The Washington Outlook: New Momentum on HR Public Policy Issues Michael P. Aitken Monday, March 17, 2014

Transcription

1 Heading Towards the Mid-term Heading Elections; Towards Will the there Mid-term be Continued Elections; Gridlock or New Momentum Will there on be HR Continued Public Policy Gridlock Issues or New Momentum on HR Public Policy Issues Michael P. Aitken Monday, March 17, 2014

2 Environment Americans Rate Economy as Top Problems Other High-Priority Issues Include Dissatisfaction with Government, Healthcare Policy 2

3 Americans Are Worried About Different Things Environment 3

4 The Presidency 4

5 The President s Second-Term Jinx Obama s Approval Rating Slightly Below Average of Predecessors The Presidency Second-term presidential approval ratings President Approval Rating Date Clinton 66% Feb Reagan 64% Jan Eisenhower 54% Feb Johnson 49% Jan Obama 42% Feb. 23 Mar. 2, 2014 G. W. Bush 42% Feb Nixon 28% Feb Source: Gallup Presidential Approval Center. 5

6 The President s Second-Term Jinx Since WWII, President s Party Has Lost Five of Six Attempts for Third Term President s party election results after two-term presidency The Presidency Year President Party President s Party Election Result 2008 G.W. Bush Republican Lost White House 2000 Clinton Democrat Lost White House* 1988 Reagan Republican Won White House 1976 Nixon/Ford Republican Lost White House 1968 Kennedy/Johnson Democrat Lost White House 1960 Eisenhower Republican Lost White House Analysis The President s party has lost five of the last six post-world War II presidential elections which have followed two-term presidencies * Lost electoral vote, won popular vote Source: 2008 Vital Statistics on Congress. 6

7 The Presidency 7

8 Congress Job Approval Persists at 15% in March 15% Approval Rating is lowest March Score in Modern Midterm Years Congress 8

9 House Republicans Can Be Considered in Six Factions Six Factions of the Republican Party (Based on Republican Votes on Key Legislation* in 2013) Congress Coalition of the Willing The Deciders Coalition of the Unwilling Voted YES 5 of 5 times Voted YES 4 of 5 times Voted YES 3 of 5 times Voted NO 3 of 5 times Voted NO 4 of 5 times Voted NO 5 of 5 times Analysis There is almost no issue on which House Speaker Boehner (R-Ohio) will get the support of all 218 Republicans, or even a majority of the majority, due to ideological divisions among House Republicans While 63 members of the Coalition of the Unwilling will rarely or never side with Boehner on tough votes, 61members of the Coalition of the Willing give Boehner the flexibility he needs to pass bipartisan legislation * Breakdown based on the following five pieces of bipartisan legislation: H.R. 152 (Aid following Hurricane Sandy); S. 47 (Reauthorization of Violence Against Women Act); H.R (The Farm Bill, failed 6/20/13); H.R (Shutdown Deal/Continuing Resolution); H.J. Res 59 (Budget Deal) Note: This chart only includes members who cast votes at least three times for or against these bipartisan measures. As such, due to abstentions, vacancies, and/or alternate voting combinations not listed above, the total number of members listed here does not add up to the current total of Republicans inthe House. Source: Cook Political Report,

10 Congress Source: GovTrack.US 10

11 Senate Elections: 2014 and Beyond 2014 Senate Race Vulnerabilities Breakdown of all Senate seats by Cook Political Report Rating 36 total seats Democrat-held seats (21) Republican-held seats (15) (Pryor, AR; Levin, MI) 2 (Rockefeller, WV; Walsh, MT) 1 (McConnell, KY) 1 (Chambliss, GA) 1 (Johnson, SD) 13 Note: A Cook Political Report rating of Lean D/R or Toss Up denotes races that are currently considered to be competitive Source: The Cook Political Report. 11

12 2014 Public Policy Agenda The Washington Outlook: Tax and Benefits Issues Federal Budget Process > Federal Government funded through September 30, 2014 with a $1.012 trillion dollar budget. > Congress has already agreed through the budget resolution passed in December, to a $1.014 trillion dollar budget for > President Obama released his $1.1T budget on March 4. > Deal may be near on extending expired UI benefits. Federal debt still looms large > Better than anticipated deficit outlook in 2013 and 2014 but current federal deficit is $17 trillion dollars. > December budget resolution staves off $45 billion of sequestration cuts in 2014 and $20 billion in 2015 in both discretionary and mandatory spending. > Debt ceiling extended through March

13 2014 Public Policy Agenda The Washington Outlook: Tax and Benefits Issues Tax Reform > Chairman of the House Ways and Means Committee Dave Camp (R-MI) introduces tax reform proposal but unlikely to move forward in > Significant changes to employer sponsored benefits. > Momentum on tax reform likely after elections and with new congress. 13

14 Tax and Benefits Issues 14

15 Tax and Benefits Issues 15

16 Budget Primer: Spending The Washington Outlook: Tax and Benefits Issues 16

17 Tax Reform Act of 2014 (H.R.1772) The Washington Outlook: Tax and Benefits Issues Released by House Ways and Means Chairman, David Camp (R-MI), the bill is aimed at reforming the U.S. Tax Code. The bill would make changes to both personal and corporate tax rates and would have broad implications for the workplace. Key provisions of interest to HR professionals and the workplace include: > Repealing Section 127, Employer Provided Education Assistance. > Repealing Section 117, Tuition Reduction Agreements for education institutions. > Repealing fringe benefit exemptions, including adoption, housing and moving expenses. > Modifying retirement plans, including lowering the tax deferred amount allowed to (401(k) 403(b) and 457(b)) retirement accounts from $17,500 to $8,750 per year. > Eliminating income limits for Roth 401(k) and 403(b) plans and allow plan participants to contribute up to $17,500 on an after tax basis. > Requiring employer sponsored plans to offer a Roth 401(k) and 403(b) plans if they offer a traditional tax deferred plan. 17

18 Tax and Benefits Issues > Freezing inflation indexing on all retirement plans for 10 years, effectively reducing amounts that can be contributed to retirement accounts. > Repealing the employer-provided child care credit. > Repealing the credit for employee health insurance expenses for small employers. > Repealing the Work Opportunity Tax Credit. > Modifying executive compensation provisions. Chairman Camp plans to hold hearings and possibly move the bill through the Committee later this session. 18

19 Many Deductions, Tax Structures, Would Be Cut Under Camp Plan Changes to Tax Code in Camp Plan Changes to Deductions Provision Increased Decreased Ends Tax Tax and Benefits Issues Changes to Tax Base Included in Tax Excluded from Tax Child Tax Credit Individual Standard Deduction Capital-Gains Income Individual Taxpayer Earned-Income Tax Credit Mortgage-Interest Deduction Select 401(k) Contributions to Roth IRAs Home-Upgrade Deduction Medical-Expense Deduction Alternate Minimum Tax State & Local Tax Deduction Corporate Taxpayer R&D Tax Credit Asset Depreciation Period Advertising-Expense Deduction Carried Interest from Investment Partnerships Tax on Bank Assets Over $500 Billion Deduction for Stock Options Oil-Percentage Depletion Allowance Analysis Chairman Dave Camp s (R-MI) proposal targets a number of deductions and tax structures, simplifying the tax code and cutting overall tax expenditures The plan is not expected to pass in 2014, given strong Democratic opposition in the Senate and Republican unwillingness to take on popular deductions Nonetheless, the plan could serve as a framework for future attempts at tax reform, particularly if Republicans take the Senate in the 2014 midterm elections Sources: Michael Crittenden, Tax plan has something for everyone (to hate), Wall Street Journal, Feb. 26., 2014; Bernie Becker, Reform plan targets popular tax breaks, The Hill, Feb. 26, 2014; House Committee on Ways and Means. Income from Foreign- Based Subsidiaries 19

20 Camp Proposal Would Cut Tax Rates, Reduce Tax Brackets Changes to Tax Brackets and Rates Under Camp Proposal Tax and Benefits Issues Individual Taxpayers Corporate Taxpayers Investors Current Law Camp Proposal Current Law Camp Proposal Current Law Camp Proposal 39.6% 35% 35% 33% 25%* 20% 15%* 28% 25% 34% 25% 15% 25% 0% 10% 10% * 35% surtax above $400,000 15% 0% 6%* * Cap gains taxed as ordinary income, but 40% of gains excluded from tax Analysis On Feb. 26, House Ways and Means Chair Dave Camp (R-MI) introduced a tax plan to lower marginal federal tax rates and simplify the U.S. tax code On the taxpayer side, the plan centers around a proposal to cut the number of individual tax brackets from seven to two, merge corporate tax brackets into a single 25% rate, and tax investment income under the personal income schedule Sources: Michael Crittenden, Tax plan has something for everyone (to hate), Wall Street Journal, Feb. 26., 2014; Bernie Becker, Reform plan targets popular tax breaks, The Hill, Feb. 26, 2014; House Committee on Ways and Means. 20

21 Exclusions from Taxable Income Account for Most Tax Expenditures Capital gains on assets Total $461B $33B $43B Pension contributions and earnings $137B Social Security and other benefits FY 2013 Cost of Major Tax Breaks Tax and Benefits Issues Employersponsored health insurance $248B Charitable contributions Total $186B $39B Mortgage interest $70B State and local taxes $77B Total $161B $161B Total $118B Child tax credit $57B Earned income tax credit $61B Exclusions from Taxable Income Tax Deductions Analysis The top 10 most expensive tax expenditures will cost the federal government roughly $900B in FY 2013 Both Republicans and Democrats have recently considered eliminating or limiting these tax breaks as a way to generate revenue Preferential Rates on Capital Gains and Dividends Tax Credits 21

22 2014 Public Policy Agenda Immigration Reform One of President Obama s top priorities is comprehensive reform and it was a focus during the State of the Union on January 28. House Republican standards were released last month. Immigration Reform Issues Senate passed the comprehensive Border Security, Economic Opportunity and Immigration Modernization Act in June. House of Representatives may move a series of focused bills (border security, enforcement, DACA Lite, high-skilled). If action occurs it will be late in congressional term possibly during a Lame Duck session. The SHRM/Council for Global Immigration partnership is part of the dialogue and advocacy effort. 22

23 Immigration Reform Issues SHRM/Council are focusing our advocacy efforts on three major areas: > Increase system efficiency through, among other improvements, creating a Trusted Employer system; > Provide access to highly educated and skilled talent by leaving intact green card provisions and further improving H-1B and L-1 visa provisions to ensure the temporary high-skilled visa system works for employers and; > Give employers certainty in hiring through enabling a single, federal, entirely electronic employment verification system that protects against identity theft through knowledge-based authentication. Proposed legislation will have a significant impact on HR and immigration professionals business practices.. 23

24 Immigration Reform Issues Source: SHRM Employment Verification Survey 24

25 Immigration Reform Issues 25

26 The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744) / The Legal Workforce Act(H.R.1772) Immigration Reform Issues Introduced in the Senate by the Gang of Eight, the legislation is a comprehensive overhaul of the nation s immigration laws. The bill includes provisions covering border security, legalization procedures for unauthorized aliens, employment-based legal immigration and enhanced employment verification requirements. The Legal Workforce Act was introduced in the House by Representative Lamar Smith (R-TX) and Chairman of the Judiciary Committee Bob Goodlatte(R-VA). The bill is focused principally on worksite enforcement. The Senate passed S.744 by a vote of 68 to 32 on June 27. The House Judiciary Committee approved the Legal Workforce Act by a vote of 22 to 9 on June

27 Time Frame For Employment Verification System Senate Bill (S.744) Immigration Reform Issues Federal Contractors would be required to use the system immediately. Participation by other employers would be as follows: > employers deemed critical infrastructure employers, 1 year after enactment; > employers with 5,000 or more employees, 2 years after enactment; > employers between 500 and 4,999 employees, 3 years after enactment; and > employers between 0 and 499 employees, 4 years after enactment. House Bill (H.R. 1772) Federal Contractors would be required to use the system 30 days after enactment. Participation by other employers would be as follows: > employers with 10,000 or more employees,6 months after enactment; > employers between 500 and 10,000 employees,12 months after enactment; > employers between 20 and 500 employees,18 months after enactment; and > employers between 1 and 10 employees, 24 months after enactment. 27

28 Employment Verification Process Senate Bill (S.744) Immigration Reform Issues Employers would be required once the offer of employment is accepted and ending the third business day after the employee has been hired, to verify the employment status of the individual. Employers would attest on a new form that they had verified the new hire s employment and identification status by examining specific documents. The form may be integrated electronically with the verification system and employers would have the choice of completing the form in paper, electronically, or telephonically. Once the attestation process is completed, employers would then be required to verify the new hire s name, Social Security number or work authorization number through the employment verification process. The bill would also require employers to verify the identity of each individual hired using either the photo tool program or other identity authentication program. 28

29 Employment Verification Process The Washington Outlook: Immigration Reform Issues House Bill (H.R. 1772) Employers would attest through the electronic verification system that they had examined the new hire s employment and identification documents to ensure authenticity. The bill also allows employers to do the attestation on paper as well. Employers would be required on the date the offer of employment is extended and ending at the end of the third business day after the employee has been hired, to use the employment verification system. The offer of employment may be conditioned on passing the verification system. Employees would be required to attest they are authorized to work legally in the U.S. and would face criminal sanctions of up to two years in jail and civil penalties for violations of the attestation provisions. Creates a knowledge based authentication pilot program to address the issue of identity theft and the use of fraudulent documents in the employment verification process. 29

30 Immigration Reform Issues Preemption Senate Bill (S.744) The legislation would allow federal immigration law to preempt any state or local law in regard to criminal or civil fines: 1) hiring or continued employment, or 2) status verification for employment eligibility. States could, however, continue to award business license on the basis of compliance with the federal system. House Bill (H.R. 1772) The legislation would allow federal immigration law to preempt any state law in regard to: 1) employer fines for immigration-related issues or 2) requiring employers to verify work status or identity for work authorization purposes. States could, however, continue to award business license on the basis of compliance with the federal system. However, state law enforcement would be allowed to enforce the federal provisions and collect the fines. 30

31 2014 Public Policy Agenda Labor and Employment Labor-Management/Civil Rights Issues President Obama and Congressional Democrats have initiated national conversation on income equity, advocating for increasing the minimum wage and passing the Paycheck Fairness Act. Major labor and civil rights legislation unlikely to become law: > Employment Nondiscrimination Act. > The Paycheck Fairness Act. > Working Families Flexibility Act. However, agency developments and Executive Orders will ensure active 2014: > Proposed 541 Regulation. > Executive Order on Minimum Wage Increase for Federal Contractors. > Final action on Proposed Persuader Regulation??? > Review of use of Social Media in Employment. 31

32 2014 Public Policy Agenda Labor and Employment Labor-Management/Civil Rights Issues Full NLRB Board will mean increased regulatory activity: > Revised Ambush Election Rule / Specialty Health Care / D.R. Horton. Workplace Flexibility > White House Summit on Working Families to be held June 23. > Advocates continue to push expansion of FMLA/paid sick leave at state and local level but enactment at federal level impossible. > Successful efforts on comp time in the House unlikely to translate to the Senate. 32

33 Working Families Flexibility Act (S & H.R. 1406) Labor-Management/Civil Rights Issues Legislation introduced in the House by Representative Martha Roby (R-AL)and in the Senate by Mitch McConnell (R-KY) that amends the Fair Labor Standards Act to allow private-sector employers to provide comp time, giving these employers the option of offering their hourly employees the choice of compensatory time off or pay for overtime hours worked. The act requires an employee to have worked a minimum of 1,000 hours within the last 12 months to be eligible for comp time. The legislation allows employees to accrue up to 160 hours of compensatory time a year and to cash out unused comp time within specified periods of time. Employees are permitted to use the accrued comp time within a reasonable time after request as long as use of the comp time does not unduly disrupt the operations of the employer. 33

34 Labor-Management/Civil Rights Issues Employers are permitted to offer a comp time program only if it is part of a collective bargaining agreement or the employer and employee voluntarily agree in writing to the program prior to the performance of work. Employers are required to cash-out unused comp time at the higher of the regular rate at which time was earned or the final regular rate. The Senate bill also establishes a Flexible Credit Hour Program that allows an employee to work excess hours (any hours worked beyond the number of hours an employee is required to work within a specified timeframe) in his/her schedule in order to accrue hours to be taken off at a later time. Employees could accrue up to 50 flexible credit hours. SHRM is leading the effort on the Working Families Flexibility Act. The House bill was approved by the House of Representatives by a vote of 223 to 204 on May 8. The Senate bill has been referred to the Senate Health, Education, Labor, and Pension Committee. 34

35 In U.S., 85% Back Raising Minimum Wage Most favor increase to $9 an hour Labor-Management/Civil Rights Issues 35

36 The Fair Minimum Wage Act (S. 460 & H.R. 1010) Labor-Management/Civil Rights Issues Introduced in the Senate by Tom Harkin (D-IA) and in the House by George Miller (D-CA), the legislation would amend the Fair Labor Standards Act (FLSA) to raise the hourly minimum wage by $2.85 an hour in three increments: > $8.20 an hour 90 days after enactment, > $9.15 an hour 12 months after enactment and, > $10.10 an hour 24 months after enactment. The minimum wage would be indexed annually to inflation based on the Consumer Price Index 36 months after enactment. The legislation would also increase the minimum wage for tipped employees as well to $3.00 an hour 90 days after enactment, with incremental increases raising it eventually to 70 percent of the regular minimum wage. Likely to be considered in the Senate this session. 36

37 Department of Labor Proposed Rule to Amend 541 Overtime Regulations Labor-Management/Civil Rights Issues President Obama sent a presidential memorandum to the Department of Labor (DOL) on March 13, directing the Agency to modernize and simplify the Section 541 rules. Under the FLSA 541 Regulations, an employee qualifies as exempt from overtime if he or she satisfies a duties test (under the Executive, Administrative, Professional, Computer and Outside Sales regulations) and the employee is paid on a Salary Basis. Although we have not seen a proposal, we understand the changes may include doubling the Salary Basis amount from $455 dollars a week ($23,660 annually) to $910 dollars a week ($47,320 annually). Proposal will also modify the duties test making changes to definitions and possibly changing key terms and elements, particularly in the primary duty area. DOL will be holding a series of listening events in the months leading up to the announcement. 37

38 National Labor Relations Board Proposed Rule to Amend Representation Election Procedures Labor-Management/Civil Rights Issues Rule was reissued by the NLRB in the Federal Register on February 5. The proposed rule is nearly identical to regulations proposed in A public hearing will be held on April 7 and comments are due on April 14. The proposal would revise the process for union representation elections, expediting the period of time between the filing of NLRB election petition and the election itself. The regional director could set a pre-election hearing to begin seven days after a hearing notice is served and a post-election hearing 14 days after the tally of ballots. Provides for the electronic filing and transmission of election petitions. Employers would be required to turn over private employee information to the NLRB and the petitioning party, including employee telephone numbers and . SHRM testified before House Committee in March and will be submitting comments on the proposed rule. 38

39 2014 Public Policy Agenda Health Care Reform Health Care Reform Issues Fall-out over PPACA implementation challenges continues. Many PPACA requirements have been delayed including effective dates and coverage requirements. Congressional oversight and regulatory guidance continues. Tax-deferred status of health care benefits could become a target in tax reform. While repeal of PPACA is off the table, modest changes will be considered. 39

40 Number of Americans that Say ACA has Hurt them Increases Health Care Reform Issues Gallup, February 28-March 2,

41 Delays Continue to Disrupt Full ACA Implementation Delayed ACA Provisions and Expected Dates of Implementation Health Care Reform Issues Original start date New start date Potential extension Employer Mandate Requires employers with 50 or more employees to provide health insurance Delay Announced: July 2013 c Pre-ACA Coverage Allows individuals to keep or buy pre-aca plans if their state insurance regulators permit Delay Announced: November 2013 Small Business Health Options Program Allows small businesses to enroll employees in health exchanges Delay Announced: November 2013 Employer Mandate Requires companies with employees to provide employees health insurance Delay Announced: February 2014 Pre-ACA Coverage Allows individuals and small businesses to buy pre-aca coverage for an additional year, if state insurance regulators permit Delay Announced: March 2014 c c Businesses with more than 100 employees must comply with employer mandate by providing coverage to 70% of full-time employees or pay a penalty c c Holders of pre-aca plans received cancellation notices, compromising the administration s previous promise to allow individuals to keep pre-aca plans Small businesses may enroll employees in health exchanges via paper, but must wait one year to enroll employees online Cancellation notices will arrive in Oct. 2016, but plans that offer early renewals could be extended into 2017 Analysis Originally, the Affordable Care Act opened health insurance exchanges in Oct and enacted most provisions in 2014, but delays have plagued the law s rollout In addition to the delays listed above, the administration extended the exchanges open enrollment period for those who wanted coverage to begin in Jan for nine days in December after repairing the faulty HealthCare.gov Although the administration does not foresee further ACA delays or extensions, Republicans have seized on delays to suggest the law does not work Source: Kelly Kennedy, The 5 Key Obamacare deadline delays, USA Today, March 6, 2014; Kyle Cheney, Canceled health plans get reprieve, Politico, March 5, 2014; Sam Baker, Another Obamacare Delay, National Journal, March 5, 2014; J.D. Harrison, Obama administration permits further delay to health exchanges for small businesses, Washington Post, March 5,

42 CBO Triples Projected Loss of Workers Under ACA Projected Loss in Full-Time Employees (FTE) Under the Affordable Care Act* 800, Health Care Reform Issues Reasons for Projected Loss of Full-Time Employees Design of Policy Under the Affordable Care Act, work is not a prerequisite for health insurance, which may disincentivize full-time employment Employers May Cut Hours Employers may cut working hours to reduce the number of full-time employees required to receive insurance Employers May Hire Fewer Workers Employers may hire fewer workers to avoid employer-mandate penalty In 2010, the CBO forecast a loss of 800,000 household employees in the labor force by Employers May Lower Wages Employers may lower wages to avoid or compensate for employer-mandate penalty Analysis In 2010, CBO projected that implementing the Affordable Care Act would reduce the labor force by 800,000 FTE by 2021; in February 2014, the CBO predicted the ACA would contribute to a reduction of 2.3 million FTE by 2021, about triple the original projection Before the ACA, most Americans relied on employers for health insurance; with the ACA in effect and exchange enrollment expected to rise in the next few years, employment is no longer a prerequisite for health insurance, and this may disincentivize full-time employment Employers may also contribute to the decrease in FTEs by reducing work hours, hiring fewer workers, and lowering wages to avoid employer-mandate penalties under the ACA * CBO s recent projections take into account additional studies published since 2010 and the impact of the employer mandate penalty on wage reduction and labor supply; CBO s 2014 estimate of decreased working hours translates to a decrease in full-time equivalent employment Source: Congressional Budget Office, 2014; Louise Radnofskyand Damian Paletta, Health Law To Cut Into Labor Force, Wall Street Journal, February 4, 2014; Annie Lowreyand Jonathan Weisman, Health Care Law Projected to Cut the Labor Force, The New York Times, February 4,

43 With Less Than One Month Until Deadline ACA Enrollment Passes 50% of Goal Health Care Reform Issues Source: Department of Health and Human Services,

44 40 Hours is Full Time Act (S. 1188) & (H.R. 1188) Save American Workers Act (H.R. 2575) Health Care Reform Issues Bipartisan legislation introduced in the Senate by Susan Collins (R-ME) and Joe Donnelly (D-IN) and in the House by Todd Young (R-IN), the legislation would amend the Internal Revenue Code to: > Modify the definition of full time for the hours worked requirement for health care coverage under the Patient Protection and Affordable Care Act from 30 hours a week to 40 hours. > Clarify that the number of hours counted toward a "full-time equivalent" employee to be 174 hours per month as opposed to 120 hours per month under current law. House likely to consider H.R.2575 in the next few weeks. SHRM will be advocating for the bill on the Hill Day on Wednesday. 44

45 Michael P. Aitken Vice President, Government Affairs Duke Street Alexandria, VA