The Year Ahead in Employment Law

Be prepared for more regulation, greater scrutiny.

Business owners, brace yourselves. Rather than ushering in a new year of opportunity, 2013 likely will continue the pattern of the last four years: Labor and employment laws have tipped the scales toward greater employer scrutiny and regulations, and that trend shows no sign of abating in the year ahead.

Because many government agencies are emboldened by the 2012 election results, their enforcement efforts likely will increase. The shift leaves businesses vulnerable to fines, lawsuits and more aggressive union activity.

Major employment issues expected in the year ahead include:

Upsurge in Federal Support for Unions

Only 11.8 percent of American workers were union members at the end of 2011, a 70-year low, according to the Bureau of Labor Statistics. Unions don’t have a stronghold in the workplace right now, but the National Labor Relations Board has become far friendlier to union organizers in the last few years, and the board’s composition portends an upsurge in organization attempts in the private workplace.

Further, the NLRB has increased its attention to employer rules and policies regulating employee conduct, even for workplaces where there is no union representation or attempt to organize a union.

The NLRB also will continue working to prevent employers from regulating employee posts on social media sites, even when posts specifically reference the employer or work-related issues. The NLRB tends to view less-than-favorable comments about employers as protected speech for which the employee can’t be disciplined.

Employers should protect themselves with no-solicitation and social media policies, which must be lawfully written and lawfully enforced to comply with the National Labor Relations Act.

Aggressive OSHA Stance

The Occupational Safety and Health Administration not only has staffed up, but also has ramped up enforcement in recent years. Look for those actions to increase in 2013.

OSHA recently altered its whistleblower office’s reporting relationship, making the office directly responsible to OSHA’s assistant secretary, a move unheard of for most agencies. The change signals that OSHA will press for greater enforcement by actively seeking out employees it believes have been treated improperly as a result of raising different kinds of complaints.

EEOC’s Enforcement Plan The Equal Employment Opportunity

Commission’s new strategic enforcement plan, approved in mid-December 2012, states that the EEOC will focus its 2013 enforcement efforts on hiring, pay and harassment.

Businesses can expect workplace harassment complaints, which comprised one-third of the agency’s discrimination lawsuits in the last four years, to continue piling up. This is particularly true for retaliation cases, which became the largest category of claims filed with the EEOC in 2010 and have remained in that position since. Enforcement of the Equal Pay Act also will receive major emphasis.

Another key concern for employers is the EEOC plan’s undertone of interest in cases that could become class action lawsuits, even if the employee who files an initial complaint doesn’t specifically allege that fellow employees also have been affected. What this means is that, in the year ahead, EEOC personnel who enter the workplace to investigate one situation are likely to broaden the scope of their examinations to include other issues, as well.

Employers can reduce risk of an EEOC complaint by reviewing employment policies and practices to identify and amend any that might inadvertently discriminate against a protected group.

Wage and Hour Issues

A third-quarter 2012 survey by Harris Interactive showed that half of U.S. workers believe their employers are violating overtime laws—and many are taking action. Wage and hour lawsuits now are filed at a rate of more than 7,000 per year, and have become employment law’s fastest-growing category.

Some of these lawsuits stem from employees being improperly classified as “exempt” from the Fair Labor Standards Act’s overtime requirements. In the early months of the new year, employers should audit all of the company’s exempt positions to make sure employees are correctly classified.

A Happy New Year?

More stringent employment regulations can take the sparkle off the new year when the mirror ball has barely stopped spinning. Employers can help to maintain 2013’s sheen, however, by reviewing their employee policies to make sure they’ll stand up against a challenge, purchasing employment liability insurance that covers attorney fees in case of a lawsuit and seeking advice from a qualified employment law attorney.