It’s sort of a no-lose proposition. If I’m right, well, then I pat myself on the back. If I’m wrong, well, it’s just an educated guess.
So, continuing my series of outlook posts, here are three bold predictions on what we could see in the area of employment law on a national basis. In a post next week, I’ll look at Connecticut and make three more “bold” predictions.
1. A Battle Royale Over the NLRB: A new Republican-controlled Congress + a reinvigorated NLRB spells trouble. We’ve already seen in the closing weeks of 2014 a renewed sense of vigor at the NLRB. It has taken aggressive stances in several cases and has now finalized “quickie” election rules that will disrupt the settled way that such elections have been held for years. The Republicans who now control Congress will no doubt attempt to push back at such actions, but with President Obama wielding a veto pen, we’re unlikely to see such actions. Instead, look for lawsuits to be the continued mechanism by business interests to try to halt what they see as NLRB overreach.
2. The Supreme Court’s Makes No One Happy: The highest court has taken some interesting employment law cases over the years. In Young v. UPS, I predict the court will punt on the issue of the extent of the Pregnancy Discrimination Act, deferring to the United States’ brief recommending the same thing. In EEOC v. Abercrombie & Fitch, my sense is that the Court will find that actual knowledge of an employee’s religion is needed in order to find discrimination. (Argument set for February 25, 2015.) In Mach Mining v. EEOC, the Court will agree with the lower courts that have looked at the issue and find that the EEOC’s duty to conciliate before filing a charge cannot be the subject of an affirmative defense. (That case is set for oral argument on January 13, 2015.)
3. Lots of New Regulations: There are a number of items that the EEOC and Department of Labor have on their regulatory agenda. Among the new regulations that are likely to come down the pike in 2015 are revisions to the “white collar” exemption for overtime purposes and guidance on “wellness plans”.
Bonus prediction: If I’m going to make one crazy prediction, here it is: Perhaps we will see consideration of the Employment Nondiscrimination Act as a way for Republicans to show that they can govern with their majorities in Congress. Yes, I recognize this is a stretch but with both President Obama and Republican leaders talking about taking bold steps over Obama’s last two years, could we see a breakthrough on a compromise for this bill? Stranger things have happened.
Will these come true? Stay tuned.