H-2B Visa Rule Halted

A federal district court ruled that the Department of Labor (DOL) may not implement a final rule relating to H-2B visas. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals into the U.S. to fill temporary non-agricultural jobs.

HRWatchdog previously reported on the DOL’s controversial final rule that revised the processes that employers must follow when obtaining a temporary labor certification from the DOL and when petitioning the Department of Homeland Security to employ a non-immigrant worker in H-2B status.

Many employers argued that the new rule was cumbersome, would increase costs and would decrease business competitiveness. Bayou Lawn and Landscaping Services, as well as professional associations, including the U.S. Chamber of Commerce, challenged the final rule in court.

A federal district court in Florida ruled there was a substantial likelihood that the plaintiffs would succeed on the merits of their claim that the DOL lacked authority to promulgate the rule, and issued a preliminary injunction to halt the DOL from going forward with the final rule.

The court noted that the DOL “acknowledges that it has no express congressional grant of authority to engage in legislative rule-making under the H-2B program and that such authority was vested instead in the secretary of the Department of Homeland Security.”

The DOL stated that, due to the preliminary injunction, employers should file labor certifications under the 2008 H-2B rule. The case still must be decided by the federal courts. For more information, visit the DOL’s final rule website.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Federal Court Finds NLRB’s New Election Rule Invalid

A federal court for the District of Columbia ruled yesterday that the National Labor Relations Board’s (NLRB) new election rule is invalid. The court held that the NLRB did not properly adopt the controversial new rule, sometimes referred to as the “ambush election rule.”

The court found that the NLRB lacked the necessary quorum when it voted on the rule. Under federal law, a vote is valid if there is a quorum of at least three members voting on the rule. At the time the rule was adopted, the five-member board had three members, and only two of the three members voted on the rule. One member, Brian Hayes, expressed his opposition in a public hearing but did not actually participate in the vote. 

In response to the court’s decision, the NLRB announced that it suspended the implementation of the new rule and elections will proceed under the old rule.

According to the NLRB, about 150 election petitions were filed under the new rule. Many of those petitions resulted in election agreements and several have gone to hearing. The NLRB will contact all parties involved in the 150 cases and “provide them the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.” 

The NLRB may choose to hold a new vote on the election rule. As the court said, “nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.”

In 2011, the NLRB proposed major changes to the procedures it follows before and after conducting a secret ballot election to determine if employees wish to be represented for purposes of collective bargaining. The rule expedited the representation and election process. The NLRB adopted the proposed changes and the final rule went into effect on April 30, 2012.

The Chamber of Commerce of the United States of America and the Coalition for a Democratic Workplace filed the lawsuit challenging the now invalid rule.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Top 10 Things Employers Do to Get Sued

One of the toughest tasks for an HR manager or business owner is managing risk to prevent lawsuits.

Employers may unintentionally violate employment laws and never realize the risk they create for the company. Trying to provide some flexibility for an employee, saving money for the company, or just being nice are all ways that an act of kindness can become a business liability.

Do you know about the trouble spots in these areas?

• Exempt and nonexempt employee classification
• Meal breaks
• Leaves of absence

Download CalChamber’s newest free white paper, “The Top 10 Things Employers do to Get Sued,” to get the full list. Registration required.

CalChamber Announces List of Identified "Job Creator" Bills

 
The California Chamber of Commerce released its 2012 list of “Job Creator” legislation, identifying 31 bills that will help improve California’s job climate and our state’s economy. 

“Lack of certainty and common sense regulation are among the key barriers to an improved job climate in California,” said Allan Zaremberg, President and CEO of the California Chamber of Commerce. “It behooves lawmakers to zero in on those bills that will provide solutions employers need to begin investing in our economy and hiring people again.” 

The list of identified Job Creator bills supports CalChamber’s Renew California plan, first released in 2010 and updated in 2011 to provide policymakers with a framework for restoring California’s competitiveness and giving job creators the certainty and stability to make investment and hiring decisions. 

Renew California is based on five pillars for economic recovery which include:

• Reducing regulatory and litigation costs of hiring new employees and keeping them on the job;
• Ensuring certainty and stability of private investments in plants, equipment and technology;
• Enacting a fair and predictable tax structure;
• Investing in public and private works that provide the backbone for economic growth; and 
• Providing a world-class education to prepare high school students for work or college, and supporting public colleges and universities to prepare students and innovate technologies.

Legislation included on the Job Creator list will change throughout the year as bills are amended or new language is introduced. Visit CalChamber.com for the complete 2012 CalChamber Job Creator list.

The Job Creator list includes the following bills relating to labor and employment, and legal and regulatory reform:

Labor and Employment

AB 2176 (Logue; R-Linda) Reduction of Frivolous Meal Period Litigation — Reduces costly litigation regarding meal periods for commercial drivers who transport hazardous materials.

SB 1114 (Dutton; R-Rancho Cucamonga) Reduces Wage-and-Hour Competitive Disadvantage for California Employers — Lowers costly daily overtime requirement for California employers by requiring payment of overtime only after 10 hours in a workday.

SB 1115 (Dutton; R-Rancho Cucamonga) Workplace Flexibility for Small Employers — Alleviates the burden of unnecessary regulations by allowing an employer with 10 or fewer employees to implement an alternative workweek schedule at the request of the employees.

SB 1362 (LaMalfa; R-Richvale) Reduction of Frivolous Meal Period Litigation — Reduces costly litigation regarding meal periods for commercial drivers who are regulated by federal law.

Legal Reform

AB 2043 (Wagner; R-Irvine) Increases Class Action Fairness — Helps prevent meritless class actions by allowing defendants an equal right to appeal a court order granting certification of a class.

SB 1374 (Harman; R-Huntington Beach) Reliance on State Agencies’ Written Advice — Protects employers from inappropriate litigation by affirming they can rely upon the state government to provide them with information regarding how to comply with the law.

Regulatory Reform

AB 1612 (Lara; D-Los Angeles) Administrative Practices — Promotes government accountability and a transparent process by requiring proposed new residential building standards to include the cost of compliance, potential benefits of the proposed standard and the underlying model used to achieve those estimates.

AB 1982 (Wagner; R-Irvine) Provides Accountability for Expensive Regulation — Provides certainty and flexibility for businesses by extending the time frame when they are required to comply with new regulations.

AB 2091 (B.Berryhill; R-Ceres) Increases Regulatory Certainty — Provides certainty and the ability for businesses to meet government mandates by requiring that new technology required to implement a new regulation is available and affordable.

SB 1099 (Wright; D-Inglewood) Creates Regulatory Certainty — Provides certainty for business by creating a predictable and easy- to-track implementation schedule for new regulations.

Staff Contact: Denise Davis

California Employers Paying Higher Unemployment Taxes

​Since January 1, 2012, California employers have paid higher taxes because the state has not repaid money it borrowed from the federal government to pay unemployment insurance (UI) benefits. Unless Congress takes action (which is not expected), the higher tax will remain in effect through 2012 and then increase each year the state has an outstanding loan balance.

California’s UI Trust Fund has been insolvent since 2009.By the end of 2012, the UI Fund deficit is projected to reach $10.7 billion, according to the California Employment Development Department (EDD).

Employers will lose 0.3 percent of their federal tax credit, partially offset by the end of a 0.2 percent surcharge in July 2011.The 0.3 percent tax credit translates into approximately $21 per year for any employee who makes $7,000 or more in 2012. California employers pay UI taxes on the first $7,000 of wages per employee.

Statewide, the tax increase totals an estimated $289.8 million in 2012 and $615.7 million in 2013, according to the EDD October 2011 Unemployment Insurance Fund Forecast. This represents a loss of 0.6 percent of the tax credit in 2012, EDD reports.

The additional taxes paid will help offset California’s federal loan balance.

Federal Loan Outstanding

State laws must meet certain federal requirements for employers to qualify for credits against the tax imposed under the Federal Unemployment Tax Act (FUTA).

Due to California’s outstanding loan balances, the U.S. Department of Labor notified the Internal Revenue Service (IRS) and EDD late last year that California is a “credit reduction state.”

Employers subject to unemployment tax laws of a credit reduction state must pay additional federal unemployment tax when filing a Form 940, according to the IRS website. California has carried an outstanding loan balance since 2009.

The FUTA credit for California employers decreased from 5.4 percent to 5.1 percent on January 1, 2012, a 0.3 percent credit reduction, according to the EDD. Employers will use IRS Schedule A (Form 940), Part 2, to calculate the FUTA tax, EDD reports.

Visit CalChamber's website for the full story.