Jonathan Nadler and Joel Barras published a series of three related articles in Forbes magazine last week, in which the Labor & Employment duo presents their thoughts on what employers should expect if Obama wins the election, and if Romney wins the election.
Part 1 in the series focused on the effect of Obama’s re-election on independent contractor classification. The DOL has not released proposed so-called “right-to-know” regulations, but it is likely these rules would require employers with more than $500,000 in revenue to prepare a written “classification analysis” for every worker, including independent contractors, detailing the rationale as to whether or not the worker is covered by the Fair Labor Standards Act; the employer would also be required to provide its analysis to the workers. The DOL believes that “misclassification of workers is rampant in certain industries,” including construction and child and home health care, and deprives workers of legal protections, such as family and medical leave, overtime and protection under anti-discrimination laws. “Just as relevant, however, is another factor driving the proposed changes: tax revenues. Obviously, in the current fiscal environment, the prospect of adding millions (if not billions) in tax revenues cannot be ignored.”
Part 2 in the series expanded what employers could expect from a second Obama term. Jonathan and Joel foresee increased scrutiny by the Equal Employment Opportunity Commission of class/systemic discrimination, and the employer use of credit checks and criminal records. Additionally, employers can expect enhanced protections under FMLA, as well as a broad expansion of labor regulation by the National Labor Relations Board. “Employers should expect even greater enforcement efforts on topics as varied as employer social media policies, routine disclaimers of at-will employment status … and the viability of class action waivers and agreements to arbitrate contained in individual employment agreements or policies, all of which the NLRB has recently proclaimed may well be suspect.”
Part 3 turns to what employers could expect from a Romney administration. “Although Mitt Romney has not provided many specifics in his policy proposals, it’s clear that his outline for economic growth and job creation is based on less overall government regulation.” Jonathan and Joel therefore predict that Romney will reverse several existing Executive Orders, including that which prohibits federal contractors from using federal funds to oppose union organizing efforts. In addition, employers should expect a slowdown, or reversal, of enforcement initiatives undertaken by the EEOC, NLRB and DOL, as well as the advancement of “legislation to restrict or ban the use of ‘card check’ to secure representative status by a union, and establishing a minimum period for election campaigns, e.g., 30 days.”
“At this point, with the election too close to call, employers should be giving consideration to the likely impact of either candidate prevailing on day-to-day operations, compliance requirements and potential legal exposure.”