections on employment and labor policy.  Andrews predicted little movement on the legislative front due to the incoming Republican majority in both houses of Congress and changes to procedural rules that have made the chances of passing legislation through traditional processes "close to zero."  However, he suggested a Republican and Democrat cosponsored bill clarifying the authority of the ACA to regulate wellness programs could be an exception due to the broad bipartisan support for those programs.

  • Can the National Labor Relations Act Be Reformed? HR Policy's Senior Labor and Employment Counsel Roger King led a discussion with Kyle Hicks Fortson, Labor Policy Director at the Committee on Health, Education, Labor and Pensions in the U.S. Senate, Thomas Beck, Vice President, Labor Relations at HCA Inc. and Michael Zorn, Senior Vice President, Associate and Labor Relations Macy's, Inc. regarding proposed changes to the structure of the NLRB that would prevent the pursuit of a majority's activist agenda.  This included examining a bill (S. 2814) introduced by Senator Lamar Alexander that would equalize the Board membership at three Democrats and three Republicans.

  • Who's the Boss? The Department of Labor's Wage & Hour Administrator David Weil and NLRB General Counsel Richard Griffin kicked off the meeting by addressing the debate over the legal responsibilities of employers beyond the traditional employment relationship, including for independent contractors, franchises, contract employees.  Weil informed the companies that the Wage and Hour Division wishes to determine how employers can be more responsible for lower wage workers as their employment is shed to other parties and stated "we want you to put standards at those levels."  Griffin, in addressing his brief in the Browning-Ferris Industries case, which argues for an expanded joint employer liability, added that, as he looks at the so-called "fissured workplace," there are instances where employers are codetermining decisions that affect more than the uniformity of its brand or product.  "Those are circumstances where you're going beyond protection of the traditional standard," he said in support of his position that "changes in the workplace suggest we should return to a broader standard."  Griffin also informed the conference that his office intends to provide a guidance memo to clarify confusion on the rules for employee handbooks, and Weil indicated that the Division would publish a Notice of Proposed Rulemaking for updating and modernizing the FLSA overtime regulations early next year.

  • Who's the Boss? (Round Two)  An employer perspective on the points raised by Weil and Griffin was provided in a panel of business representatives led by Tom Hayes, Executive Director of the Brussels European Employee Relations Group (BEERG).  The panel included Mary Connolly, Vice President, Corporate HR and Administration Manager, Employee Relations, Safety and Health at Liberty Mutual Group, Inc., Jones Day partner Willis J. Goldsmith and HR Policy Senior Advisor on Global HR Affairs Steven T. Gilbert, formerly of Maersk.  It generally agreed that the attempt to broaden the liability of large companies beyond traditional employment relationships will continue for at least the next two years.  Gilbert provided a global perspective, advising that "regardless of what the U.S. does, we will be responsible abroad as international standards place increasing duties on employers to assume responsibility for standards throughout their supply chains."