The first Obama administration was a windfall for employment lawyers: Federal agencies like the National Labor Relations Board and the Equal Employment Opportunity Commission roared back to life. And then there was a little law involving health care. At The National Law Journal‘s Regulatory Summit in December, a panel led by lawyers from Littler Mendelson, which specializes in labor and employment law, made their predictions for the major employment issues ahead.
IMMIGRATION. Business groups and politicians from across the spectrum are calling for immigration reform. And as Ilyse Schuman, a Littler Mendelson partner, put it at the Regulatory Summit, “Immigration reform may be the only comprehensive form of workplace legislation that may move through this Congress.” But any partisan détente will depend on the details. According to a New York Times report, the president has said that he favors a comprehensive reform measure that would include a new nationwide verification of legal status for all newly hired workers; additional visas for highly skilled workers and to relieve immigration backlogs; and a new guest-worker program to help fill low-wage jobs. Obviously, employers will closely watch those three issues. Obama is expected to provide more detail in his State of the Union address early next month. Stay tuned.
HEALTH CARE. The fight over the Affordable Care Act will shift to the regulatory agencies, as the administration writes the rules that will help set the law in motion. Employers will have to decide whether they will play ball with the ACA or pay a penalty for failing to comply with some of the new law’s provisions. Employers, however, are closely examining an exemption that waives penalties for workers who are on the job less than 30 hours per week. Will employers move work from full-time employees to part-timers, and thus avoid penalties? Expect employment lawyers to try to answer that question for clients throughout 2013.
SYSTEMIC CASES. In December, the Equal Employment Opportunity Commission approved its Strategic Enforcement Plan for fiscal years 2013 to 2016, a road map of sorts for where the agency will focus during the rest of the Obama administration. The plan includes a continued emphasis on investigations and litigation involving systemic discrimination — in other words, cases involving a class of employees. How much emphasis are systemic cases getting? According to lawyers at Littler, settlements alone in systemic cases rose from a little less than $5 million in 2011 to $36 million in 2012. Also giving defense-side lawyers pause is language in the strategic plan that encourages private bar actions to enforce federal anti-discrimination laws. Let the plaintiffs’ suits begin.
SPECIALTY FALLOUT. In 2011′s Specialty Healthcare case, the National Labor Relations Board approved a unionization effort at an Alabama nursing home that included just a subset of the facility’s employees. And the fallout from that decision — seen as a major win for unions — will continue in 2013. Critics of the Specialty Healthcare decision say the recent demise of Hostess Brands Inc., with more than 300 collective-bargaining units and myriad health care plans, was a sign that the board overreached and that so-called “micro-unions” are business killers. But as Joe Trauger, who focuses on human resources policy at the National Association of Manufacturers, said at the Regulatory Summit, big business isn’t having much success battling the Specialty Healthcare decision. “Unions are cherry-picking from an organizing standpoint,” Trauger said. “And it’s difficult for us because we don’t have standing” to bring cases.
DIVERSE HIRING. With nearly a quarter of the U.S. work force covered by its rules, the Office of Federal Contract Compliance Programs holds major sway with employers. And it’s using that power over federal contractors to help move the needle on hiring of the disabled and veterans. Backed by civil rights groups, the office has proposed that 7 percent of employees in each job group at a federal contractor should be people with disabilities. It also sets annual hiring benchmarks for veterans. Among employers, the goal has caused groans. “It creates a whole bag of issues,” Trauger said. He said the proposal’s disclosure requirements would dramatically increase red tape for employers. In its Fall 2012 Regulatory Agenda, released on Christmas Eve, the Department of Labor projected that the new goals would be published in April. “We’ll see how that plays out,” Trauger said.