TBA Law Blog


Posted by: Christy Gibson on Jan 29, 2013

By H. Rowan Leathers III *

I admit from the beginning that I am a management/employer side labor and employment law attorney.  With that said, the purpose of my article is to attempt to provide a forward looking view of the labor and employment law environment during President Obama’s second term which most probably will not be employer friendly.  With the 113th Congress underway, some analysts are speculating that, with 20 percent of Congress’ fresh-faced newcomers, the House and Senate could not possibly be worse than their predecessors.  Others, however, argue the new Congress will remain plagued by the same deep divisions that stymied the 112th.  The Senate will continue to be controlled by Democrats/Independents, now by a 55 to 45 margin, and the House continues to be run by the Republicans, now by a 234 to 197 margin.  With major fights looming over raising the debt ceiling and dealing with postponed fiscal-cliff spending cuts, will the new Congress be stuck in the same old gridlock?  The commonly held belief is yes. 

Given the Democrats’ control of the White House and Senate, what labor and employment law developments can employers expect from a second Obama Administration?  Unfortunately, predictions of future legislative and regulatory developments can be extremely difficult.  If you subscribe to the old adage - when your proverbial crystal ball stops working well, you feel like you are walking on its broken shards - it is not all that appealing to even attempt to make predictions in this environment.  However, some things appear to be certain during the President’s second term.  These include:  little new labor or employment legislation; increased regulatory activity; and the potential appointment of several new Supreme Court justices, most likely possessing liberal leanings and a pro-labor, pro-employee perspective which could shape the Court for years to come.

When it became apparent during the first Obama Administration that new labor and employment legislation would be unlikely, the focus shifted to regulatory agencies which appeared to kick things into high gear.  Because neither Congressional involvement nor its approval was needed, rulemaking and tougher enforcement policies became the impetus.  For instance, when the Employee Free Choice Act fell from the “front burner,” the National Labor Relations Board (“NLRB”) engaged in rulemaking requiring employers to post notices informing employees of their right to unionize.   More of the same can be expected from the NLRB as well as the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor Wage and Hour Division (“WHD”).

The President’s second term agenda will likely include the Department of Labor (“DOL”) pushing its “Plan/Prevent/Protect” initiative which is intended to ensure “safe, secure and equitable” workplaces for workers, and avoid the old “catch me if you can” approach by employers.   This will involve employers identifying, remedying and preventing risks of legal violations through planning, and then monitoring the success of the plan.  Standards and regulations will likely be promulgated pursuant to the DOL’s March 2010 guidelines. 

It is additionally expected the WHD will propose rules regarding the Fair Labor Standards Act (“FLSA”) recordkeeping requirements.  During its first term, the Obama Administration pushed legislation concerning the misclassification of workers as independent contractors instead of employees.  Even though this proposed legislation is unlikely to pass this time around, it is expected the WHD will continue to push for a proposed rule which is being referred to as “Right to Know” which will mandate and employer-provided notice concerning an employee’s pay computation and a classification analysis for each worker excluded from FLSA coverage.  This would have to be provided to the employee and be subject to inspection by the DOL.  These efforts will likely be coordinated with the Internal Revenue Service through among other things, the Memorandum of Understanding between the IRS and DOL, dated September 19, 2011.

Finally and as concerns the WHD, it is expected to finalize its efforts to eliminate the FLSA’s “companionship services” exemption for third parties, and to move forward with rulemaking concerning the Family and Medical Leave Act (“FMLA”) provisions relating to military caregivers and airplane flight crews.  These FMLA proposals will address, among other things, extending military caregiver leave to certain eligible employees.

Shifting our focus to the EEOC, it will likely continue its efforts to implement its draft Strategic Enforcement Plan (“SEP”) for Fiscal Years 2013-2016, which SEP identifies a number of national priorities.  The purpose of the SEP is to focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.    These programs include eliminating systemic barriers in recruiting and hiring such as the E-RACE (Eradicating Racism and Colorism from Employment) Initiative, preserving access to the legal system, protecting immigrant, migrant, and vulnerable workers, and addressing other emerging issues, such as LBGT coverage under Title VII’s sex discrimination provisions.  In the area of recruiting and hiring, pre-employment tests and background checks will be scrutinized for adverse impact on protected groups.  Additionally, workplace harassment will continue to be a focus insofar as employer’s practices and procedures regarding prevention and response are concerned.

In conclusion, what we can expect is really a continuation of the labor and employment policies and practices of the last four years.  Employers can expect a number of “employee friendly” rules which will significantly impact their workplaces.

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*H. Rowan Leathers is a partner at Butler, Snow, O’Mara, Stevens and Cannada, PLLC, in the Labor and Employment Group and Commercial Litigation Group. Rowan received his J.D. from Emory University in 1982. He may be reached at rowan.leathers@butlersnow.com or (615) 503-9118.