New Year Employment Law Predictions For 2013

January 2013Alerts Labor and Employment Alert

1. Greater Focus on Security. Per statistics compiled by the United States Occupational Safety and Health administration, homicide is the leading cause of death for women in the workplace. In the wake of a year that has been rocked by gun violence, employers will re-evaluate their security measures; ensure that they have violence preparedness plans; and train their employees on their violence in the workplace policies.

2. Further Crackdown by the DOL on the Misclassification of Independent Contractors. Through its Misclassification Initiative , the United States Department of Labor (DOL) has intensified its focus on whether employees are misclassified as independent contractors, and employers should expect those efforts to continue in 2013. In its 2013 Budget , the DOL has requested $14 million to combat misclassification, including $10 million for grants to states to identify misclassification and recover unpaid taxes and $4 million for investigators at the Wage and Hour Division.

3. Continued EEOC Focus on Hiring and Disability Issues. In its Draft Strategic Enforcement Plan released in September 2012 (and not finalized as of this writing), the Equal Employment Opportunity Commission (EEOC) prioritized eliminating systemic barriers in recruitment and hiring, including barriers faced by racial and ethnic minorities, older workers, women and people with disabilities. The EEOC also identified ADA Amendments Act issues, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat and business necessity, as among the emerging issues that it will target. In 2013, employers should expect to see more suits filed by the EEOC alleging discriminatory hiring and disability discrimination.

4. Efforts To Increase the Federal Minimum Wage. With seven states increasing their minimum wage rates effective January 1, 2013, employers should expect further efforts to increase the federal minimum wage from the current level of $7.25 to closer to $8.00.

5. Increased Abuse of Social Media by Employees. The National Labor Relations Board is continuing to hold that certain social media posts by employees constitute protected activity under the National Labor Relations Act, even when those posts are only marginally related to working conditions or wages. Employers will continue to see abuse of their social media policies and will need to ensure that those policies are sufficiently tailored to protect them from disparagement and the release of confidential information by current or former employees while not treading on any Section 7 rights.

If you have any questions about how these developments may impact your company, please contact Catherine T. Barbieri.