Top 13 Labor and Employment Issues in 2013

 

The established law under Title VII has been that an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. That has meant that an employer can only be strictly liable for harassment by a person who had the power to “hire, fire, demote, promote, transfer, or discipline” the harassment victim.  That may change in 2013.  The U.S. Supreme Court will be handing down a decision in early 2013 that may extend that definition to a broader group of quasi-managerial employees.

 

12.  Indiana and Michigan became right-to-work states in 2012, but don’t let down your guard.

 

In 2012, Indiana and Michigan became right-to-work states, which means that bargaining unit employees cannot be required to become members of a union or pay dues as a condition of their employment.  For unionized companies, current collective bargaining agreements with union security provisions may still be valid, but these provisions will need to be carefully reviewed during contract re-openers or when new collective bargaining agreements are negotiated.  In addition, unionized employers may see an increase in workplace union activity, including grievance filings, as unions seek to secure their relationships with employees in an effort to ensure that workers retain their membership in the union and continue to pay dues.  At the same time, for employers who are targeted, it may be easier for the union to organize the workforce as the threat of “forced unionization” will be less of a concern.  For this reason, non-union businesses must remain vigilant to be aware of possible organizing activity and be prepared to defend against a union campaign if necessary.

 

11.  Legalization of marijuana for recreational use may require modification of your policies or procedures.

 

Colorado and Washington have recently passed laws that approve the recreational use of marijuana.  This is an expansion of the already existing medical marijuana laws in some states.  At the same time, the federal government’s prohibitions on marijuana remain in full force and effect.  If you currently have employees in these states or plan to expand into these locations, review your drug abuse policies to ensure that the comply with both state and federal laws.

 

10.  Review your background check policy and ensure it protects you from the EEOC’s enforcement initiative.

 

The Equal Employment Opportunity Commission (EEOC) launched a new initiative to attack background check policies that have a disparate impact on or result in the unequal treatment of certain minorities.   Be sure that your policy on background checks preserves sufficient discretion to avoid the EEOC’s scrutiny and disapproval and apply your background checks in a manner that is defensible against claims of disparate treatment and impact.

 

9.  The EEOC has concluded that transgendered individuals are a protected class of applicants and employees.

 

In a ruling on April 20, 2012, the EEOC for the first time held that discrimination based on gender identity, change of sex and/or transgender status is a form of sex discrimination and, thus, is actionable under Title VII. It is unclear how the EEOC will be prosecuting such discrimination charges through its enforcement arms, but be on the lookout in 2013 for further developments.

 

8.  Protect your employees and clients with an enforceable policy that limits the presence of firearms in the workplace.

 

We observed terrible tragedies in late 2012 that involved the use of firearms.  Many companies and organizations have responded by taking steps to protect their clients, customers and employees from similar events. However, many states, including Indiana, have enacted state laws that protect the rights of individuals to carry firearms to work and in other public places, and these statutes allow damages and attorneys’ fees to enforce individuals’ rights to carry such weapons.  Be sure that any new or existing policies concerning firearms in the workplace are strong enough to protect persons on your property, while at the same time complying with the contours of existing laws.

 

7.  Review your exempt employee pay scheme and job duties and responsibilities to ensure that they qualify for exempt status under the FLSA.

 

2012 continued to see an increase in Fair Labor Standards Act (FLSA) investigations, enforcement actions and private litigation, including individual and collective actions.  Under the FLSA, employers face substantial liability under the statute’s liquidated damages and attorneys’ fees provisions.  To adequately defend such claims, it is that the job descriptions and pay for each position meet exacting FLSA exemption standards, and also that the employee’s actual job duties qualify him or her for the applicable exemption.  Several employers in high-profile cases saw the impact of job duties and responsibilities that conflicted with the FLSA defenses.  Review your exempt job requirements and compensation with an eye toward FLSA compliance.

 

6.  ADA and FMLA issues will continue to demand a considerable amount of legal attention.

 

In 2012, Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) issues predominated over most other HR issues from the legal perspective.  2013 will likely be much of the same.  New case law every week provides further clarity on the broadening contours of the rights of the disabled under the 2009 amendments to the ADA.  Accommodation issues, particularly as related to FMLA leave boundaries, present unique challenges.  Be mindful of the constraints presented by and the intersection of these two laws in 2013.

 

5.  Review your I-9 forms in light of heightened enforcement efforts.

 

The United States Immigration and Customs Enforcement (ICE) was particularly aggressive in 2012 enforcing compliance with employment I-9 form verification procedures. The recent high profile fines imposed on East Coast employers highlight again the importance of hiring and maintaining a legal and compliant workforce. The numbers of audits and amounts of fines have greatly increased in recent years.  The focus of ICE is not limited to East Coast states; to the contrary, ICE is currently actively conducting audits in Indiana. As a result, Indiana employers should be proactive in performing internal I-9 form audits, training staff in I-9 form compliance, and keeping their policies updated.  By working with counsel, employers can stay ahead of the game and assure compliance with the law.

 

4.  Ensure that your social media policy complies with recent changes in federal law.

 

One of the hottest issues in 2012 was the National Labor Relations Board’s (NLRB) attack on social media policies, finding many, as-written, in violation of employee rights to engage in protected concerted activity under that statute.  This was also the NLRB’s most recent foray into regulating non-union shops.  This is likely to continue in 2013.  If you have not done so already, review your social media handbook policies to ensure their compliance with the NLRB’s most recent opinions and pronouncements in this area.  Non-union companies are particularly vulnerable to the Board’s aggressive enforcement efforts on this front.

 

3.  Be prepared for layoffs or RIFs if required by failed debt ceiling negotiations.

 

As 2012 closed, a “fiscal cliff” catastrophe was avoided, but looming economic challenges remain as gridlock in Congress continues.  Many employers may be faced, once again, with layoff or employee-hours cutback decisions in 2013.  If you are challenged with these decisions, be sure that you seek legal advice to avoid liability.  You may be required to issue a WARN Act notice, and inadequate reduction-in-force analyses and selections may produce age and other protected class discrimination claims.

 

2.  If you have a policy requiring mandatory arbitration, it may be invalid as written.

 

A logical extension of the NLRA’s social media enforcement efforts is a new decision on mandatory arbitration clauses.  This decision by an NLRB administrative law judge is winding its way through the Board’s internal processes, and we expect a decision in 2013.  In that decision, the judge declared that, on its face, a particular mandatory arbitration clause could be interpreted to invade an individual’s right to engage in “protected, concerted” activity, and it was, therefore, unenforceable.  If you have a mandatory arbitration clause in your handbook or policies, a review of that policy may now be in order.

 

1.  Plan for the Affordable Care Act implementation on January 1, 2014.

 

The Affordable Care Act survived review by the U.S. Supreme Court, and the most impactful provisions of its implementation begin on January 1, 2014.  In 2013, planning for compliance with the Act is no longer optional.  Employers will face fines in the form of a tax if they do not comply with the Act’s directives and requirements.  Be proactive and plan early in the year for this new comprehensive regulatory scheme.  A good plan will drive down compliance costs and avoid liability.

 

The Labor and Employment Group at Bose McKinney & Evans can help ensure your organization is informed and ready to manage any labor and employment issue that may arise in 2013.  For more information regarding our top 13 issues in 2013 or any other labor and employment question you may have, please contact your Bose McKinney & Evans labor and employment attorney.