So what do employers have to look forward to in the new year? It is an election year so while the rhetoric on the state and federal levels may increase, the likelihood of the enactment of additional employment laws is slim. The federal agencies will continue to pursue the initiatives which were started in 2013. For employers in Michigan, one of the most significant events will not occur until November when the statewide legislative and Congressional elections are held. Organized labor will be mounting an aggressive campaign to elect legislators who will repeal the right to work legislation. The race for governor will also be a major focus. A Democratic legislature and a Democratic governor would also increase the likelihood of the passage of a state law which would provide the same protections as contained in the proposed ENDA legislation in Congress. The outcome of the Congressional elections in November will also determine whether the aggressive legislative agenda envisioned when President Obama was first elected will become a reality. A Democratic Congress would consider expanding the FMLA, passing ENDA, and raising the minimum wage. It is possible that the Employee Free Choice Act could once again be considered which would make organized labor feel its efforts were finally worthwhile. The NLRB will continue its oversight of non union employer policies and procedures with a broadened interpretation of protected, concerted activity. It will likely ignore the 5th Circuit's decision in D.R. Horton and continue to find employer arbitration procedures which prohibit class or collective actions to violate the Act. Employee access to employer email will be reconsidered, with the likely outcome being increased access for employees with reduced employer oversight since the Democratic majority considers email to be the water cooler of the 21st century. The EEOC will continue its scrutiny of employer policies and procedures in the employee selection and recruiting process which it considers to have a disparate impact on protected class members. The challenges to employer policies which automatically disqualify convicted felons will continue. The EEOC is also expected to finally provide some guidance to employers about what can and cannot be used as incentives/penalties to encourage participation in wellness programs. Wage/hour litigation will increase at both the state and federal levels as plaintiff's attorneys view this area as replete with "low hanging fruit" especially with regards to failure to pay overtime and the misclassification of employees as independent contractors. Small and medium employers who do not fully understand the requirements of the overtime exemptions and the basis to classify employees as independent contractors are especially at risk. It is an election year, and the outcome will determine whether there will be more regulation of the workplace. It will also be a year when employers try to determine what effects the ACA will have on their businesses. To say 2014 will be interesting is an understatement.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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