by Amy G. McAndrew, Esq., Pepper Hamilton LLP, Berwyn
With President Obama taking the oath of office this month, employers are wondering what his second term will mean for them. Here is a sampling of the issues.
Obama’s first term began with the signing of the Lilly Ledbetter Fair Pay Act of 2009. Many expected this to be the first of many employment-related laws to pass under Obama. That threat never emerged.
The administration backed employee-friendly bills such as the Paycheck Fairness Act (addressing gender-based income disparities) and the Employment Non-Discrimination Act (which would have made sexual orientation a protected category under Title VII), but both stalled in Congress. With Republicans retaining control of the House of Representatives, and Democrats lacking a 60-seat, filibuster-proof majority in the Senate, the status of those controversial bills is not likely to change.
Instead, expect the Obama administration to rely on administrative agencies to advance its workplace agenda.
EEOC officials have said their priorities are investigating systemic barriers in recruitment and hiring, advancing amendments to the ADA, securing better protection for pregnant employees and seeking Title VII protection for lesbian, gay, bisexual and transgender individuals.
The EEOC is expected to continue its focus on employers’ use of criminal background checks and credit history checks, as well as some employers’ refusal to hire currently unemployed applicants.
The EEOC will also probably continue to combat “fixed leave” policies calling for automatic termination of disabled employees who have been on ADA leave for a specified period of time if the policies do not contemplate the possibility of additional reasonable accommodations.
Department of Labor
Government contractors can expect the Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) to add more compliance obligations. It has proposed regulations requiring contractors to hire more veterans and disabled workers and to compile more data on hiring decisions. Despite employer objections, these regulations are likely to be finalized in the next four years.
Misclassification of employees as independent contractors remains a Labor Department focus, driven at least in part by the federal government’s interest in collecting tax revenue lost due to misclassification. Bills regarding misclassification—such as the Employee Misclassification Prevention Act and the Fair Playing Field Act—have languished in Congress but may soon get new life.
Obama’s first term began with a push from unions to pass the Employee Free Choice Act, which would have made union organizing easier by eliminating secret-ballot elections.
It never made it through Congress.
However, organized labor has sought other ways to accomplish its objectives, through National Labor Relations Board (NLRB) rule-making and decisions. Some NLRB efforts, such as an employee rights posting requirement and proposed expedited election timetables, face court challenges that may shoot them down.
Yet recent NLRB decisions have expanded labor’s reach, examining policies and procedures in both union and nonunion workplaces to determine if they interfere with employees’ Section 7 rights to engage in protected concerted activity (including communications among employees regarding terms and conditions of employment). Social media policies, at-will employment statements and policies requiring confidentiality in employer investigations have also drawn heightened NLRB scrutiny.
The 2012 elections left the partisan balance of power in Washington essentially unchanged, which may make it difficult to pass controversial employment legislation. Therefore, expect the Obama administration to continue to pursue an employee-friendly workplace agenda through administrative means.
Amy G. McAndrew is of counsel with Pepper Hamilton LLP in Berwyn. Reach her at (610) 640-7824 or email@example.com.
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