The Department of Labor released unemployment data on April’s unemployment rates. The unemployment rate rose to 8.9 percent, and the number of unemployed persons increased by 563,000 to 13.7 million in April. Over the past 12 months, the number of unemployed persons has risen by 6.0 million, and the unemployment rate has grown by 3.9 percentage points. The unemployment rate has steadily risen this year from a rate of 7.6% in January, an 8.1% rate in February and an 8.1% rate in March. The number of long-term unemployed (those jobless for 27 weeks or more) increased by 498,000 to 3.7 million over the month and has risen by 2.4 million since the start of the recession in December 2007.

Pennsylvania’s unemployment rate for March was 8.2% which was above the national average. The April unemployment rate for Pennsylvania will not be released until later in the month.

Getting behind the raw numbers shows that certain groups and economic sectors are harder hit by the economic downturn. The national unemployment rates are greater for men than women. Unemployment rates rose in April for adult men (9.4%) but remained relatively stable for adult women (7.1%). The jobless rates for Whites (8.0%)and Hispanics (11.3%) were little changed over the month, but rose for Blacks (15.0%) and Asians (6.6%). The following Bureau of Labor Statistics data shows unemployment levels for construction and manufacturing of 18.7% and 12.4% respectively:

 

Sector of the Economy

Unemployment Rate for 2008

Unemployment Rate for 2009

Mining, quarrying, and oil and gas extraction

3.6%

16.1%

Construction

11.1%

18.7%

Manufacturing

4.8%

12.4%

     Durable goods

4.8%

12.8%

     Nondurable goods

5.0%

11.8%

Wholesale and retail trade

4.5%

9.0%

Transportation and utilities

4.0%

9.0%

Information

4.4%

10.1%

Financial activities

3.4%

6.0%

Professional and business services

5.3%

10.4%

Education and health services

2.8%

4.6%

Leisure and hospitality

6.9%

10.2%

Government workers

1.7%

2.6%

The Pennsylvania Department of Health reports that as of April 28, 2009, there are no reported cases of swine influenza A (H1N1) virus infection in Pennsylvania. However, the Center for Control reports 91 laboratory confirmed cases in the United States and tragically the first U.S. fatality.

Best practices for Human Resources should involve planning for business interruption and continuity in the event that the current situation reaches a pandemic proportion.  A list of issues from Human Resource Policies and Pandemic Planning Workplace Questions complied at PandemicFlu.gov. is as follows:

Human Resource Policies and Pandemic Planning

Equal Employment Opportunity (EEO) and Privacy Issues

Workplace Benefits

Workplace Safety and Health Issues

Unemployment Issues and Financial Assistance

Private Sector Workplace Issues

Other valuable employer preparedness resources are as follows:

Veteran Republican Senator Arlen Specter disclosed plans Tuesday to switch parties, a defection that will move Democrats closer to total control of the U.S. Senate. The switch may also revive EFCA in its original form despite Senator Specter’s withdraw of support for the pro-union legislation last month. Senator Specter faces a difficult primary in Pennsylvania. 

Senator Specter was a co-sponsor of EFCA last year but withdrew his support.  In an announcement made on March 24, 2009, he proposed alternative amendments to the NLRA addressing his perceived issues in delays and problems with the unionization process.  His floor comments on his change of heart about EFCA will require some political backtracking, if he is now to support the measure consistent with his new party’s position:

On the merits, the issue which has emerged at the top of the list for me is the elimination of the secret ballot which is the cornerstone of how contests are decided in a democratic society. The bill’s requirement for compulsory arbitration if an agreement is not reached within 120 days may subject the employer to a deal he or she cannot live with. Such arbitration runs contrary to the basic tenet of the Wagner Act for collective bargaining which makes the employer liable only for a deal he or she agrees to. The arbitration provision could be substantially improved by the last best offer procedure which would limit the arbitrator’s discretion and prompt the parties to move to more reasonable positions. 

For now, EFCA in its original form, may have been given new life in the Senate.

The applicability date of the final rule requiring federal contractors and subcontractors to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system has been pushed back by six weeks to June 30, 2009, with hint that it may be abandoned or revised. The USCIS website contains the following notice:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will publish an amendment in the Federal Register tomorrow postponing the applicability of the final rule until June 30, 2009. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and went into effect on Jan 19, 2009.

The extension provides the Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors.

My previous posts on the E-Verify rule are here:

E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

Mandatory use of E-Verify for Government Contractors delayed again to May 21, 2009

Good News: SHRM reports delay in E-Verify Regulations’ Effective Date until February 20, 2009

In recognition of the importance and sacrifices associated with military service, many employers provide a supplemental payment for their employees called to active military service which covers the difference between their military pay and their regular compensation. Pay differentials are provided for varying lengths of time.

Revenue Ruling 2009-11 provides that a differential wage payment made by employers to their employees that leave their job to go on active military duty is not subject to FICA or FUTA taxes. However, the pay differential is subject to income tax withholding under new Code section 3401(h). The IRS ruling provides that employers may use the aggregate procedure or optional flat rate withholding to calculate the amount of income taxes required to be withheld on these payments, and that these payments must be reported on Form W-2.

Section 3401(h) was added to the Code by section 105(a) of the Heroes Earnings Assistance and Relief Tax Act of 2008.  New subsection 3401(h) provides that, for purposes of income tax withholding, any differential wage payment is to be treated as a payment of wages by the employer to the employee. Section 3401(h) applies to differential wage payments paid after December 31, 2008. The enactment of section 3401(h) modifies the holding in Revenue Ruling 69-136 that differential wage payments are not subject to income tax withholding. The term “differential wage payment” means any payment which (A) is made by an employer to an individual with respect to any period during which the individual is performing service in the uniformed services (as defined in chapter 43 of title 38, United States Code) while on active duty for a period of more than 30 days, and (B) represents all or a portion of the wages the individual would have received from the employer if the individual were performing service for the employer.

We have previously summarized the provisions of HEART in our post Making Sure Your “HEART” Is In The Right Place When It Comes To Soldier-Employee’s Benefits

There is no delay. April 3, 2009 is the effective date for use of the revised I-9 Form according to the USCIS. The following resources are available for compliance with the revised form and more limited scope of acceptable documents:

Revised I-9 Form (English)

Revised I-9 Form (Spanish)*

List of Documents Acceptable for Employment Verification

Questions and Answers

Handbook for Employers

*Note: The Spanish version of Form I-9, available below on this page, may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.

Frankly, I was expecting a delay in the effective date of the Revised I-9 Form, so I have been procrastinating a reminder post. I am tired of checking the USCIS website for information. However, I am wary since there has been no report on the comments received during the 30-day re-opening of the comment period which ended March 4, 2009.

The Revised I-9 Form is effective April 3, 2009.  The USCIS has issued a Q&A on the Revised I-9 Form. There is also a Handbook for Employers on the Revised I-9 Form. The US Citizenship and Immigration Service ("USCIS") has revised the Form I-9 and acceptable documents issuing the following summary:

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only.

The rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.

The United States Supreme Court upheld a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. Accordingly, there is no legal basis for the Court to strike down an arbitration clause in a collective bargaining agreement, which was freely negotiated by a union and company, and which clearly and unmistakably requires employees to arbitrate the age-discrimination claims. However, the Court declined to rule on specific factual issued related to whether the waiver of discrimination claims under the contract by employees’ in this case was clear and unmistakable. It also would not rule on whether the contract waived substantive rights protected by federal law which could not be vindicated in an arbitration. These issues were not properly before the Court.

The decision in 14 Penn Plaza LLC v. Pyett has important implications for unionized employers who face employment discrimination charges and lawsuits. These claims may be forced into the arbitration forum and out of court depending on the language in the contract. The scope of the arbitration clause including any limitations will be an important focus of future litigation.

On March 31, 2009, the IRS issued a notice relating to premium assistance for COBRA continuation coverage under the American Recovery and Reinvestment Act of 2009 (ARRA). Notice 2009-27 contains many helpful clarifications on the following topics:

  • INVOLUNTARY TERMINATION
  • ASSISTANCE ELIGIBLE INDIVIDUAL
  • CALCULATION OF PREMIUM REDUCTION
  • COVERAGE ELIGIBLE FOR PREMIUM REDUCTION
  • RECAPTURE OF PREMIUM ASSISTANCE
  • PAYMENTS TO INSURERS UNDER FEDERAL COBRA
  • COMPARABLE STATE CONTINUATION COVERAGE

The Q&A section answers many nagging questions particularly on "involuntary termination" eligibility including the following as meeting the definition:

  • An involuntary termination means any severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services (this leaves in question where employees accepting a "voluntary layoff" may qualify).
  • Any temporary layoff with recall rights qualifies as a termination, but a reduction in hours does not qualify. However, an employee’s voluntary termination in response to an employer-imposed reduction in hours may be an involuntary termination if the reduction in hours is a material negative change in the employment relationship for the employee.
  • Any termination elected by the employee in return for a severance package.
  • Any employee-initiated termination from employment constitutes an involuntary termination from employment for purposes of the premium reduction if the termination from employment constitutes a termination for good reason due to employer action that causes a material negative change in the employment relationship for the employee.

Employers should be complying with the Notice requirement of the ARRA before April 18, 2009.

 

Senator Arlen Specter announced his opposition to the Employee Free Choice Act as currently proposed. His vote was critical to the Democrats efforts to invoke cloture under Senate rules and bring the bill to a vote that would almost certainly have gained a simple majority to pass. The Senator’s comments on the Senate Floor acknowledge the importance of his vote:

In June 2007, the vote on the Employee Free Choice was virtually monolithic: 50 Senators, Democrats, voted for cloture and 48 Republicans against. I was the only Republican to vote for cloture. The prospects for the next cloture vote are virtually the same. No Democratic Senator has spoken out against cloture. Republican Senators are outspoken in favor of a filibuster. With the prospects of a Democratic win in Minnesota, yet uncertain, it appears that 59 Democrats will vote to proceed with 40 Republicans in opposition. If so, the decisive vote would be mine. In a highly polarized Senate, many decisive votes are left to a small group who are willing to listen, reject ideological dogmatism, disagree with the party line and make an independent judgment. It is an anguishing position, but we play the cards we are dealt.

The Senator’s floor comments left open the possibility that he would support some other initiative to reform the unionization process and identified the following specific suggestions:

SOME SUGGESTED REVISIONS TO THE NATIONAL LABOR RELATIONS ACT

(1) Establishing a timetable:

(a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union

(b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension.

(c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.

(2) Adding unfair labor practices:

(a) an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign;

(b) an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances;

(c) an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.

(3) Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired

(4) Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign

(5) Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service

(6) On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.

(7) Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith

(8) Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;

(9) Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.

(10) If the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.

(11) Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith

(12) Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.