A LETTER FROM THE DEPARTMENT CHAIR
Charles M. Roesch | Cincinnati, OH
In 2015, the courts and agencies were extremely active with regard to rulings affecting employers. The National Labor Relations Board (NLRB) instituted the so called “Ambush Election” rules governing union elections and the Board sought to dramatically expand its influence over non-unionized workplaces. Likewise, the Board is actively attempting to expand the concept of joint employer status and has placed tight restrictions on employers’ rights to discipline employees for social media postings. In 2016, we fully expect this “expansionism” mentality of the Board to continue in full force.
The Department of Labor (DOL) followed the lead of the NLRB in 2015 and also pushed to expand the definition of joint employer. The DOL initiative on fissured workplaces seeks to change the fundamental behavior and potential liability of industries using temporary employees and franchise relationships. This initiative again will be a major point of emphasis for the DOL in 2016.
Similarly, Wage/Hour Class Action claims and Fair Credit Reporting Act Class Actions continued to dominate the employment litigation filings in 2015. Employers have learned that they must have strong and strictly enforced policies in place relating to working off the clock. Putting preventative measures in place in 2016 is critical for employers to stave off this type of costly litigation.
Lastly, the DOL has become much more aggressive in auditing employers’ Affirmative Action Plans. Whereas, in the past those audits involved a 1-2 day on-site by one investigator, the audits in 2015 more often involved 2-4 investigators who remained on-site for 1-2 weeks.
In the coming year we expect a continued aggressive agenda by regulators and the White House. Strong agency enforcement efforts will continue in the areas of ADA, FMLA and pregnancy discrimination. Additionally, social media will continue to be an area of dispute between employers, employees and government agencies.
With activity on so many fronts, employers must take the time and effort to carefully evaluate their policies and procedures. Ensuring Affirmative Action Plans are in compliance in advance of a possible audit is critical. Likewise, training front line supervisors on the current status of developing labor and employment law is a best practice for preventing claims.
As the trend of dynamic agency enforcement initiatives continues, our goal is to ensure our clients are ahead of those efforts and properly prepared to defend any claims asserted by agencies or employees. We will continue to assist by providing advice on emerging trends, training for management personnel and a top quality defense when claims are asserted.