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Washington Update

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With the holidays fast approaching, 2013 is shaping up to be an extremely unproductive year legislatively, as very few bills making their way through Congress and on to President Barack Obama for his signature. However, federal agencies continue to keep employers busy as the government’s regulatory machine continues to churn out workplace regulations.

On the Legislative Front

To date, the 113th Congress has only enacted 52 new laws—most of which were routine matters such as naming post offices and other federal buildings— making it one of the least productive legislative years on record. Although fewer new laws is not in of itself necessarily a bad thing, more troubling to SHRM is the lack of progress that was made on key HR public policy priorities—immigration reform, an overhaul of our nation’s tax laws and more workplace flexibility options. 

While few bills crossed the finish line in 2013, there were some notable happenings. In October, the government was shut down for 16 days as Congress squabbled over how to fund the government for 2014 and extend the debt ceiling so that the government could continue to borrow money to pay its bills. In the end, Congress passed H.R. 2775, temporarily funding the government through Jan. 15, 2014, and instructed budget conferees to come up with a plan by Dec. 13 on how to address the budget and automatic funding cuts (known as “sequester”) set to begin in in mid-January.

Here’s an update on the status of other HR policy issues in the 113th Congress:

Immigration reform—In June, the Senate passed an omnibus reform measure (S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act), with a bipartisan vote of 68 to 32. The comprehensive legislation includes provisions dealing with border security, legalization procedures for unauthorized aliens, employment-based legal immigration and enhanced employment verification requirements such as mandating the use of E-Verify for all employers. Upon its referral to the House for consideration, Speaker John Boehner, R-Ohio, made it clear that the GOP-led chamber preferred to take a piecemeal approach toward immigration reform and was unlikely to consider the Senate-passed bill this Congress.

Comprehensive tax reform—After a year of deliberation by a series of tax working groups and closed, members-only meetings in both chambers, House Ways and Means Committee Chairman Dave Camp, R-Mich., indicated comprehensive reform was unlikely to be unveiled in 2013. Similarly, Senate Finance Committee Chairman Max Baucus, D-Mont., has promised to bring a tax-code overhaul bill to the forefront in the Senate in 2014.

Compensatory time—In April, SHRM member Juanita Phillips of Huntsville, Ala., testified before the U.S. House Subcommittee on Workforce Protections in support of H.R. 1406, the Working Families Flexibility Act of 2013. The Act would amend the Fair Labor Standards Act to allow private-sector employers to provide compensatory time to nonexempt employees. While the measure passed the House in May, a similar measure (S. 1626 sponsored by Senate Minority Leader Mitch McConnell, R-Ky.) is awaiting action in the Senate.

Specific to the HR sector, employee benefits such as retirement plans, education assistance and health care benefits may come under congressional scrutiny because of the sheer size of potential revenue that could be generated by reducing the current tax-deferred status of each.

SHRM, along with the SHRM-led Coalition to Protect Retirement, has submitted comments to the House Retirement and Pension Working Group, as well as to the Senate. In addition, SHRM strongly supports Concurrent Resolution 12, introduced by Sens. Johnny Isakson, R-Ga., and Christopher Murphy, D-Conn., heralding the importance of maintaining current tax law as it relates to retirement savings plans.

Employment discrimination—Last month, the Senate passed legislation (S. 815) sponsored by Sen. Jeff Merkley, D-Ore., that would prohibit employers of 15 or more employees from discriminating against employees on the basis of sexual orientation or gender identity. The measure, which exempts certain religious organizations, passed the Senate by a bipartisan vote of 64 to 32 (with 4 members absent), as 52 Democrats joined with 10 Republicans and two Independents in approving the Employment Non-Discrimination Act of 2013. The legislation now moves to the House for further consideration, although Speaker Boehner has publicly stated that House leadership will not bring the bill to the House floor anytime soon.

On the Regulatory Front

While Congress saw little action, the regulatory front was percolating with activity, as several important regulatory actions occurred in 2013. On Jan. 25, 2013, the U.S. Court of Appeals for the District of Columbia ruled in Noel Canning v. NLRB that President Barack Obama’s three January 2012 appointees to the National Labor Relations Board (NLRB) violated the recess appointments clause of the U.S. Constitution. The impact for HR professionals is that the ruling calls into question every decision the NLRB has made since January 2012, including controversial decisions on micro-units and employer social media policies.

Implementation of provisions of the Patient Protection and Affordable Care Act (PPACA) continued in early 2013, with the Internal Revenue Service issuing new guidance on calculating the coverage threshold of 50 or more full-time equivalents, a key determinant in the application of the new employer shared responsibility provisions. Months later, in July, the U.S. Treasury Department announced a one-year delay in implementing the employer mandate in the PPACA. Since then, the Obama administration has encountered many roadblocks, including the functionality of the official website,, designed to enroll Americans in the health care exchange. HR professionals still need to remain vigilant to ensure that the portions of the act that have gone into effect are implemented in their workplaces.

Additionally, the Office of Federal Contract Compliance Programs (OFCCP) issued its long-awaited revision of the rules covering nondiscrimination and affirmative action for individuals with disabilities, under Section 503 of the Rehabilitation Act of 1973, and protected veterans, under the Vietnam Era Veterans Readjustment Assistance Act. In response to strong concern expressed by SHRM and other employer organizations, the agency eliminated many significant and burdensome paperwork requirements and modified others that were originally proposed. Even though the OFCCP moderated some of the day-to-day implementation requirements, federal contractors will still face challenges in meeting the new hiring goals and benchmarks that the rules require.

This fall, as part of ongoing agency interpretation of the impact of the Supreme Court’s decision in United States v. Windsor, which struck down the provisions of the Defense of Marriage Act that denied federal benefits to same-sex couples who were legally married, the Department of Labor’s Employee Benefits Security Administration (EBSA) released new guidance on Sept. 18. According to EBSA, the terms “spouse” and “marriage” in Title I of the Employee Retirement Income Security Act and in related department regulations should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where the individuals live or work.

What’s in Store for 2014?

Looking ahead to 2014, which will be an election year for all 435 House members and one-third of the Senate, new life could be breathed into these and other workplace issues of importance to human resource professionals. Stay tuned for the inaugural issue of HR Issues Update in 2014, as we recap SHRM’s Top 10 Policy Achievements for 2013 and look ahead to 2014.  

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