Labor and Employment Post-ElectionOn November 19, 2012 by Schnader in schnaderworks.com
So the people have chosen their government. The looming question now is “what can businesses expect on the labor and employment front?” Because of the apparent split in Congress (Republicans maintaining a House majority and Democrats maintaining a majority in the Senate), we expect that federal lawmakers will not be advancing new major legislation impacting the labor and employment arena – with the exception of possible immigration legislation. Because of this, we predict that the pre-election trend of administrative agencies advancing pro-labor initiatives will continue. We also see the federal courts continuing to decide the legality of these administrative initiatives. We had the opportunity to attend a recent national conference where many government officials provided insight into their agency initiatives. These included:
Labor: the National Labor Relations Board will continue interpreting the law in a way that fosters union organization in a variety of ways. These include:
- Expanding the rights of employees to use employer infrastructure such as email to engage in “protected concerted activities.”
- Expanding protections to employees to comment about their employers via social media;
- Limiting employers’ policies addressing confidentiality, at-will employment, and other policies that the NLRB believes infringe on the rights of employees to engage in protected concerted activities;
- Continuing to prevent employees from requiring class waivers in arbitration agreements;
- Granting Weingarten Rights (the employee’s right to have someone attend a disciplinary interview on their behalf) to non-union employees;
- Broadening the scope of the types of employees allowed to organize;
- Limiting further the timeframes of union elections and employer challenges; and
- Taking another shot at requiring notice to all employees about their right to organize.
Employment: Other agencies, such as the EEOC and Department of Labor, will continue pushing employee notice and enforcement initiatives that focus on making it easier for employees to challenge employer action, and taking a bigger role in the prosecution of employee actions against their employer. For example, the Department of Labor will continue to push initiatives requiring employees to post more notices on such topics as employee classification. The DOL also will continue to crack down on employer misclassification cases, and work more closely with the IRS to identify erroneous independent contractor arrangements.