Employment Law Lookout

Ring in the New Year, But Don’t Invite the Constable

Posted in Uncategorized

The relaxed atmosphere of a company party can raise morale, increase a sense of belonging, and solidify corporate culture while rewarding the year’s hard work.   At this time of year, many employers are booking sites, calling caterers and planning to party.  As you dust off the holiday decorations and don that party dress, keep these few tips in mind to help your workplace colleagues revel safely.

Alcohol – Let’s face it, offering spirits at parties keeps the spirits of those in attendance high.  But alcohol can lead to reduced inhibitions and poor judgment calls if provided at office parties without limitation.  Add a dark room, music, and stir and, well, you get the idea.  Year after year, the turn of the calendar brings harassment and tort claims (assault, battery, negligent supervision and retention, and social host liability) resulting from holiday party conduct, fueled by employer-provided alcohol.  Tragic results and law suits have followed managers’ poor decisions to permit employees to drive home intoxicated, and even to provide solo cab rides home for inebriated staffers.  At your next shin-dig, consider limiting alcoholic offerings, implementing an early “last call”, and providing beverage options and sufficient food.  Unsurprisingly, inviting spouses and significant others to the gathering tends to reduce shenanigans.  Insist that hired servers refuse to serve anyone who appears drunk, include indemnification and hold harmless clauses in your catering/site contracts, and deputize a few managers to watch for anyone who appears impaired.

Social Media - Recognize that nearly everyone has a smartphone.  After everyone has donned their holiday best and thrown back a few, opportunities for selfies, tweets, and YouTube videos abound.  Remind attendees to be respectful of the sensitivities and privacy concerns of fellow revelers.  As your mother may have taught you, don’t create an environment where your staff can be caught doing something they (and you) wouldn’t want to see plastered on the front page of tomorrow’s paper. In today’s digital world, it takes but a second for the unflattering moment to be irretrievably “out there” for the entire world to see.

Accommodations – No matter how inclusive you strive to be, remember that even a christmakwanzanukah party may cross the line in the minds of some employees.  Recent religious accommodation law suits have focused on allegations resulting from consequences imposed on employees who refused to work on the day of the office holiday party celebration because of their personal religious observances.  The party should be secular.  Attendance should be voluntary.

Voluntariness – Clearly convey that attendance at the party is completely voluntary.  In cases where attendance is required or implied, employees have filed workers’ compensation claims for injuries sustained at the company event.  Supervisors who have required attendance at office parties (in some cases, during a plaintiff’s medical leave) have found themselves on the wrong side of the “v.”  While claims seeking pay for time spent at the holiday party are admittedly rare, it is best to avoid any such temptation by ensuring that non-exempt employees understand that they are not required to attend.  To eliminate wage-related concerns, consider scheduling the holiday party during regular working hours and do not ask or permit non-exempt employees to prepare for or work the party outside their regular hours unless you intend to pay for that time.

Policies – The rules do not cease to apply when the party music begins.  Remind office colleagues that company policies adhere, whether the party is held in the office or off-site.  Promptly investigate and resolve any complaints about party-time policy breaches, and discipline policy violations appropriately. Circulate your dress code, social media guidelines and policy against sexual harassment before the party, and remind employees a few days before the celebration to always behave professionally at work events.

Enjoy responsibly!

DOL Issues Final Rule on Government Contractor Sexual Orientation and Gender Identity Non-Discrimination and Affirmative Action Requirements

Posted in EEOC, Workplace Policies and Processes

By: Lawrence Z. LorberLaura J. MaechtlenCameron  A.  Smith and Annette Tyman

On December 9, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued the Final Rule implementing Executive Order (“EO”) 13672, which will require affirmative action and non-discrimination in employment on the basis of sexual orientation and gender identity for federal government contractors.  See our prior post on EO 13672, which President Obama signed on July 21, 2014.1  The Final Rule becomes effective on April 10, 2015, 120 days after its publication in the Federal Register today.  While the Final Rule was expected to be published in the Federal Register on December 3, 2014, later that morning the OFCCP published a notice soliciting comments under the Paperwork Reduction Act (“PRA”), which requires an analysis of the administrative burdens new regulations will have on small businesses.  The agency had already issued its FAQs on the effect of EO 13672 and we do not expect the substance of the Final Rule to change despite the PRA comments period. EO 13672 amends EO 11246, first introduced by President Lyndon Johnson in 1965, to add sexual orientation and gender identity to the list of categories, specifically race, color, religion, sex and national origin that are protected from discrimination and require affirmative action.  EO 13672 is the first federal action prohibiting discrimination on these grounds, given that efforts to extend workplace protections to LGBT employees through the Employment Non-Discrimination Act (“ENDA”) have been mired in legislative gridlock.  EO 13672 will apply to contractors or subcontractors with more than $10,000 in federal government business and covers contracts entered into or modified on or after the effective date.

Although contractors are required to take affirmative action to prevent discrimination on the basis of sexual orientation and gender identity, the announced Final Rule clarifies that contractors will not be required to collect or analyze data regarding the sexual orientation or gender identity of applicants or employees.  Likewise, there will be no affirmative action program requirements and contractors will not be required to establish goals for employing persons on the basis of sexual orientation or gender identity.  Nonetheless, contractors will be required to expressly include “sexual orientation and gender identity” as protected bases in their EEO policy statement, job solicitations, and in covered subcontracts and purchase orders. Finally, neither EO 13672 nor the announced Rule modify the limited religious exemptions found in EO 11246, which essentially allow religious organizations to hire and employ co-religionists to perform work connected with the organization’s activities.  To meet their compliance obligations, federal contractors and subcontractors will be required to ensure that applicants and employees are treated without regard to their sexual orientation or gender identity in all employment decisions.  In addition, contractors should begin to take the necessary steps to incorporate sexual orientation and gender identity non-discrimination language into their equal opportunity policies, job solicitations, covered subcontracts and purchase orders and update their EEO postings and notices.

1 As we have previously noted, the OFCCP’s August 19, 2014, directive “Gender Identity and Sex Discrimination,” Dir. 2014-02, took the position that sex discrimination includes discrimination on the bases of gender identity and transgender status, consistent with the EEOC’s decision in Macy v. Holder.  Thus, the OFCCP’s position is that existing government contractors are already barred from discriminating based on gender identity or transgender status due to prohibitions against discrimination based on sex in current government contracts.  EO 13672 does not alter the OFCCP’s Directive 2014-02.

The Cal-Peculiarities Blog Needs Your Support!

Posted in Uncategorized

First, thank you to all of you who recently responded to our request to help nominate the ELL blog to the ABA Top 100 list.

While we did not make the list this year – our colleagues who blog about all that is peculiar in California Employment Law did!  So, let’s help put them on the “Best of the Best” list this year.  Please take a moment and click through to vote for the Cal-Pecs blog.  And if you’ve got employees or concerns in California – sign up for this “all things CA employment law” blog – congrats again to our California colleagues.

Supreme Court Debates Reach of Pregnancy Law

Posted in Workplace Arbitration

By: Camille A. Olson and Lawrence Z. Lorber

In what has become one of the most highly anticipated employment law cases of the U.S. Supreme Court’s 2014 October Term, today the Court heard oral argument in Young v. United Parcel Service over whether “light duty” work assignments must be provided to employees for non-work related conditions if the light duty is necessitated by pregnancy and whether such “light duty” assignments are deemed “accommodations.” More specifically, the issue before the Court was whether the Pregnancy Discrimination Act (“PDA”) mandates that an employer accommodate a pregnant employee who is unable to perform the essential functions of her job due to pregnancy-related restrictions if the employer provides accommodations to non-pregnant employees with similar restrictions but whose limitations were caused by work-related injury. Splitting time and arguing on behalf of Young was Michigan law professor, Samuel R. Bagenstos and U.S. Solicitor General Donald B. Verrilli. UPS was represented by Caitlin Halligan.

The Court engaged in a lively discussion during oral argument with their attention focused on three primary topics:

  1. Whether there was a disputed issue of material fact perhaps requiring remand and trial;
  2. That the analysis required to determine whether UPS’s actions were discriminatory would be much simpler if the case had been brought as a disparate impact claim, and not one of disparate treatment; and,
  3. Whether the PDA, 42 U.S.C 2000(e)(k), creates a distinct and independent cause of action requiring an employer to affirmatively treat a pregnant employee more favorably than other non-pregnant employees.

The Court exerted most of its effort attentive to the last of these issues. For context, the PDA added pregnancy-related discrimination to Title VII’s general prohibition on sex discrimination by amending the “Definitions” section of Title VII to state:

“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”

At issue is the italicized clause in the PDA and whether that language creates a distinct and additional cause of action. The Fourth Circuit rejected such an interpretation holding that the consequence of ruling to the contrary would cause pregnancy to be “treated more favorably than any other basis, including non-pregnancy-related sex discrimination, covered by Title VII.” Young v. UPS, 707 F.3d 437, 447 (4th Cir. 2013). It appears from the tenor of today’s questioning that the Justices are poised to follow suit. While the questioning from Justices Kagan and Ginsburg revealed some support for such a broad interpretation, the other Justices struggled with the notion that the PDA amended Title VII to create some additional, affirmative non-discrimination obligation only extending to pregnant employees.

Legalizing Marijuana – Off-Duty Use – An Employer’s Quandary

Posted in Workplace Policies and Processes

By: Lawrence P. Postol

More and more cities and states are legalizing the use of marijuana for medical and recreational use.  The good news is that means in those jurisdictions the local and state police will not arrest you if your use conforms to the local/state law-medical use states require a prescription and recreational use laws usually limit the amount of marijuana one can possess.  In addition, federal prosecutors, at least under the current administration, will not prosecute you for use which is legal under state and local laws.

Now the bad news.  Marijuana use is still illegal under federal law, 21 U.S.C. § 801 et seq., since it is listed as a schedule 1 controlled substance.  That means its use is not protected by the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., (“ADA”) because the ADA does not protect the current use of an illegal drug.  Moreover, most employees are at-will employees, so they can be fired for good cause, bad cause, or no cause.  Thus, if an employer wants to fire employees who use marijuana away from work, it is likely that the employer can legally do so.

That said, time often proves that the law is not always as clear as it seems, and courts can apply unexpected interpretations to statutes.  Most lawyers know never to say never.  So employers may be cautious at the beginning of this new stage in the history of marijuana use and the law.  We have come a long way-from the days when marijuana use resulted in 25-year prison sentence, to now its use is actually legal under some local and state laws.  Where the future will take use remains to be seen.

Some may predict that the President or Congress will decriminalize marijuana use on the federal level.  The federal controlled substance abuse law allows the Attorney General to change the schedule status of drugs, but that requires medical certifications which are unlikely to be forthcoming.  21 U.S.C. § 811.  The Congress could of course modify the federal statute to legalize marijuana under federal law, but with a Republican House and Senate that will not occur during the next two years, and has yet to even gain much support with the Democrats.

So where could changes occur?  Well, wherever employees are not at-will employees, the situation could change, for example, union contracts usually only allow employees to be fired “for cause.”  The unions could negotiate a collective bargaining provision which excludes off-duty marijuana use from a “cause” which justifies termination of employment.  The problem, however, is twofold.  First, it is unlikely unions would tend to value this as a priority in negotiations.  The unions usually focus on wage rates, fringe benefits and job security.  Second, employers would be hesitant to agree to such a provision since marijuana testing does not usually date the use – it would be difficult to differentiate between current use on the job, which no employer is going to tolerate, and off-duty use in the past.

This same issue may arise under the ADA.  If I was using marijuana in the past for a medical disability, but I am no longer using marijuana, such past use might be protected by the ADA.  Remember, while the ADA does not protect current use, the ADA might protect past use.  Indeed, in this way, a past heroin user who is in rehab is likely protected by the ADA.  He has a disability – addiction to heroin, and he is no longer a current drug user.  But this brings us to the same problem – how does one differentiate between current and past use, if the available testing cannot tell when the marijuana was last used.  If testing is developed which allows the results to date the last use, this may open this issue up ripe for litigation under the ADA.

Another area for expansion of the effects of marijuana legalization laws is where federal law plays no part.  For example, higher level executives are often not at-will employees, but rather often have an employment contract which only allows termination of employment “for cause.”  Much like a union, the executive could negotiate his contract to exclude off-duty marijuana use from the definition of “cause.”  There are, however, two problems with this approach.  First, again, the limitation of testing to determine when the marijuana was last used, and thus to establish it was off-duty use, would need to be addressed in the contract provision.  Second, many companies may decide they simply do not want to hire an executive who uses marijuana.  Thus, asking for a contract protection for off-duty marijuana use may cause you not to be hired and thus not to receive any contract.

Another more likely example where federal law plays no part is unemployment compensation.  Most unemployment compensation laws require that unemployment compensation be paid unless the employee was fired not just for good cause, but usually for gross misconduct.  A Michigan court of appeals has held this cannot include marijuana use which was legal under Michigan state law.  Dept. of Lic. And Reg. Affairs v. Braisha, No. 313932 v. Kemp, No. 315441 and v. Kudzia, No. 318344 (10/24/14).  The three fired employees had state cards which allowed them to use marijuana for medical purposes.  There was no evidence they were intoxicated at work or that the marijuana affected their job performance.  While that did not prevent their employers from firing them under their drug free workplace policies, the Court of Appeals held the state law prohibited any penalty by the government under state law, and that included loss of unemployment benefits.  So in Michigan, while the employer can fire you for off-duty marijuana use, (See Arias v. Wal-Mart Stores, 695 F.3d 428 (6th Cir. 2012) (holding the Michigan law does not restrict private employees), you will still be entitled to unemployment compensation – unless the Michigan Supreme Court accepts an appeal of the Court of Appeal decision.

In a similar decision, a New Mexico court held that under the state workers’ compensation law, an employer and its insurer had to pay for the use of medical marijuana to treat pain from a back injury incurred at work, because New Mexico allows the medical use of marijuana. Vialpando v. Ben’s Automotive Services and Redwood Fire Casualty, No. 32,920 (N.M. Ct. of Appeals 5/19/14).  Workers’ compensation laws required insurers to pay for “reasonable and necessary medical care” for any work injury, and since medical use of marijuana is legal in New Mexico, and a doctor prescribed it for pain control of a work injury, the Court held the insurer had to pay.  One irony is the medical marijuana may cost the insurer less than alternative narcotic pain killer drugs that are all too often prescribed for pain control in workers’ compensation cases.

It seems clear we are well down a path of change, but where it will lead us is unclear.  To those who believed that off-duty marijuana use cannot be used as a basis for job termination by private employers, their celebration is mistaken.  But for employers to believe there is absolutely no risk in basing a termination on such off-duty marijuana use, and who fail to recognize that the legal landscape is changing, they also may be in for a surprise.  We have only seen the first chapter of the book, more is to follow.

Giving Thanks

Posted in Uncategorized

With our Thanks:

On behalf of the Entire Employment Law Lookout Blog Team

As we begin the holiday weekend, and kick off the end-of-year festivities, I wanted to take a moment to say “thank you” to all of our faithful readers, bloggers and support team that makes the ELL possible.  An article I read recently claimed that medical research has shown that “giving thanks, or having a “thankful” attitude decreases the risk of heart attack and also provides many other health benefits.”

Regardless of the health benefits (and perhaps because of them….) we are thankful to you as our clients and friends.  And, we are thankful for the many opportunities that have been provided to us as a country, as a firm, as a team of colleagues, and as friends and family members.

We wish you and yours a safe and happy holiday season.

- Erin Dougherty Foley (Managing Editor)

You Can’t Do That In The Champagne Room! The Supreme Court of Nevada Decides Workplace Rules And Restrictions Render Exotic Dancers Employees Owed Minimum Wages

Posted in Workplace Policies and Processes

By Giselle Donado and Sara Eber

Continuing the trend of courts closely scrutinizing the classification of workers in discrete industries, the Supreme Court of Nevada recently reversed summary judgment in favor of a gentlemen’s club and found that the Club’s performers were employees entitled to be compensated at a minimum wage.

In Terry et al. v. Sapphire Gentlemen’s Club, the Court considered a class action claim brought by six performers at the Sapphire Gentlemen’s Club (the “Club”) claiming they were entitled to a minimum wages under Nevada law.  The Club did not pay wages to its performers — who were classified as independent contractors; rather, they were compensated entirely through tips and dancing fees.  The performers signed independent contractor agreements and, according to the Club, set their own schedules, fees for private performances, controlled the “artistic” aspects of their performance, and could work at other venues.

At the outset, the Court echoed the decision of numerous courts throughout the country, reasoning that the performers’ “entertainment agreement” could not trump the realities of the working relationship.  After determining that Nevada should follow the federal Fair Labor Standards Act’s “economic realities” test to analyze its state minimum wage law claims, the Court set out to determine whether the Club’s 6,600 performers were properly deemed employees.  Specifically, the Court examined the Club’s degree of control over the performers, the performers’ opportunity for profit, any special skills required, and whether the performers’ services rendered were an integral part of the Club’s business.

Regarding control, although the Club did not set the performers’ schedules and the decision whether to perform ultimately lay with the performers, the Court reasoned that the option to perform was really a false choice, citing two key reasons.  First, when the performers did work, the Club required them to work for a minimum of six hours.  Second, while working, if the performers refused to dance on stage, they would have to pay the Club a fee.  Thus, the Court determined that the “choice” to work was “a coercive choice.”   The Court also emphasized that the performers technically had artistic discretion in their work, but the Club controlled what music they danced to and had rules governing movement styles.  And, the Court emphatically noted that, after touting itself as the “World’s Largest Strip Club,” the performers were undeniably integral to the Club’s business, counseling in favor of according them employee status.

The Court rejected the Club’s hallmark independent contractor arguments.   The Club contended that the performers’ freedom to work at other venues favored their status as independent contractors.  The Court, however, analogized the performers to waiters, ushers and bartenders, all of whom may work at other clubs and are generally still considered employees.  The Court also was unpersuaded by the fact that performers had an independent contractor agreement and were “customarily” considered contractors in the adult entertainment industry.

Although its ruling analyzed the specific business practices of the Club, the Court’s ruling reflects a continuing trend finding positions traditionally considered to be independent contractors have been misclassified.  And, while your workers may not be tipped for their dancing skills, these cases emphasize important tips to bear in mind when classifying positions.

To be sure, having an independent contractor agreement is a best practice — but, like the Court noted, it cannot override the realities of the contractor’s experience.  To stave off these high exposure lawsuits, control is key.  Contractors should be given bona fide control over their schedules—not only when they are scheduled, but howand should have true control over how they do their job.  In this climate, relying on the industry-standard classification of a position and an independent contractor agreement will not be dispositive of whether workers are properly classified as contractors.

Union Files NLRB Complaint Regarding the USPS’ Handing of Security Breach Involving Employee Personal Information

Posted in NLRB

By: Bart A. Lazar

A company faced with a security breach has a lengthy “to do” list, things to accomplish with respect to its incident response plan. It must, among other things, determine the root cause of the vulnerability or breach, investigate and eliminate the vulnerability or breach, determine the full nature and extent of the breach, determine who to notify and finalize the notifications.

If the American Postal Workers Union (APWU) has its way, a unionized employer facing a security breach involving employee personal information would have yet another responsibility – bargaining over the impact of or response to the security breach.

The APWU has filed a complaint with the NLRB asserting that the United States Postal Service sent notice of the breach to employees on November 10, 2014, and offered the employees free credit monitoring for 1 year, but “did not give the Union advance notice that would enable it to negotiate over the impact and effects of the data breach on employees.” The Union’s complaint further states that by providing free credit monitoring, the USPS made a unilateral change in wages, hours and working conditions.

Under the various state database security notification laws and the HiTech provisions of HIPAA, employers that encounter a breach of personal information regarding employees, must, absent certain exceptions, notify the affected employees (or for a HIPAA breach, plan participants), as well as potentially notify regulators and others.

There is no legal requirement in the United States that companies must consult with their employees regarding the investigation and/or impact of a security breach involving employee data. In fact, it is important that information concerning potential security incidents be maintained confidential so that the investigation is not compromised. Therefore, the APWU is taking a novel, unprecedented stance in claiming that the USPS had an obligation to be at the table and bargain over what actions USPS would take with respect to investigating and/or remediating a breach.

Although it will be several months (at the earliest) before the NLRB issues any type of ruling or guidance on this matter, employers should consider this type of communication should a data breach occur.  In other words, while not legally required, it is certainly important and prudent for a company to consider all stakeholders in determining how to respond to a security breach. The goodwill of a company, and its relationships with employees and customers are  extremely valuable.

Since the wrong internal or external communications concerning a breach can have a significant impact on how actual and potential customers and employees, as well as shareholders, perceive the company we recommend that every incident response plan include a company’s public relations and communications experts in order to make sure that the proper groups are properly informed as to the status of a security incident and the measures a company is taking to protect affected individuals.

Office of Disability Employment Policy Publishes Web Portal on Accessible Workplace Technology

Posted in Workplace Policies and Processes

By Craig B. Simonsen and Kristina M. Launey

This blog, as the “ADA Title III” name indicates, is primarily about a business’s obligation to individuals with disabilities who may access its goods, services, benefits, and accommodations, rather than employees with disabilities.  However, we also frequently receive questions from entities that are subject to Title III about their obligations to provide accessible technology to  their employees, so we thought this news would be of interest to our readers.

The U.S. Department of Labor’s Office of Disability Employment Policy recently announced the launch of a Web portal, spearheaded by ODEP’s Partnership on Employment & Accessible Technology (PEAT). PEAT is an initiative to promote the employment, retention, and career advancement of people with disabilities through the development, adoption, and promotion of accessible technology. The portal is intended to provide everything “from educational articles to interactive tools.” The content “aims to help employers and the technology industry adopt accessible technology as part of everyday business practice so that all workers can benefit.”

Available on the portal Resources & Tools is the “Accessible Technology Action Steps: A Guide for Employers.” The Guide aims to provide a “roadmap to ensure that the technology in your workplace is accessible to all employees and job applicants.”

This issue is not just on the government’s radar.  At least one plaintiff’s firm in California is forcing businesses to deal with the issue of website accessibility in the employment context, recently filing a lawsuit against multiple retailer defendants alleging that the plaintiff was discriminated against in violation of the California Fair Employment and Housing Act (FEHA) (state equivalent of Title I of the ADA) and California’s Unruh Act (state equivalent of Title III of the ADA) because the businesses’ online applications were inaccessible and the companies refused to allow him any other method (i.e., paper) to apply.

These developments serve to remind businesses to review policies, procedures, training materials, and assistive technologies they use to interface with customers or employees to ensure those with disabilities are afforded equal access to the goods and services the business provides and to the benefits of employment, with or without reasonable accommodation.

Edited by Minh N. Vu.

The Midterm Election Results And How They Impact Employers

Posted in EEOC, NLRB, Workplace Policies and Processes

By: Paul Kehoe

As the dust settles on the 2014 midterm elections, Republicans have expanded their lead and the House of Representatives and taken control of the Senate with at least 52 and possibly 54 seats.  For employers, this could signal many positive developments in oversight, legislation, and appropriations over the coming year, but the election results will not end regulatory and sub-regulatory agency priorities over the next two years.


Key appointments will likely face stiff opposition for various posts in the Administration over the next two years.  In that vein, the Senate Health, Education, Labor and Pensions Committee is holding confirmation hearings for pending EEOC nominations on November 13, 2014.  The Committee will consider David Lopez for another four year term as EEOC General Counsel and Charlotte Burrows as a new EEOC Commissioner for a five year term.  All indications are that the Senate will attempt to confirm Mr. Lopez and Ms. Burrows in the lame duck session of Congress.  If successful, the EEOC will again be fully seated, empowering a majority of Commissioners to issue controversial guidance in the area of reasonable accommodation requirements, restrictions on wellness plans, and to authorize litigation, if sought by the General Counsel, on cases that attempt to expand the reach of the law under the EEOC’s jurisdiction.

At the NLRB, the President just yesterday withdrew the re-nomination of Sharon Block and, instead, nominated Lauren McFerran, currently the chief labor counsel to the Senate HELP Committee.  Ms. Block was one of the recess appointees whose appointment was invalidated by the Supreme Court in the Noel Canning decision.  If Ms. McFerran is confirmed in the lame duck session, there will be a majority of three Democrat NLRB members for the remainder of the Obama Presidency.  The NLRB is still considering the expedited election regulations and other controversial regulatory and decision issues.


In January, Senate Committee Chairmanships will be held by Republicans.  Executive overreach in many agencies, including the NLRB, OFCCP, and EEOC will likely be the subject of Senate oversight hearings.  Indeed, recent executive actions applicable to government contractors related to minimum wage (here), overtime exemptions under the Fair Labor Standards Act (here), and additional penalties for the violation of civil rights laws (here) are prime candidates for additional oversight.

In the House of Representatives, the Committee on Education and Workforce has actively conducted oversight on DOL, NLRB, and EEOC activities, joint-employer issues, minimum wage and Executive Orders which impact government contractors over the last two years.  With a larger majority in the House, continued oversight activity is expected.


Republicans stressed during the midterms the necessity to repeal the Affordable Care Act.  Recognizing the wholesale repeal is unlikely given that the President would have to agree to repeal his signature accomplishment, Republicans will likely endeavor to repeal the medical device tax, adopt the 40-hour workweek threshold for full time employment, and other measures to limit the ACA’s applicability. We would also note that the Supreme Court just granted certiorari in King v Burwell which will address whether the Federal exchanges can include premium subsidies.   Depending upon the resolution of this case, some Congressional activity can be expected.

In addition, on September 16, 2014, Senator Alexander, the incoming chairman of the Senate HELP Committee, and Mitch McConnell introduced S. 2814, the National Labor Relations Board Reform Act, which would increase the number of Board Members to 6 and require a four vote majority for NLRB decision.  In the House, several bills are pending regarding EEOC overreach and its delegation of authority to the General Counsel.  With a Republican controlled Congress, each of these and other bills will likely gain some traction, though ultimate enactment remains questionable.


Funding for the government expires on December 11, 2014, which the lame duck Congress will have to address in the coming weeks.  It remains to be seen whether a short-term extension or an extension for the balance of Fiscal Year 2015 will be considered by Congress.  Come January, the Republican-controlled Congress will likely use its power of the purse to limit government overreach.  Last year, the House passed several appropriations bills, some of which contained riders limiting how the agencies spend funds.  For example, on May 30, 2014, the House voted to approve the 2015 Commerce, Justice, Science Appropriation bill, directing the EEOC to engage in good faith conciliations before filing suit.  Similar restrictions may be on the horizon for all agencies.


The coming months will be critical in determining how a Republican Congress and Democratic Administration will approach all questions, including important labor and employment issues.  Regardless, there will be plenty of activity from agencies trying to adopt new policy positions in the final two years of the Administration.  Please continue to follow this blog for periodic updates on how employers may be impacted by these changes.