President Bush is expected to sign the National Defense Authorization Act for Fiscal Year 2008, which amends the Family and Medical Leave Act (FMLA). These amendments provide unpaid leave to employees to care for a family member injured through service in the Armed Forces or to deal with an urgent family situation that occurs when a close family member is called away because of military service.

Leave is available under the amendment. Under the amended FMLA, an eligible employee may take a total of 26 work weeks of unpaid leave during a 12-month period to care for a service member who is suffering from a serious injury or illness incurred by the member “in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.”

The amendment also permits an eligible employee to take up to a total of 12 work weeks of leave during any 12-month period because of any “qualifying exigency” arising because the employee’s spouse, child or parent has been called to active duty in support of military “contingency operations.” The legislation leaves to the Secretary of Labor the job of defining “qualifying exigency” by regulation.

Eligibility for leave. The amended FMLA expands the definition of employees eligible to take service member family leave. In particular, the amendment defines an eligible employee to include the spouse, child, parent or “next of kin” of the service member. The term “next of kin,” which is defined as “nearest blood relative,” does not appear in the existing statute.

The legislation defines covered service members to include any Armed Forces member, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, in outpatient status, or on the temporary disability retired list, for a serious injury or illness.

Form in which leave may be taken. Leave may be taken as a block, intermittently or on a reduced leave schedule when medically necessary. If the intermittent or reduced leave is foreseeable based on planned medical treatment, the employer could require the employee to transfer to an available temporary alternative position for which the employee is qualified. The alternative position must (1) provide equivalent pay and benefits and (2) accommodate recurring periods of leave better than the employee’s regular position. If the same employer employs a husband and wife entitled to leave to care for an injured service member, the aggregate amount of leave to which both would be entitled could be limited to 26 work weeks. 

As with all FMLA leave, an employee can choose, or the employer may require the employee, to substitute any accrued paid vacation, personal, sick or family leave for FMLA leave.  Id. at 129; 29 U.S.C. § 2612(d).

Notice requirements. Under the legislation, if an employee takes leave to care for an injured service member and that leave is foreseeable because of planned medical treatment, the employee must give 30-days notice to the employer. If the treatment requires leave to begin in less than 30 days, the employee is only required to provide notice as soon as practicable. Furthermore, the employee must also make a reasonable effort to schedule the treatment to avoid undue disruption to the employer’s operations, subject to the approval of the injured service member’s health care provider.

An employee taking leave because a spouse, child or parent has been called to active duty would be required to provide reasonable notice to the employer where the necessity for leave is foreseeable.

The Secretary of Labor sets employers’ posting requirements under the FMLA, so employers should anticipate updated regulations regarding posting of newly available leave provisions once the legislation takes effect.

Medical certification. For employees taking leave to care for an injured service member, an employer can require a certification of the service member’s condition issued by a health care provider. An employer could also require supporting certification for an employee’s request for leave because a family member has been called to active duty. The timing and content requirements of such certification would be prescribed by regulations issued by the Secretary of Labor.

The legislation is awaiting action by the President, who is expected to sign it. Once it becomes law, the Secretary of Labor will need to define certain key terms through a rule-making process.

On December 13, 2007, the Senate Health, Employment, Labor and Pensions (HELP) Committee and House Education and Labor Committee held a joint hearing to examine several recent decisions of the National Labor Relations Board (NLRB) and their potential impact on employees. The hearing occurred in the wake of high anti-Board sentiment, including a recent protest in which union activists marched in front of the agency in Washington carrying signs such as “NLRB: Close it for Renovations.”

The Committees heard from two current Board members, outgoing Chairman Robert Battista and Wilma Liebman, as well as University of Illinois Law Professor Matthew Finkin, AFL-CIO General Counsel Jonathan Hiatt, former Board member Charles Cohen, and Feliza Ryland, a victim of unfair labor practices.

Chairman Battista, whose term expired on December 16, declared that “the decisions this board has issued are correctly decided, soundly reasoned and speak for themselves.”

Chairman Battista did not discuss any particular Board decision, but rather focused on the Board’s accomplishments, the objectives of the National Labor Relations Act (NLRA) and the Board’s purpose under that law.

Chairman Battista noted that under his leadership the NLRB has issued on average 500 cases a year, drastically cut the number of days cases are pending and decreased the case backlog to its lowest level in thirty years.

Chairman Battista emphasized that two fundamental principles undergird the NLRA: (1) to provide for employee free choice by allowing employees to decide for themselves whether to be represented by a union and, (2) if employees choose union representation, to encourage collective bargaining. Chairman Battista described the role of the Board as a neutral arbitrator balancing the interests of employees and employers, and noted that “The law is neutral . . . and so is this agency.” Chairman Battista noted that “[t]he statute was not intended to benefit unions or employers,” but “[r]ather, the rights granted by the statute belong only to employees-whether unionized or not.”

Chairman Battista dismissed the current criticism of the Board as “special-interest attacks designed to gain support for their position in the coming election cycle.” He argued that some of the criticism directed towards the Board is overblown. For example, in response to the allegation that the Board has eagerly overturned decades of precedent, Chairman Battista pointed out that the Board has issued 21 decisions overturning precedent compared with the Clinton Board’s 60 decisions reversing precedent. Chairman Battista also noted that enforcement of the Board’s decisions in the courts of appeal is high, which he felt was strong evidence that the board’s decisions have been faithful to the NLRA.

Member Liebman, a Clinton appointee who was reappointed by President Bush, disagreed strongly with Chairman Battista, stating that “virtually every recent policy choice by the Board impedes collective bargaining, creates obstacles to union representation or favors employer interests.” Member Liebman described the core purpose of the NLRA as protecting the right of employees to organize and promoting collective bargaining, and argued that the Board has fallen far short of upholding these principles.

Member Liebman specifically called into question several September 2007 Board decisions that she says leave fewer workers with fewer rights, including Dana Corp., Wurtland Nursing & Rehabilitation Center, Toering Electric Co., St. George Warehouse and Grosvenor Resort. Member Liebman said that she believes these decisions have resulted in a loss of confidence in the Board and the legitimacy of the process. As evidence of the loss of confidence in the Board, Member Liebman noted that case intake is down drastically.

Professor Finkin and Hiatt dismissed Chairman Battista’s characterization of the board as a “neutral arbitrator.” Hiatt argued that the Board is no longer serving the goal of protecting workers’ rights, and stated that the Board’s decisions have “significantly narrowed worker protections, while expanding the scope of anti-union conduct lawfully available to management.” Professor Finkin disputed Chairman Battista’s reliance on judicial affirmance as a benchmark, noting that it is a long-held principle of administrative law that the courts must defer to agency decisions.

Cohen, who served as a Board member between 1994 and 1996, disagreed with allegations that the Board is pro-employer. Despite the critics, Cohen stated that the Board’s decisions are consistent with the NLRA and do not represent a “sea change.”

Many have questioned the propriety of the committees requiring board members to testify about recent decisions. For example, in a letter to leaders of the Senate HELP Committee, the U.S. Chamber of Commerce stated that it is inappropriate for Congress to attempt to influence Board decisions by calling members to testify when it disagrees with Board rulings.

By voice vote on December 19, 2007, the Senate confirmed four pending Department of Labor (DOL) nominees. Acting Deputy Secretary Howard Radzley, a former Solicitor of Labor under President Bush, was confirmed as Deputy Secretary, the second highest post in the DOL. White House aide Gregory Jacob was confirmed as the new Solicitor of Labor. The Senate also confirmed Keith Hall as Commissioner of the Bureau of Labor and Statistics and Douglas Webster as Chief Financial Officer.

Additionally, the Senate confirmed Commissioner Stuart Ishimaru of the Equal Employment Opportunity Commission (EEOC) for a second term expiring on July 1, 2012. Commissioner Ishamaru has served on the EEOC since November 2003. The EEOC currently has four members (two republicans and two democrats), with no nomination for the fifth seat currently pending before the Senate.

Core Provisions: This legislation would amend the Americans with Disabilities Act to require that employers be provided with an opportunity to correct alleged violations before commencement of a civil action regarding a place of public accommodation or a commercial facility.

Status: H.R.3479 was introduced by Rep. Keller (R-FL) on September 5, 2007 and referred to the House Judiciary Committee. H.R.3479 currently has three co-sponsors.

Core Provisions: This legislation would repeal the $50,000 to $300,000 cap on damages available in employment discrimination cases under Title VII and the Americans with Disabilities Act.

Status: S.1928 was introduced by Sen. Kennedy (D-MA) on August 1, 2007 and referred to the HELP Committee. S.1928 currently has seven co-sponsors.

Core Provisions: This Act would amend the WARN Act by lowering the threshold for plant closings to 25 employees, and by lowering the mass layoff trigger to 25 employees. Similar to the other pending WARN Act proposals, this legislation would expand the notice period from 60 to 90 days, provide for double damage, and would require employers to send notice to the Department of Labor, which in turn would transmit the information to relevant members of Congress. The Act also calls for civil penalties for not posting the appropriate notice. However, employers are exempt from the notice requirement if the employment loss is due to a terrorist attack. Finally, the Act greatly expands COBRA coverage to those eligible for trade adjustment assistance.

Status: H.R.3796 was introduced on October 10, 2007, by Rep. Miller (D-CA) and was placed on the Union Calendar on October 25, 2007. H.R.3796 currently has 13 co-sponsors.

Core Provisions: The Federal Oversight Reform and Enforcement of the WARN Act (Forewarn Act of 2007) would amend the WARN Act to give enforcement authority to the Department of Labor and state attorneys general, and would increase penalties. The bill lowers the threshold triggering applicability of the statute for a plant/operating unit closing from 50 to 25, reduces the minimum employer size from 100 to 50 employees and lowers the mass layoff threshold from 500 to 100 employees. The legislation would also expand the notice period from 60 to 90 days, and require employers to send written notice to the Department of Labor. Additionally, the House bill requires notice be provided to U.S. senators and representatives, state senators and representatives, the governor of the affected area and the federal Secretary of Labor. The House bill also requires employers to pay employees two days of pay for each calendar day the employer falls short of the notice period.

Status: H.R.3662 was introduced by Rep. McHugh (R-NY) on September 25, 2007 and was referred to the House Education and Labor Subcommittee on Workforce Protections on October 17, 2007. S.1792 was introduced on July 16, 2007 by Sen. Brown (D-OH) and referred to the HELP Committee. H.R.3662 has one co-sponsor, while S.1792 has eight co-sponsors.

Core Provisions: This legislation would revise existing presumptions and procedures involving whether an individual is classified as an independent contractor or an employee. If the Secretary of the Treasury makes an employee classification, employers may no longer rely on tax law provisions allowing independent contractor classification unless the employer had “no reasonable basis for not treating such individual as an employee.” The bill would also remove the employer’s ability to rely on “long-standing recognized practice of a significant segment of the industry” to support an independent contractor classification. The Act would also create a new procedure for an individual to appeal their classification status, and employers would be barred from retaliating against any individual who appeals his or her classification. The legislation also details consequences for misclassification determinations, including a possible employment tax audit of the employer. Lastly, the Act would impart new employer responsibilities including notice-posting, notifying independent contractors of their classification upon hiring and recordkeeping requirements.

Status: S.2044 was introduced by Sen. Obama (D-IL) on September 12, 2007 and referred to the Finance Committee. S.2044 currently has six co-sponsors.

Core Provisions: This Act would amend the National Labor Relations Act to expressly mandate that the statute not be interpreted to require employers “to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.” This legislation is intended to address Supreme Court precedent protecting the practice of “salting,” wherein union organizers apply for jobs with the specific intent to organize the workplace.

Status: H.R.2670 was introduced by Rep. King (R-IA) on June 12, 2007 and is currently in the House Subcommittee on Health, Employment, Labor and Pensions. S.1570 was introduced by Sen. DeMint (R-SC) on June 7, 2007 and referred to the HELP Committee. H.R.2670 currently has 15 co-sponsors, while S.1570 has one co-sponsor.

Core Provisions: This legislation would expand protected disclosures to include “any” lawful communication of misconduct, and would expand protections for those paid with federal funds, including contractors. The bill would also give United States district courts jurisdiction for appellate review from the Merit Systems Protection Board, which is currently only within the jurisdiction of the Federal Circuit Court of Appeals.

Status: H.R.985 was introduced by Rep. Waxman (D-CA) on February 12, 2007 and passed in the House on March 14, 2007 by a veto-proof tally of 331 to 94. The bill was referred to the Senate Committee on Homeland Security and Governmental Affairs, and is currently in the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia. The White House has indicated that President Bush would veto the bill should it pass in the Senate.