President Obama begins his second term in office with a divided Congress, and it is unlikely that any major employment legislation will pass in 2013. Nevertheless, the Department of Labor ("DOL") is expected to issue significant regulations and there are several state law developments to follow this year:
Disability and Veteran Hiring Rules
The DOL's Office of Federal Contract Compliance Programs is expected to issue final regulations requiring federal contractors to (1) set a hiring goal of having seven percent of their workforce made up of people with disabilities and (2) hire more veterans. The proposed disability and veteran hiring rules – issued in April 2011 and December 2011, respectively – drew significant criticism from the contractor community due to their burdensome recordkeeping and data analysis requirements.
DOL Persuader Activity Rule
As previously reported, in June 2011, the DOL issued a proposed rule narrowing the "advice" exception to the Labor-Management Reporting and Disclosure Act ("LMRDA"). The LMRDA requires employers to disclose arrangements with labor relations consultants (including attorneys) where the consultant undertakes activities to persuade employees concerning their rights to organize and bargain collectively. Currently, the exception exempts arrangements where the consultant does not directly contact employees and provides only oral or written materials to the employer. The proposed rule, however, would limit the advice exception to "oral or written recommendations" from a consultant to an employer and significantly expand the circumstances where employer-consultant arrangements must be disclosed. Despite the recent resignation of Labor Secretary Hilda Solis, the final rule is still anticipated sometime in 2013.
Proliferation of State "Facebook Laws"
In 2012, six states – California, Delaware, Illinois, Maryland, Michigan and New Jersey – enacted legislation preventing employers and/or academic institutions from mandating that employees and/or applicants provide login information to their personal social media accounts. We anticipate that more states will join these early adopters throughout 2013. In fact, social media legislation has been introduced or is pending in at least 18 states.
Increase of State Minimum Wage
Either through legislation or inflation indexing, ten states implemented an increase in their minimum wage effective January 1, 2013. Several more states – including New Jersey and New York – are expected to strongly consider raising their minimum wage rate in 2013.
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