3. Political ramifications of the 2014 Mid-Term Elections
A. Immigration: With both houses of Congress now majority Republican, and the President a Democrat, I anticipate the next two years will provide numerous interesting moments, with many involving the workplace. There are a number of issues concerning the President’s immigration policies, which were announced in November. Senate Republicans are currently trying to block their implementation. Should these policies be put in place, previously undocumented and illegal immigrants will be eligible to apply for the documentation necessary to legally work in the United States. Questions remain as to how this will impact the workforce, the unemployment rate and wages. Last year, the Eleventh Circuit Court of Appeals determined that undocumented workers have the authority to sue to recover wages and overtime as required under the FLSA. This is consistent with the DOL’s policy that it will enforce the FLSA for work performed by undocumented workers.
B. Marijuana: Many employers are dazed and confused when it comes to the increased legal use of marijuana throughout the country. Voters have approved recreational marijuana use in Colorado, Washington, Oregon, Alaska and the District of Columbia. Additionally, numerous states allow the use of marijuana for medical purposes. At the present time, Alabama does not permit the use of marijuana, either for recreational use or for medical use. Currently, employees in Alabama can be disciplined, up to and including termination, should they test positive for marijuana. However, these issues will become more complicated in the future, as the legal use of marijuana spreads across the country, including the proposed sale of marijuana on Indian reservations, which could include Alabama.
C. Minimum Wage: Although Alabama does not have a state minimum wage that is different from the federal minimum wage, $7.25 an hour, numerous states and cities around the country have minimum wages above those mandated by the federal government. These states and municipalities include, but are not necessarily limited to, Alaska, Arizona, Arkansas, Colorado, Connecticut, Florida, Hawaii, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Washington, West Virginia, San Francisco, and San Jose, California. For employers who have employees in these states, you need to be aware of the minimum wages.
D. Federal Contractors: Employers who are deemed to be federal contractors need to educate themselves on all of the OFCCP’s new requirements. These policies include, but are not limited to, the prohibition against discrimination or harassment based on gender identity, a new minimum wage applicable to some but not all federal contractors, requiring employers to disclose certain violations of federal and employment laws and a new policy addressing disability discrimination/accommodation for veterans.
E. Affordable Care Act: In January 2015, the U. S. House of Representatives, in an attempt to address what it sees as a problem with the Affordable Care Act, voted to raise the ACA’s definition of “full time employment” from 30 hours to 40 hours a week. The vote was mostly along party lines. To date, the Senate has not yet scheduled a vote on this bill, and President Obama has vowed to veto it should it be passed. I anticipate a number of other attempts by Congress to revise, amend or even repeal the ACA.
F. Supreme Court Decisions: In 2014, the Supreme Court decided the Burwell v. Hobby Lobby Stores case, finding that closely held for profit corporations providing group healthcare benefits to their employees could on religious grounds be exempt from providing coverage for contraception as otherwise required under the Affordable Care Act. In Harris v. Quinn the Supreme Court found that an Illinois law that required quasi public homecare providers to pay dues to a public sector union was not allowed and impermissible. The Court also ruled, unanimously, in the NLRB v. Noel Canning case, that over 600 decisions issued by the National Labor Relations Board between January 2012 and July 2013, were invalid because the commissioners were not properly appointed. Looking forward to 2015, the Court will decide a number of cases, including examining the EEOC’s position that pregnant employees need to be accommodated, a challenge to the EEOC’s pre-litigation conciliation efforts, and the legality of same sex marriages, which would have a major impact on employers.
G. Same Sex Marriage: A federal Judge in Mobile has issued 2 orders finding Alabama’s law prohibiting same sex marriage unconstitutional. The Judge has stayed enforcement of her orders until February 9, 2015. Eleventh Circuit refused to enter a stay. No matter what happens in these 2 cases, the U. S. Supreme Court is expected to address the issue of same sex marriage this summer. Based on prior decisions, from both the Supreme Court and other courts around the country, I anticipate that same sex marriage will be permitted.Same sex marriage will impact the workplace. Some areas that will need to be revisited by Employers are harassment policies, benefit packages (life insurance, health insurance, retirement, etc.), FMLA and other leave policies, pregnancy policies, workers’ compensation death benefits and child support withholding orders/garnishments. I will update the status of same sex marriage in Alabama as it continues to develop.
Practice Pointer: 2015 will be a very interesting year for employers and employees. I anticipate numerous changes, from all three branches of the federal government, Congress, the President and the Supreme Court, as well as from lower courts and at the state level. Fasten your seatbelts, it’s going to be a wild ride.