Obama’s Second Term: What Does It Mean for Employers and the Workplace?

November 8, 2012    

BIRMINGHAM BUSINESS LAW BLOG

Posted on November 8, 2012

The 2012 presidential election is now over (despite Florida still counting votes) and Obama has won a second term. Now, that the election is over, what can employers expect in the next four years with regard to human resources and employment law?

President Obama will continue to control appointments to agencies such as the Department of Labor, the Equal Employment Opportunity Commission, the National Labor Relations Board and others. Therefore, expect that the Obama administration will continue to interpret laws and regulations that protect employees very broadly and enforce them aggressively.

Here are some of the issues that we are watching:

• Scrutiny of Employer Policies by the NLRB: In the past, the National Labor Relations Board has had little impact on nonunionized employers. However, in recent months, the NLRB has taken an expansive view of Section 7 rights under the National Labor Relations Act and challenged common workplace rules. (In a nutshell, Section 7 guarantees all employees, including nonunionized employees, the right to act as a group, or on behalf of a group, to improve terms of employment.) In particular, the NLRB has taken aim at employee handbooks and employer policies on “at will” employment, social media and prohibiting employees from disparaging the company or its employees. We expect that the NLRB will continue to be very active in this area until the NLRB rulings are appealed to the federal courts and the courts can help clarify and set parameters around the NLRB’s reach.

• EEOC Focus on Adverse Impact in Hiring: The EEOC has shown a great deal of interest on how the use by employers of criminal histories, credit reports and current employment status impacts the hiring of women, minorities and the unemployed. In President Obama’s first term, the EEOC issued guidance on the use of criminal histories and credit reports, and there have been bills introduced regarding discrimination against unemployed job applicants. On September 4, 2012, the EEOC released its Draft Strategic Enforcement Plan that listed eliminating systemic barriers in recruiting and hiring discrimination as the EEOC’s top priority, followed by protecting immigrant and migrant workers from discrimination. We expect this trend to continue throughout the next four years.

• Wage and Hour Enforcement: The fact that almost every employer, no matter how diligent, is exposed to wage and hour mistakes is seen by some as an easy source of penalty income for the Department of Labor’s Wage and Hour Division. During President Obama’s first term there has been an increase in Wage and Hour Division investigations, lawsuits and fines. Employee/independent contractor misclassification, exempt/non-exempt misclassification and other violations will continue to be a big concern for employers.

• “Obamacare”: With President Obama’s reelection and the status quo of the House and Senate majority, the idea that the the Affordable Care Act will be repealed is dead. With implementation of key provisions of Obamacare due in 2014, the three government agencies tasked with enforcement (Department of Health and Human Services, Department of Labor and Internal Revenue Service) will likely move quickly to promulgate regulations. Therefore, employers should start moving forward with preparations for compliance.

The bottom line is that President Obama and the federal agencies responsible for enforcing the nation’s workplace laws will continue to pursue pro-employee initiatives.

DeWayne Pope
DeWayne Pope, LLC

photo credit: Thomas Hawk via photopin cc

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