Workplace Law Implications of 2012 Presidential Election

Now that we know President Barack Obama will remain in office for the next four years, what can employers expect from a second-term Obama Presidency?

President Obama and the federal agencies responsible for enforcing the nation’s workplace laws likely will continue to pursue a number of pro-employee initiatives. A sampling is provided below.

Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission likely will continue its aggressive enforcement agenda. This may include implementing components of its Draft Strategic Enforcement Plan, released on September 4, 2012. The Plan lists eliminating systemic barriers in recruiting and hiring discrimination as the EEOC’s first priority, followed by protecting immigrant and migrant workers from discrimination. The EEOC also is committed to investigating “emerging” issues. Among these are scrutinizing common Americans with Disabilities Act (ADA) defenses invoked by employers, utilizing Title VII of the Civil Rights Act to protect members of the LGBT community, and pushing employers to accommodate pregnant women. The EEOC also may move forward on issuing potentially controversial guidance on leave as a reasonable accommodation under the ADA and guidance on the use of credit checks.


During his second term, President Obama probably will try to revive comprehensive immigration reform. Key issues have included whether to create a “path to citizenship” for certain illegal aliens, how to maintain national security when the southern border remains porous, how to strengthen the I-9 employment eligibility verification system to ensure that employers hire legal workers (a new Form I-9 is pending and workplace enforcement efforts remain vigorous).

Department of Labor

Over the next four years, we may continue to see initiatives from the Department of Labor (DOL), including the Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA) and Office of Federal Contractor Compliance Programs (OFCCP), that will add to employers’ compliance obligations.

We also foresee aggressive enforcement initiatives, increased demands for liquidated damages in order to resolve wage and hour investigations, higher levels of civil money penalties, and more amicus briefs and other guidance documents taking positions that can make it harder for employers to prevail. In general, litigation rather than amicable resolution of disputes with employers is in the offing.

Health Care and Employee Benefits

The hallmark of President Obama's first term, the 2010 health care reform law, is here to stay. The three government agencies primarily charged with enforcement of the health care reform law (Department of Health and Human Services, Department of Labor and Internal Revenue Service) likely will move quickly to promulgate regulations, regardless of the make-up of the 113th Congress. While employer lawsuits challenging various provisions of the law and the agencies’ enforcement authority may increase, companies must ensure they are in compliance with the new law's requirements.

Jackson Lewis LLP © 2012

Representing United Valley Insurance Services


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