On April 16, 2015, the National Labor Relations Board (NLRB) quietly issued a request for amicus briefing in a case it is currently waiting to decide on appeal. The case involves the question of whether a union can charge dues to employees in a “right to work” state who choose not to join the union. In recent years, Michigan and Wisconsin, two formally pro-union states, have passed Right to Work laws under Republican governors (bringing the total to 25 states), and the trend threatens to severely weaken unions across the country. 

The legal question arises out of the conflict between the union’s duty of fair representation and the state right to work laws. In a right to work state, an employee can choose not to join a union, but the union is nonetheless bound to represent the employee under the National Labor Relations Act. Unions claim it is unfair for employees to refuse to pay dues, then expect the union to represent them for free in an arbitration, for example, if they are terminated.

A link to the NLRB’s request for briefing on this issue can be found here.  Obviously, given the leanings of the current NLRB, it would appear that a new rule is coming, which would allow unions to require some form of payment in exchange for representation.  The big question is whether that rule will mandate full-blown dues (which would defeat the right to work law altogether) or some sort of “pay as you go” fee in exchange for union representation in grievances or arbitration.  If the NLRB chooses to change the decades old federal precedent in this area, it will certainly have a huge fight on its hands in the form of an appeal to federal court.

On its face, federal law does not list sexual orientation or trans-gender status as protected categories. Some states or cities have passed their own laws offering such protections, leaving a patchwork of laws across the country.

For this reason, many employers have delayed adding to their handbook’s list of protected classifications for either political reasons or to avoid arguably granting more protection than required in those local jurisdictions without expanded coverage. Looking forward, 2015 is the year where I can say that such a position is no longer optional — all employers should formally list these protected classifications in their policies. First, the list of state and local governments who have passed laws protecting employees from discrimination on the basis of sexual orientation or trans-gender status continues to grow, and now covers the majority of the country. Houston, Texas joined the ranks of cities with such laws last year. Second, the United States Attorney General issued a little-publicized memorandum in December 2014, making clear the federal government’s enforcement position that Title VII of the Civil Rights Act of 1964 should be interpreted as covering trans-gender employees. A copy of the memo can be found here.

This Justice Department memorandum is not a new development in the law, and only formalizes a line of cases that have long made discrimination on the basis of “gender identity” or sexual stereotyping illegal. Since discrimination based on “sexual stereotyping” can be used as a proxy for sexual orientation discrimination as well, and the Supreme Court has already made “same sex” harassment actionable, there are no meaningful gaps left to fill under federal law. Without an amendment of Title VII, the law has slowly but surely been changed to include classifications not originally in the law, and which were even the subject of unsuccessful Congressional legislative efforts. One can argue about whether changing the law in such fashion is a good or bad thing, but the shift in the law is now undeniable, and prudent employers should modify their policies to adapt to the new legal landscape.

Election day 2014 brought more than just a wave of new Republican politicians, it also brought a wave of minimum wage increases across the country. For employers with operations in multiple states, payroll just got more complicated. Five states approved minimum wage hikes, including Alaska, Arkansas, Nebraska and South Dakota.  Illinois approved  a non-binding measure which won’t immediately impact current law.

Alaska voted to raise its minimum wage to $9.75 by 2016; Arkansas will raise the minimum wage to $8.50 by 2017; Nebraska’s minimum wage will rise to $9.00 by 2016; and South Dakota’s minimum wage will increase to $8.50 by 2015. Illinois voters approved a non-binding measure to raise its minimum wage to $10.00. The cities are also getting into the game with San Francisco voting to increase its minimum wage to $15.00 by 2018, matching Seattle with the highest minimum wage in the country.

The takeaway from the election is that HR departments are going to have to work overtime to keep up with the patchwork quilt of minimum wage laws across the country. If you have employees who travel across state lines or into city limits with a higher minimum wage (even if they don’t live or office in those locations), you may have obligations under the respective laws. Also, the increases in minimum wage will have a ripple effect on wages in these regions. Employees who were comfortably above minimum wage may now find themselves working for slightly above the new rates, which will drive wage inflation up the chain.

Lastly, this election is likely not the end of the road for local minimum wage hikes. There have been 15 states with minimum wage ballot measures since 1996 and all 15 have passed. This trend is likely to continue and, if anything, only pick up steam.