• Post-Election Briefing: While Congress Remains Split, Employers Brace for Federal Regulation and State Legislation
  • December 18, 2012 | Authors: James "Jim" M. McCabe; Jimmy F. Robinson
  • Law Firms: Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Richmond Office
  • For the past couple years, hopes for significant labor and employment legislation have rested on either party gaining control of Congress and the Presidency in the 2012 November elections. Now that the nation has chosen its government and Congress remains split (Republicans maintaining a House majority and Democrats maintaining a Senate majority), the ominous question is "what, if anything can employers expect in the area of labor and employment?" While labor and employment legislation will likely continue to stall during the next Congress, with the exception of possible immigration legislation, that does not mean that there will not be significant workplace policy changes over the next four years. Given the current status of Congress, we anticipate that the Obama Administration will continue to use federal agencies to achieve its labor and employment goals; perhaps even more aggressively and at a brisker pace. Needless to say, 2013 is sure to be an action-packed year!

    Before we get ahead of ourselves and begin forecasting the legislative climate of 2013, there have been some noteworthy changes in both federal and state legislation since our last update, which we cover below. In particular, there were reintroductions of federal bills seeking to broaden workplace protections for pregnant workers and whistleblowers. However, we do not think that these bills will garner the necessary bi-partisan support to end up on the President’s desk. In addition, several states recently passed controversial legislation that employers will want to take note of, including social media legislation in California, the potential impact on employers of the legalization of marijuana in Colorado and Washington, and increases in various state and city minimum wages. We would not be surprised if some of these state developments become a pattern for other states to follow.


    CURRENT STATUS OF LAW: Workplace protections for pregnancy, childbirth, and related conditions are currently protected by the following four areas of federal law:

    1. Title VII and Non-Discrimination - Title VII of the Civil Rights Act prohibits discrimination based on sex. Sex discrimination includes discrimination because of pregnancy, childbirth, or a related medical condition.
    2. ADA and Pregnancy Related Disabilities - While pregnancy is not considered a disability under the Americans with Disabilities Act ("ADA"), impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia) may be considered disabilities, thus triggering the ADA’s protections for individuals with disabilities, such as the requirement to provide reasonable accommodations. 
    3. FMLA and Maternity Leave - Under the Family and Medical Leave Act ("FMLA"), a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. 
    4. FLSA and Nursing - Under the Fair Labor Standards Act ("FLSA"), employers must allow nursing moms breaks to express breast milk for up to one year after birth. Employers are also required to provide a private place, other than a bathroom, for the nursing moms’ use.

    In addition to these federal laws, some state laws provide greater workplace protections for pregnancy and childbirth.

    WHAT WOULD CHANGE: On September 19, 2012, Senate Democrats introduced the Pregnancy Workers Fairness Act, which is identical to legislation introduced earlier this year in the House. This Act would require an employer to "make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a job applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." The Act would also make it unlawful for an employer to require job applicants or employees to accept an accommodation that they choose not to accept.

    WHY YOU CARE: While this Act may be a worthy cause, it would inevitably result in more claims against employers as well as increase the cost and complexity of doing business by imposing an affirmative obligation on employers to provide accommodations.

    LIKELIHOOD OF BECOMING LAW: This Act has a good chance of passing in the democratically controlled Senate, but it will likely falter in the House due to concerns about placing unnecessary burdens and costs on employers and a belief that our current laws provide sufficient protections for women in connection with pregnancy and childbirth.


    CURRENT STATUS OF LAW: Over the past decade, many new laws have been passed and proposed that broaden whistleblower protections. For example, in the last update we discussed the Criminal Antitrust Anti-Retaliation Act (S. 3462) - legislation that would protect whistleblowers who complain about alleged antitrust law violations. No single law protects all whistleblowers. Rather, whistleblower protections derive from a patchwork of different federal and state laws, an often criticized feature of this area of law.

    WHAT WOULD CHANGE: On September 13, 2012, House Democrat Lynn Woosley (who will retire this term after 20 years representing the Marin and Sonoma counties of California) introduced the Private Sector Whistleblower Protection Streamlining Act of 2012, which is a re-introduction of similar legislation she introduced in 2007. This Act seeks to "streamline" whistleblower protections by consolidating the patchwork of federal laws into one common scheme with oversight by one agency review board organized under the Department of Labor.

    The Act would also dramatically expand whistleblower protections by making employee workplace complaints about almost any alleged violation of federal law protected conduct. The Act would also impose liability on any employer, regardless of the number of employees, and would protect not only employees of the employer, but also employees of any contractor working for the employer.

    WHY YOU CARE: This Act would expand whistleblower protections to nearly every area of federal law, meaning many more possible claims against employers. It goes without saying that this is not good news for employers.

    LIKELIHOOD OF BECOMING LAW: The good news, though, is that this Act is likely to go nowhere in the Republican controlled House. Also not helping this bill’s cause, its initiator, Ms. Woosley, is retiring at the end of the current term.


    CURRENT STATUS OF LAW: In our last update, we reported on proposed federal legislation ("SNOPA") that would increase employee privacy protections in relation to social media. We also reported on similar state legislation that recently passed in Illinois and Maryland.

    WHAT CHANGED: Since our last update, California joined Illinois and Maryland by passing similar legislation - Assembly Bill 1844 - which goes into effect on January 1, 2013. This new law prohibits California employers from requiring or requesting an employee or applicant to do any of the following:

    1. Disclose a username or password for the purpose of accessing personal social media.
    2. Access personal social media in the presence of the employer. 
    3. Divulge any personal social media, unless the personal social media is reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

    The law also prohibits employers from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates the law.

    California employers should take note that the new law defines "social media" very broadly and includes any "electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations." In other words, social media includes not just the usual suspects (e.g., Facebook, Twitter), but also anything that is in electronic form, even a photograph.

    There is some limitation though. The law’s protections extend only to "personal" social media. Unfortunately, the term "personal" is not defined, leaving employers who "request" any electronic content from applicants or employees in a difficult position. For example, if an employer requests a "connection" with an applicant or employee on LinkedIn - a traditionally business network -- is that a request to divulge "personal" social media in violation of the Act? What if an agent of the employer, such as a headhunter, makes the request? These and many other similar questions will likely only be answered through litigation.

    WHY YOU CARE: Even if you are not subject to this law, California labor and employment initiatives often become a model that other states follow. Also, in light of the recent similar legislation in Illinois and Maryland, we would not be surprised if this legislation spreads quickly to many other states.


    CURRENT STATUS OF LAW: In 1913, California became the first state in the nation to make marijuana illegal. Oddly, in 1996, California became the first state to legalize the medical use of marijuana. Since that time, 18 other states have enacted similar legislation. Despite legalization under these state laws, the manufacture and possession of marijuana, even for medical reasons, remains illegal under federal law. Nevertheless, the federal government has generally permitted (through lack of enforcement) the manufacture and possession of medical marijuana.

    But, in the states that have legalized medical marijuana, can employers still discharge or refuse to hire employees who use medical marijuana (or test positive for marijuana), even though it is legal under state law? This is a question that most courts have not yet addressed. However, when courts have addressed it, nearly all have held that employers can discharge an employee or refuse to hire an applicant for use of medical marijuana (or testing positive for marijuana). These courts have reasoned that the medical marijuana statutes were not intended to provide employment protections or to indicate a broad public policy in favor of marijuana usage that would give rise to a wrongful discharge claim. These courts also cite to the fact that medical marijuana is still illegal under federal law.

    WHAT WOULD CHANGE: On November 6, 2012, Washington and Colorado became the first states to legalize the manufacture and possession of marijuana, not just for medical purposes, but for recreational use for individuals at least 21 years old. The legalization of marijuana in Washington and Colorado could result in renewed attempts to challenge the propriety of employers’ drug testing policies that refuse employment to those testing positive for marijuana. The challenge would likely come through a claim that legislation legalizing marijuana indicates a broad enough public policy (broader than just medical purposes) to deserve employment protections.

    WHY YOU CARE: Drug policies that prohibit employment to those testing positive for marijuana may be increasingly challenged, especially in Colorado or Washington.

    LIKELIHOOD OF BECOMING LAW: Practically speaking, the fate of Colorado and Washington laws rests with the federal Drug Enforcement Agency ("DEA"). The morning after the legislation passed, the DEA announced that it would be reviewing the legislation and reiterated that possession of marijuana remains illegal under federal law. Based on this announcement and the more controversial nature of this legislation than medical marijuana, we think it is unlikely that the DEA will permit the Colorado and Washington initiatives to go unchecked. However, even if the DEA decides not to prosecute individuals in Colorado and Washington who use marijuana, we think that employers will be successful in defending against claims that it unlawfully discharged or refused to hire employees based on a positive test for marijuana, though it will be a closer call.


    In our prior update, we reported on proposed federal legislation to increase the federal minimum wage to almost $10. While a significant federal increase remains unlikely in the short term due to the split in Congress, voters in some cities and states recently approved increases to minimum wage, as indicated below. We expect other states to follow suit. Stay tuned.

    1. Minimum wage in Albuquerque, New Mexico will rise to $8.50 per hour starting in 2013.
    2. Minimum wage in San Jose, California will rise to $10.00 per hour starting ninety days after the election result is certified. 
    3. Minimum wage in Ohio will increase to $7.85 starting January 1, 2013. 
    4. Minimum wage in Washington will increase to $9.19 starting January 1, 2013.