It s Official, Donald Trump is Our Nation s 45th President: What Does This Mean for Employers?

Transcription

1 It s Official, Donald Trump is Our Nation s 45th President: What Does This Mean for Employers? Pamela Williams Phone: (713) pwilliams@ Presented by: Mauro Ramirez Phone: (713) mramirez@

2 The Dismantling of the Affordable Care Act and What This Means for Employers and Employees

3 Executive Order Regarding Affordable Care Act -- First Full Day in Office No specific relief for employers mentioned in Order No immediate impact for employers Some commentators suggest no specific actions will be taken until 2018

4 Repeal and Replace Ideas Floated Trump has promised to repeal the Cadillac Tax has bipartisan support Trump has not yet offered a comprehensive replacement plan, but the primary components appear to be: 1. Free Market Across State Lines 2. Tax Incentives and Credits 3. State Control of Medicaid 4. Elimination of individual and employer mandates

5 Create a Dynamic Healthcare Market Ideas Floated Interstate sales of health insurance Modify existing laws inhibiting the sale of health insurance across state lines Increase healthcare pricing transparency Help consumers and regulators compare plans through disclosure of data (how often claims are denied, the availability and cost of in-network providers, etc.) Allow access to cheaper prescription drugs abroad Impose Medicare pricing

6 State Decision-Making Power Ideas Floated Block-grant Medicaid funds Give states the freedom to spend the money how each chooses Work with states to create and expand high-risk pools for individuals who don t/can t maintain continuous coverage

7 What will stay the same? Prior to assuming office, Trump met with Obama to discuss healthcare reform Trump then announced intentions to keep: the ban on insurers denying coverage for pre-existing conditions the provisions allowing young adults to remain on parents health plans

8 What will be different? Short-term Probably very little Long-term - employers may see cost saving opportunities: No Employer Mandate No 30 hour coverage requirement No reporting for ALEs (Applicable Large Employers, generally those with 50 or more employees) Possibly fewer coverage mandates for benefits provided Caps on benefits reinstated Long-term - Possibly more challenges for individuals with health conditions to find affordable coverage No discussion of protecting fair premium/community rating requirements, only coverage for preexisting conditions

9 What should you do? Continue compliance with ACA Changes will not happen quickly To get a repeal and replace through: Republicans must agree on a replacement plan many ideas Need 60 votes in the Senate (the minimum number of votes needed to overcome a democratic filibuster)

10 What the transition to a Trump Administration Could Mean for OSHA and Employers

11 OSHA S Top 10 Most Cited Violations Fiscal Year Fall protection, general requirements ( ) 2. Hazard Communication ( ) 3. Scaffolding ( ) 4. Respiratory Protection ( ) 5. Lockout/Tagout ( ) 6. Powered Industrial Trucks ( ) 7. Ladders ( ) 8. Machine Guarding ( ) 9. Electrical wiring method ( ) 10. Electrical general requirements ( )

12 Most Frequent General Duty Clause Citations 1. Forklift Hazards 26.9% - Lack of seatbelts - Improper lifting of personnel 2. Crane Hazards 21.7% 3. Dust Explosions -12.0% 4. Struck-by Vehicle -10% 5. Ladder Fall 5.8% 6. PVC Piping Rupture -5.4% 7. Fire and Explosions -5.4% 8. Fall Hazards 5% 9. Automobile Lifts and Jacks 4.6% 10. Storage Rack Hazards 3.6% Source: Tracy Cekada and Christopher Janicak Indiana University of Pennsylvania 2016

13 Transitioning to a Trump Administration Impact on OSHA - General 1. Less Regulations 2. More focus on Compliance Assistance 3. Little or no increase in OSHA budget 4. More business friendly Interpretive Letters 5. Expanded Partnerships and Alliances with Trade Associations and Businesses 6. Hiring freeze

14 Transitioning to a Trump Administration Impact on OSHA - Specific 7. Non-Company Personnel Participation In OSHA Inspections 8. Restroom Access for Transgender Workers 9. Fair Pay and Safe Workplaces

15 Ten Labor and Employment Tweets to Expect from President Trump

16 "Having a low minimum wage is not a bad thing for this country.

17 Obama Administration Advocated for $10.10 federal minimum wage New Rules white collar exemptions (salary basis amount) State of Nevada, et al. v. United States DOL (E.D. Tx.) home health care workers (companionship/live-in domestic) Home Care Ass n of America v. Weil (DC Cir.) New Interpretations independent contractors (economic realities test) Administrator s Interpretation No service advisors (automobile dealership) Encino Motor Cars v. Navarro (9th Cir.) mortgage loan officers (administrative) Perez v. Mortgage Bankers Association (US SCT)

18 Trump Administration Trump favors some minimum wage hike? favors some change in white collar exemption rules? DOL s posture toward employers is likely to change eventually Chevron deference legal principle of deference to agencies when statutory language is unclear focus on compliance, not enforcement return of opinion letters

19 Trump Administration Lessons from former Secretary of Labor nominee -Andrew Puzder (before he withdrew) opposed $15 per hour minimum wage opposed changes to white collar exemption rules Can expect future nominees to take similar positions

20 I will end the use of the H-1B visa as a cheap labor program.

21 Obama Administration Supported Immigration Reform Sanctuary City Deportation Detainers 2012 Deferred Action for Childhood Arrivals (DACA) Deferred Action for Parents of Americans Expanded DACA Blocked by Federal Courts H-1B Visa Reform Cap exempt categories for tax-exempt organizations

22 Trump Administration Executive Order Increase Enforcement Build the Wall! E-Verify Expand Use Employment Based Approach to Reduce Illegal Workers H-1B Attorney General Jeff Sessions Opposes threat to U.S. professional employees Trump Open to expanding H-1B for foreign graduates of U.S. colleges

23 I love the right to work; it s better for the people.

24 Obama Administration Appointed pro-union NLRB Expanded the coverage of protected concerted activity under Section 7 of the NLRA handbook policies Wendy s International access Purple Communications social media/facebook firings Pier Sixty class action waivers D.R. Horton pickets/protest on employer property Capital Med Ctr Broadened the test for joint employers McDonald s Enacted quickie election rules

25 Trump Administration NLRB appointments Currently 2 Democrats,1 Republican, 2 vacancies Current G.C. 4-year term ends November 2017 Reverse Obama Board Rulemaking Decisions Positions on appeal Promote right-to-work laws Transparency on use of union dues Death knell for the persuader rule But what about his blue collar support?

26 Latinos love Trump, and I love them.

27 Obama Administration EEOC Criminal Background Checks LGBT Discrimination: EEOC v. Boh Bros. Constr. Co. LLC - Same-sex harassment and failure to conform to gender stereotype ($451,000) EEOC v. Lakeland Eye Clinic, P.A. - Transgender discrimination for employee fired after presenting as woman ($150,000) Transgender Bathroom Access: Discrimination based on transgender is sex discrimination Equal Pay Rules: Require Disclosing Pay Data by Race and Gender on EEO-1 in 2018

28 Trump Administration EEOC Commission currently 3 Dems and 2 Reps Changing to 3 Reps and 2 Dems Criminal Background Checks: May cease litigations LGBT Discrimination: Victoria Lipnic, potential new Chair, dissented from EEOC position in LGBT cases under Title VII. Lipnic favors more Commission review before litigation initiated Transgender Bathroom Access: Use the Bathroom They Want Federal government should not be involved Equal Pay Rules: May rescind or revise before 2018

29 "I Will Appoint Supreme Court Judges Who Will Uphold the Constitution."

30 Obama Administration Justices Sonia Sotomayor and Elena Kagan solidified liberal wing with Ginsberg and Breyer Impact of Obama appointees University of Texas Southwestern Med Center v. Nassar Vance v. Ball State University Friedrichs v. California Teachers Association Transformation of the federal judiciary D.C. Circuit - 6 judges appointed by Republican Presidents, 3 by Democrats, 2 vacancies D.C. Circuit - 7 judges appointed by Democrat Presidents, 4 by Republicans

31 Trump Administration Justice Scalia s seat (and up to 3 more?) Justice Ginsburg is 83; Justice Kennedy is 80; and Justice Breyer is 78; and statistical models suggest a 40% chance of at least two vacancies before 2020 Class action waivers 7th and 9th versus 2nd, 5th and 8th Wage & Hour Oregon Restaurant and Lodging v. Thomas Perez Encino Motor Cars v. Navarro Transgender bathroom rights Gloucester County School Board v. G.G. Joint Employer status Browning-Ferris Industries

32 Pregnancy -- it s a wonderful thing for the woman; it's certainly an inconvenience for a business.

33 Obama Administration Urged Congress to pass Paid Parental Leave FMLA Expanded military caregiver leave Encouraged greater intermittent leave EEOC General Counsel P. David Lopez Aggressive Litigation Required Extended Leave as Reasonable Accommodation Systemic Investigations of Employer Max Leave Policies EEOC v. Sears ($6.2 million settlement) Pregnancy: Young v. UPS, 2015 U.S. Supreme Court case Light Duty Required for Pregnant Employees

34 Trump Administration Has Proposed Expanded Family Leave and during campaign expressed approval for Hillary Clinton proposal of paid FMLA and other expansions Tax Based Leave or Child Care Credits Andy Puzder Opposes employer-paid sick leave EEOC Appoint New EEOC Chair in July 2017 Appoint New EEOC General Counsel Litigation tactics to decrease Pregnancy Supports 6 weeks of paid leave Expect Attendance Will Be Re-emphasized

35 On day one I will repeal as many executive orders as I can. 1/11/2017

36 Obama Administration OFCCP director, Patricia Shiu, was a plaintiffs attorney who represented workers Regulations Issued: Job Opportunities for Protected Veterans Job Opportunities for Individuals with Disabilities Pay Transparency Established: Hiring benchmarks, self-identification requirements, data collection and reporting Investigations: Systemic pay and discrimination

37 Trump Administration Trump Has supported affirmative action in past Has favored veteran s causes Has hired women and minorities Puzder, if confirmed, would select the OFCCP s new director OFCCP s regulations and investigations likely to change Eliminate Pay Transparency and data collection and reporting, although Trump did indicate during the campaign that he supports the concept of equal pay for equal work Investigations focus on compliance and not systemic issues

38 Transgender people should be able to use whichever bathroom they want.

39 Which Way to the Restroom? April 2015: EEOC ruled that U.S. Army discriminated against transgender woman by refusing use of women s restroom May 2015: OSHA requires employers to provide meaningful access to workplace restrooms, including for transgender employees Spring 2016: North Carolina and Mississippi regulations regarding bathrooms stir national concern

40 Which Way to the Restroom? July 2016: Massachusetts enacts transgender accommodation law to permit transgender persons to use restrooms, changing rooms, and locker rooms that match their gender identity August 2016: Federal Judge in Texas deals blow to Obama administration s transgender school bathroom directive September 2016: California enacts law requiring all single-occupancy restrooms to be identified as all gender and universally accessible

41 Restroom and Transgender Issues Uncertainty surrounding Trump administration Likelihood that little will change because law is well-settled

42 Background Checks and FCRA Compliance: Will Anything Change After January 20, 2017?

43 EEOC traditionally focused on individual discrimination charges...but things have changed.

44 Systemic Discrimination In 2005, EEOC Chair established Systemic Discrimination Task Force and shifted the EEOC s emphasis to the investigation and litigation of systemic discrimination The EEOC has developed systemic discrimination plans for all 15 district offices A strong systemic program is crucial to battling unlawful patterns or practices of discrimination which have a broad impact on an industry, profession, company, or geographic location. Unknown if Trump Administration will direct different emphasis

45 Eliminating Barriers Focus on class-based recruitment and hiring practices Systemic barriers which have disparate impact on protected groups EEOC will look closely at exclusionary policies or practices: Dates of birth inquiries Channeling of applicants into specific jobs Screening tools criminal and credit checks, pre-employment tests

46 Arrest and Conviction Records EEOC initiated an investigative strategy targeting pre-hire selection criteria that impacts minorities Some National data suggests that criminal background checks have disproportionate impact on minorities because they have higher conviction rates Pepsi reached a $3 million settlement with EEOC for manner in which it was using criminal background checks to screen applicants Unknown if Trump Administration will attempt to change focus

47 Criminal Background Checks EEOC believes that an employer s policy/practice of excluding individuals from employment because they have criminal conviction records is unlawful unless the exclusion is job-related and consistent with business necessity Likely that Trump Administration will not see this issue as a priority

48 Ban the Box Movement Legislation limiting criminal background check information 14 states and nearly 100 cities have adopted ban the box for state hiring Many states and cities ban questions about prior convictions on applications for private employment Unlikely that Trump Administration will become involved in this issue

49 The Fair Credit Reporting Act (FCRA) FCRA lawsuits are the latest trend in employment litigation with many multi-million dollar settlements

50 The Fair Credit Reporting Act (FCRA) The FCRA applies to background checks if an employer uses a third party to verify: Educational background Job history Criminal record Credit history Driving record Other information

51 The Fair Credit Reporting Act (FCRA) In 2014, 827 FCRA lawsuits were filed and in 2015, over 2,000 FCRA lawsuits were filed In 2016, even more were filed before yearend and are currently pending

52 Significant Financial Exposure FCRA penalties range from $100 to $1,000 per consumer report Attorney s fees can be catastrophic

53 Big Settlements Spur More Litigation Publix $6.8 million (March 2014) 90,000 potential class members Single line FCRA release Food Lion $3 million (March 2015) No stand-alone disclosure No pre-adverse action notice

54 Big Settlements Spur More Litigation Home Depot $1.8 million (April 2014) FCRA disclosure and release of liability on one form Chuck E. Cheese $1.75 million (July 2015) Checks to class members $38 - $63. Attorney s fees $577,000

55 Unknown if Trump Administration Will Enter the FCRA Fray, But Unlikely As Law is Fairly Well-Settled and Regulations have been in place for a significant period of time

56 Trump and the Gig Economy Trump didn t mention the Gig Economy during campaign. Trump s tax plan will lower tax rates for independent workers. Majority of regulation occurs on a state and city level. Less enforcement of misclassification at the federal level?

57 Intermediate Category of Independent Workers Policy groups pushing for third category of workers. Independent Workers would receive more benefits than independent contractors but less benefits than employees. Critics say a third category would just lead to more litigation.

58 Thank You Presented by: Pamela Williams and Mauro Ramirez Phone: (713) / (713) pwilliams@ / mramirez@