As organizations prepare for 2013, they should expect to see more aggressive approaches from the Obama administration regarding employer issues, says Nita Beecher, talent principal of Mercer, a human resources consulting firm. While Congress remains divided, Beecher believes the Obama administration will rely on regulatory agencies, such as National Labor Relations Board, the Equal Employment Opportunity Commission and the Department of Labor, to carry out his agenda as he did during his first term.
Pay equity is likely to be one of the top employer issues that the Obama administration will tackle, Beecher says. Guided by the EEOC and the Office of Federal Contract Compliance, employers could face many more audits by the Outreach and Compliance Coordination Program, which has new tools at its disposal to conduct these audits.
"The OCCP and EEOC now have new tools to collect individualized data in their investigations, and I think you're going to see a lot more of that," Beecher says. "Therefore, we believe employers need to continue to look and audit more often than once a year their pay to ensure they're compliant with both gender issues as well as race issues and ethnic issues. Traditionally, that's where you see the dichotomy."
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Beecher also believes the Obama administration will work on measures regarding the classification of independent contractors, which the DOL has actively addressed during Obama's first term. In fact, the DOL organized a misclassification task force to examine whether independent contractors really are employees and if they should be classified as exempt or nonexempt. A proposal has come forward that would require employers to provide a right-to-know notice to all employees documenting how their pay is computed. Depending on how an employer completes its classifications, this could outline class action lawsuits against employers.
"This was proposed prior to the election, and this will be one of the things they'll be looking at," Beecher says. "So it's important that employers review their compensation structures and make sure employees are properly slotted based on what they're actually doing."
The National Labor Relations Board has been quickly working to expand its view on section seven of the National Labor Relations Act, which mandates that most private-sector employers must notify employees of their right to unionize. But under this provision, even nonunion employment practices are being broadly interpreted as protected activity, Beecher says.
"We've seen decisions on social media policies, on mandatory arbitration, on the confidentiality of HR investigations, and on at-will waivers and handbooks," Beecher says. "It's very important for employers to realize that, nonunion or not, the National Labor Relations Board under Obama will be continuing to expand into the nonunion area."
Additionally, the Obama administration is expected to look at diversity reporting, and the OCCP and EOCP will continue to collect information on the number of women and minorities within an organization, Beecher says. Employer must ensure they are practicing recruiting strategies that target a diverse work force to find the top people from all talent sectors.
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