As 2013 draws to a close, our Labor and Employment group put its collective head together to come up with our top predictions, from the cautious to the audacious, for what the new year will bring. Stay tuned in 2014 to see how we do! In the meantime, happy holidays! Here goes:
1. Cost and morale pressures will lead more and more employers to adopt policies that allow (or require!) employees to use their own cell phones, tablets, and other mobile devices at work (i.e., Bring Your Own Device, or “BYOD,” policies). Implementation of these policies will require close coordination between HR and IT functions, as well as revision of policies on confidential information, time keeping, discrimination/harassment, and other policies to ensure compliance in various legal areas.
2. Employers will increase their use of mobile applications to engage with employees, track their attendance, manage their benefits, monitor their productivity, and help them do their jobs. Employers will need to be sure that use of these apps complies with various laws, including the Fair Labor Standards Act (“FLSA”), the National Labor Relations Act (“NLRA”), the Genetic Information Non-Discrimination Act (“GINA”), and others.
3. Our Seattle office predicts the Seahawks will win the Super Bowl! Employers in the Pacific Northwest will struggle with record levels of absenteeism the following day.
4. On the immigration law front, employers will continue to see an unsettled landscape as Congress grapples with comprehensive immigration reform and impatience in the states leads to experimentation and increased regulation.
5. The Equal Employment Opportunity Commission (“EEOC”), Occupational Safety and Health Administration (“OSHA”), and Office of Federal Contract Compliance Programs (“OFCCP”) will continue to increase their enforcement efforts, especially since another federal government shutdown, which slowed enforcement activity for a time in 2013, now appears unlikely in 2014.
6. The Department of Labor will issue its final rule on the advice exception under the Labor-Management Reporting and Disclosure Act. Stand back and watch management-side employment lawyers howl—you know it is bad when the ABA agrees. Then watch as several lawsuits are filed and implementation of the rule is quickly stayed.
7. The National Labor Relations Board (“NLRB”) will continue to rigidly and unrealistically apply the almost 80-year-old National Labor Relations Act (“NLRA”) to the 21st Century workplace, leaving employers scratching their heads on rulings curtailing common HR policies related to social media, confidentiality, electronic communication systems, solicitation and discipline.
8. Speaking of which, the NLRB will move forward with a new version of its “ambush” quickie election rules. Having just withdrawn its appeal of a court ruling that blocked the Obama Board’s first attempt (on purely procedural grounds) it is likely the Board will re-issue the ambush election rules, if not adopt even more onerous changes.
9. While the Employment Non-Discrimination Act (ENDA) remains stalled at the federal level, similar measures will continue to be enacted at the state and local level. Why? Because it is increasingly seen as just the right thing to do and all politics are local.
10. De facto unions in the form of worker centers will continue to populate certain industries. How these entities will be regulated, if at all, remains to be decided.
11. More jurisdictions will follow the lead of San Francisco and SeaTac, WA and consider—and some will adopt—high “living wage” ordinances, spurring debate of an increase in the minimum wage on a national level. Seattle will be among the first cities to adopt a new “living wage” law.
12. The U.S. Supreme Court will lay to rest questions about the viability of the presidential recess appointment process when it decides NLRB v. Noel Canning this term, with significant impact on the current state of labor law in the process.
13. More cities around the country will follow the lead of San Francisco, Seattle, Portland, and Washington, D.C. by passing local laws requiring employers to provide paid sick leave or paid time off (“PTO”). Some state legislatures will try to beat them to the punch, either by passing state-wide sick leave laws or banning cities within the state from doing so.
14. Employers will incorporate more arbitration agreements with class-action waivers into their employment contracts in an effort to shield themselves from expensive class action litigation, especially wage and hour lawsuits. But class action filings will continue to increase as class action plaintiff firms try to get their licks in while they still can.
15. Our Portland office predicts the Portland Trail Blazers will win an NBA championship in 2014, defeating Greg Oden and the Miami Heat in the finals. It could happen!
16. The U.S. Supreme Court’s decision in Harris v. Quinnwill continue the expansion of union members’ rights to object to how unions spend dues money on political or other advocacy activities.
17. The courts will continue to reject the EEOC’s campaign to turn people with a criminal history into another protected class. At the same time, more jurisdictions will place roadblocks on employers’ efforts to consider an applicant’s criminal history.
18. OSHA’s on-line complaint process will increase the number of whistle-blower complaints to which employers must respond.
19. The ability of employers to use pre-hire credit checks will continue to be curtailed, as state legislatures and Congress consider further restrictions, or outright bans, of this practice.
20. Bullying will continue to garner significant media attention and employers will increasingly find themselves responding to workplace complaints between employees that are not within the protection of existing civil rights statutes. The identification and prevention of such behavior should be a part of the training regimen provided to all levels of personnel.
21. The EEOC’s intractable practice of accepting only full-relief offers during the conciliation process will continue to be mired in controversy as employers rightly protest this practice.
22. We will continue to see an increase in age discrimination filings at both the EEOC level and in the courts as baby boomers start to more rapidly (and, in many cases, involuntarily) leave the workforce.
23. State agency audits of employers’ use of “independent contractor” designations will continue to increase. Employers should understand what law applies and rigorously evaluate their classifications of workers.
24. Our Salt Lake City office predicts, with a heavy heart, that the Utah Jazz will be the worst team in the NBA this season. On the upside, based on that performance Utah will win the #1 draft pick in the 2014 draft and will win an NBA championship in the near future with … Andrew Wiggins?
25. The Affordable Care Act (or “Obamacare”) will continue to perplex almost everyone, including employers trying to control rising health care costs. Interesting times are ahead for any unionized employer seeking to negotiate out of a Taft-Hartley plan, as well as for unions seeking to protect such plans while claiming to want to “partner” with employers for truly affordable care.
26. The demand for use of service animals at work will increase—“therapy dogs” at work, anyone?—continuing to make the accommodation analysis under the Americans with Disabilities Act (“ADA”) even more difficult than it already is.