• The Impact of Obama’s Re-election on Employers
  • December 28, 2012 | Authors: Jennifer L. Craighead; Jennifer L. Craighead
  • Law Firm: Barley Snyder - Lancaster Office
  • Now that the November Presidential election is behind us, many employers are asking: What impact will President Obama’s re-election have on employers? Obama’s first term brought an increased focus on enforcement over conciliation by agencies enforcing federal employment laws. It is likely this focus will continue. Here are a few key areas that will continue to receive heightened attention during Obama’s second term.
    OFCCP During Obama’s first term, the Office of Federal Contract Compliance Programs (OFCCP) proposed regulations that would impact government contractors. Among these were proposals to increase pressure on contractors to hire Veterans and the disabled, including setting utilization goals for such groups, such as a target hiring goal of 7% of each job group for individuals with disabilities. While these proposals have set off a firestorm of controversy among the contractor community, it is likely that some final form of regulations will be forthcoming. In addition, the OFCCP has made compensation its primary audit focus and while its recovery in this arena has been disproportionately small relative to its budget expenditures, it is likely the OFCCP will continue to make compensation a priority. Government contractors should watch for final regulations on Veterans and the disabled down the road. In addition, contractors would be wise to consult with legal counsel about their compensation requirements.
    NLRB During Obama’s first term, the National Labor Relations Board (NLRB) has taken an expansive position on Section 7 rights under the National Labor Relations Act (NLRA). Section 7 guarantees the right of all employees, including non-unionized workers, to engage in group activity to advance the terms and conditions of their employment, including discussing wages, hours, and working conditions. Under Obama, the NLRB has invalidated employer social media policies that appear to limit what employees can say over social media, and certain employer  rules that prohibit employees from discussing ongoing internal investigations with coworkers. It is likely the NLRB will continue to aggressively pursue employer policies and practices which it perceives as having a chilling effect on employees’ Section 7 rights. Employers should consider reviewing their employee handbooks in consultation with legal counsel to mitigate the risk of unfair labor practice charges.
    EEOC Under the Obama administration, the EEOC has aggressively pursued its systemic discrimination initiative, in many cases using a charge by a single employee as the launching pad to conduct facility-wide investigations. Some believe Obama’s re-election will embolden the EEOC further. Additionally, prior to Obama’s re-election, the EEOC announced in September of 2012 a proposed Strategic Enforcement Plan (SEP). The SEP targeted, among other issues, eliminating systemic barriers to hiring and recruitment, LGBT (lesbian, gay, bi-sexual, and transgender) coverage under Title VII’s existing sex discrimination provisions, and employers who fail to accommodate pregnant females with work restrictions through forced leaves of absence. Employers should review their policies and practices on hiring, disability accommodation, pregnancy, and harassment to avoid potential class action lawsuits.
    Immigration It is likely President Obama will push for comprehensive federal immigration reform, capitalizing on the support he received from the Latino community during the election. The format of that reform remains to be seen. Employers should continue to monitor changes in the law which may impact, both favorably and unfavorably, their business operations.
    Healthcare President Obama will continue to implement the Patient Protection and Affordable Care Act (PPACA) that he signed into law on March 23, 2010. There are a host of provisions in the law that will take effect in the next two years. Employers should be mindful of the compliance deadlines and consult legal counsel to ensure they meet the PPACA’s requirements.
    These represent a cross section of the key areas where Obama’s re-election is likely to impact employers. It is also likely that enforcement will continue to be a key priority of government agencies in the coming four years. Employers must be vigilant ensuring that their employment practices comply with federal regulatory requirements.