The End of the World As We Know It? PART 1
My Portland partner, Rich Meneghello, produced the entertaining update below on the biggest employment law events in 2012, gleefully described in the context of disaster/post apocalypse movies… come on, even labor lawyers get to behave a little giddy by the end of the year. Enjoy!
If you’re reading this after December 20, that means the Mayans got it wrong and the world isn’t going to end in 2012. That’s the good news. The bad news is that you still have to go to work tomorrow, and you’ve been putting off dealing with all of those labor and employment problems in the hopes that the end of the world would have happened by now. (Oops!)
Or have you been hunkered down deep in an underground bunker for the better part of the last year ignoring your human resources duties, and now you feel out of the loop about what happened over the past 12 months?
Either way – fear not! Fisher & Phillips once again presents you with our annual review of the last year in the world of labor and employment law. This time we’re handing out awards based on one of the most popular genre of movie – the end-of-the-world variety.
The “Deep Impact” Award goes to the biggest employment law news story of the past year – and maybe the biggest story of the decade – the Supreme Court’s decision upholding President Obama’s Affordable Care Act (ACA) in June. Many employers have failed to invest much time or energy into analyzing how healthcare reform would impact their businesses, first anticipating that the Court would invalidate much or all of ACA, and then hoping for a Mitt Romney victory in November.
Now that the uncertainty has been lifted, it’s time to get to work and focus on the many healthcare compliance obligations and possible economic impacts. While there are many issues to address immediately, the “big ticket” items won’t go into effect until 2014, including the “pay or play” mandate, new nondiscrimination requirements, and automatic enrollment. Use 2013 to adequately plan for additional economic burdens and consider strategic plan design changes as necessary.
And speaking of President Obama’s reelection, the “Day After Tomorrow” Award goes to the Presidential reelection and the implications for the next four years (and beyond). There are numerous ways in which the nation’s employers will feel the impact – federal agencies will be given even more leeway to enforce regulations, enforcement priorities will continue to be pointed towards employment and labor matters, and several liberal members of the Supreme Court may choose to retire in order to retain a seat for the employee-friendly wing of the Court (specifically Justices Ginsburg and Breyer).
The “War of the Worlds” Award goes to the National Labor Relations Board (NLRB) and their continued all-on assault on employers across the country. One year ago we were preparing to comply with a broad posting law and the specter of “quickie” elections, both of which threatened to change the landscape of labor law as we know it. Luckily for employers, both were struck down by courts for various reasons, but don’t be surprised if they spring up from the ground like Martian war ships hell bent on destruction in 2012 (the AFL-CIO President already predicted that the Employee Free Choice Act will be implemented in the coming 4 years).
The NLRB didn’t let those court setbacks stop them from attacking employer handbook procedures, at-will language, company social media policies, and arbitration agreements – all of which faced the board’s laser beam wrath in the past year. Although the agency published several advice memos on at-will disclaimers that offered some relief in late October 2012, don’t be surprised to see the war on employers continue in 2013.