change ahead

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With a new administration, folks in the employment world are anticipating change.  Here are some key issues to keep your eyes on:

  • Salary Test for Certain Overtime Exempt Employees– Expect the DOL to pull back or not enforce new regulations nearly doubling the salary threshold for the “white collar” exemptions to the overtime provisions of the FLSA (assuming they survive the current pending court challenges).
  • Right-to-Work– More states may pass legislation prohibiting requirements that unionized private-sector employees pay union dues. In fact, there may be enough support for national right-to-work legislation. Also expect the Supreme Court to revisit its recent decision in Friedrichs v. California, achieving the same result in the public sector.
  • Joint Employment– Expect the new Board to revisit its recent expansion of the definition of “joint employer.” The Board recently expanded the definition of “joint employer” to include temporary workers. This not only increases the risk that companies that use temporary employees may be deemed “joint employers” with temp agencies, but it also aids union organizing by allowing temporary workers to be included within the same bargaining unit as full-time employees.   It is also likely that the new Board will clarify that franchisors are not ordinarily “joint employers” with the employees of their franchisees.
  • Expedited Elections– It is likely that the new Board will address the issue of “quickie elections.” The current Board significantly reduced the time from union petition to election. This allows employers less time with which to inform their employees that the only guarantee that unionization currently provides is union dues.
  • Micro Units– The current Board has supported the notion that very small groups of employees may unionize. This helps carefully engineered proposed units to gain majority support for unionization, while increasing the likelihood that one company is forced to deal with several competing labor unions. This is yet another area where change is expected to be on the way.