Now that the Obama administration is unshackled from an upcoming election, expect it to push hard for changes in workplace law that it failed to achieve in the first term.
Republicans in the House will use their majority to try to stop legislative advances, but President Obama has proven adept at using executive orders and his agencies—namely the National Labor Relations Board (NLRB) and Department of Labor—to advance a pro-employee workplace agenda.
What does this mean for employment law? Here’s a quick outlook:
No stopping health reform. Even after the U.S. Supreme Court backed the Affordable Care Act (ACA) in June, some employers held off on compliance to see the election results. But Obama’s re-election means the ACA will be fully implemented—and employers need to get on board.
Key ACA provisions take effect in 2014, including the “pay or play” employer insurance mandate. Expect agencies to release several regulations clarifying the law. Learn about employer requirements, and find our Employer Compliance Calendar, at www.theHRSpecialist.com/healthlaw.
Off the fiscal cliff? Unless Congress acts by Jan. 1, several tax provisions could expire. That could cause havoc to your payroll operations, and the IRS would be forced to delay issuing 2013 tax and withholding tables. For a summary of what to expect if Congress fails to act by Jan. 1, see www.theHRSpecialist.com/cliff.
DOL: More enforcement, higher penalties. This includes more focus on employee misclassification and overtime errors. Expect a more active OSHA, including stricter injury and illness reporting duties.
EEOC: Discrimination claims at all-time highs. EEOC outreach efforts will continue to help generate employee job-bias claims at near-record annual highs. The agency is also focusing on “systematic” bias, plus focusing on emerging issues, such as using Title VII to protect members of the LGBT community in the workplace.
NLRB: Aggressive, employee-friendly rulings continue. Count on the NLRB’s rulings and rule-making to continue to ease the path for employees to unionize and to challenge employer policies, such as at-will clauses and social media policies. The agency will continue its bid to require all workplaces to display a union-rights poster.
Legislation: Divided Congress means focus is on the regulators
Employee- and union-friendly bills will face stiff opposition in the House, which is still held by Republicans. Expect some debate on legislation to: grant new job-discrimination rights based on sexual orientation; close the gender-pay gap; give-leave rights to more employees and expand paid leave.
One exception to the legislative gridlock: immigration reform, which could include changes to the I-9 verification system. Note: A new I-9 form is pending and workplace I-9 audits are at record highs.
Bottom line: As he did over the past two years, expect President Obama to enact smaller-scale employment law changes via his regulators than try to push big changes through a divided Congress.