Workplace Regulations
Report
NAW AEC Meeting
Washington, D.C.
January, 2013
National Association of Wholesaler-Distributors
1325 G Street, N.W., Washington, D.C. 20005
202-872-0885
www.naw.org
1
The Fall Regulatory Agenda
• Under the Regulatory Flexibility Act, Federal Agencies are required to
publish in April and October of each year a summary of the signficant
regulations they are pursuing, and
• To disclose a “unified agenda of regulations” to the Office of Management
and Budget, which then publishes a complete list of the regulations.
• However, last year federal agencies failed to publish their required spring
agenda at all, and postponed release of the fall agenda until December,
well past the October deadline.
• There was speculation that the agencies deliberately delayed releasing
their reports to avoid any political attention before the elections.
2
The Regulatory Agenda after the 2012 elections
• The “status quo” election last November ensures that regulatory battles
will continue, evident now from the finally-released Regulatory Agenda.
• According to the Regulations.gov one-day snapshot, as of January 18th:
• Regulations with Comments Due Soon:
– Today: 73
– Next 15 days: 338
– Next 30 days: 678
– Next 90 days: 971
• Newly Posted Regulations:
– Today: 106
– Last 15 days: 940
– Last 30 days: 1,802
– Last 90 days: 5,569
3
The National Labor Relations Board
•
The politicized NLRB continues its effort to impose the Employee Free Choice Act
(EFCA) and increase union membership through rule-making and case decisions.
Notice of Employee Rights Under the National Labor Relations Act . . .
Unconstitutional “recess appointments” to continue advancing their agenda . . .
“Ambush elections” rule to speed up union elections . . .
Specialty Healthcare and micro bargaining units . . .
“Concerted Activity" to increase NLRB involvement in non-union workplaces . . .
Roundy’s and premise access . . .
Permitting unions to spend mandatory dues on lobbying . . .
4
And the Department of Labor
Agencies within DoL remain among the most active regulators . . .
DoL’s “Plan/Prevent/Protect” and “Openness and Transparency”
Office of Labor Management Standards – OLMS
“Persuader” rule to limit employers’ access to counsel under the
Labor Management Reporting and Disclosure Act – LMRDA
Occupational Safety and Health Administration – OSHA
“Illness and Injury Prevention Program” – I2P2
Wage and Hour Division -- WHD
“Right to Know” rules enforcing the Fair Labor Standards Act – FLSA
Office of Federal Contract Compliance Programs – OFCCP
Affirmative Action program for the disabled
5
Business continues to fight the regulatory assault
•
NAW and the Coalition for a Democratic Workplace continue to fight the avalanche of
labor regulations. We fought legislative battles in Congress to overturn the Ambush
rule and to defund the Board’s implementation of Specialty micro bargaining units.
•
But most of our efforts have been in the regulatory process & courts. We have filed:
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Amicus brief with the NLRB in the “Roundy’s” premise access case
Comments with OFCCP on federal contractors’ affirmative action rule
Comments with OLMS on “persuader” rule
Litigation challenging the notice posting rule; won injunction against enforcement
Amicus briefs in four “micro bargaining unit” cases
Amicus brief in Banner Health regarding internal investigations
Amicus briefs in two cases challenging NLRB recess appointments
Intervenor brief in Noel Canning challenging NLRB recess appointments
Challenge to “Ambush” rule; won when the court struck down “Ambush”
Amicus brief in the appeal of the lower court holding in “Ambush”
6
NLRB -- Notice of Employee Rights
Under the National Labor Relations Act
• In a rare rule-making, the NLRB two years ago promulgated a final rule
requiring private businesses to post a “Notice of Employee Rights Under
National Labor Relations Act” virtually identical to a similar DoL requirement
which applies only to federal contractors.
• NAW joined CDW and others in challenging the Board in D.C. district court
and another challenge was filed in federal district court in South Carolina.
• The judge in the D.C. case ruled that the Board had the statutory authority to
require the posting, but that the Board could not impose blanket penalties
against companies for failure to post the notice.
• However, the judge in the South Carolina case handed down a decision in
April, 2012 declaring the Board’s notice posting rule unlawful.
7
Court blocks enforcement of NLRB posting regulation
•
CDW & coalition partners appealed the judge’s adverse decision in the case filed in
D.C. and the NLRB appealed both the D.C. and the S.C. court decisions.
•
The Appeals Court in D.C. granted a CDW motion for an injunction and issued an
order delaying enforcement of the Board’s rule pending the appeal’s outcome.
•
Oral argument was heard in the D.C. appeal on September 11, 2012.
•
The NLRB attorney argued in the case that the Board could have imposed the
notice posting by adjudication, which was an extraordinary over-reach, and
admitted that the reason the Board proposed the rule was to help reverse the
decline in union membership.
•
Argument in the S.C. appeal has been set for March, 2013, and the Board has
announced that it will not enforce the rule until that appeal is decided.
8
NLRB Recess Appointments
•
Without a seated quorum of at least three members, the NLRB is legally prohibited
from any major decision making, and with the expiration of Craig Becker’s term in
January, 2012, the Board was reduced to two members.
•
In order to restore a quorum, the President made three controversial “recess
appointments” to the Board in January, 2012 (one has since resigned).
•
The President made the appointments when the Senate was not in recess,
claiming that he had the authority to determine when the Senate was in session or
in recess, thus circumventing the Senate’s constitutional right to “advice and
consent” on nominations and ignoring the Senate rules.
•
The recess appointments have been challenged in court, but even if the court
upholds the controversial appointments, the Board will again face the loss of a
quorum in August when Chairman Pearce’s term ends.
•
The President’s action protecting a pro-labor activist Board could have ironic
consequences: if the court strikes down the recess appointments, the Board will
have NO legally seated members in August when Pearce’s term expires.
9
NLRB - Challenges to the recess appointments
• NAW/CDW was granted permission to file as an intervenor in a case in the
D.C. Circuit Court of Appeals – called Noel Canning – challenging the
recess appointments on the grounds that the appointments were made
without the constitutionally-required advice and consent of the Senate.
•
In September, 2012, almost all GOP Senators signed onto an amicus brief
in the Noel Canning case. Oral arguments were heard in the case in
December, 2012, and we are waiting for the court decision.
• Additional cases challenging the recess appointments are working their
way through the courts, and it is expected that the Supreme Court will
eventually decide this issue.
10
NLRB Representation Case “Ambush Elections” rules
•
In December, 2011, the NLRB issued a final Representation Case Rule governing union
certification elections, designed to impose EFCA by the back door by mandating
“quickie” or “ambush” elections.
•
Unions spend months collecting signatures in card check campaigns with the employer
often unaware of the effort; “ambush” elections would deny the employer the
opportunity to make its case to employees & deny employees the opportunity to hear
from both sides. Today the median time between the filing of a petition & the election
is about 38 days; this new Rule could shorten that to as little as 10-21 days.
•
The Rule would, among other things -– Limit pre-election hearings to whether there is a question of representation and whether the
bargaining unit is appropriate
– Give broad power to Hearing Officers to determine what issues can be raised in briefs, and
the timing of the filing of those briefs
– Deny the employer the right to raise some legal issues, attempt to verify the eligibility of
voters, or challenge pre-election rulings – until after the certification election
11
“Ambush” Rule declared invalid in CDW challenge
• Immediately after the Final Rule was published, CDW joined with the U.S.
Chamber in filing a challenge to the Rule in court; other court challenges
have also been filed.
• On May 14, 2012, in a surprise ruling in the CDW/Chamber case, the D.C.
district court struck down the “Ambush” rule.
• The Court did not rule on the merits of the “Ambush” rule, but declared it
invalid because only two members of the Board had voted on it and a
quorum of three votes was required (GOP member Brian Hayes did not
vote on the final rule).
• The Board quickly issued a statement suspending implementation of the
new rule and the General Counsel withdrew the “guidance” he had issued
to regional directors, thereby removing the April 30, 2013 effective date.
12
Next steps in “Ambush”
•
In June, 2012, the NLRB filed a Motion to Amend the Judgment, arguing that the court
relied on a “mistaken understanding of the facts” and that Member Hayes “was present
in the Board’s electronic voting room.” The Board also asked the Court to allow them to
introduce new evidence. The Court denied both motions.
•
On August 7, 2012, the NLRB appealed to the D.C. Circuit the district court decision
striking down the rule as well as the lower court's rejection of the Board's motion for
reconsideration.
•
The Board brief was filed last fall and our brief was filed on December 31, 2012. Oral
argument in the case has been set for April 4, 2013, so the earliest we would expect a
ruling from the D.C. Circuit is very late Spring/Summer 2013.
•
If the Board loses the case on the issue of the absent quorum, they could re-issue the
rule with the new Board members voting, but should they take that course, they would
trade the quorum issue for the issue of the challenged recess appointees, and would
almost certainly be right back in court.
13
More on “Ambush elections” – and why it matters
•
The Final Rule does NOT include some of the most egregious proposals in the
Proposed Rule, for example, the requirements that:
– A hearing be scheduled in 7 days;
– Employers provide employee lists within two days; and
– Employers provide email addresses & phone numbers for their workers.
•
A Bloomberg study of union certification elections from 2000-2011 demonstrates
why “quickie” elections are important:
– The shorter the time between the union filing a petition and the election, the
more likely the union is to win;
– Almost 58% of certification elections were decided by five or fewer votes and
16% were decided by just one vote;
– Half of the elections had fewer than 20 workers voting;
14
NLRB Cases – Specialty Healthcare
•
In a significant case in 2011, the NLRB reversed decades-old standards governing
how collective bargaining units are determined.
•
Under the previous standard, after a union petitioned for a group of employees to
represent as an “appropriate” bargaining unit, the employer could challenge that
unit asking that additional employees with “community of interest” be included in
the proposed unit.
•
Under Specialty, the union’s requested collective bargaining unit will be deemed to
be appropriate “despite [an employer’s] contention that employees in the unit
could be placed in a larger unit which would also be appropriate or even more
appropriate, unless the [employer] demonstrates that employees in the larger unit
share an overwhelming community of interest with those in the petitioned-for
unit” (emphasis added).
•
The “overwhelming community of interest” is a standard that labor experts argue
cannot be met; in his dissent, NLRB member Brian Hayes said the majority made it
“virtually impossible” for an employer to prove that additional employees should
be included in a voting unit.
15
Specialty Healthcare – the ramifications
•
The Board originally claimed that Specialty would apply only to the healthcare industry, but they
have now applied the standard to Northrop Grumman, an aviation services company, an airport
car rental agency, a retailer, an ice cream processing plant – the list keeps growing.
•
The NLRB approved a unit of 31 of 109 workers in the car rental agency – overruling the Board
Regional Director’s ruling that the only reasonable unit was the entire 109 workers.
•
And last May, the Board applied Specialty to Bergdorf Goodman, permitting 46 women’s shoe
sales personnel (out of more than 400 total sales staff) to organize a separate bargaining unit.
•
As a result of Specialty, labor unions are now able to target “micro units” within any company –
large or small – singling out small groups of workers sympathetic to the unions.
•
Employers could face multiple bargaining units with separate wages, benefits, work rules, and
grievance procedures within a single workplace, even if workers are cross-trained, do the same
job, and work within a few feet of one another (think about pickers in a warehouse being in
separate bargaining units based on the product they take from the shelves).
•
Board member Brian Hayes, in his dissenting opinion, accused his NLRB colleagues of acting “for
the purely ideological purpose of reversing the decades-old decline in union density in the
private American workforce.”
16
Specialty Healthcare – next steps
• The Board’s decision in Specialty could not be directly appealed to the
courts; in order to challenge the decision, Specialty had to
– proceed with and lose the union certification election, and then
– refuse to bargain with the union because it objected to the bargaining
unit.
• As a result of its refusal to bargain, the union filed an unfair labor practice
charge against the company with the NLRB. In December, 2011, the Board
found that Specialty had committed an unfair labor practice and ordered
the company to bargain.
• This Board decision can be appealed to a Court of Appeals and Specialty is
appealing. Bergdorf Goodman, Nestle, and Huntington Ingalls have all
followed Specialty’s lead and are appealing or are expected to appeal the
Board’s decisions.
17
Specialty - business fights back in the courts
• Specialty Healthcare: CDW filed an amicus brief in the case in the Sixth Circuit
Court of Appeals in April, 2012.
• The Neiman Marcus Group, Inc. (Bergdorf Goodman): CDW, NAW and 6
others filed an amicus brief before the NLRB in June, 2012.
• Nestlé Dreyer’s Ice Cream Company: CDW, NAW and 6 other associations filed
an amicus brief in the Fourth Circuit in July, 2012.
• Huntington Ingalls (Northrop Grumman): CDW, NAW and 6 other associations
filed an amicus brief in the 4th Fourth Circuit Court of Appeals in October,
2012; employer brief is due January 15, 2013.
18
NLRB & “Protected Concerted Activity”
•
Under Section 7 of the National Labor Relations Act (NLRA) an employer may not
“interfere with, restrain, or coerce” employees for participating in “concerted
activities for the purpose of collective bargaining or other mutual aid or
protection” – whether or not they are unionized.
•
The NLRB’s website says: “The law we enforce gives employees the right to act
together to try to improve their pay and working conditions or fix job-related
problems, even if they aren't in a union. If employees are fired, suspended, or
otherwise penalized for taking part in protected group activity, the National Labor
Relations Board will fight to restore what was unlawfully taken away.”
•
The Board can only take enforcement action against an employer when charges
are filed, but it is now aggressively marketing its Section 7 authority by
encouraging workers – non-union and union alike – to act on their rights.
•
Enforcement of Section 7 rights may include unfair labor practice findings, reversal
of employee discipline or termination, including back pay.
19
Concerted Activity & Social Media
• Recent Board decisions have applied concerted activity protections to
comments derogatory to the employer placed by employees on social
media sites.
• NLRB Acting Gen Counsel Solomon has written several memoranda
reviewing cases involving “the use of social media and employers’ social
and general media policies.” In some cases, company policies that
restricted employees’ use of social media were declared unlawful because
employees would reasonably construe overly broad policies to prohibit
protected concerted activity. The third Board memorandum includes one
social media policy which the Board found entirely lawful.
• Every company with a social media policy would be well advised to consult
their own counsel to establish that the policy will meet the Board’s test
regarding protected concerted activity.
20
Concerted activity & internal investigations
•
In a decision last summer, Banner Health, the Board ruled that an employer policy
“maintaining and applying a rule prohibiting employees from discussing ongoing
investigations of employee misconduct” violated employees’ Section 7 rights.
•
The Board held that the employer’s desire to protect the integrity of internal
investigations did not justify a broad confidentiality policy; that the employer
should instead “first determine whether in any given investigation witnesses need
protection, evidence is in danger of being destroyed, testimony is in danger of
being fabricated, or there is a need to prevent a cover up.”
•
That demand is obviously unrealistic since an employer clearly may not know at
the beginning of an investigation whether any of those conditions may arise.
•
Banner Health appealed the Board’s decision to the D.C. Circuit; NAW has joined
an amicus brief supporting the appeal. Our brief was filed on January 14th.
21
Concerted Activity and Arbitration Agreements
• In a case decided in January, 2012, the Board held that an employer,
homebuilder D.R. Horton, violated non-union workers’ Section 7 rights by
requiring them to sign an agreement waiving their right to join class action
judicial actions and agreeing to bring complaints against the employer to
arbitration on an individual basis.
• D.R Horton challenged the Board’s ruling in court, arguing that the Board
exceeded its statutory authority by holding the arbitration agreement
invalid.
• CDW filed an amicus brief in the case in the Fifth Circuit Court of Appeals
in June, 2012. Argument is set for February, 2013.
• The 8th Circuit, on January 7, 2013, declined to follow the Board’s D.R.
Horton ruling, as have nearly all of the U.S. District Courts to consider it.
22
Concerted Activity & “at will” employment
•
An NLRB Administrative Law Judge (ALJ) and a regional office official each held last
year that broad “at will employment” language in an employee handbook could be
construed by an employee as barring employee participation in union organizing
activity and was therefore in violation of the NLRA.
•
However, in advisory memoranda released last October, the Board found two at-will
policies (Mimi’s Café and Rocha Transportation) lawful because they would not be
construed as restricting Section 7 rights of non-union or union employees.
•
As with the social media issue, employers would be well advised to review at-will
employment language in their employee handbook to ensure it would not be found to
be over-broad.
•
The two Board Advice Memoranda can be found on the NLRB website at
http://www.nlrb.gov/cases-decisions/advice-memos/recently-released
23
Concerted Activity and inappropriate behavior
•
In a case decided last September, Fresenius Manufacturing, a pro-union worker left offensive and
potentially threatening notes for colleagues to read during a union decertification campaign. The
messages referred to “pussies” and “cat food lovers” and one read “Warehouse workers, RIP.”
•
Female co-workers complained about what they believed to be harassing messages and the
employer initiated an investigation into the incident.
•
The employee in question initially denied that he had written the messages, but subsequently
admitted to the employer that he had done so.
•
The employee was discharged for writing the offensive messages and for lying about it.
•
The NLRB found that the employer's investigation of the incident was lawful and appropriate since
it had an obligation to investigate allegations of harassment, but that the employee’s conduct was
protected under Section 7 and that the employer violated the NLRA by discharging him.
•
CDW is reviewing the case and may join in an amicus brief challenging the Board’s decision.
24
NLRB - Roundy’s, premise and email access
•
In January, 2012, NLRB Chairman Pearce said that among the major issues pending
before the Board – the Roundy’s case – is “whether non-employees should have
access to private property” – in this case non-employee union organizers.
•
At issue is whether an employer must provide access to its business premises to
non-employee union organizers if it grants access to other non-employee
individuals or groups (e.g., Salvation Army or Girl Scouts).
•
The Board is also considering whether Roundy’s may “involve employee use of an
employer’s e-mail system,” i.e., if an employer allows an employee to use worker
email addresses to send information about Girl Scout cookies, could the employer
be required to allow the use of those email addresses by a worker advocating
union organization. (Daily Labor Report, Jan 24, 2012)
•
An employer could be required to provide access to its property even to nonemployer union activists actively urging boycott of that company’s product.
•
This could impact not just retail and shopping centers, but any business using a
non-union company for a construction project.
25
NLRB OKs Union political spending – of forced dues
•
The Courts held in the Beck case in the late 1980’s that a dissenting workers’
mandatory union dues could not be used for political or lobbying activities.
•
In a December ruling (Kent Hosp.), the NLRB gutted Beck, holding that a union may
spend dissenting workers dues on lobbying because it may involve “employee concerns
such as wages, hours, and working conditions [which] all clearly raise issues that relate
to a union's most essential representative functions,” and that . . .
•
“So long as lobbying is used to pursue goals that are germane to collective bargaining,
contract administration, or grievance adjustment, it is chargeable to objectors.”
•
The Board said it would decide on a case-by-case basis whether lobbying expenses on
a specific legislative proposal are “germane” and chargeable to dissenting employees,
and invited amicus briefs on how germaneness should be defined.
•
Further eroding the protection of dissenting workers from having their mandatory
dues used for purposes with which they disagree, the Board held that unions are not
required to provide audit statements so that those dissenting workers can be sure that
an independent auditor verified that their dues were not spent for political purposes.
26
DoL programs – “Plan/Prevent/Protect” &
“Openness and Transparency”
•
Agencies participating in these programs include the Occupational Safety & Health
Administration (OSHA), the Office of Federal Contract Compliance Programs (OFCCP), the
Wage & Hour Division (WHD).
•
DoL contends that while some employers pursue safe workplaces, many operate on a “Catch
Me If You Can” basis and ignore safety regulations until and unless an OSHA inspector is at
their door.
•
Under PPP, companies will be required to develop and implement a plan, including assigning
staff to the project, to assess possible violations of regulations in their workplace to “ensure
compliance with employment laws before Labor Department enforcement personnel arrive
at their doorsteps.” (Fall 2012 Statement of Regulatory Priorities.)
•
The “Openness and Transparency” program “will not only enhance agencies’ enforcement
actions but will encourage greater levels of compliance by the regulated community and
enhance awareness among workers of their rights and benefits. When employers, unions,
workers, advocates and members of the public have greater access to information concerning
workplace conditions and expectations, then we all become partners in the endeavor to
create Good Jobs for Everyone.” (Fall 2012 Statement of Regulatory Priorities.)
27
Office of Labor-Management Standards (OLMS)
Advice Exemption and Persuader Agreements
•
Employer arrangements with consultants who do NOT interact with workers are currently not
required to be disclosed under the Labor Management Reporting & Disclosure Act (LMRDA), but
OLMS last year proposed new rules calling for disclosure of a wide range of advice now available
to employers without disclosure.
•
“An employer and consultant each must file a report concerning an agreement or arrangement
pursuant to which the consultant engages in activities that have as a direct or indirect object to,
explicitly or implicitly, influence the decisions of employees with respect to forming, joining or
assisting a union . . .”
•
Covered counsel would include “drafting, revising, or providing a persuader speech, written
material, website content, audiovisual or multimedia presentation, or other material or
communication of any sort, to an employer for presentation, dissemination, or distribution to
employees, directly or indirectly . . .”
•
Some labor lawyers believe this infringement on employer free speech would extend to a trade
association providing a generic document about labor organizing to its member companies.
28
More on Persuader
• Under the proposed new Rule, lawyers providing such advice would have
to disclose “detailed information regarding the legal fees paid by all of the
lawyers’ employer clients, and disbursements made by the lawyers, on
account of `labor relations advice or services’ provided to any employer
client, not just those clients who were involved in persuader activity.”
(American Bar Association letter to the OLMS opposing the new Rule)
• That overly-broad disclosure requirement would make it virtually
impossible for a company without in-house labor counsel to obtain advice,
because the provision of advice to one client would require the disclosure
of the advisor’s similar agreements with all of his clients; without access
to counsel the employer would be at risk of unknowingly committing
unfair labor practices.
• CDW filed comments with OLMS opposing the new Persuader Agreement
rules, which are expected to be announced by April, 2013, and is prepared
to challenge the Rule in court.
29
OSHA’s Injury & Illness Prevention Program – I2P2
This proposed program, part of DoL’s Plan/Prevent/Protect initiative:
Would require all employers to develop a new safety Plan even if the employer has
a perfect safety record;
“[W]ill explore requiring employers to provide their employees with opportunities
to participate in the development and implementation of an injury and illness
prevention program including a systematic process to proactively and continuously
address workplace safety and health hazards.”
Would consider an employer “non-compliant” for failure to develop, implement and
maintain a Plan.
This new rule has been repeatedly delayed, but the OSHA Fall Statement of Regulatory
Priorities includes it yet again, with a Notice of Proposed Rulemaking anticipated by
December, 2013.
30
Wage and Hour Division (WHD) – “Right to Know”
•
In 2011 WHD proposed rules to enforce the Fair Labor Standards Act (FLSA) that
would impose additional record-keeping rules requiring employers to demonstrate –
and share with workers – the employers’ compliance with FLSA wage regulations.
•
Employers would be required to notify workers of their rights under FLSA, share
information on how their wages are computed, and ensure workers “are better
positioned to meaningfully participate in workplace decision-making.”
•
The controversial “right to know” rule was not pursued in 2012, and is now listed as
a long-term project at WHD.
•
However, in January, 2013, WDH announced that it was seeking public comment on
a proposal to collect information “about employment experiences and workers’
knowledge of basic employment laws and rules so as to better understand
employees’ experience with worker misclassification.” It is not clear whether this is
a preliminary move toward the “right to know” rules, but business is watching
closely.
31
Office of Federal Contract Compliance Programs (OFCCP)
•
OFCCP enforces non-discrimination and affirmative action obligations of federal contractors
under the Rehabilitation Act and a Vietnam-era Veterans assistance program.
•
In December, 2011, OFCCP published a notice of proposed rulemaking (NPRM) to impose
affirmative action goals for the disabled on federal contractors.
•
Contractors would be required to set a goal of having 7 percent of their workers in each job
group be workers with disabilities, with a 2 percent sub-goal within the 7 percent goal for
individuals with severe disabilities (total deafness, blindness, missing extremities, paralysis,
epilepsy, severe intellectual disability, psychiatric disability and dwarfism).
•
Employers would be required to “invite” applicants to voluntarily self-describe as disabled,
even though the Americans with Disabilities Act prohibits an employer from asking applicants
about disabilities.
•
The proposed rule set out compliance actions employers would have to take and “introduced
several new data collection, recordkeeping, job listing and outreach requirements.” (Daily
Labor Report, July 7, 2012)
32
Business Response to OFCCP disabilities rule
• NAW and other business groups filed comments with OFCCP last year
objecting to the proposed rule.
• Last July, the HR Policy Association released a study done by Applied Economic
Strategies which estimated that “the cost of the NPRM will be at least $5.9
billion the first year and at least $2.6 billion per year in recurring costs..”
(OFCCP estimated that the total annual cost of the proposed rule is $81.1
million, or $473 per contractor establishment.)
• A final rule is expected by April, 2013.
33
A final note: “ObamaCare” – What About Cost?
• The impact of “Obama Care” on health care costs has been at issue dating
back to its March 2010 enactment and before. In April 2010, actuaries at the
Administration’s Centers for Medicare and Medicaid Services (CMS) projected
that the new health law would slightly escalate the rate of growth in national
health expenditures (NHE).
• As a component of federal spending, the Congressional Budget Office (CBO)
reported late last year that health entitlements are taking a growing share of
both the federal budget (from 21% in 2012 to a projected 33% at the end of
the decade) and the national economy (from 5.4% to 10.4%).
• CMS recently reported an increase in all health spending in 2011 of 3.9%, and
as a share of gross domestic product (GDP), NHE now represents 17.9% of the
nation’s total economic output. NHE’s share of GDP is projected to grow to
19.6% over the next 10 years.
• So much for bending the cost curve downward!
34
ObamaCare – regulatory activity
•
Most “Obama Care” provisions significantly affecting employers will go into effect in
2014 and ACA is now a significant generator of new regulations.
•
Since “Obama Care’s” enactment, NAW has participated in over a dozen sets of
comments on subjects including exchange standards and the “grandfathering” of
existing employer-sponsored health plans, application of non-discrimination rules to
insured plans, and mandated benefit summaries.
•
NAW’s thematic message in comments has been the maintenance of plan design
flexibility for employers, and affordability.
•
Three significant rulemakings currently underway include the establishment of
exchanges including SHOP exchanges for small businesses, the definition of essential
health benefits (EHB), and implementation of the employer mandate.
•
The employer mandate regulation was recently issued in proposed form by the
Internal Revenue Service, and the IRS has indicated that employers may rely on its
content. An NAW Regulatory Advisory has been circulated to help wholesalerdistributors navigate the proposed rules most basic requirements.
35
This fight is a long way from over!
• We expect the NLRB, DoL, and other federal departments and agencies to
continue implementing their aggressive, pro-union regulatory agenda.
• Protecting our members from this regulatory assault is one of NAW’s top
priorities.
• It is likely that the cases will be protracted and that more will end up being
litigated, so there is a lot yet to be done.
• Thank you for your support – it enables us to continue the fight.
• Please stay involved and engaged!
36