FORETHOUGHT - Whyte Hirschboeck Dudek SC

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A BUMPY ROAD AHEAD FOR EMPLOYERS: EXPECTED EMPLOYMENT LAW DEVELOPMENTS DURING OBAMA’S SECOND TERM Written by Frank A. Gumina The federal elections of Nov. 6, 2012 resulted in a continuation of gridlock government, whereby the Democrats continue to control the presidency and Senate (without a supermajority to end filibusters) and the Republicans have control over the House of Representatives. While initial post-election commentary was at least somewhat conciliatory from both parties, significant polarization still exists and compromise on critical issues will be challenging. Any new sweeping legislative changes on the employment law front appear dead-on-arrival; however, the executive branch, through federal agency rulemaking and administrative decisions, wields a powerful hand. Employers can expect aggressive efforts by these federal agencies to alter the existing employment law landscape. Affordable Care Act Compliance With President Obama’s re-election, the Affordable Care Act (ACA) (also termed by some as “ObamaCare”) appears here to stay. The law was passed in 2010 and upheld by the U.S. Supreme Court in June 2012. Employers will need to ramp up efforts to comply with the “play or pay” and other mandates of the ACA. In 2013, we are likely to see the implementation of complex regulations interpreting and providing additional requirements under the ACA. There is no doubt that compliance with the ACA will be the single largest challenge facing employers this coming year. More Aggressive Federal Employment Agencies Federal agencies such as the National Labor Relations Board (NLRB), Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC) have considerable rule-making and other power to change existing rules affecting the employee-employer relationship. During President Obama’s first term, we saw these agencies begin to take strides to implement pro-employee rules, but such efforts often met strong resistance in the courts, followed by a noticeable pull-back during the months preceding the November 2012 federal elections. In 2013, we will most certainly see a resurgence of federal agency rule-making and litigation tactics in the employment arena. NLRB No agency has been, or most likely will be, more aggressive in the coming years than the NLRB. The president controls majority appointments to the NLRB. President Obama has not been shy about appointing union faithfuls with zealous agendas. In 2012, the NLRB sought to expand its sphere of influence beyond the unionized workplace to all workplaces with numerous decisions attacking atwill employment, off-duty workplace access rules, policies prohibiting walking off the job, confidentiality during internal investigations, and social media policies. In 2013, we can expect the NLRB to continue its campaign of reaching out to non-union workers, making them aware 18 WHD <strong>FORETHOUGHT</strong>
of their rights under the National Labor Relations Act. In addition, the NLRB will undoubtedly attempt to resurrect “ambush election” rules, greatly diminishing the time frame for union elections and effectively eviscerating employers’ opportunities to express views on union representation. These expected new election rules, along with the most recent micro-unit rules (whereby smaller bargaining units may be deemed appropriate for a portion of the workplace), will certainly empower union organizing. DOL The DOL will also seek to more stridently prosecute the laws it enforces. Recently, the DOL entered into a cooperative alliance with the Internal Revenue Service to more aggressively go after companies that misclassify workers as independent contractors. A company utilizing independent contractors may face not only one audit, but multiple federal and state agency audits under a crossreporting arrangement between federal agencies and certain states. It is also expected that the DOL will rekindle its efforts to issue wage and hour recordkeeping rules forcing employers to provide salaried exempt employees with information on their pay and how it is calculated. If an employee is deemed exempt from the overtime pay requirements by his or her employer, these proposed DOL rules would require the employer to (1) perform a classification analysis; HUMAN RESOURCES 19
Page 1: FORETHOUGHT Find opportunities. Ant
Page 4 and 5: FOREWORD
Page 6 and 7: TABLE OF CONTENTS
Page 8 and 9: CORPORATE 8 WHD FORETHOUGHT
Page 10 and 11: Taxes The U.S. Tax Code is complica
Page 12 and 13: structures become even more critica
Page 14 and 15: DODD FRANK ACT: A THREAT TO MAINSTR
Page 16 and 17: further, will ensure that the CFPB
Page 20 and 21: (2) disclose the analysis to employ
Page 22 and 23: ule or order of the DWD, compensati
Page 24 and 25: Will Employers be Subject to Immigr
Page 26 and 27: TAKE HEED, O INVENTOR: BEWARE THE I
Page 28 and 29: WHY ARE INTELLECTUAL PROPERTY NOTIC
Page 30 and 31: LITIGATION 30 WHD FORETHOUGHT
Page 32 and 33: Conclusion The possibility of creat
Page 34 and 35: According to Zach Brandon, Director
Page 36 and 37: IS IT AS EASY AS CLICKING “I ACCE
Page 38 and 39: REAL ESTATE/ ENVIRONMENTAL 38 WHD F
Page 40 and 41: agriculture. Even during normal yea
Page 42 and 43: HUD CERTIFICATION FOR CONDOMINIUM A
Page 44 and 45: ABOUT THE AUTHORS 44 WHD FORETHOUGH
Page 46 and 47: served as Editor of the Nebraska La
Page 48 and 49: employment-based immigration issues
Page 50: U.S. Congressman, in which she rese

FORETHOUGHT - Whyte Hirschboeck Dudek SC

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