2014 for Employers: Elections and More
So what can employers expect in the New Year with respect to employment law issues? 2014 is an election year, and as a result, employers can expect increased rhetoric without much action from Congress. Nevertheless, the federal agencies will continue to pursue the initiatives which were begun in 2013. Employers should not be lulled into a false sense of security; there are areas that will present challenges this year.
Elections: One of the most significant events will not occur until November, when the statewide legislative and Congressional elections are held. The outcome of the Congressional elections will determine whether the aggressive agenda envisioned after President Obama was first elected will become a reality. A Democratic Congress would be expected to act upon proposals to expand the FMLA to include paid sick days, to enact ENDA, and to review employee misclassification wage/hour issues. It would also pave the way for the reconsideration of the Employee Free Choice Act which would make it much easier for unions to jump start their organizing activities.
NLRB: The NLRB will continue its oversight of non-union employer policies and procedures with a broadened interpretation of employee activity which will be considered to be concerted, protected activity. The NLRB will continue to closely review employer arbitration procedures and will continue to find that policies which prohibit class or collective actions violate the Act, ignoring the recent court of appeals decision which disagreed
Employee access to employer email will be reconsidered with the likely outcome being increased access for employees to company email with reduced employer oversight since the Democratic majority views email as the water cooler of the 21st century. Employers will have an extremely high burden if they argue that the increased usage negatively affects the overall performance of the system.
As expected, the Obama Board is re-introducing new representation election procedures similar to those previously proposed but which were stalled by litigation. The proposed changes will mean that elections will be held shortly after the filing of a petition. Employers will have much less time to campaign once a petition is filed to campaign, and issues concerning eligibility will not delay the election but will be addressed after it has been conducted. The new reality is an employer will be campaigning every day to show its employees that union is unnecessary.
EEOC: The EEOC will continue to focus on employer policies and procedures which it believes have a disparate impact on protected employees, with particular emphasis on selection and recruiting procedures. Employer use of criminal convictions as an automatic disqualification from employment will be a top priority. The EEOC is also expected to finally provide guidance with respect to the payment of incentives/imposition of penalties with respect to employee participation in wellness programs.
Wage/Hour: Wage/hour litigation has become the litigation of choice for plaintiffs at both the state and federal level. Plaintiff's attorneys view this area as one with "low hanging fruit" especially in the areas of misclassification of employees as independent contractors and of exclusion of employees from overtime. Small and medium employers are especially at risk since they often do not understand or correctly apply the requirements for overtime exemptions and for classifying employees as independent contractors.
ACA: The Affordable Care Act and its requirement for the providing of healthcare coverage by employers with 50 or more employees is causing employers to consider what the size of the work force should be in 2015. As a result, some employers are considering cutting hours of employees below the threshold of 30 hours per week or reclassifying employees to avoid being covered. The IRS has indicated that it will be looking at classification issues, especially when raised by employee complaints
Employers face challenges every day, regardless of the year. 2014 will be no different.
John Holmquist, Holmquist Employment Law Firm PLLC