As I mentioned in yesterday’s post today’s post is about my predictions for the coming year in the area of HR legislation and regulation. So let me pull out my crystal ball and begin.
As we all know the Republicans took control of Congress with the midterm election in November. This means that when the new Congress gets cranked up on January 3, 2015 they will have the numbers to pass legislation. The big change was the power shift in the Senate where the Republicans took control with 54 seats. However, they did not win enough seats to override a veto. The Congress will pass legislation on immigration and changes in the Affordable Care Act but these will be vetoed by the President and no changes will occur. Little legislation will be introduced on other employment areas such as a change in the minimum wage. I believe this will wait to another year and may become more of a Presidential election year issue.
Regulations and Rules
The year 2015 will be an active year in the introduction of rules and regulations as current administration’s control comes to a close in President Obama’s final two years. With the prospect of losing control of the government the Democrats will exercise their current power and make changes as they see fit.
Labor and the NLRB
The NLRB just this past year has gained full control of the Board with the approval of a full complement of commissioners. They have rendered decisions that will go into effect in 2015. These include the new “quickie election” rule and that union organizers can have access to company email systems in order to campaign. These two changes have tilted the scale in favor of unions being more successful in forming new units. There may be some court challenges to these changes but because they are procedural changes and not legislation those challenges may not be successful.
The NLRB will continue to render decisions on such things as social media use and at-will policy language that will continue to be in favor of unions, so no one should be surprised at that. I think this year we may see the Weingarten rule applied to nonunion companies. The Weingarten rule says that if a company is going to discipline an employee that employee is entitled to have a witness of their choosing in the disciplinary meeting. This will be offered as a “basic right” which, however, will be challenged in court as not a proper application of the National Labor Relations Act.
Wage and Hour
There will continue to be an increased emphasis on enforcement of wage and hour violations. The theme that employers are thieves and are stealing wages and the USDOL is the sheriff will continue. In reality I have no problem with intentional violations being punished, but many violations are unintentional and I would like to see a greater educational effort on the part of the USDOL to help employers understand the law better. However, I don’t see that occurring. Punitive efforts will be the primary effort and public shaming of companies will continue.
OSHA has made some substantial changes that will go into effect in 2015 with the new requirement that the OSHA 300 log be posted all year round and with the requirement that all accidents must be reported electronically to OSHA. These changes go into effect in the spring. I think that few other regulatory changes will be made as they monitor these and changes in the mine safety regulations. However, enforcement will continue to be strong and penalties will include more criminal charges.
The EEOC emphasis this year will be on an expansion of claims of discrimination on the basis of LGBT protection. The interpretation has previously been that sexual orientation was not a protected category under Title VII has shifted to one of inclusion. Many of these will probably end up in court ultimately requiring the SCOTUS to decide on the proper interpretation of Title VII.
Retaliation claims will continue to be the fastest growing area of claims and could become the largest area of discrimination claims surpassing even race discrimination claims.
The hot bed of regulatory changes will deal with federal contractors. The new minimum wage and pay transparency rules that have already been stated may not be the only area federal contractors will have to deal with. This is an arena that will allow the President to exercise his control since he can create Executive Orders that Congress cannot challenge easily. Possible issues will be LGBT equality, women’s issues, more pay transparency and union rights.
You have probably already quit reading by now, but many states made changes that will go into effect in 2015 as well, so you certainly need to be aware of those changes, particularly minimum wage changes. You can find out more about that here.
I will be back next year to report on how well I have done with this set of predictions.