Despite expected legislative gridlock and election-year politics, 2012 turned out to be an exciting year for changes in the labor and employment law landscape. The headlines just kept coming. Some of the top stories were:
The biggest employment law (and health care law, and constitutional law!) news story of the past year was the U.S. Supreme Court’s decision upholding the Affordable Care Act (ACA) (frequently referred to as “Obamacare”). Many employers waited to make changes or even consider how health care reform would impact their business, on the chance that either the Supreme Court would invalidate the ACA or that the November election would result in a new Executive and Congress, which would take action to stop the ACA’s impending deadlines. Nice try, but no cigar. Employers need to get with the program now. While many of the major provisions will go into effect no earlier than 2014, others loom, and strategic planning needs to take all of these requirements into account right away. We suggest following these regular updates on the ACA’s deadlines and other critical aspects of the law.
Speaking of President Obama’s re-election, federal agencies will likely have significant leeway to continue to enforce regulations geared towards the President’s workplace policy agendas. For example, the EEOC’s strategic enforcement plan and other public expressions of that agency’s priorities indicate that it is attempting to expand its regulatory influence in several key areas (such as sexual orientation discrimination and domestic violence discrimination). Meanwhile, the National Labor Relations Board’s recent focus on unfair labor practices in non-unionized workplaces shows no signs of abating. Expect the NLRB to continue its heavy-handed focus on practices employers thought were simply routine, common-sense protections, such as at-will language in employee handbooks, social media policies, confidential investigation procedures, and arbitration agreements.
Social media also burned up the headlines on the legislative side this year. Various states enacted protections on employee passwords as Congress plays hot potato with a federal version of this legislation. Also making the rounds of state legislatures are proposed laws prohibiting certain employer inquiries into criminal history, an action that also implicates the federal Fair Credit Reporting Act (FCRA) and recent EEOC guidance.
The Supreme Court also chimed in on a few other key employment law issues: In Christopher v. Smithkline Beecham Corp., the Court clarified that certain pharmaceutical reps fell within the “outside sales” exemption to the overtime requirements of the FLSA; Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. established a ministerial exemption to Title VII for certain religious organizations.
Finally, Colorado and Washington have passed laws decriminalizing the manufacture and possession of marijuana for recreational use by individuals over 21. What does that have to do with my business, you ask? If you have a drug and alcohol policy, and your business operates in one of these states, that is a very good question, and the answer is not yet clear. In states where marijuana is legal for medical use, employer policies prohibiting use have generally been upheld. The rationales for the two types of law are different, however, and may lead to different interpretations in court. Expect legal challenges and an interesting year ahead for employers with worksites in those states.
A livelier than expected year for employment developments is in the rearview mirror. What lies in store for 2013? Stay tuned . . .