Biggest 2012 Employment Law Events (set to the theme of post apocalyptic movies)

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!

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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.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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