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Election 2012 Fallout

By: Jeffrey A. Risch, Esq., Labor & Employment Practice Chair, SmithAmundsen LLC, jrisch@salawus.com

Elections have consequences. Indeed, there is no question that over the course of 2013, what certain employee-side advocacy groups may not be able to accomplish through federal legislation, will likely be achieved through administrative rulemaking and judicial activism. Of significance, the National Labor Relations Board (NLRB), a 5-member administrative agency comprised of the President’s hand-picked appointees, is set to continue the push for more of a presence in the day-to-day operations of the non-union workforce; regardless of industry. For example, the NLRB is set on pushing through a mandated “Employee Rights Poster.” Although this mandate is currently enjoined by a federal court’s preliminary injunction, the legal battle is far from over. It is anticipated that the NLRB will continue to fight for this mandate which would essentially require most employers to conspicuously post to its workforce their ability to effectively form a labor union.

Additionally, the NLRB will continue to seek a quicker process to administer and hold a union election. Under current administrative processing and legal precedent, a secret ballot union election is typically commenced within 42 days from the time a labor union petitions for recognition. The NLRB seeks to dramatically reduce this time period by as much as 30 days thereby providing employers with a shorter window by which to effectively campaign against the labor organization in the run up to the election. Finally, the NLRB will continue the onslaught attack on an employer’s policies. From “employment at-will disclaimers” to “union access rules” to “social media restrictions,” the NLRB is proactively targeting employers and reviewing any policy that would have any tendency to “chill” the employees’ rights to form a labor union or complain about terms and conditions of employment. Now is the time to review handbooks and all policies with an eye on labor law even in non-union work environments.

The U.S. Department of Labor (DOL) will continue to be well-funded. The DOL has been consistently hiring auditors and investigators to crack down on:

  • The utilization of independent contractors;
  • Failure to pay overtime (especially in the context of exempt vs. non-exempt classification);
  • Non-compliance with mandated affirmative action for employers doing business with the federal government; and
  • Construction contractors’ failure to comply with federal prevailing wage requirements (Davis-Bacon & Related Acts).

Health care reform is here to stay! Mandatory compliance is already underway. Although the specifics will continue to trickle in as time passes and in the run up to January 1, 2014, employers must take note of new mandates. Of particular short-term and long-term significance is that the new full-time employee will be deemed anyone who regularly works thirty (30) hours or more per week. Employers may want to evaluate how they have defined full-time vs. part-time employment and the varying benefit plans that involve the full-time vs. part-time distinction.

The U.S. Supreme Court is set to weigh in on critical issues that will have a profound impact on harassment/discrimination issues as well as wage/hour controversies. The Supreme Court will also likely weigh in on continuous legal challenges and issues dealing with immigration and health care reform for the foreseeable future.

Be assured that SmithAmundsen’s labor and employment practice group will continue to be engaged on the frontline of such developments. In fact, our partners will soon be meeting with NLRB Chairman, Mark Pearce in Washington D.C. to gather additional perspective, and we will continue to participate in local, regional and national initiatives involving key administrative agencies.

Attorney Jeff Risch is the chair of SmithAmundsen’s Labor & Employment Law Group. Jeff may be contacted at jrisch@salawus.com.

 

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