Big Changes Coming to the Workplace

Actions at both the legislative and regulatory levels will boost labor protections.

By Martha Lynn Craver, Associate Editor, The Kiplinger Letter

October 13, 2009

The Obama administration is cranking out a slew of regulations affecting businesses. Political appointees are in control at most Cabinet departments and regulatory agencies, and they’re having an influence. Congress is also getting into the act, albeit more slowly. Most of the changes will boost labor protections against workplace hazards, discrimination, unfair pay policies and in other personnel disputes. For employers, it means more costs and red tape as they’re forced to show they’re in compliance.

“It’s hard to believe that a widget maker will have any time to make widgets in this hyper-enforcement environment,” says Rae T. Vann, general counsel at the Equal Employment Advisory Council, an employer group.

Among the changes that may affect your company:

Safety checks. Much tougher enforcement from OSHA, the Occupational Safety & Health Administration, is in the works -- also rules on exposure from combustible dust to diacetyl. The agency will launch a big new push on ergonomics, perhaps making another run at producing a specific rule on repetitive motion injuries. But legislation to give OSHA beefed-up powers, including increasing fines for violations and providing wider protection to whistle-blowers, will take longer and won’t pass anytime soon.

Wages. Expect quicker and more thorough follow-up of worker complaints. The Labor Department’s Wage and Hour Division is putting 250 more investigators on the job to probe pay disputes and try to resolve problems. Plus there’ll be more enforcement of rules against unfair practices.

Discrimination. A broader definition of disability will expand protection under the ADA, Americans with Disabilities Act, to more individuals. Business groups are up in arms about the proposed rule by the Equal Employment Opportunity Commission, claiming that the agency exceeded authority by including in the proposed rule a list of impairments that will consistently meet the definition of disability. If the rule stands, it will bog down the system as employers have to defend themselves against many more charges of discrimination.

Another EEOC rule would impose restrictions on health risk assessments (HRAs), a key component of employers’ wellness programs. The rule implements a 2008 law banning the use of genetic info in decisions on employment. Its broad definition of “genetic information” includes family medical history, and employers may not provide any rewards or penalties tied to an HRA that asks for family medical history.

Union Rights. A pro-labor stance by the National Labor Relations Board is certain as soon as Congress confirms President Obama’s appointees, giving Democrats a majority. Look for reversals of key decisions made by Bush appointees on the use of e-mail by workers for union organizing and representation of nonunion workers at disciplinary meetings. The new board also is likely to narrow the definition of a supervisor, which will make more workers eligible to join a union.

Congress will OK several pro-labor bills next year over the objections of business groups. Legislation to overturn a U.S. Supreme Court ruling on age discrimination is likely. The bill would overturn a recent Court ruling that held a worker must prove that age discrimination was the determining factor in job loss, not just one of several.

Employer groups are not opposing a bill to ban employer discrimination based on sexual orientation, and it is a good bet for passage. The legislation probably will not cover transgender individuals and won’t apply to small business with fewer than 15 workers, the military or religious organizations.

Not likely to clear Congress are two big labor priorities: A requirement that all employers offer paid sick leave, which many small firms say they can’t afford. And no card check rule -- at least not in the form that unions would like it to take.

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