Obama's Mark on Employment Law - What do Employers Have to Look "Forward" To in the Next Four Years?

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[author: ASHLEIGH BHOLE]

Now that the frenzy of the election has died down, Florida has counted its votes, and the major media outlets have moved on from dissecting party rhetoric, the question remains: What does Obama's reelection mean for the country?  And for the purposes of employers and those in HR, what changes will we see in his second term in labor and employment law?  The simple answer is that labor and employment law is likely to be a very active area for change just as it has been over the past four years: the Department of Labor will continue to flex its stronghold over employers, Democrats will push for new employee-favored legislation and the Republicans will shut it down in the House.  If the parties can come to a compromise on some new legislation and governmental agencies maintain their status quo, the following areas are just a few which will continue to actively move "forward" in the coming years: 

  • Anti-Discrimination Laws for Women: Gender inequality was an issue in Obama's first term and will surely remain a priority in this term.  In January 2009, Obama signed into law the Lilly Ledbetter Fair Pay Act which effectively extends the time period in which employees can file a gender based wage discrimination lawsuit - the 180-day statute of limitations for filing a claim resets with each new paycheck affected by the alleged discriminatory action (as opposed to the statute of limitations beginning on the date the employer makes the initial discriminatory wage decision).  Obama has promised to keep gender inequality on his agenda with the continued advocacy of the Paycheck Fairness Act.  If enacted, this legislation, which amends provisions of the Fair Labor Standards Act will, among other things, (1) require employers to show that any wage discrepancies are based on a 'bona fide factor other than sex, such as education, training or experience,' (2) prohibit retaliation by employers against individuals who raise gender-based wage disparity issues and/or concerns, (3) expose employers to enhanced penalties for any such retaliatory conduct, and (4) provide for a negotiation skills training program for girls and women.  
  • LGBT Rights: Obama has been a candid advocate for the rights of the LGBT community, most publicly through the support of same sex marriage.  However, his administration has pushed for changes in the way of LGBT rights in the employment arena as well.  The Employment Nondiscrimination Act is proposed legislation that adds sexual orientation to the protected classes under Title VII for all employers except religious organizations.  Currently, gay, lesbian, bisexual and transgender employees are not protected under Title VII by federal law or under the law of many states.  This Act has been discussed a lot, most recently the Senate Committee on Housing, Employment, Labor and Pensions held a hearing on the legislation, and it would not be surprising to see a push for the passage of this bill in the coming year.
  • Increased Power for Organized Labor: In the last four years, Obama's appointment of members to the National Labor Relations Board (NLRB) has resulted in the Board's increased influence in the area of organized labor.  Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to self-organize and engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.  Because the NLRB has adopted a more expansive definition of "concerted activities," many employer policies and procedures have been questioned and the NLRB has issued numerous pro-worker opinions.  For example, in January 2012, the NLRB held that employers may not require their employees, as a condition of employment, to sign an agreement precluding them from filing joint, class or collective claims that address wages, hours, or other working conditions against the employer in any form, arbitral or judicial.  Then in July 2012, the NLRB declared unlawful an employer's policy of requesting employees to refrain from discussing all ongoing internal investigations with co-workers.  The NLRB claimed this action on the part of the employer to be an illegal restraint on non-supervisory employees' right to engage in protected concerted activity.  Finally, the Board more recently addressed social media policies in the context of concerted activity. On September 7, 2012, the NLRB issued its first decision concerning a specific employer's social media policy, determining that Costco Wholesale Corp.'s policy, which prohibited employees from electronically posting statements that "damage the Company . . . or damage any person's reputation" was impermissible under the NLRA as an unlawful restraint on protected concerted activity rights.  With the NLRB's momentum, don't expect these types of opinions, which significantly restrict employer policies, to slow down anytime soon. 
  • Increased Regulation for Government Contractors – The Office of Federal Contractors Compliance Programs (OFCCP) has also been very active during the Obama administration and has pushed and will be promoting a regulatory agenda which seems to be more aggressive than ever before.  One of the OFCCP's regulatory proposals, which has been on the table since 2011, involves a disability utilization goal.  Essentially, the proposed regulation would require federal contractors and subcontractors to set a hiring goal to have 7% of each job group within their workforce to be comprised of individuals with disabilities. The OFCCP has also stated it wants to develop a new compensation data collection tool which would be used to identify pay discrimination. The tool would be used to, among other things, more efficiently investigate pay discrimination and provide insight into industry trends.  Expect for the OFCCP to push for these regulations now that Obama has been given another four years in office. 

This short summary reflects on only a few areas of employment law and is by no means an exhaustive list of the types of changes employers and HR should expect in the next four years.  One thing is for sure, whether or not you believe these expected changes are moving businesses "forward," with some very active government agencies and a president who has championed the expansion of civil rights for women, the LGBT community and the rights of workers, you can be sure to see significant movement  in the laws that affect business and their employees.