On January 16, 2012 I will be appearing as the guest on the Internet radio show Drive Thru HR that is hosted by Bryan Wempen and William Tincup. We will be talking about what I see ahead in human resources for the year 2012. This post gives you a preview of my look ahead at predictions for 2012.
Unlike 2009, when the Democrats controlled the House of Representatives and introduced a great deal of employment legislation, 2012 will see very little activity on employment laws. Bills may be introduced but they will not have any chance of passage. However, that does not mean that there will be no activity on the employment law front.
Rules changes and accelerated levels of enforcement on the part of the U.S. Department of Labor, the Equal Employment Opportunity Commission (EEOC), and the Office of Federal Contract Compliance Programs (OFCCP) will provide plenty of challenges for employers. These include:
The USDOL will continue to press heavily on misclassification of workers. They will continue to look at whether employees are properly classified as exempt or nonexempt. Penalties for misclassification will increase with willful misclassification being the issue. Also, workers misclassified as independent contractors will also be a hot button. The misclassification of workers is an issue that promises to receive more scrutiny in 2012. In mid-2011 the IRS unveiled an opportunity for eligible employers to voluntarily reclassify workers as employees in exchange for partial tax relief from past federal employment taxes. In late 2011, the U.S. Department of Labor agreed to work with the IRS, as well as several states, to share information and coordinate enforcement to ensure that employees receive protections they are entitled to under federal and state law. Legislation in several states to increase fines for worker misclassification may also impact employers in 2012.
Outreach to employees to get them to report employers:
With the We Can Help Program and the smart phone Timesheet application the DOL has increased its efforts to get employees to report their employees. Along with that effort the USDOL has teamed with the American Bar Association to refer complaining employees to plaintiff’s attorneys early in the process of suing their employer. Additionally they have been more aggressive in dealing with employers who have “retaliated” when employees have complained about wages.
The OFCCP has just put out rules for comment that will radically change how contractors have to deal with disabilities. There will be much more paperwork, expense and a push to hire disabled employees, even those with severe disabilities. While not a bad goal the definitions and levels of hiring, and the penalties for not doing may prove to be burdensome.
The number of discrimination cases may rise steeply in 2012 especially in the areas of retaliation and in disability. The broadened definition of “disability” brings into play another potential 4,000,000 plus workers, especially those baby boomers who have aged into medical problems. Attorneys report that retaliation cases are much more difficult to defend and put a much greater paperwork and documentation burden on employers.
National Labor Relations Board
There is no secret that the NLRB has become what many people describe as activist and heavily pro-union. Former board member Craig Becker ( a recess appointee last year) made the comment that new pro-union legislation was not needed since the NLRB could accomplish everything needed by rules changes. Since that time they have required employers to put pro-unionization posters up (currently delayed), sued company for trying to open a non-union plant (Boeing, the case has since been dropped), and have caused a great deal of turmoil with opinions on social media use as being protected concerted activity. Their activity will not abate in this election year.
The push to clamp down on employers employing unauthorized workers will continue unabated in 2012 and may actually see an increase in ICE audits, especially in targeted industries such as restaurants and food service.
Job Growth and Employee Retention
Many signs point toward an improving economy and job growth in 2012 and 2013. This should be making many employers shake in their boots because of the predictions of massive job movement. Remember the estimates that as many as 75% of employees were unhappy and poised to leave? This was causing retention nightmares and had employers scrambling to improve how they dealt with their workers trying to improve morale. Well apparently it worked. A recent SHRM survey showed that over 75% of employees are satisfied with their jobs. So I don’t think we are going to see the massive job jumping that was expected, for a couple of reasons. First I don’t think people were really dissatisfied enough to have that many people want to leave. Secondly, I think people are still not sure of the strength of the economy. People will be hesitant to go to another job where they become the most recently hired thus putting them in the position of being the first let go if the economy once again become dismal.
Well there are my predictions for some of the human resources activity that may be seen in 2012. Tune in on January 16th to hear the discussion.