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Predictions for 2014, An FMLA Leave Issue, and Walmart Firings

The Workplace Policy Institute has a comprehensive analysis of possible legislative and regulatory changes to employment law in the coming year. While the full article is certainly worth a read, here is a short summary of some of the most important points.

  • Congress is unlikely to pass any major legislation ahead of the midterms (surprise), as laws such as the Employment Non-Discrimination Act continue to be stalled in the House. However, some small immigration reforms, such as new visa rules, could be among changes that could make it through Congress. Enhanced protection for whistleblowers may also be on the agenda.
  • Executive branch agencies will likely pursue an aggressive regulatory agenda, partly under the auspices of President Obama’s income inequality push.
    • The Department of Labor will pursue a number of goals, some of which we have covered here before, including the “persuader rule” that limits the advice exemption under the DOL’s reporting requirement, new anti-discrimination and affirmative action rules for federal contractors, new mandatory health and safety training, revising the definition of “spouse” under the FMLA to take into account U.S. v. Windsor, and non-discrimination provisions under the Affordable Care Act.
    • The NLRB will likely consider broad changes its union election rules, and will continue to aggressively examine workplace rules to determine whether the rules violate employees’ Section Seven rights
    • The EEOC will be focusing on national origin discrimination, as well as employer wellness programs (potentially at odds with the ACA), the use of credit history in hiring decisions, as well as other screening tools, and pregnancy discrimination.

Next, FMLA insights looks at the question of whether an employee’s frequent bathroom breaks can be deemed FMLA leave if they result from a kidney problem requiring the employee to drink lots of water during the workday. In the actual case, the employee was reassigned and terminated after her supervisor became upset that she was forced to take frequent trips to the bathroom. The blog wonders whether the employer could have asserted that the trips were uses of the employee’s FMLA leave, since they were medically necessary. In the actual case, a court allowed the employee’s claims of retaliation and reasonable accommodation under the ADA to go forward. Employees should always report medical conditions to their employers to protect themselves against ADA retaliation.

Finally, the NLRB recently filed a complaint against Walmart alleging that the store illegally disciplined and fired employees who participated in strikes against the company. The employees were protesting for better pay at 34 stores around the country. Walmart claims that it fired the employees for breaking attendance policies. Under federal labor law, protesting or organizing for better wages or working conditions is protected regardless of whether the employees are unionized.