Obama 2.0: What Employers Can Expect To See In The Next Four Years

by Constangy, Brooks, Smith & Prophete, LLP

Well! OK!

It's been an interesting week, hasn't it? Congratulations to President Obama on winning a second term. My Election 2012 coverage would not be complete without some labor and employment prognostications for Obama Administration II.*

Criswell Predicts.jpg

*Please do not read these again in 2016 to see how accurate I was. I don't want to be known as the Dick Morris of employment law bloggers.

Aggressive agencies and E.O.s. Because the GOP managed to hang onto control of the House, the President will not be able to push through much in the way of legislation -- at least, not before the 2014 mid-term elections. Of course, Obama has had the same problem since the 2010 mid-term elections, but he's gotten around it in two ways: (1) by issuing Executive Orders, and (2) by having his agencies take expansive, aggressive positions on existing laws. This is expected to continue in his second term.

For some employment-related examples, just take a look at the EEOC's proposed Strategic Enforcement Plan, which calls for going after employers who require pregnant employees to take medical leaves of absence if they can't do their jobs. Right now, reasonable accommodation of normal pregnancy is not required. The EEOC also intends to enforce non-discrimination against individuals based on their LGBT status. Right now, some courts have said that "gender stereotyping" and discrimination based on gender identity is a form of sex discrimination, but Title VII does not directly address this, and it doesn't prohibit discrimination based on sexual orientation.

If the Democrats regain control of both houses of Congress, we'll see enactment of more employee-friendly legislation (which I'll discuss below). In the meantime, look for more E.O.'s and agency interpretations that push the envelope.

Mad_dog.jpg"Say hello to my little friend, the EEOC!"

Supreme Court: Ginsburg breathes a sigh of relief, while Scalia and Kennedy try to hang on by their fingernails. With Obama's reelection, Justice Ruth Bader Ginsburg can retire in peace, knowing that her successor will be philosophically compatible. Meanwhile, Justices Scalia and Kennedy, who at 76 are no spring chickens, will probably try to hang on until the 2016 election. A replacement for Justice Ginsburg, of course, will not change the usual 5-4 conservative majority on the Court. But if President Obama has the opportunity to replace Justice Scalia or Justice Kennedy, that narrow majority is kaput.

Supreme_Court_US_2010.jpg"Oy vey, Tony," said Nino, "I'm too old for four more years of this." "Eh? Did you say something, Nino?" Tony replied.

National Labor Relations Board: More of the same (can it get any worse?). Right now the Board has four members and one vacancy. Two active members (Sharon Block and Richard Griffin) are vulnerable to challenge as the President's allegedly improper recess appointments. (The third member subject to this challenge, Terence Flynn, has already resigned from the Board.) Meanwhile, we can look forward to more Board decisions and opinions invalidating employer social media policies, taking a dim view toward employment-at-will disclaimers, taking an expansive view on protected concerted activity, and much more. With poor ol' Republican Brian Hayes as the lone dissenter. Bless his heart.

Affordable Care Act. I guess this is really gonna happen. The Supreme Court has said it's constitutional, and Congress won't be able to repeal it. Open enrollment begins next fall (2013).

President's (labor and employment) legislative wish list. The President has made clear that he favors enactment of the Paycheck Fairness Act, which would make it much easier for women to bring lawsuits for pay discrimination. No doubt the GOP will oppose this, unless they are skittish about the gender voting gap that we saw in this election. If the Democrats regain control of the House and hold on to the Senate, I would also expect the President to push for enactment of the Employment Non-Discrimination Act, which would prohibit discrimination based on sexual orientation and gender identity. He may also try to revive the Employee Free Choice Act, which would have required recognition of unions through card-check without elections. And based on the signals we've been getting from the EEOC, I would also expect him to try to enact an amendment to the Pregnancy Discrimination Act requiring reasonable accommodations for pregnancy.

Other interesting election issues:

Same-sex marriage. Voters in the states of Maine, Maryland, and Washington all approved measures allowing same-sex marriage. This is the first time in history that voters, as opposed to courts or legislatures, have approved such measures. Has the zeitgeist changed? Also, Minnesota rejected a constitutional amendment, similar to the one approved by North Carolina voters in May, which would have defined marriage as between one man and one woman.

Of course, same-sex marriage requires employers to treat married same-sex couples the same way they treat married opposite-sex couples with respect to employee benefits, spousal leave under the Family and Medical Leave Act, and other purposes. Many employers have already adopted such policies voluntarily for partners in civil unions.

Legal pot! (Dude. Sweet.) Voters in the states of Colorado and Washington approved legalization of the sale or possession of marijuana in small amounts, even for recreational purposes. According to a court decision I reported on earlier this year, legalized pot may not make a difference to the exclusion from protection under the Americans with Disabilities Act for "current use of illegal drugs" because the illegal drug definitions in the ADA are based on federal law. In other words, unless the ADA is amended again, it may not be a violation for a Colorado or Washington State employer to take action against an employee for testing positive for marijuana.

Lounge Lizards.jpg*hic* "Way to go, our friendsh from the Centennial and Evergreen states!" *hic*

Puerto Rico votes to become an estado. (Or did it?) For the first time ever, voters in Puerto Rico approved a measure that would begin the process for statehood. It is expected that our prospective 51st state would be a "blue" one, so we may see a break along party lines if and when Congress ever takes this up.

So, what are your predictions? Feel free to post them in the Comments section!

Photo credits: Wikimedia Commons.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.