America decides to stay the course: How will employers be affected?

Howard Rubin and Don Stait, The Daily Record Newswire

The 2012 election is over, and it’s a whole new ballgame for America. We have a bright, young president, the Republicans control the U.S. House of Representatives and the Democrats command the U.S. Senate. OK, so it’s not a new ballgame, but rather just in the later innings.

The president is a little older and grayer, and the Democrats have a slightly larger margin in the Senate, but overall not much has changed on a national level. Federal agencies can get back to the business of government with their political appointees in place, and the battling houses of Congress will likely continue to block each other from passing any groundbreaking legislation.

Here is a brief overview of what employers can expect on the legislative and regulatory front.

The previous Congress considered some powerful employment-related bills, including the Employment Nondiscrimination Act (creates comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity), the Paycheck Fairness Act (addresses male-female income disparity), and the Robert C. Byrd Mine and Workplace Safety and Health Act (makes sweeping changes to the Occupational Safety and Health Act).

All of these bills stalled last year and are likely to remain stalled for the foreseeable future unless the Democrats gain control of the House in 2014 elections. With the House and Senate at odds politically, few labor and employment-related bills are anticipated, although there is speculation that comprehensive immigration reform could be the president’s next legislative priority.

Agency activity

In anticipation of the presidential election, most agency rulemaking activities were put on the back burner. The spring 2012 unified regulatory agendas, which offer insight into the administration’s regulatory priorities and were due to be released in April, still haven’t been published. Now that the election is over, it is anticipated that those agendas will be announced before the end of the year, and that a flurry of proposed and final regulations will be issued in the next couple of months.

The National Labor Relations Board, one of the few agencies to remain active throughout this year, issued several decisions (and agreed to revisit past ones) dealing with employer social media policies, micro bargaining units, graduate student union organizing, off-duty access, and the duty to provide witnesses statements gathered from internal investigations, among other issues.

The NLRB may be hampered, however, by court challenges of the validity of two members’ recess appointments, and other judicial challenges regarding rules for representation elections and notice posting requirements.

Agencies within the Department of Labor are considering particularly contentious rules, including some under the Fair Labor Standards Act that would let domestic caregivers earn overtime and federal minimum wage.

The Employee Benefits Security Administration is expected to re-propose a rule that would clarify who is a “fiduciary” under ERISA when providing investment advice to retirement plans and other employee benefit plans.

The Occupational Safety and Health Administration is developing a proposed rule implementing a new injury and illness prevention program. Under I2P2, a new standard would be created that would require employers systematically to search out and fix workplace hazards.

A number of proposed rules from the Office of Federal Contract Compliance Programs are pending, including two that would remove compliance barriers that have prevented some companies from becoming federal contractors. These rules would amend the nondiscrimination and affirmative action requirements for Vietnam-era veterans and individuals with disabilities. The agency also is considering development and implementation of a new compensation data collection tool, and a revision to its sex discrimination guidelines.

Employers can expect to see continued agency efforts by the DOL and the Department of Justice to combat retaliation against whistleblowers, and worker misclassification.

Health care
The U.S. Supreme Court recently upheld the Affordable Care Act’s individual insurance mandate. Although there are new challenges to the law, employers should prepare for the law’s other provisions, including the mandate that employers with more than 50 workers provide health care insurance or pay a penalty. This provision of the ACA becomes effective for benefit plan years beginning after Jan. 1, 2014.

Agencies charged with implementing the ACA will likely be releasing abundant regulations defining, among other things, the benefits that qualified health plans must contain and the criteria that will be used to classify a worker as “full time,” and therefore, require benefits.

Deficit control
An impending issue heading into 2013 is whether a solution can be reached on certain federal budget issues by Jan. 2. If no solution is found by that date, the president is required to cut discretionary defense spending and discretionary nondefense spending by uniform amounts, estimated at approximately 10 percent and 8 percent, respectively. How that will impact federal contractors remains to be seen.


Howard Rubin is a shareholder in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or