Center for Advanced Human Resource Studies

The theme of the April 2009 CAHRS spring partner meeting was "Understanding HR Challenges and Opportunities During the Worst of Times." But attendees didn’t just focus on the bad news—they took advantage of high-level keynote speakers and panel discussions to stay informed and get ahead. For many firms and their HR leaders, this means being proactive in the face of possible workplace policy changes in Washington that could seriously impact how they do business.

To guide them, CAHRS asked Howard Radzely, former Deputy Secretary and Solicitor of Labor, to outline some of his predictions for legislation and policy changes HR leaders should be watching. Attendees furiously took notes during this Washington insider’s April presentation, and now Radzely has updated his top five predictions for HR professionals in this issue of the hrSpectrum:

1. Employee Free Choice Act (EFCA) – With the resolution of the Minnesota Senate race and the swearing in of Senator Al Franken, the Democrats now control 60 seats in the Senate. Expect a continued push to try to pass EFCA. Despite this super-majority (60 votes is needed to overcome a filibuster), I do not believe EFCA will pass before 2010. Senator Arlen Specter has come out against two key provisions of the bill—the card check provision and binding arbitration. Other moderate Democrats may also not support the bill. I do not believe the business community will support a compromise bill, but some in the union movement may be interested in a compromise which can attract 60 votes in the Senate and pass the House. I am skeptical such a compromise will be reached, but it is certainly not out of the question.

2. Other legislation – It’s important not to focus simply on EFCA. The first substantive bill signed by President Obama was the Lilly Ledbetter Fair Pay Act of 2009. The stimulus bill contained a number of provisions expanding unemployment insurance, the Davis-Bacon and Related Acts (contractor/sub-contractor wage compliance), and other provisions impacting HR professionals. Adding workplace provisions to large bills moving through Congress is a common technique which is likely to continue in the next few years. While it is difficult to predict what bills or provisions will actually be enacted into law, I expect Congress to seriously consider many bills of importance to HR professionals, such as:

• A bill to overturn the Supreme Court’s recent decision late last month in Ricci v. Destefano (finding that employers must have “a strong basis in evidence” for taking race-conscious remedial actions in response to concerns that their employment practices would have a disparate impact based on race, national origin, gender, or other unlawful classifications under Title VII),
• Paycheck Fairness (which, among other things, would allow unlimited compensatory and punitive damages even where the alleged pay discrimination was not intentional),
• The Employment Non-Discrimination Act (which would provide protections similar to Title VII for sexual orientation), and
• A number of other provisions impacting the administration of pension plans, executive compensation, and expansion of the Occupational Safety and Health Administration (OSHA). Of course, health care will continue to be a front burner issue.
  

3. The Labor Department (DOL) is in the process of hiring additional lawyers for the Solicitor’s Office and investigators for agencies such as Wage and Hour (WH) and OSHA. At the same time that the Department will have additional enforcement capacity, it is likely to place less emphasis on compliance assistance programs and, for example, may be less willing to engage in pre-citation settlements in OSHA.

4. In the Wage and Hour area, I expect the Department will become more aggressive in trying to make more employees non-exempt under the Fair Labor Standards Act (FLSA). Moreover, given Wage and Hour nominee Lorelei Boylan’s background, I anticipate that WH will further expand its enforcement efforts in low-wage industries. Also, I expect an increased focus on the issue of whether individuals are being misclassified as independent contractors.

To further emphasize enforcement, DOL is in the process of abolishing the umbrella Employment Standards Administration (ESA), and the Wage and Hour Division and the other components of ESA will report directly to the Office of the Secretary.

5. Expect increased regulatory action from the Department of Labor, although there may be some delay because many key positions at DOL remain unfilled. For example, neither the Solicitor nor the Wage Hour Administrator has been confirmed by the Senate, the head of Office of Federal Contract Compliance Programs (OFCCP) has not yet been named, and there is no nominee for either Assistant Secretary of OSHA.