Labor and Employment, 2012: A Bigger D.C. Push
Employers can expect more regulatory and compliance requirements from an administration committed to changes in the workplace.
The Obama administration is expected to continue to use its executive and administrative muscle to push various pro-union and pro-employee regulations and enforcement actions in 2012, creating extra burdens for employers. Among the areas of potential change:
NLRB Initiatives—Unionization Made Easier. The National Labor Relations Board continues to pursue pro-union initiatives. The most controversial is its proposed “Quickie Elections” rule, which could be finalized before the end of 2011. Among other provisions, the proposal would reduce to as few as 10 days the period between when a union files a petition for an election and when ballots are cast.
The current median gap between these two events is 38 days, according to the NLRB. The proposal would also eliminate certain other pre-election protections currently afforded to employers and require employers to furnish the union with the cell phone numbers and e-mail addresses of employees eligible to vote in the election. The net effect of these changes would be to allow unions to secretly engage in organizing efforts for months and get a quickie election before the employer has time to put together a campaign to educate employees on the reasons union membership may not be advantageous.
The NLRB has postponed from Nov. 14, 2011, until Jan. 31, 2012 a final rule that requires most private-sector employers, including employers with no union employees, to notify workers of their rights under the National Labor Relations Act. Unless blocked by a pending court action, failure to post the required notice can constitute an unfair labor practice.
OFCCP. Final regulations are expected in mid-2012 from the Office of Federal Contract Compliance Programs, requiring disclosure of significant compensation data that will be used to conduct establishment-specific, contactor and industry-wide analyses and resulting enforcement actions.
Federal and federally assisted construction contractors and subcontractors should expect expanded regulations and obligations in 2012 to prepare affirmative-action plans and keep detailed records, particularly in the area of recruitment and job training. With regard to enforcement proceedings, the OFCCP is becoming more aggressive in trying to exert jurisdiction over business entities that do not have federal government contracts where the there is an integrated business relationship with a government contractor, such as where there is common ownership and management of a federal contractor subsidiary and a non-federal contractor subsidiary.
ICE. The Department of Homeland Security’s Immigration and Customs Enforcement recently announced record numbers of work-site enforcement investigations, criminal prosecutions, audit notices of inspection and administrative fines. This trend is expected to continue in 2012.
OSHA. The Occupational Safety and Health Administration continues to aggressively enforce worker safety regulations. Not only are fines increasing, but it has become much more difficult for employers to settle OSHA citations for a reasonable sum.
Wage and Hour Division. The Wage and Hour Division of the U.S. Department of Labor has been hiring additional investigators to audit and investigate claims of improper classification of workers (that is, classifying non-exempt workers as exempt and classifying employees as independent contractors) and claims of working employees “off the clock.”
Numerous class-action lawsuits asserting these types of claims have been filed. Moreover, the department recently teamed up with the IRS and a number of states, including Missouri, in an effort to share information regarding improper classification of workers as independent contractors. Because the rules regarding exempt status and who qualifies as an independent contractor are complex, a periodic review of worker classifications is highly recommended.
EEOC. The Equal Employment Opportunity Commission continues to investigate and pursue all types of discrimination and retaliation claims. In a recent statement, the EEOC’s General Counsel P. David Lopez indicated that the commission would be looking closer at hiring decisions and would go to court to end practices such as “conformity to discriminatory customer preferences, employing prohibited stereotypes about jobs, and targeted recruitment procedures aimed at only attracting certain racial or national origin group member applicants.”
Plaintiffs’ attorneys continue to bring large numbers of discrimination, sexual harassment and retaliation lawsuits. Conducting a legal review of hiring and employment practices and training supervisors and managers on how to avoid discrimination and retaliation claims continues to be a company’s best protection against such claims.
John Vering is chairman of the Employment and Labor and Non-compete and Trade Secrets practice groups in the Kansas City law office of Armstrong Teasdale.
P | 816.472.3114
E | JVering@Armstrong Teasdale.com
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