The Legislative Report blog provides timely information on federal and state legislation and regulations and state trends as well as the myriad issues affecting the private club industry. A companion to CMAA's Legislative website, this resource should be your first stop for any information regarding legal, tax or legislative club-specific issues.
On February 12, the White House announced a further delay for the implementation of the Employer Shared Responsibility Excise Taxes until 2016. This is only applicable to what have been deemed medium size employers or those employers with 50 to 99 employees.
Originally set to take effect on January 1, 2014, these taxes penalize businesses with more than 50 employees (or full-time equivalents) who fail to provide health care coverage to employees who work 30 or more hours. If an employee receives a subsidy to purchase insurance through newly-created health insurance exchange, the business would be subject to a per employee fine. The White House previously delayed these provisions to 2015 for all employers.
To take advantage of the delay, an employer must meet the following criteria:
Further, the definition of seasonal employees was clarified as:
“…an employee in a position for which the customary annual employment is six months or less. The reference to customary means that by the nature of the position an employee in this position typically works for a period of six months or less and that period should begin each calendar year in approximately the same part of the year, such as summer or winter.”
It also provided for “certain usual instances” where a seasonal employee might work longer than six months, specifically citing the example of a ski instructor who might work an additional month due to an extended ski season.
The US Treasury released a useful fact sheet on the final regulations for 2015.
So what are your next steps?
On February 6, the National Labor Relations Board (NLRB) published a revival of the ambush election rule which was first proposed in 2011. The renewed rule would significantly change NLRB election procedures by reducing the time between the filing of a union representation election petition and the occurrence of an election. This has traditionally been 30 to 40 days and would be reduced to as few as 10 to 21 days.
Shortening the time between filing a petition and holding an election could be disastrous for both employers and employees. It limits the employees’ ability to obtain complete information about the costs of unionization and it limits the employer’s ability to effectively prepare for the process.
In May 2012, the United States District Court for the District of Columbia invalidated the rule due to procedural issues regarding its original enactment. However, the District Court indicated in its ruling that it did "not necessarily spell the end of the final rule for all time." In the decision, the Court did not express any other specific opinion on the ambush rule.
The NLRB is currently accepting public comments on the proposed rule through April 7 and is slated to hold public hearings on this proposed rule during the week of that deadline. During the last comment period in 2011, the NLRB received more than 65,000 public comments.
Last week, Congress passed a $1.1 billion FY 2014 omnibus spending bill (HR 3547 – the Consolidated Appropriations Act) and it was signed into law by the President in plenty of time to avoid another government shutdown.
However, there is a bad news for the club industry regarding the H-2B Visa Wage rule. Previously, the continuing resolutions which have kept the government operating for the last couple of years have included a provision which prohibited the use of any funds by the Department of Labor (DOL) to implement the Wage Rule. The new measure does not include this provision. Given that, the wage rule is now set to become effective on March 1, 2014. Originally set to become effective September 30, 2011, the Wage Rule revises the methodology by which the DOL calculates the prevailing wages to be paid to H-2B workers and similarly situated United States workers recruited in connection with H-2B visas. The DOL itself has estimated that this change will produce an approximately $4.50 increase in the weighted hourly wage for H-2B visa workers and similarly situated employed US workers. In April of 2012, a federal district judge in Florida issued a temporary injunction preventing the DOL from implementing the H-2B visa change. The injunction was granted in response to Bayou Lawn & Landscape Services, and Chamber of Commerce, et al. v. Solis, et al. In the complaint, the litigants argue that the DOL lacks the legal authority to issue the rules, and that the statute creating H-2B visas gives the Secretary of Homeland Security, not DOL, the authority to define the program. Given the change in funding status, it is likely that the temporary injunction will be revisited by the court. Stay tuned for further updates!
US Citizenship and Immigration Services (USCIS) and the Department of Homeland Security, in consultation with the Department of State, have announced the 63 countries whose citizens are eligible to participate in the H-2B Visa program for the coming year. The notice listing the 63 eligible countries was published January 17, 2014, in the Federal Register. Four new countries - Austria, Italy, Panama and Thailand – have been added to the list. View the complete list. Effective January 18, 2014, USCIS will generally only approve visa petitions from citizens of these designated countries.
The National Labor Relations Board (NLRB) has announced its decision not to seek Supreme Court review of two U.S. Court of Appeals decisions which invalidated its Notice Posting Rule. The rule would have required most private employers, including clubs whose gross annual volume of business exceeds $500,000, to post an NLRB-drafted notice informing employees of certain rights under the National Labor Relations Act (NLRA).
In May 2013, the US Court of Appeals for the DC Circuit struck down the rule. Judge A. Raymond Randolph ruled the NLRB had violated employers’ free speech rights in trying to force them to display the posters or face charges of committing an unfair labor practice under the NLRA. Subsequently, the posting rule had been on hold following an April 2012 emergency motion barring its enforcement.
In a separate action in April 2012, the fourth circuit federal district court in South Carolina issued an order striking down the rule in its entirety, holding that the NLRB had exceeded its regulatory authority.
The workplace poster remains available on the NLRB website and may be viewed, displayed and disseminated voluntarily.
This year, the cold weather came early and many parts of the country have already experienced snow, ice and freezing rain. Despite the outside conditions, many club employees have to get their jobs done. Take time to remind your employees about cold weather hazards. Working in cold weather can be just as dangerous as working in excessively warm weather.
OSHA’s Cold Stress Card offers the following reminders:
This information is excerpted from the OSHA’s Cold Stress Card (also available in Spanish).
The Food and Drug Administration (FDA) has issued a safety communication related to HeartStart automated external defibrillators manufactured by Philips Healthcare. According to the release, certain HeartStart automated external defibrillator (AED) devices made by Philips Medical Systems, a division of Philips Healthcare, may be unable to deliver the needed defibrillator shock in a cardiac emergency situation. These devices were manufactured and distributed between 2005 and 2012 under the names HeartStart FRx, HeartStart HS1 Home and HeartStart HS1 OnSite. Users of the recalled devices should contact Philips Healthcare at (800) 263-3342 for more information. In September 2012, Philips Healthcare initiated the recall of HeartStart FRx, HeartStart HS1 Home and HeartStart HS1 OnSite AEDs due to the failure of an internal electrical component. The recall affected approximately 700,000 devices. In a Medical Device Safety Notice dated November 19, 2013, Philips Healthcare provided consumers with updated information about the failure of an internal electrical component that could cause the AEDs to fail to deliver a shock. The notification also directed users to a Maintenance Advisory. All clubs that have these models should inspect and monitor the readiness of these devices immediately.