• What Does 2016 Portend for Labor and Employment Law?
  • February 1, 2016 | Author: Harold P. Coxson
  • Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Washington Office
  • What is on the horizon for labor and employment policy in 2016, the last year of the Obama administration when the president will seek to cement his legacy, and a national election year when the White House and control of both houses of Congress are at stake? To take majority control of the U.S. Senate, Democrats need only pick up five seats (four, if a Democrat wins the White House and the vice president casts a tie-breaking vote in the Senate). In the House of Representatives, Democrats need a pick-up of 30 seats to take control; such a "wave" election is less likely, but not outside the realm of possibility, given widespread voter dissatisfaction with Congress.

    The presidential and congressional campaigns will assure full debate on workplace issues such as wage inequality, minimum wage and overtime pay, gender equality, paid family and medical leave, independent contractor status, shared control over worker schedules, and a variety of labor law "reforms," which will be debated from the perspectives of either organized labor or business. However, Congress is unlikely to act on passing legislation addressing any of the aforesaid issues, though they will be hotly debated both on the floor and on the campaign trail. Once again, the real focus on these and other workplace issues will be through executive orders and federal regulations, as well as state actions.

    President Obama has indicated that he intends to push for nearly 4,000 new federal regulations during the last year of his presidency. A number of those new regulations will cover labor and employment issues. The Congressional Review Act (CRA) authorizes Congressional consideration of new federal regulations within 60 legislative days of their promulgation. Of course, President Obama can veto a Resolution of Disapproval blocking a regulation, as he did in vetoing the resolution blocking enforcement of the National Labor Relations Board’s (NLRB) "ambush election" rules last year. The Obama administration will rush to have the new regulations signed by May 17, 2016, to avoid having a newly-elected president act on a CRA resolution.

    One of the most consequential issues for organized labor in 2016 will be decided by the Supreme Court of the United States, which heard argument this week in Friedrichs v. California Teachers Association, a case which will determine whether "fair share" payments to public sector unions that workers must make-whether or not they join a union-are a violation of free speech. If the Court decides that such forced payments are an unconstitutional deprivation of free speech, not simply when the money is used for non-collective bargaining and contract administration, but for any purpose, the result could send labor unions into a tailspin and change the political landscape.

    Also, 2016 could bring new state right-to-work laws, especially in West Virginia. The next state to enact right-to-work legislation will bring the number of right-to-work states to 26-the most recent being Michigan and Wisconsin.

    One of the most contentious issues in Congress and on the campaign trail will be trade policy, with the debate over labor and employment standards in the massive Trans-Pacific Partnership (TPP) trade agreement, which organized labor and environmental groups believe will depress wages and cause jobs to be shipped to countries with lower labor and environmental standards. Although Congress could vote on the measure as early as February 4, it's more likely that the vote will be postponed until after the 2016 elections.

    The following are other labor and employment issues that could see final action in 2016 or early 2017:
    • Revisions to the "advice exception" for "persuader activity" reporting requirements under Section 203(c) of the Labor-Management Reporting and Disclosure Act of 1959 would invade attorney-client confidentiality by forcing public disclosure of the identities, fees, and certain communications of lawyers retained for outside legal advice during union organizing campaigns. Final action is scheduled for March of 2016.
    • Regulations implementing the Fair Pay and Safe Workplaces Executive Order 13673, the so-called "government contractor blacklisting" regulations, would base eligibility for the award of federal contracts and subcontracts on the bidder's prior three-year record of "administrative merits determinations" of labor and employment violations under 14 enumerated federal laws and their state law equivalents.
    • Revisions to the Part 541 overtime regulations under the Fair Labor Standards Act would raise the salary level and alter the job duties test to qualify for exemption from overtime pay for white collar employees. Final action is expected for approximately July of 2016.
    • The Occupational Health and Safety Administration’s (OSHA) silica standard, designed to protect workers from silicosis, has been in the works since 1997. Recently, it was sent to the Office of Management and Budget for final review, a process that customarily takes 90 days, before issuance of a final rule, which may occur as early as February 2016.
    • OSHA record keeping regulations, expected this year, would add new reporting obligations requiring employers with 250 or more employees to electronically submit 300 and 301 logs quarterly (as well as electronically submit annual 300A summaries); employers with 20 or more employees in select industries to electronically submit annual 300A summaries; and Part 1904 records requested by OSHA to be submitted electronically on demand.
    The NLRB also bears watching for decisions expanding joint-employer standards (including joint unfair labor practice liability and bargaining obligations for franchise operations). In 2016, the Board is likely to restore its Alan Ritchey decision which held that a newly-organized employer must notify and bargain with a union before employee disciplinary action is taken, even before a first contract is negotiated. It is also awaiting the right case to overturn its longstanding precedent in Cudahy and require disclosure of confidential bargaining table advice in order to prove Section 8(a)(5) charges of failure to bargain in good faith.

    Of course, the Board can be expected to continue parsing workplace handbooks, conduct rules, and social media policies for evidence of potential violations of protected concerted activity under the Board's Lutheran Heritage Village standard regarding workplace policies that might "chill" Section 7 employee rights. Also, expect the Board to continue expanding its application of its decision in Specialty Healthcare on "micro" bargaining units, its ban on class and collective action waivers in mandatory arbitration agreements under D.R. Horton and Murphy Oil (despite having been rejected by numerous federal and state courts), and its expansion of Board jurisdiction over graduate school teaching assistants as "employees" under the Act.

    At the state and local levels, watch for organized labor to continue pressing for a $15 minimum wage, paid family and medical leave, and other initiatives they cannot legislatively achieve in Congress. Unions will continue to battle against right-to-work legislation in West Virginia and Missouri.


    As a by-product of divided government and the pending national elections, 2016 will be a year in which Congress discusses, but does not enact, major legislation in the labor and employment field. The momentum will continue at the federal and state regulatory levels, with the federal courts reviewing the actions taken.