Businesses need to prepare for considerable shifts in the employment landscape this year.
Recent National Labor Relations Board rulings, as well as other mandates the board is considering, will make it easier for employees to unionize. Couple these changes with Affordable Care Act implementation and increased Equal Employment Opportunity Commission enforcement, and employers will have to be hyper-vigilant to make sure they stay compliant with government regulations.
Four area to watch:
▪ The NLRB finally has implemented its long-awaited “quickie election” rules, which will speed up union elections. Set to take effect April 14, the new procedures will have a profound impact on union organizing tactics and representation elections.
The NLRB has shifted the playing field by requiring employers to provide available personal email addresses and telephone numbers for all eligible voters and by limiting the scope of pre-election hearings. The only issues to be addressed during a pre-election hearing are those necessary to determining whether an election should take place. Disputes over voter eligibility and inclusion in the voting unit typically will be deferred until after the election, at which point they would be resolved only if they would have affected the election. So elections traditionally conducted about six weeks after the representation petition will now be concluded in less than three.
Finally, all parties will be permitted to argue their positions at the hearing, but the NLRB will have unfettered discretion to decide whether post-hearing briefs will be allowed. Although the parties may seek review of all representation-case rulings in a single post-election request, the election typically will proceed as scheduled while those requests remain pending. This all means that it is critically important that employers constantly be alert to potential organizing activity and make the company’s position known before organizing activity begins.
The NLRB also is poised to redefine the standards for determining joint employer liability. If the NLRB acts as expected, workers contracted through a temporary agency would be considered employees of the company on whose property they’re working, even if those workers are recruited, hired, fired and paid by the agency. This potential decision will make it easier for unions to organize the temp workers and to include bargaining units with the contracting company’s own employees.
▪ Under the Affordable Care Act, companies with 100 or more full-time employees were required as of Jan. 1 to provide “affordable” employee health coverage. Employers that fail to provide acceptable coverage, which must include premiums of no more than 9.5 percent of the employee’s family’s adjusted gross income, face penalties of about $2,000 per employee.
Though it might make better economic sense for some companies to pay the fines, few employers are choosing to forgo employee health benefits. Most want to be good corporate citizens and take care of their employees. A large number, though, are limiting employees to fewer than 30 work hours per week because they don’t have to provide coverage for part-time workers. We are likely to see this step becoming even more common in 2016, when the ACA mandate requires employers with just 50 or more employees to provide health insurance for full-time workers.
▪ Democrats continue to push for a minimum wage increase to $10 per hour. Even though Republicans are in charge of both houses of Congress, politically they’re on the losing side of this argument, and minimum wage battles will continue as the election cycle kicks off. If the minimum wage is raised, it’s likely to artificially increase wages for all workers, not just those making minimum wage.
▪ The EEOC in its Strategic Enforcement Plan specifies what it considers to be national priorities: LGBT and accommodation issues, removing hiring barriers, failure to respond to harassment claims, and equal pay enforcement, among others. An employer with an issue that falls into one of these categories is at heightened risk of the EEOC’s pursuing the case, particularly if the employer has multiple work sites. Targeted companies must take great caution when responding to a claim in one of these national priority categories so they don’t unintentionally “invite” the EEOC to come in and look at other issues, too.
More than ever, employers must be on top of dealing with labor and employment issues. They can’t wait until there’s a fire to put out. They should work with their HR departments or a good attorney to, metaphorically, keep the water turned on, sprinkling over every part of the business to keep fires from starting.
Jim Holland is a partner in Fisher & Phillips’ Kansas City office. He practices labor and employment law, exclusively representing management. Reach him at 816-842-8700 or firstname.lastname@example.org.