HR Issues Update - February 23, 2007
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Choosing a Union: Private Ballot vs. Public Card-Check

Today, when American workers form a union, they usually hold a vote by secret ballot.  That commonly-accepted practice could come to an end in workplaces across the country if a bill passed by the House Education and Labor Committee becomes law.

SHRM supports and encourages secret ballot elections as the most effective process for validating majority representation, as such elections minimize inappropriate outside influences and are consistent with the underlying and fundamental principles of democracy.  As such, SHRM opposes this legislation based on concerns that a public vote for or against a union could lead to a hostile work environment and employee intimidation.

Under the Employee Free Choice Act (H.R. 800), if a majority of employees in a bargaining unit were to sign “authorization cards” in favor of a labor organization, the National Labor Relations Board must certify the union as the sole representative for those workers.  As a result, there would not be a federally-supervised private vote.

In anticipation of the full House of Representatives voting on the proposal as early as next week, the White House announced that President Bush would veto the legislation if it reaches his desk.

SHRM is a founding member of the Coalition for a Democratic Workplace; a partnership of employee and employer organizations advocating for workers’ right to a federally-supervised private ballot election when deciding whether or not to join a union.

SHRM Recommends Improvements to FMLA Implementation

On February 16, 2007, SHRM submitted comments to the U.S. Department of Labor (DOL) in response to its Request for Information (RFI) regarding the Family and Medical Leave Act (FMLA).  DOL sought information about workplace experiences with several FMLA provisions, including the definition of a “serious health condition,” intermittent leave, notice requirements and FMLA leave determinations/medical certifications.

In its comments, SHRM highlighted HR’s challenging role in administering and granting leave pursuant to the FMLA.  SHRM recommended that DOL: (1) increase the number of days in the definition of a period of incapacity from “more than three consecutive calendar days” to “more than five business days”; (2) require employees to take leave in half-day increments, at a minimum; and (3) require employees to provide advance notice of their request for FMLA leave, except when the leave is unforeseeable.

During the past two months, SHRM has solicited suggestions from the HR community on ways to improve the implementation of the FMLA.  In January, the Society organized three regional sessions to discuss the FMLA in Seattle, Washington; Groton, Connecticut; and Chicago, Illinois.  SHRM also mobilized its grassroots letter-writing effort through which members submitted nearly 4,500 comments to DOL using HRVoice.  Finally, as the chair of the National Coalition to Protect Family Leave, numerous SHRM state councils and chapters signed a comprehensive set of comments that were also submitted to DOL.

No news yet on DOL’s reaction to the comments or what action, if any, DOL may take.  Stay tuned for updates.

Mental Health Parity Plan Advances

Employers who offer both medical and mental health coverage to employees may soon need to guarantee similar benefits for both plans.  The Senate Health, Education, Labor and Pensions Committee recently approved bipartisan legislation to provide employees with greater access to mental health benefits.  The proposal has been endorsed by SHRM in a letter of support, as well as by other major employer groups and mental health advocates.

The Mental Health Parity Act of 2007 (MHPA), jointly-sponsored by Senators Mike Enzi (R-WY), Pete Domenici (R-NM), and Ted Kennedy (D-MA), would not require group health plans to provide mental health coverage.  Rather, if a health plan offers mental health coverage, it must ensure that the financial requirements and treatment limitations applied to mental health benefits are no more restrictive than those relating to medical and surgical benefits.  These parity requirements would apply to group health plans with 50 or more employees.

As passed by the Committee, the MHPA would preempt state mental health parity standards regarding financial requirements and treatment limitations.  However, it would not preempt state laws that require mental health benefits be covered.

Improved Genetic Non-Discrimination Bill Wins Unanimous Support

Thanks in part to recommendations made by SHRM, new non-discrimination requirements are one step closer to becoming law.  The House Education and Labor Committee unanimously approved a revised proposal barring employers and group health care plans from discriminating against workers when it comes to employment and benefits issues. 

SHRM believes that employment decisions should be based on an individual’s qualifications and ability to perform a job – not on characteristics that have no bearing on job performance, such as genetics.  However, any legislation on this issue must be carefully designed to minimize uncertainties, unintended consequences, and unwarranted litigation in a way that protects employees and employers.

Since the Human Genome Project was completed in 2003, scientists have been able to identify numerous genes linked to specific illnesses such as cystic fibrosis to cancer.  These new advancements, however, have raised concerns among some workers, who fear their families’ medical histories could put their jobs in jeopardy.

SHRM, a co-chair of the Genetic Information Non-discrimination in Employment (GINE) Coalition, worked closely with the Democratic and Republican staffs in the House on modifications to balance the concerns of both employees and HR professionals.  Specifically, the amended bill would:

•  Limit the definition of “family member” to those related by blood within four generations,
•  Allow employers to keep genetic and medical records together, rather than segregated, which would have required employers to establish a separate standard for genetic information recordkeeping, and
•  Clarify that group health care plans would not be required to offer coverage for all genetic disorders.

Many of the improvements the Committee made to the bill were the result of SHRM’s suggestions.

Meet Your Elected Officials! Come to Washington Next Month

Time is running out to join SHRM’s 2007 Employment Law and Legislative Conference in Washington, DC on March 12 – 14.  Don’t miss this opportunity to visit your congressional delegation, learn “inside” news about issues affecting your employer and employees, and help promote the importance of HR in shaping workplace policies.  Sign up today!