The votes are in, and the Obama Administration has won a second term. Now that the election is over, we can begin to more forward. But what does forward look like?
To understand where we’re going, we need to know where we’ve been. Daniel Schwartz’s post “A Look Back at Obama’s (First) Four Years and Employment Law” provides a great summary of where we’ve been. Dan concludes that “with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.”
I agree with Dan – we saw the Lilly Ledbetter Fair Pay Act, new guidance from the EEOC on the use of criminal histories and credit checks, and federal protections for nursing mothers. Not the sweeping changes that some had anticipated.
But what will the next four years hold? I think there’s the potential for more significant change in the employment law and regulatory climate. Here are the five issues I’m watching:
- The Paycheck Fairness Act – the gender pay gap was a priority issue during the last term, and will continue to be a priority. As a result of education and outreach campaigns by the Department of Labor, the public is more sensitive to this issue than ever before. The Paycheck Fairness Act still has significant support, and I think it will be reintroduced into Congress in the near future (most likely in April to coincide with Equal Pay Day). The question is, with a Republican-controlled House, will the Paycheck Fairness Act survive?
- OFCCP Compensation Data Collection Tool – there’s a lot about this that still needs to be hashed out and thought through, and it’s going to take time. OFCCP has a lot on its proposed regulatory plate right now, and it’s not clear whether four years will be enough time to finalize the Tool in light of everything else the Agency is working on and trying to enact.
- Disability Employment – also on the OFCCP’s agenda is a proposed utilization goal of 7% for individuals with disabilities. As with the Data Collection Tool, there are still a lot of loose ends here. A lack of reliable data regarding the employment of individuals with disabilities, employee’s reluctance to self-identify as an individual with a disability, and the skepticism of whether the goal will evolve into a quota are just three of the concerns here.
- Adverse Impact in Hiring – we’ve seen a great deal of interest from the EEOC on how the use of criminal histories, credit reports, and current employment status affect the hiring of women and racial minorities. The EEOC has issued guidance on the first two, and there was a bill introduced regarding discrimination against unemployed job applicants. As the nation struggles to get its people back to work, I think it’s likely we’ll see even more action on the adverse impact front. What protected groups (women, minorities, older individuals, LGBT, etc.) and what form(s) this will take is open for debate.
- FLSA / Wage and Hour – let’s face it, we have a staggering national debt. This, combined with the fact that nearly every employer – no matter how diligent – is exposed to wage and hour mistakes, is seen by some as an easy source of tax revenue for the IRS and penalty income for the Wage and Hour Division. Independent contractor misclasification, exempt / non-exempt classification, and other violations have been – and will remain – a big concern for employers.