Labor-Friendly Moves by Eeoc, Other Agencies Present Employers With Mounting Challenges, Says Leclairryan Attorney

Stepped-up investigations, proposed rule changes could pressure businesses , Charlie Meyer warns in recent blog

Charlie Meyer

Employers should be prepared to face an onslaught of labor and employment law changes in 2016, cautions Charlie Meyer, a shareholder in national law firm LeClairRyan’s Richmond office. From large-scale Equal Employment Opportunity Commission (EEOC) investigations, to changes in minimum wage and overtime protections, several emerging cases in 2016 could change the business landscape, writes Meyer in a recent blog post at EPLI Risk, which focuses on employment practices liability insurance, Directors and Officers liability insurance, and related issues.

According to Meyer, the most significant change may be the EEOC’s continued push for large-scale, or “systemic,” investigations of workplace bias, rather than individual investigations. “Building on its momentum from its win in the high-profile U.S. Supreme Court decision regarding religious accommodation in the workplace, the EEOC is expected to push through broad investigations into areas such as lesbian, gay, bisexual and transgender rights and pregnancy bias claims,” he says.

Such systemic investigations are far more likely to result in litigation, Meyer warns. “This expanded focus means that employers should review their policies and be ready to readjust to defend against increased EEOC scrutiny,” he writes.

Another challenge stems from Miller & Anderson Inc., a case before the National Labor Relations Board (NLRB), which is likely to be decided in 2016 and could bolster unions’ ability to organize bargaining units.

Under the current standard, employers must consent before unions can try to organize bargaining units that include both workers solely employed by the company and joint-employers workers, like those supplied by staffing firms. “But if the Board abandons the employer consent requirement, it could allow only one of the companies to assent to a collective bargaining agreement that would affect all workers — both from the staffing agency as well as those employed solely by the user company,” says Meyer. “The effect? Unions are more likely to win collective bargaining disputes because of the expanded definition of the bargaining unit.”

Other matters of concern include Tyson Foods, Inc. v. Bouaphakeo et al., a wage and hour lawsuit before the U.S. Supreme Court, that asks whether courts can certify class and collective actions that cover non-injured members. The outcome “will have a significant impact on the continued viability of class or collective actions to decide wage and hour lawsuits, as well as the size of classes bringing employment-related claims under the FLSA, Equal Pay Act and Title VII,” according to Meyer.

Social media issues should also be on employers’ radar, “especially in light of the NLRB’s ruling last year that Facebook ‘likes’ constitute protected activity,” he adds. “Now this year, the EEOC is joining the fray and is expected to scrutinize employer restrictions of employees’ social media use. Employers should shore up their social media policies to strike a balance between lawful restrictions on employee social media conduct, without crossing the line to unlawfully resisting your employees’ protected activity.”

Another item to watch is a Fifth Circuit challenge to the NLRB’s April rule streamlining the union election process. Among other changes, it eliminated a 25-day delay between the time a regional director initiates an election and the election itself, thereby delaying the employer’s challenges to voter eligibility issues until after the election is held. “The change has been dubbed the ‘ambush election’ rule because it gives unions a mechanism to quickly gain representation, before management is able to mount an effective challenge,” writes Meyer, adding that the outcome of this appeal could have a “heavy impact on unionized employers’ future ability to challenge NLRB elections.”

Employers should also be watching a U.S. Department of Labor (DOL) proposal to amend the rules governing overtime for salaried workers under the Fair Labor Standards Act (“FLSA”). The DOL’s proposed changes would more than double the salary threshold for mandatory overtime coverage, from the $23,660 to $50,440.

“If the rules are revised as anticipated, this year about 5 million more American employees may be eligible for overtime wages — and, as a result, employer payrolls and personnel expenses will balloon,” Meyer warns. “Employers should prepare for the potential impact of the new rules, including considering reducing employee hours to trim overtime costs, restructuring your workforce salaries to minimize exempt workers, reclassifying workers as non-exempt, and enforcing stricter rules prohibiting overtime.”