Federal agencies will continue to interpret the laws that protect employees very broadly and enforce them very aggressively.
By Jonathan A. Segal
What will it mean for workers and their employers? Much of it depends on how Republicans read and respond to the election results.
For example, the House and most Senate Republicans have opposed Democratic proposals that would offer a path to citizenship for illegal immigrants and strengthen existing non-discrimination laws related to gender pay equity. Yet, exit polls suggest that the Democratic victory was in part due to big wins among Latinos and women.
How the Republicans will respond to the election results is still up in the air. What is clear, though, is that President Obama will continue to control appointments to the administrative agencies. What is equally clear is that the administrative agencies will continue to interpret the laws that protect employees very broadly and enforce them very aggressively.
Expect the National Labor Relations Board to try to reduce the period of time for an election to take place after a union has filed a petition to represent a group of employees. Shorter election periods generally benefit unions, since unions can start to campaign long before employers even know of the campaign.
We can also expect the NLRB to continue to challenge common workplace rules, for example, rules that prohibit disparagement of an employer or its employees. The NLRB’s theory is that such rules interfere with what’s called protected concerted activity under the National Labor Relations Act. Protected concerted activity generally means that union and non-union employees alike have the right to discuss the terms and conditions of their employment, even with social media. That right may include comments that are negative, even disparaging.
The Equal Employment Opportunity Commission will also continue to focus on social issues. For example, the EEOC recently published guidance on how victims of domestic violence could be protected from discrimination under Title VII and the ADA. The EEOC had drafted but decided not to publish guidance in other areas, for example, what are reasonable accommodations for disabled employees under the Americans with Disabilities Act. It is reasonable to expect the EEOC to consider revisiting these and other issues that it had tabled.
And we will likely see more legislation at the state and local level that will affect the employer-employee relationship. Over the past year or so, we have seen states and local jurisdictions impose restrictions on the use of credit reports in the hiring process, the timing of criminal records checks by prospective employers, and the acquisition and use of social media at work. Expect more of the same and anticipate that the bills will tend to favor expanding employee rights.
Former U.S. Speaker of the House Tip O’Neil once said, “all politics is local.” Not only that, but most voters are employees, too.
Jonathan Segal is a partner at the law firm Duane Morris LLP, where he is a member of the firm’s employment, labor, benefits and immigration practice group. This article should not be construed as legal advice.