Employment Predictions for 2013 from the Guy Who Predicted a Bull Market in 2009

The last time I made a prediction was in 2009.  I predicted the market would soar and I moved most of my bonds to stocks.  Yes, I will be working until I am 102 years of age.  So when it comes to my own personal finances, my predictions are not very good.

I hope they are a little better in terms of knowing what comes next in the employment world.  So here are my predictions:

1. NLRA:  The NLRB will issue new rules relative to elections that will result in quicker elections. Shorter campaign periods clearly give unions an advantage. They can work a year in gathering support, often sub rosa, and then the employer will have only a few weeks to turn the tide.  If you want to keep Norma Rae at bay, you need to treat employees well year round.  You also need to have a rapid response plan by which you are prepared to respond immediately to warning signs, direct or indirect, of union activity.  Of course, for this to occur, you need to identify who are your statutory supervisors (something over which you have considerable control based on the power you give to them), educate them on the risks associated with and warning signs of unions, and tell them to whom to report such warning signs without engaging in objectionable conduct such as promises, interrogations, threats, spying, reviewing authorization cards or retaliation.
2. ADA:  The EEOC will continue to issue guidance on discrete but important issues.  Last year, the EEOC issued guidance on criminal convictions.  This year, I expect they may issue guidance on reasonable accommodations.  They had considered doing so last year, but, at the last minute, decided not to do so.  Perhaps they will change their minds again.  Even if they don’t, we have seen the EEOC being very strong in the area of  ADA enforcement.  Along these lines, consider having a reasonable accommodation policy by which employees go to HR rather than their supervisor if they need an accommodation.  And tell your supervisors what to do if someone requests an accommodation.  One employee said he was depressed.  The supervisor said me too.  Have you tried Prozac?  I am sure there is a worse answer.  Let me know if you can come up with it.  Supervisors should be trained to report all requests for accommodations to HR (even if legal buzz words are not used) without asking for medical information and without saying yes or no to the employee in the interim.
3. FLSA:  The wage and hour litigation predation will continue with regard to ‘off the clock’ work.  We read about the larger companies being sued.  But it is the smaller ones, too.  Have a policy prohibiting it; a complaint procedure for employees to report it; supervisory training on what is actual or constructive knowledge that an employee may be working off the clock and the obligation of supervisors to report such knowledge or suspicions to HR; attestations on your timekeeping system, etc.
4. Title VII:  There is no question gender equity is an issue.  Of course, some in your organization may be saying, absolutely, just look at our competitors.  Sadly, this is analogous to someone drinking Vodka for breakfast and expressing sympathy for those who cannot control their drinking.  Whether or not there are changes to the Equal Pay Act, we can anticipate greater challenges under Title VII. Just check out the EEOC’s strategic plan. So do the right thing for your employees and minimize your legal exposure at the same time.  Set salary bands.  Where there are exceptions, document the non-discriminatory reasons for them.  And, consider audits (under privilege) to see if there is any adverse impact. If you do audits, be prepared to make changes based on adverse data. Otherwise, why do them?
5. State laws:  Notwithstanding bi-partisan clucks we hear now and then, most realists are not optimistic about true bi-partisanship over the next two years, so gridlock is likely at the federal level.  Not necessarily true at the state level, where all politics, to quote the late Tip O’Neill, is local.  Expect more states and cities to enact laws restricting employers from asking for social media passwords (legal risks even without such laws), limiting the use of credit reports, placing limitations on when in the process criminal checks may be done (for example, after conditional offer) and extending their non-discrimination laws to cover sexual orientation and gender identity and expression.

Here’s one prediction of which I am sure. You will be very busy. So enjoy in December your rest breaks (you don’t get them?), so you can hit the ground running in 2013.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO A SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.