Rich Meneghello, The Daily Record Newswire
The good news is that the Mayans got it wrong. The bad news may be that you’ve delayed dealing with all of those labor and employment problems in the hopes that the world would have ended by now.
Fear not! Here is my review of the past year in the world of labor and employment law, with an eye toward 2013. This time awards are based on one of the most popular movie genres — the end of the world.
The “Deep Impact” award goes to the biggest employment law news story of the past year — the Supreme Court’s decision in June to uphold President Obama’s Affordable Care Act. Now that the uncertainty has been lifted, it’s time for employers to get to work and focus on the many health care reform compliance obligations and possible economic impacts.
While there are many issues to address immediately, the “big ticket” items won’t go into effect until 2014, including the “pay-or-play” mandate, new nondiscrimination requirements and automatic enrollment. Employers would be well served to use 2013 to adequately plan for additional economic burdens and consider strategic plan design changes as necessary.
The “War of the Worlds” award goes to the National Labor Relations Board and its continued all-on assault on employers. A year ago, we were preparing to comply with an incredibly broad posting law and the specter of “quickie” elections — both threatened to change the landscape of labor law as we know it. Both were struck down by courts for various reasons, but don’t be surprised if they spring up from the ground like Martian warships hell-bent on destruction in 2013.
The NLRB didn’t let those court setbacks stop them from attacking employer handbook procedures, workplace at-will language, company social media policies, and arbitration agreements — and all faced their laser-beam wrath in the past year.
The “Contagion” or “Outbreak” award goes to the proliferation of social media password laws that sprung up out of nowhere in 2012 and threaten to go viral in 2013. Three states (California, Illinois and Maryland) passed laws preventing employers from accessing their employees’ Facebook accounts (and other social media sites), and my sources indicate that the Oregon Legislature could consider a similar bill in the new session.
Not many — if any — confirmed situations have arisen where an employer would actually even want to access someone’s Twitter feed or MySpace page, but that doesn’t seem to slow this plague.
It’s “Armageddon” for employers operating on tight labor margins as minimum wage increases went into effect for seven states on Jan. 1. The West Coast will be hit especially hard, with Washington rising to $9.19, Oregon to $8.95, and the city of San Francisco rising to $10.55 (the highest in the country).
The “Dr. Strangelove” award goes to the rise of paid sick leave laws that took effect in 2012. (Sure, I know Peter Sellers didn’t play a medical doctor in the movie, but stick with me here.) Many employers will feel like they are getting bombed from the sky with the passage of paid sick leave initiatives in various parts of the country, with Seattle, Philadelphia and Connecticut having joined San Francisco and Washington, D.C. in 2012.
What’s on tap for 2013? The Portland City Council has made it no secret that it is considering passing such a bill this year; so are officials in New York, Massachusetts and Miami.
Is “The Matrix” an end-of-the-world movie? What if the world had already ended, but you didn’t even know it? It’s a mind-bender, for sure, which is why “The Matrix” award goes to unemployment discrimination laws that went into effect in 2012.
What if someone were able to sue you because you failed to hire them because they didn’t have a job in the first place? It stretches logic, and some employers might need to think about that a few times to get it.
Following New Jersey’s lead, Oregon and Washington, D.C., passed laws prohibiting some forms of unemployment discrimination in 2012; the California Legislature enacted a law, but it was vetoed by the governor. In all, seventeen states considered this type of law in 2012, so you can expect the list to grow in 2013.
Remember “Soylent Green,” the 1973 movie set in a dystopian future where you don’t want to know what’s going on behind the scenes? (Spoiler: It’s made of people.) The “Soylent Green” award goes to the new set of laws restricting what employers can find out behind the scenes about their applicants and employees during credit report background checks, making the decision for you.
Vermont became the eighth state to pass such a law in 2012, joining California, Connecticut, Hawaii, Illinois, Maryland, Oregon and Washington.
The final award pays homage to “Invasion of the Body Snatchers,” where the problems all begin in San Francisco with a strain of green plant that grows quickly and seemingly spreads everywhere. The “Body Snatchers” award goes to the continued growth of marijuana laws that spread across the country in 2012, with new laws in Washington and Colorado allowing recreational pot use, and several other states allowing medical marijuana (including Oregon and Washington).
While it appears that employers can continue to enforce their zero tolerance policies in Oregon and Washington for the time being, the laws create some sticky situations. Many observers expect Oregon to consider a recreational marijuana law in 2013 — that is, if the world doesn’t end first.
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Rich Meneghello, managing partner of the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or rmeneghello@laborlawyers.com, or follow him on Twitter – @pdxlaborlaw.
