National Clothesline
National Clothesline
More government in store in 2013
In 2013, we will probably find out if the president can make “recess” appointments to the National Labor Relations Board when the Senate is not technically in recess.
This is important, as I have mentioned in past columns, because the NLRB wants to intrude more aggressively into non-union workplaces, and the members leading this charge are recess appointments.
The NLRB, to reiterate, has adopted a
regulation requiring all employers to post a notice about their employees’ right to unionize. A federal court is holding up that regulation, but the case could be decided in the NLRB’s favor. The NLRB has ruled certain standard handbook clauses illegal, and it has adopted social media policies that seem to allow employees to say bad things about their employers without fear of discipline. Whether these cases stand up will be decided this year.
Also on the union front, Michigan in December became the 24th right-to-work state, despite the high percentage of union households in that state. In a right-to-work state, employees cannot be required to join a union to keep their jobs. This hurts unions by reducing the number of dues paying members, namely, workers who have elected not to join. President Obama has already chimed in against the right-to-work laws.
With the NLRB under attack in the courts, and the unions under attack in the legislatures, 2013 will be an interesting year on the future of unions in the private sector. I suspect that the number of government employees being unionized will continue to go up in states where public employee unions make large contributions to elect the people with whom they will be negotiating. One of the reasons for the increase in union representation in the public sector is this alliance between politicians and the unions in the form of political contributions.
This year will also be the first year of Obamacare. If you are large enough, you are covered. For the most part, if you already provide health insurance benefits to your employees, you will notice no difference (except higher premiums). If you do not, you need to ask your accountant if you are covered and what your options are. You may choose to pay the penalty rather than provide the insurance.
I also expect the discrimination laws to continue to be expanded to the point where only lawyers will have a chance of understanding them. Disability discrimination lawsuits will rise, especially as people go to the doctor more often as a result of Obamacare.
The definition of “disability” changed not too long ago, and now almost every malady — with the right lawyer — can be turned into a disability.
The issue of mental disability will also probably be refined in 2013. There were several cases decided in 2012 dealing with employees who engaged in bizarre behavior in the workplace. The employer concluded, with good reason, that they were “crazy.”
Unfortunately, recognizing that an employee is crazy may be recognizing that he or she has a mental disability that must be accommodated. In the past, when an employee did or said something anti-social, you could comfortably use that behavior to justify discipline, including termination.
Based on a few cases decided last year, employers may have to rethink disciplinary decisions based on behavior that could be evidence of a mental disorder. It appears that sociopaths have the same rights as older workers, women, and other protected classifications.
OSHA will, in 2013, continue its anti-employer stance. In December, a high ranking Department of Labor official addressed a gathering of union officials and asked for their help in lobbying Congress to beef up workplace safety laws. The principal Congressman pushing for OSHA reform (and by reform, I mean more power) retired, and the Department of Labor is looking to fill the void. Expect more regulations, where the DOL does not need the help of Congress.
I am sure that there will be other developments in 2013 in health, labor, employment, and safety that no one could have predicted. When they happen, I will address them in future columns. Happy New Year.

Frank Kollman is a partner in the law firm of Kollman & Saucier