 Members, This is the latest news I have out of Washington DC as well as an update on current bills on The Hill provided by LobbyIt. The two issues of most concern to security and guard companies are the Persuader Rules and the Ambush Elections which both have the potential to be extremely harmful to some of our security companies. -- January 27, 2014, the US Supreme Court clarified what is meant by 'changing clothes' or 'donning and doffing' under the Fair Labor Standards Act. On January 27, 2014 The Supreme Court held that the time spent by employees to put on and take off clothing and protective gear is not compensable under Section 203(o) of the Fair Labor Standards Act. http://www.supremecourt.gov/opinions/13pdf/12-417_9okb.pdf -- On February 5th, the NLRB brings back the Quickie (Ambush) Election Rule. The NLRB pass this by vote in late December 2011, amending the current representation procedures to a shortened election cycle. This was later struck down by the US District Court of Columbia on the grounds that only two of the three Board members serving at the time actually participated in the vote, thereby it did not make up the procedural quorum. -- On February 5th the NLRB announced that a Notice of Proposed Rulemaking (NPRM) will appear in the Federal Registry on February 6, 2014. The NLRB would be reissuing its proposed 'quickie election' amendments to rules governing case procedures. The Board is now 'full strength' with five confirmed members for the first time in over a decade. According to the NLRB website, the proposals are "intended to enable the Board to more effectively administer the NLRA. Procedures are aimed at modernizing process, enhancing transparency and eliminating unnecessary litigation and delay". The Board is claiming the new rule is 'identical' to the one proposed over two years ago (original rule), it should be noted this time around the Board is now suggesting employees e-mail addresses be disclosed. The Ambush Rule will significantly alter the entire union representation election process to favor unions by limiting employers due process rights to effectively shorten the time between the union petitions for election and the when the Board conducts the election. With the newly Proposed Rulemaking being 'identical' to that proposed in 2011 and now with the NLRB having a full board of 3 Democrats and 2 Republicans, the Board will likely move quickly to implement this new rule. On March 5, 2014, the U.S. House of Representatives Education and Workforce Committee will be holding a hearing on the ambush election proposal. The NLRB is inviting comments and questions on the proposed amendments until April 7, 2014. NCISS will be submitting comments and questions. -- March 2014 - Department of Labor Rule - Labor-Management Reporting and Disclosure Act - aka The Persuader Rule Under Section 23 of the LMRDA, neither an employer nor a consultant is required to file reports with the DOL if the consultant is merely giving or agreeing to give advice to the employer. If the proposed new rule released by the DOL is enacted, such agreements would be reportable in any case that goes beyond the plain meaning of 'advice' in which a consultant engages in specific persuader actions, conduct or communication, regardless of whether advice is given. Final rule changes are expected to be released in March 2014. In an article in HR Executive Magazine, Steven Bernstein a partner with Fisher & Phillips explains that since 1962, the 'litmus test for triggering a disclosure obligation has always revolved around direct employee contact. But that no longer will be the case if this rule change sees the light of day". If the revised rule is enacted, employers would have to report the scope of their attorney relationships and associated fees regardless of whether the attorneys had direct contact with their employees. Bernsteins says, "We've gone 50 years in this country with the understanding that if you, as a business, engage an attorney to provide labor-relation advice, you can go to sleep at night knowing that those fees paid for that advice are between you and your attorney. That arrangement is now in jeopardy". Here is the link to the full article from the Fisher & Phillips website: http://www.laborlawyers.com/revamping-the-advice-exemption 2011 letter written on behalf of the Coalition for a Democratic Workplace regarding the Persuader Rule: http://myprivateballot.com/wp-content/uploads/2011/09/CDW_Comments_on_DOL_Persuader_Rule.pdf If the new rules are enacted and if employers fail to comply with any of the LMRDA's reporting requirements, they could face jail for a year and a $10,000 fine. (Labor Relations Today, December 18, 2013) -- February 4th - Save American Workers Act (HR. 2575) - approved by the House Ways and means Committee by an approved vote of 23-14. HR 2575 defines a full-time employee under the PPACA as an employee who, with respect to any month, is employed on an average at least 40 hours per week. Currently, a full-time employee under the PPACA is one who works at least 30 hours per week on average or 130 hours per month. It is now cleared for action on the House floor. Similar legislation is pending in the Senate introduced by Senators Susan Collins (R-ME) and Joe Donnelly (D-IN) - The Forty Hours is Full Time Act (S.1188). House approval is expected. Senate approval is unclear. Text of HR.2575 http://beta.congress.gov/bill/113th/house-bill/2575/text Further information and interpretation of HR 2575 can be found in various website articles. The link below was shared by Gary Kuty, also on the NCISS Security Legislative Committee. http://www.towerswatson.com/en/Insights/Newsletters/Americas/health-care-reform-bulletin/2014/house-committee-approves-40-hour-definition-of-full-time-employee-under-health-care-reform Labor/Employment: S 815 -- Employment Non-Discrimination Act (ENDA) of 2013 S 815 was introduced on 4/25/13 and passed the Senate on 11/7/13. The bill was then referred to three House Committees. Most recently, the bill was referred to the House Judiciary, Subcommittee on Constitution and Civil Justice. The sponsor is Sen. Jeff Merkley (D-OR), the bill currently has 56 cosponsors. Companion Bill: HR 1755. ENDA would extend workplace protections to individuals based on actual or perceived gender identity. The bill would make it harder for NCISS member security companies to terminate employees while making them vulnerable to another EEOC claim. S 1737 -- Minimum Wage Fairness Act S 1737 was introduced on 11/19/13 and placed on the Senate Legislative calendar (bypassing committee). The sponsor is Sen. Tom Harkin (D-IA), the bill currently has 29 cosponsors. Companion Bill: HR1010. The bill would provide for an increase in the federal minimum wage and to amend the Internal Revenue Code to extend increased expensing limitations and the treatment of certain real property. Minimum wage would progressively increase from $8.20 per hour for the first 6 months, $9.15 an hour six months later, and $10.10 an hour the following year. Certain NCISS member security companies would be affected by an increased minimum wage requirement. S 1837 -- Equal Employment for All Act of 2013 S 1837 was introduced on 12/17/13 and referred to the Senate Committee on Health, Education, Labor and Pensions. The sponsor is Sen. Elizabeth Warren (D-MA), the bill currently has 9 cosponsors. Companion Bill: HR 645 The legislation would prohibit employers from checking the credit history of potential employees. The prohibition applies regardless of whether the potential employee consents to a credit check. NCISS member security companies would be limited in their ability to fully vet potential employees under this bill. HR 1120 -- Preventing Greater Uncertainty in Labor-Management Relations Act HR 1120 was introduced on 3/13/13 and passed the House on 4/12/13 referred to the Senate Committee on Health, Education, Labor and Pensions. The sponsor is Rep. David Poe (R-TN), the bill currently has 25 cosponsors. The bill is a reaction to the NLRB "recess appointments" in January 2012. HR 1120 would prohibit the National Labor Relations Board from taking any action that requires a quorum of the members of the Board until the Board has a appointed quorum, or the Supreme Court issues a decision on the constitutionality of the appointments to the Board made in January 2012, or the adjournment sine die of the first session of the 113th Congress. HR 2096 -- Paid Vacation Act HR 2096 was introduced on 5/22/13 and referred to the House Committee on Education and Workforce, Subcommittee on Workforce Protections. The sponsor is Rep. Alan Grayson, the bill currently has 0 cosponsors. The bill would amend the Fair Labor Standards Act to require that employers with more than 100 employees provide a minimum of 1 week of paid annual leave to employees. After three years of enactment large employers (over 100 employees) must provide 2 weeks of paid leave, small employers (50 or more employees) must provide one week of paid leave. Guns/Background Checks: S 649 -- Safe Communities, Safe Schools Act of 2013 S 649 was introduced on 3/21/13 and considered by the Senate, failing to pass on 4/18/13. The sponsor is Sen. Harry Reid (D-NV), the bill currently has 1 cosponsor. The "Background Check Bill" that would require background checks for all firearm sales. The bill failed to pass after a push by Senate Majority Leader Reid in April 2013. There is little momentum for a renewed background check push. See also: S 54, S 174, S 443, S 691, HR 142 H.R.3335 - Firearms Interstate Commerce Reform Act HR 3335 was introduced on 10/23/13 and referred to the House Judiciary Committee, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. The sponsor is Rep. Steve Scalise (R-LA), the bill currently has 44 cosponsors. Permits firearms dealers, manufacturers and other licensees (e.g. collectors) to sell firearms across state lines if they meet with the potential customer and comply with the laws of the state in which the sale takes places. See also: HR 58, HR 1565, HR 1605, S 1607 H.R. 2464 - Improving Gun Safety Standards Act HR 2464 was introduced on 6/20/13 and referred to the House Energy and Commerce Committee, Subcommittee on Commerce, Manufacturing and Trade. The sponsor is Rep. Robin Kelly (D-IL), the bill currently has 12 cosponsors. The Improving Gun Safety Standards Act would amend the Consumer Product Safety Act to remove the exclusion of pistols, revolvers and other firearms from the Consumer Product Safety Commission's definition of "consumer product," thereby allowing the CPSC to issue safety standards for guns and ammunition. Maria Vinson Landry, CPP Legislative Committee - Security Chair mlandry@vinsonguard.com
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