Employment Law Predictions for 2010
Here are five areas to consider as we approach 2010.
Organized labor will continue to push for passage of the Employee Free Choice Act (EFCA). If enacted in a form that replaces the secret ballot vote with a card check, EFCA will substantially ease the ability for unions to organize workers. Though the current anticipated compromise on EFCA would not contain card check recognition, it is expected to contain elements such as quick certifications of elections, tougher penalties for employer violations and binding arbitration imposing a labor contract on parties who fail to reach an agreement through direct negotiations.
As immigration reform efforts continue, employers can expect stringent government enforcement initiatives with respect to the employment of illegal immigrants. Employers can take steps to mitigate the risk of violations by auditing their own Form I-9 processes and ensuring that all forms are supported by appropriate documentation, complete and up to date.
Employers may also see a tightening of IRS requirements concerning the classification of workers as independent contractors. Proposed legislation would allow workers to petition the IRS for a determination regarding their status as an employee or independent contractor and require businesses to post notices informing workers of their right to do so. To mitigate the risk of a misclassification finding, companies can proactively audit existing contractor relationships.
Employers can expect a continuation of the trend toward increased government investigation and/or auditing with respect to violations wage and hour laws and anti-discrimination laws. The Equal Employment Opportunity Commission and Department Labor have both publicly announced their intentions to step up their enforcement efforts, including increasing staffing. With the Americans with Disabilities Act Amendments Act of 2008, the Genetic Information Nondiscrimination Act of 2008 and the Lilly Ledbetter Fair Pay Act of 2009, and the likely passage of some form of the Employment Non-Discrimination Act, employers have additional reason to review their employment and pay practices to ensure compliance and avoid liability.
Employers can expect to devote increased management attention to staffing and employee/family leave issues and to employee requests for accommodations in light of the recent amendments broadening employee rights under the ADA and FMLA (including expanded leave rights for military service members and their families) and the ongoing swine flu pandemic.
