In January of 2012 I wrote a post called A Look Ahead: Predictions for 2012 (Snappy title huh?) Well it turns out I was pretty correct. It also turns out that 2013 will most likely be more of the same. So here are my HR predictions for 2013.
Rules, more rules and creative interpretations
Because the make-up of Congress did not change that much in the November election there is going to be little legislation passed. Certainly nothing that is union friendly or more restrictive in employment compliance. However, that does not mean there will not be more we in HR will have to deal with. The USDOL, the EEOC, the OFCCP, and the NLRB showed last year that they can get very creative in creating new rules, restructuring compliance steps or being very creative in how an existing law is interpreted. Most of that work is not necessarily to the benefit of American business.
The Wage & Division emphasis on employee misclassification will continue with an added emphasis on punishment. They are tired of conciliation and they are using punishment. Besides, you can raise more revenue when penalties are added. A particular point of emphasis this year will be in misclassifying employees as independent contractors. The IRS will also be very interested in this. You had better have your house in order and make sure every 1099 you use is truly an independent contractor.
OSHA, part of the USDOL, is also gearing up for more enforcement. They are also rewriting or creating new standards such as I2P2, a program that will compel employers to find and fix hazards beyond what is already required. There will also be an increased emphasis on whistleblower protection.
The EEOC’s emphasis in dealing with discrimination will change in two BIG ways. First, the use of systemic investigations will be applied to smaller companies. In the past if a big company was charged with a discriminatory practice the EEOC would look to see if there were other employees who had also been involved. This would escalate the status to class-action and increase the awards involved. That same approach will be applied to small companies in 2013 and beyond. If an employee charges discrimination the EEOC will investigate and try to determine if other employees were involved beyond the person that filed the charge.
Secondly there will be a much bigger emphasis on rooting out discrimination in the hiring and recruitment process. See If You are Using Tests as Screening Tools BEWARE! for more information. This includes the use of background checks. As far as the EEOC is concerned there will be severe limitations on the blanket use of background checks.
The NLRB has already been exercising its creativity in reinterpreting previous decisions and in extending their reach into non-union employers. This will increase in 2013 and beyond. There will continue to be decisions on at-will language, confidentiality policies and other handbook language they feel has an effect on the exercise of Section 7 rights under the NLRA. The latest includes rulings on language that prohibits employees from filing or participating in class-action lawsuits. With a continued majority, and possibly no dissenting voices on the board, many previous union friendly decisions will be made.
One of these decisions that will have a major impact is in the size and make-up of potential bargaining units. This “micro unit” approach could allow unions to begin to make inroads into a company by organizing very small groups of people rather than trying to organize the company as a whole. This one has many labor law attorneys concerned.
The next four years
The next four years will prove to be challenging ones for HR and management, especially in the compliance arena. Add to that the challenges of dealing with healthcare implementation it might be a good time to be in HR.