Here is an overview of some of the most pressing and exciting employment law issues to watch in 2014, with an emphasis on issues that global companies in particular can expect to see.
1. Implementation of Federal Health Care Law
The Affordable Care Act (ACA)’s “employer mandate” has been delayed until 2015, but health insurance exchanges are scheduled to begin offering limited coverage starting January 1, 2014 and open enrollment is underway. Under the ACA, employers are required to send a Notice to employees about the Health Insurance Marketplace, and may have other implementation-related responsibilities in the coming year, particularly towards the second-half of the year.
2. Social Media in the Workplace
Employee use of social media is now a daily occurrence, and with the increased digitization of the workplace via the use of mobile devices, the line between work and personal online activity is increasingly blurred. Employer attempts to regulate social media activity have been met by some resistance by the NLRB, who has found that at least some provisions in employer policies are overbroad and unlawful. Other related issues are presenting themselves on a regular basis: who owns an executive’s LinkedIn account after the executive departs? Do certain posts on LinkedIn or Twitter violate an employee’s non-compete agreement? When exactly are Facebook posts protected, concerted activity?
3. False Claims Act
Recent years have seen a steady increase in whistleblower lawsuits under the False Claims Act (“FCA”). These types of lawsuits can result in large settlement payments to individual whistleblowers and government entities. A growing number of such whistleblowers are persons working in compliance – often sophisticated, resourceful and informed of so-called “bad facts.” This trend highlights the need for organizations to adopt policies and procedures for situations involving employee complaints. Such policies should have multiple channels for employees to report concerns confidentially, and should include an anti-retaliation provision, among other things.
4. Perception Management
Human resources needs to partner with their communications and media relations departments to manage perception domestically and internationally…
Studies show that corporate America is often viewed negatively by the general public, and this perception may be even more negative overseas. Human resources needs to partner with their communications and media relations departments to manage perception domestically and internationally, which includes developing, promoting and implementing positive “pro-employee” strategies and employee relations practices.
5. New OFCCP Requirements
In late 2013, the OFCCP released final rules with substantial new requirements for government contractors relating to the employment of veterans and of individuals with disabilities. These rules impose major new obligations relate to hiring benchmarks, affirmative action, recordkeeping and other compliance measures, and contractors will be required to comply by March 2014.
6. Evolving Workforce
The workforce is evolving rapidly. A large number of so-called “millennials” are entering the workforce. This generation presents unique considerations for employers: they can be harder to recruit, retain and satisfy as an employee. They are often extremely technologically savvy. They may insist on (and expect) a flexible work schedule. Additionally, the “baby boomers” in the workforce continue to present issues concerning health care costs, disability considerations and compliance issues with the Americans with Disabilities Act, the Family and Medical Leave Act and the Age Discrimination in Employment Act. Employers need to consider how to revise their practices and policies to keep the evolving workforce productive and engaged.
7. New Benefits Obligations
In 2013, the U.S. Supreme Court ruled in United States v. Windsor that federal laws that apply to opposite-sex spouses must apply equally to same-sex spouses. This ruling invalidated a key provision of the Defense of Marriage Act which defined marriage under federal law as between one man and one woman. Employers need to understand how their obligations under the Family and Medical Leave Act and any other benefits laws have been impacted by this ruling, and modify their policies accordingly.
8. Bullying in the Workplace
Bullying in the workplace is unfortunately nothing new. However, employers would be well-served to develop and/or update their policies on workplace bullying. Since 2003, 25 states have introduced anti-bullying legislation. Sixteen bills are currently active in eleven states. Moreover, bullying is often closely tied with workplace harassment claims.
9. Background Checks
The EEOC has focused in recent years on the use of background checks in employment decisions, and employers can expect to see continued attention on this practice in coming years. Employers should be well-versed in laws relating to background checks and should modify their practices and policies to mitigate legal exposure for disparate impact claims.
The Fifth Circuit U.S. Court of Appeals recently overturned a decision by the NLRB holding that an employer had violated its employees’ rights by forcing them to agree to arbitration. The NLRB had concluded the arbitration agreement violated employees’ rights under the NLRA. The court held the NLRB had failed to give due weight to the Federal Arbitration Act, which requires the enforcement of arbitration agreements according to their terms in most circumstances. This ruling has been widely heralded as an enormous victory for employers, particularly in their efforts to prevent class action lawsuits. However, the court did provide some cautionary guidance of which employers should be aware when developing and enforcing arbitration agreements.
[Rebecca Signer Roche serves as senior counsel on all labor and employment matters for DynCorp International’s global operations and worldwide workforce of 25,000+ employees. Previously, Rebecca was a labor and employment associate at Littler Mendelson, P.C. and at McGuireWoods, LLP. Connect with Rebecca on Twitter and LinkedIn. This article represents the personal opinion of the author and is not intended to provide legal or other advice or to create an attorney-client relationship.]