Now that election season has passed, employers have plenty of food for thought for the next four years. Here are one observer’s predictions as to the labor and employment law issues of the next four years:
1. Aggressive agency enforcement
The Department of Labor, the Occupational Health and Safety Administration and the Office of Federal Contract Compliance Programs have all been notably aggressive in their enforcement activities under the first Obama administration. Employers should continue to expect an aggressive enforcement environment in all of these areas. Instituting proactive measures to minimize liability and taking prompt action at the first hint of enforcement activity, while always best practices, remain particularly critical. (There are some obvious agencies not mentioned here—keep reading.)
2. U.S. Supreme Court appointments
The Supreme Court has been exceptionally active on labor and employment issues the past four years, but not in a way that the parties appointing the justices can easily predict. More conservative justices have authored seemingly pro-employee decisions, and vice versa. However, four Justices are age 74 or older, perhaps most significantly the conservative Justice Antonin Scalia and the “swing vote” Justice Anthony Kennedy. (The others are Justices Stephen Breyer and Ruth Bader Ginsburg, for whom an Obama appointment would offer less potential change.) It is very likely there will be at least one appointment in President Obama’s second term that will prove decisive in an important labor and employment case. That case may be one testing the aggressive stances of federal agencies noted elsewhere in this article.
3. Health care reform
There is little new to say on this topic, but this list could not omit a subject as important to employers as the Affordable Care Act (ACA). Any hope that employers might have had for this legislation’s repeal is gone. The ACA is here to stay and the details of its implementation will be front and center for many employers in 2013.
4. State laws
It is important to remember that many important employment issues will be addressed at the state level, both legislatively and judicially. For example, state legislatures have tended to take the lead on many privacy-related issues. In 2012, several states have passed measures restricting how employers can use applicants’ social media activity in the hiring process. In the November elections themselves, measures were passed at the state level that seem to show a gradual shift towards greater rights for gay citizens; it seems likely that more such measures will follow, many of them affecting the workplace. And in the past two years, important states such as Georgia and Texas have changed their approaches to the enforcement of non-compete agreements. Changes at the state level mayhave the most influence on the workplace.
5. NLRB and EEOC actions—and the courts' response
Particularly with a split Congress, the Obama presidency has thus far been defined in the area of labor and employment law by the aggressive and admittedly creative postures of two critical agencies: the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). These measures go beyond the aggressive enforcement referenced above and involve new uses of old laws.
Smart lawyers at the NLRB have, to the repeated surprise of employers, found supposed attacks on employees’ rights to engage in concerted activity under Section 7 of the National Labor Relations Act. Most notably the NLRB has devoted much of its attention to scrutinizing employers’ social media policies. In 2012, the board also attacked at-will policies and employer harassment investigations, finding that policies and practices could be read to unlawfully infringe on employee communication and collective rights. The good news for employers is that companies can largely address the topics topics mentioned in these NLRB directives and decisions with some careful redrafting of existing policies.
The same may not be said of the EEOC’s attacks on background checking practices with the expressed purpose of rooting out possible disparate impact on minorities allegedly resulting from those practices. It has long been the law that background checking should be subjected to a job-relatedness standard to avoid such disparate impact, but the EEOC has been particularly aggressive on this front and its 2012 guidance on the topic raised various red flags for careful and well-meaning employers using well-established practices. Employers who have not recently examined their policies are well-advised to put that review high on their list for 2013.
Whether the different dynamics of a second presidential term will make the agencies more or less aggressive remains to be seen, but it seems likely they will continue to plow new ground. What also remains to be seen is how courts will respond to some of these issues as they reach them. Thus far many of these agency initiatives remain somewhat untested in the courts. Those tests will be at the forefront in the next few years.