The proposed budget for fiscal year 2014 provides a cash infusion to three federal agencies that are a thorn in the side of many employers: the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB”). With increased funding, we can expect increased scrutiny. Here is what you need to know for each agency.
DOL
The DOL performs a number of functions related to labor, from tracking unemployment trends to enforcing wage and hour laws to guarding safety in the workplace. Workplace safety and combating wage and hour misclassification are high priorities.
The proposed 2014 budget includes an additional $5.9 million to increase enforcement of 21 laws protecting whistleblowers who report unsafe or “unscrupulous” practices. Employers should be very cautious about disciplining or discharging an employee who has made complaints about such practices. The Occupational Safety and Health Administration (“OSHA”), is also planning to focus on whether employers are ensuring the safety of temporary workers. OSHA is particularly interested in whether employers are providing adequate safety training to temporary workers and if that training is in a language the workers understand.
The proposed budget also provides for $14 million to combat worker misclassification, including $10 million in grants to states. Misclassification will continue to be a high priority for the agency. The grants to states reflect the DOL’s move toward inter-agency cooperation. If your state department of labor audits your business, a DOL audit could be right behind. Employers must take a close look at two key issues: (1) are you properly classifying workers as exempt or non-exempt from minimum wage and overtime? and (2) are your independent contractors actually employees? These are two common and costly mistakes the DOL promises to continue to uncover.
EEOC
The proposed budget includes an increase of nearly $13 million for the agency. A top priority is reviewing “emerging issues” in employment discrimination. Some areas under review include whether women and minorities suffer a disparate impact when employers use credit histories to screen applicants (a practice that is restricted in some states), whether the agency should refine its guidance on the use of criminal histories in employment decisions, reasonable accommodations for pregnancy-related disabilities, preventing age-related hiring discrimination, and applying Title VII’s protections against sex discrimination to transsexual employees. As the EEOC reviews these issues, we can expect to see more enforcement guidance, which will likely lead to new obligations for employers.
NLRB
The NLRB enforces the National Labor Relations Act (“NLRA”), which protects workers’ rights to engage in protected, concerted activity. While the NLRB has traditionally focused its attention on union-related issues, it has become much more active in the union-free world in the past few years. The proposed budget includes a $5 million increase for the agency, with the bulk of the increase going to personnel costs. The budget also includes increased funding for field investigations and hearings, based on increased projections in unfair labor practices cases. In other words, you should expect more charges to be filed through this agency. As unions struggle to remain relevant, they are working harder than ever to organize workers. These organizing campaigns often lead to unfair labor practices charges, meritorious or not. Another likely factor behind the projected increase in unfair labor practices cases is the NLRB’s ever-expanding interpretation of what union-free employers are prohibited from doing under the NLRA.
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Federal agencies are spending millions of dollars to ensure you are in compliance with labor and employment laws. If you have nagging concerns about compliance, now is the time to seek competent labor and employment counsel and address those issues. Remember, an ounce of prevention is worth a pound of cure.
Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
