While we are still saying “Happy New Year” (I checked and was told that January 21 was still “not too late” to wish good tidings for 2016), and as we get ready for the Great East Coast Blizzard of 2016, I thought it would be a good time to add my own predictions for the employment law landscape of 2016.
Having been practicing in the labor and employment field for over thirty years, 2015 marks another year in a recent series of years where the employment law landscape changed beneath our feet. Courts, legislative bodies and government agencies re-examined once settled doctrine – forcing manufacturers and their professionals to adjust. As Abraham Lincoln famously wrote, “As our case is new, we must think anew, and act anew.”
My forecast for this Presidential, Congressional and state and local election year is – “More of the Same Change.”
On the federal level, the last year of President Obama’s term will see the Equal Employment Opportunity Commission (“EEOC”), the United States Department of Labor (“DOL”), and the National Labor Relations Board (“NLRB”) continue their efforts to expand protections for workers.
EEOC: I expect the EEOC to aggressively pursue “systemic cases” challenging perceived adverse treatment of gays and lesbians under the theory that such differentiation on the basis of sexual orientation amounts to “gender-based discrimination” banned by Title VII. I also expect the EEOC to scrutinize any health benefit plan promoting “wellness” programs or other “bad trait” disincentives under the anti-discrimination provisions of the Americans with Disabilities Act. Finally, as it has for several years now, the agency will continue to challenge private agreements between manufacturers and their workers under the anti-retaliation provisions of the statutes the agency is charged with enforcing to excise overbroad confidentiality provisions, “no apply/rehire” clauses, and “future cooperation” obligations.
DOL: The DOL will likely publish for public comment and then implement its long anticipated “Persuader Rule.” While the formal text is not yet available as of this writing, if similar to the prior version of the rule which was published in 2011 and withdrawn (text here), the Rule could force many professionals to either limit the services they provide to manufacturers or make publicly available detailed financial data. I also expect the DOL to publish revised overtime regulations, raising the minimum salary to be paid employees to exempt them from overtime pay, indexing that minimum salary to the rate of inflation, and changing the duties tests to narrow the overtime exception. (The Notice of Proposed Rulemaking can be found here.)
NLRB: The NLRB will likely continue to advance its efforts to enhance worker protections in non-unionized facilities and we will see more litigation (and appeals) involving employer policies on the use of tape-recording devices, video-cameras and smart phones; employment handbooks; confidentiality policies; workplace investigation practices; and arbitration agreements. I will go out on a limb here and predict that the NLRB will revisit whether a manufacturer is obligated to bargain over the adoption of pre-employment drug-testing, perhaps in the context of the use of medical marijuana.
On the state level, I expect state legislatures to continue to take action where Congress has been unable or unwilling to do so. Expect to see more states raise the minimum wage either across-the-board or for blue-collar service workers in selected industries. I also expect to see the push to expand mandatory paid sick leave to grow as well. My prediction? At least 5 more states will raise the minimum wage either by legislative action or voter referendum by December 31, 2016.
For my money, I will continue to watch the Teamsters Central States Pension “Rescue Plan” as it advances through the review process and on to a vote by plan participants. (See background here.) As I have previously written, if adopted, the Central States’ Plan will likely become the “model” for other troubled funds to cut the vested benefits of retirees.
Finally, expect to see state government agencies continue to explore the use of independent contractors and subcontractors. At least one source claims that the misclassification of workers as independent contractors costs the federal government over $15 billion dollars each year. (See report here.) If you also included state and local tax revenue lost, the numbers seem sufficient to compel cash-strapped governments to investigate the use of independent contractors more closely.
Only time will tell if these predictions prove to be accurate. One thing I can count on as these “Years of Change” continue, we can expect something unexpected.