Four More Years: What Does Obama’s Reelection Mean for Employers?

With the results of the Presidential election now in, its time to answer a question I’ve heard from a number of clients today: what does President Obama’s reelection mean for employers?  The short answer: you can expect to see a lot of blog posts from us about aggressive enforcement initiatives by the NLRB, DOL, EEOC, and other enforcement agencies.  In this post, I’ll give you a high level overview of what I think we are going to see.

NLRB: to say the Obama NLRB has been pro-labor would be an understatement. Assuming they survive pending court challenges, we should expect that the Board will go forward with its Notice of Employee Rights workplace poster requirement, as well as its expedited election rules. We also will probably see the Board use rule-making to further modify the election process, almost certainly with the goal of making it easier for unions to get access to employees and worksites.  I also expect to see the Board issue decisions that will modify the standards for determining what is an appropriate bargaining unit, make it easier for non-employees to have access to workplaces, and require employers to allow employees to use company email and micro-blogs for organizing purposes.   “Protected concerted activity” will remain a hot topic, and the NLRB will continue to scrutinize and strike down employer policies that arguably can be read to discourage employees from discussing terms and conditions of employment with their coworkers.

EEOC: the Commission’s aggressive enforcement agenda will stay in place. As set forth in its September 4, 2012 draft Strategic Enforcement Plan, the EEOC will focus on discriminatory hiring and recruiting practices, as well as cases involving immigrants and migrant workers.  ADAAA claims will receive a lot of attention, as will pregnancy discrimination cases and claims that may implicate the rights of gay and lesbian employees.

DOL: under the Obama administration, DOL’s Wage & Hour Division has been far more aggressive than it had been in the past, and there is no reason to think that will change with four more years locked up. For example,  WHD investigators are now seeking liquidated damages to resolve claims at the administrative stage, which had never been the practice in my 25 years of defending FLSA  claims.  OSHA will also be very active, and we may see new initiatives such as the “Injury and Illness Prevention Program” and rulemaking on Crystaline Silica.

Of course, there will also be a whole host of new regulatory obligations imposed by the Affordable Care Act (those will be the subject of a future post), and smaller employers will be forced to decide if they want to hire more employees or give current staff more hours if it means the employer now has to provide health care coverage to the employees. Depending upon the resolution (if any) of the impending ”fiscal cliff” dilemma,  payroll taxes may rise and  withholding obligations may change. Immigration reform is almost certainly on the agenda, and some changes in the employment eligibility system are almost inevitable.

For employers, most of this will not be good news. For employment lawyers and bloggers, we can take heart in the fact that these initiatives should keep us busy.

 

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