This time last year I made the following predictions on what would happen in HR compliance in 2014. After each prediction I make a comment on what actually occurred. Read it and tell me how you think I did.
The year 2014 is a midterm election year. It is a big one. There are 36 governor spots up for contention. There are also 35 Senate seats in contention and dozens of spots in the House of Representatives. With the 35 Senate seats the control of the Senate could shift by the end of the year. The House of Representatives will remain in control of the Republicans as there are not really enough seats in contention to change that control.
As we now know the Republicans captured enough seats in the Senate to now have control of Congress. This means that legislation will get passed, but the Republicans did not gain enough to overcome a Presidential veto so for the next two years little new legislation will come into existence.
What will get done?
The short answer to this question is very little from a legislative standpoint. But we may see sentiment on several areas change. These areas include:
Minimum wage. No legislation will get passed on the Federal level despite a push by the President and unions. In an election year businesses will lobby against it. After this election year we may see sentiment move to passing a new minimum wage law due to the mounting pressure from state legislation. But not in 2014.
As we saw this past year there was a lot of pressure for changes in the minimum wage, but no legislation was passed. The President did pass an executive order requiring federal contractors to pay an increased minimum wage of $10.10 per hour, though there are many exceptions to this. Many states did bow to the sentimental tide and passed new minimum wage legislation.
Executive pay. There will continue to be legislation introduced into Congress that strives to limit executive compensation. As with the minimum wage, maximum wage will also not get any traction in an election year. Unlike the minimum wage, if the Republicans win the Senate, there will be no traction beyond 2014 either.
The changes that occurred in Executive Pay also occurred on the Federal Contractor level with the OFCCP requiring pay transparency for all federal contractors, this includes executive pay.
Most action will be regulatory
Since this will not be an active legislative year the work that HR will have to deal with will come from a regulatory standpoint.
The Affordable Care Act- The spotlight will be shining brightly on Obamacare. With the delay of the employer mandate employers will now have to be stepping up what they do to be ready to go in 2015. The poor roll-out of the individual mandate sign-ups will have employers wondering what is going to happen with them. Numerous politicians will be calling for either support or repeal, depending on party affiliation. Regardless employers will have to be prepared.
The ACA proceeded forward with many errors, stops and starts. The sign-up debacle has apparently been fixed, though there still remains some skepticism by many people and there are still several court challenges that may yet change the nature of the law. For right now employers should be proceeding as needed since the ACA is the law.
NLRB- For the first time in a long time there is a full NLRB board. They now have the power to render decisions unimpeded by questions of legal authority to do so. I think 2014 will be an active year. Decisions will be rendered to benefit union activity and to bolster union membership. Two states are considering right-to-work legislation and although the NLRB does not directly deal with that the can do things that will be used to influence voting. Right-to-work is a states’ rights issue under the Labor Management Relations Act. The Weingarten Rule, which gives employees the right to witnesses in any disciplinary situation, could be reapplied to non-union workers to perhaps bolster the image of what a union could do for an aggrieved employee.
The NLRB has indeed been very active enacting rules changes that allow union organizers the use of company email for organizing efforts. Additionally the NLRB has shortened the period in which an election must be held to around 8 days thus almost taking away the ability of the company to campaign against the election. The NLRB is passing more rules changes and the Weingarten Rule change may yet come about.
Right-to-work legislation did get passed and the constitutionality of the law in Indiana withstood a state Supreme Court test.
USDOL- The USDOL will continue to put the screws on employers for employee misclassification. Regulations are being developed to require employers to give a statement to each employee or potential employee (which includes independent contractors) explaining the employee’s status. The employee can then question that status and have the employer document their decision. This may result in many more lawsuits. The IRS will join in this effort with their own continued clampdown on employee misclassification with an emphasis on the use of independent contractors. Additionally state Workers’ comp boards will also be monitoring this. It is all about revenue.
The rules about wage statements have not yet passed into being with the exception of federal contractors. Wage and hour cases are on the rise, with a 10% increase in 2013 that is expected to be at the level or higher once the 2014 numbers are in.
OSHA- One big regulatory change will most likely involve posting the OSHA logs on a year round basis. Right now the OSHA 300 summary has to be posted for the months of February, March and April. There has been a suggestion that ongoing records will have to be posted year round. They will continue the move toward implementing the I2P2 program.
This change did go into effect and in 2015 employers will have to post OSHA forms year round. Additionally they will be publicly posted on the OSHA website as well for all to see.
EEOC- The EEOC is smarting a bit due to a major and expensive loss in the court system. They have had do back down from their background check initiative. However, that will continue. They are also going to be pursuing more compensation and glass ceiling activities. Probably the area that will be most harmful to smaller businesses is that the will be more aggressively pursuing systemic discrimination investigations. Their philosophy is that if you discriminated against one person you have discriminated against others.
The EEOC did retreat slightly from their position on background checks though they still published their “best practices” which they will certainly judge your practices by. They have extended discrimination claims to LGBT areas that are not yet federally protected by law, but that does not dissuade them.
There you have it. My conclusion said: don’t worry about legislation but pay attention to the regulations!
I think I came pretty close with these predictions.
Tomorrow will be my predictions for 2015.