Small business owners and medium-sized employers are too busy running their businesses to worry much about Washington, D.C. Many rely simply on the trade press to keep them informed on developments in Washington and state capitols on labor and employment law and regulations. Others rely on trade associations for their information.
But, as the old saying goes, “What you don’t know can’t hurt you.” With that in mind, the newly-launched Ogletree Deakins Government Relations blog is now available to provide timely information on Washington developments to help you comply with new regulations and avoid liability.
Congress has been deadlocked for years. It’s a double-edged sword: gridlock in Congress prevents actions which may help but also which may hurt employers. But one thing is certain: government regulators are not gridlocked. Government regulations and increased enforcement actions against employers, especially in labor and employment law, are being implemented at unprecedented levels.
So, in reality, what you don’t know can hurt you and your business. Before you are sued, inspected, investigated, or challenged by federal or state regulatory agencies or become the target of union organizers or even your own employees where the union is not even on the horizon, you should be prepared with up-to-date information in order to take necessary steps to avoid liability.
For example, are you aware that the National Labor Relations Board (NLRB) is fly-specking company policies and employee handbooks to ferret out anything that may tend to “chill” an employee’s right to engage in protected concerted activity? It doesn’t matter that there is no union or union organizing campaign even on the horizon—this applies to all companies. Policies such as at-will employment, waivers of class action lawsuits in employment law arbitration agreements, social media policies, rules governing employee conduct and off-duty access to the workplace—all are under attack from the NLRB. And, to make sure that your employees are aware of their rights, the NLRB proposed rules requiring every employer covered by the National Labor Relations Act to post an employee rights notice in your workplace. That notice was drafted by the NLRB.but currently is blocked by federal district court rulings. In the meantime, are you aware that the NLRB has a new spot on its website selectively highlighting company actions around the country that would tend to “chill” employee rights to engage in protected concerted activity—an alternative form of notice posting?
At the U.S. Equal Employment Opportunity Commission (EEOC), beyond significantly expanding enforcement of the 1964 Civil Rights Act and related employment anti-discrimination laws, the focus is on pushing the envelope to restrict employers’ use of background credit checks and criminal records in the hiring process and limiting employer’s defenses under the Age Discrimination in Employment Act and other anti-discrimination laws. And, have you heard of “association discrimination”? That’s where actions an employer takes involving someone associated with a plaintiff/charging party may violate anti-discrimination and anti-retaliation laws. The same is true with regard to “Family Responsibility Discrimination”.
At the U.S. Department of Labor (DOL), plans are being put in place at the Wage and Hour Division (WHD) and the Occupational Safety and Health Administration (OSHA) to shift enforcement burdens onto employers by requiring them to create individual company compliance plans, together with their employees, which will be enforceable as part of the so-called “Plan, Prevent, Protect” enforcement scheme. At OSHA, for example, the three “P”s would require employers to self-identify workplace hazards and correct them (whether or not there is a federal safety and health standard in place), under the watchful eyes of the company’s employees and federal OSHA inspectors. At the WHD, a program called “Right to Know” would require employers to inform employees of the precise basis for their exempt status from overtime compensation or independent contractor classification, which then could become “smoking gun” evidence should the employee disagree and go to the WHD or a plaintiffs’ trial lawyer to challenge his or her status. Also, did you know that in a program called euphemistically “Bridge to Justice” the DOL is referring wage and hour complaints to plaintiffs’ trial lawyers for legal actions against employers?
At the U.S. Department of Homeland Security (DHS) and its Immigration Customs Enforcement (ICE), new I-9 Forms and other compliance measures for immigration, including E-Verify, are being advanced. State immigration enforcement actions were dealt a blow by the recent U.S. Supreme Court decision involving Arizona’s state laws. The Supreme Court underscored federal preemption of immigration laws. Gridlocked debate in Congress on immigration policy is one thing, but in the federal government immigration rules applicable to business are not gridlocked and bear careful scrutiny.
And, of course, with the Supreme Court’s decision upholding the Affordable Care Act, at the U.S. Department of Health and Human Services (HHS) and other agencies the regulatory regime for health care called for under that law is well under way and will continue. Are you prepared for the new and future obligations and responsibilities?
The alphabet soup of federal agencies—NLRB, DOL, WHD, OSHA, OFCCP, EEOC, DHS, ICE, HHS, etc.—pose significant regulatory risks for employers, to say nothing of state agencies and commissions. The Ogletree Deakins Government Relations blog will provide timely and informative guidance on current and future developments to lead you through this regulatory maze and help you avoid liability. It may not be the same as having your own Washington office and Washington corporate representative, but we will try hard to be the next best thing. Stay tuned.