PRESIDENT TRUMP S EMPLOYMENT LAW AGENDA

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1 David Block, Esq. Jackson Lewis P.C. Miami, FL Jackson Lewis P.C. PRESIDENT TRUMP S EMPLOYMENT LAW AGENDA 2 Department of Labor Under President Trump, the DOL is expected to be more business-friendly, and to shift its focus to achieving compliance rather than aggressive enforcement. The DOL is expected to permit employers greater flexibility in using independent contractors, for example, and provide businesses with more certainty in expanding through use of franchises. 1

2 Department of Labor: Labor Secretary President Trump has selected R. Alexander Acosta Current Dean of FIU Law School, and Former U.S. Attorney for the Southern District of Florida. Served on the Board of the NLRB from December 2002 August Took a primarily conservative approach that favored employers. The first Latino Cabinet Pick made by President Trump. Confirmed on March 30, 2017 by the U.S. Senate Health, Education, Labor and Pensions Committee by a vote. Awaiting the full senate vote, a date has not yet been set. 4 Department of Labor Wage and Hour Division: Overtime A Texas District Court issued a nationwide preliminary injunction enjoining the DOL from implementing and enforcing its final overtime rule. The rule, which was scheduled to take effect on December 1, 2016, would have increased minimum salary levels required for an employee to achieve exempt status under the FLSA (from $455/week to $913/week, with automatic increases thereafter). The decision has been appealed to the Fifth Circuit Court of Appeals. 5 Department of Labor: Overtime (cont.) Since the DOL first announced its proposed rule, various bills have been introduced in Congress to block, delay, or slow the salary level increases in the Rule. While President Obama would have vetoed these bills if passed, President Trump might sign such a law. Such legislation might moot the Texas lawsuit. Secretary of Labor Nominee Acosta has stated that he was unsure that the DOL has the authority to set a salary test at all, let alone raise its level. 2

3 Department of Labor: Overtime (cont.) In addition, President Trump could direct the DOL to abandon its appeal. Under the Trump Administration, the DOL might rescind the Final Rule, but would need to follow the procedures set forth in the Administrative Procedure Act, which will take time. Department Of Labor: Opinion Letters Under President Obama, the DOL discontinued its longstanding practice of issuing opinion letters signed by the Administrator of the Wage and Hour Division, choosing instead to issue less frequent Administrator Interpretations with wider applicability and scope, but less specificity. Trump may restore the practice of issuing official opinion letters regarding application of the FLSA and FMLA. Department of Labor: Opinion Letters (cont.) Two significant Administrator Interpretations have been issued in the past two years one concerning joint employment and the other addressing independent contractor status under the FLSA. Both have been viewed as clear efforts to expand the rights of workers under the law and place additional burdens on employers. Under a Trump Administration, new opinion letters may be issued on a variety of topics and may scale back or reverse Administrator Interpretations under President Obama. 3

4 Department of Labor: Fiduciary Rule The Department of Labor s fiduciary rule concerning the expanded definition of who is considered a fiduciary under ERISA and the Internal Revenue Code had an effective date of April 10, The DOL announced a delay on March 2, extending the applicability date for much of the fiduciary rule from April 10 to June 9 and pushing compliance with some disclosure and other requirements to January. 1, The agency said the delay will give it time to complete a review of the entire regulation mandated in February by President Donald Trump that it plans to finish by Jan. 1 of next year. The rule is designed to address conflicts of interest in giving advice to retirement savers. 10 Trump s Executive Orders and Actions President Trump has announced an intention to rescind President Obama s Executive Orders and Actions. Many of these impose significant restrictions and reporting requirements on government contractors. For example, the Fair Pay and Safe Workplaces Executive Order, most of which was recently enjoined nationwide by a Texas District Court, is expected to disappear under President Trump if not invalidated permanently in litigation. Equal Employment Opportunity Commission Under President Obama, the EEOC undertook aggressive enforcement efforts and pursued significant litigation in such areas as criminal background checks, systemic discrimination, and LGBT protections. The EEOC likely will curtail many of these efforts under President Trump. Newly-appointed EEOC Commissioners are not likely to support the initiatives of the previous administration. The Republican Congress also may allocate fewer funds toward EEOC enforcement efforts. 4

5 EEOC: New Acting Chair In late January, President Trump appointed Victoria Lipnic to serve as the Acting Chair of the EEOC. Served as EEOC Commissioner since 2010 Currently the sole Republican Commissioner Nominated for two terms by President Obama Prior to nomination to EEOC, served as Assistant Secretary of Labor for Employment Standards and worked as a management side attorney 13 EEOC: Strategic Enforcement Plan In mid-october, 2016, the EEOC issued its updated Strategic Enforcement Plan (SEP) for Fiscal Years The new SEP reiterated the agency s commitment to the priorities in its previous SEP ( ), with some changes. EEOC: Strategic Enforcement Plan (cont.) The new SEP set forth new emphasis on several priorities, including, for example: Qualification standards and inflexible leave policies under the ADA; Complex employment relationships and structures in the 21st century workplace (temporary workers, staffing agencies, independent contractor relationships); and Backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent. 5

6 EEOC: Strategic Enforcement Plan (cont.) Although the SEP may survive in some form, some of the initiatives it contains will not likely be high priorities for the Trump Administration. It is unknown, for example, whether the EEOC will continue its emphasis on systemic discrimination or seek to expand protections for employees under the ADA. EEOC: Agency Guidance Recently-issued EEOC guidance on retaliation, national origin discrimination, and pregnancy discrimination also may be rescinded or curtailed. Much of that guidance reflects existing case law, but in some areas, the EEOC advocates for more expansive protections than most courts have been willing to endorse. EEOC: EEO-1 Pay Data Reporting Final rules issued on September 29, 2016, revise the EEO-1 report to include W-2 earnings and work hours for some employees. These rules, which are scheduled to take effect in March 2018, are intended to assist the EEOC in investigating compliance with equal pay laws. Employer groups raised serious concerns about the burdens associated with the new reporting. The new administration may rescind the changes before first reporting is due in 2018, or may revise the reporting requirements to ease the burden on employers. 18 6

7 Union Expectations under the Trump Administration The President is expected to nominate board members who will be more friendly to employers. R. Alexander Acosta, President Trump s appointment for Secretary of the Labor: Acosta will not oversee the NLRB, but: (1) is expected to have a hand in President Trump s filling of two vacancies on the National Labor Relations Board; (2) and the board and the DOL often overlap when it comes to the issues they interpret. Served on the Board of the NLRB from December 2002-August Took a primarily conservative approach that favored employers. 19 National Labor Relations Board NLRB actions tend to more closely align with the politics of the party in the White House than do the actions of many other federal agencies. Members of the NLRB are nominated by the President and serve five-year terms after being confirmed by Congress. President Trump will inherit a board with two Democrat members, one Republican and two vacancies. In November, President Trump can replace G.C. of the NLRB Richard F. Griffin. In August 2018, President Trump can nominate his third appointee when Democrat Mark Gaston Pearce s term expires. This sets President Trump up for a majority less than two years into his term. 20 President Trump s Meeting with Union Leaders President Trump won several Rustbelt states: Ohio, Pennsylvania, Wisconsin, Indiana, and Michigan (by a hair). Rank and file support for President Trump January 23, 2017: President Trump met with unions leaders and workers in the construction and sheet metal industries. Trade Agreements (TPP) America First platform Shift to the right expected, but will probably not be that great considering the President s populist platform. Changes may not be as dramatic in the labor area as opposed to other areas, e.g., immigration. 21 7

8 What Can We Expect? Labor Shop of Horrors? No. Ding Dong Unions are Dead? No. More like: Ah, ha, ha, ha, stayin' alive, stayin' alive 22 PRESIDENT TRUMP S SUPREME COURT PICK AND THE LABOR AND EMPLOYMENT CASES BEFORE THE COURT 23 Supreme Court s Newest Justice Neil Gorsuch 10 th Circuit Court of Appeals Colorado, New Mexico, Kansas, Wyoming, Oklahoma, Utah Critical of Judicial Deference to Administrative Agencies Skeptic of McDonnell Douglas Standard in Discrimination Cases 24 8

9 Top Supreme Court Cases to Watch in 2017 NLRB v. Murphy Oil USA Inc. (Class Action Waivers & Arbitration Agreements) National Labor Relations Board v. SW General, Inc. (Executive Branch Appointments) Navarro v. Encino Motors, LLC (Service Advisor Exemption) Karlo v. Pittsburgh Glass Works, LLC (Age Bias) 25 National Labor Relations Board v. Murphy Oil USA Inc. The Court, on January 13, 2017, granted certiorari in National Labor Relations Board v. Murphy Oil USA (No ) Epic Systems Corp. v. Lewis (No ) Ernst & Young LLP v. Morris (No ) - The three cases were consolidated for oral argument. The Supreme Court will address whether class action waivers in employment arbitration agreements violate the National Labor Relations Act. The Supreme Court s action promises the much-anticipated resolution of the circuit split on this issue. 26 National Labor Relations Board v. SW General, Inc. The Supreme Court will determine the scope of the President s power to fill executive branch vacancies. Federal Vacancies Reform Act (FVRA) Advice and Consent of the Senate Acting Capacity versus Nomination & Senate Approval Process Lafe Solomon, NLRB General Counsel, Acting Capacity First Assistants versus Other Senior Officials Case Takeaways: The scope of presidential authority in appointments. Potential to de-legitimize certain agency actions. Further congressional oversight of persons serving in acting capacities. 27 9

10 Navarro v. Encino Motors, LLC FLSA Exemption Case: Service Advisors at Car Dealerships. First Trip to Supreme Court Supreme Court punted on exemption, ruling that a 2011 Department of Labor Opinion was procedurally defective and could not be considered by the lower court in its opinion. Dissent: Advisors are exempt. Narrow construction doctrine is a made-up canon. On Remand from Ninth Circuit: Advisors are non-exempt, citing narrow construction doctrine. Likely second trip to Supreme Court to address exemption status and doctrine of narrow construction, which has consequences for all exemptions under the FLSA. 28 Karlo v. Pittsburgh Glass Works, LLC (Age Bias) Question Presented: Does the ADEA prohibit age discrimination or 40 and over discrimination? Statistical analyses for reductions-in-force: Do subgroups matter? Plaintiffs argued the RIF disproportionally impacted those over age 50. Third Circuit: The continuous, non-categorical nature of age cannot be adequately addressed by simply aggregating forty-and-older employees. More exacting analysis may be needed and subgroups may answer that need. Circuit split Second, Sixth, and Eighth versus Third 29 WHAT S NEW IN FLORIDA: MARIJUANA CAN YOU STILL DRUG TEST? 30 10

11 Federal Law Possession distribution and use of marijuana is illegal under Federal Law, this includes medical purposes. It s a Schedule 1 illegal drug under the Controlled Substances Act of the Comprehensive Drug Abuse and Prevention Control Act (passed in 1970). Congress and former President Obama took the position for the past 8 years that well-regulated state medical marijuana laws should not be targeted for federal enforcement. - Based on a recent press conference with Sean Spicer on February 23, 2017, the Trump administration will not go after medical marijuana but it may crack down on recreational marijuana use. 31 Current Florida Law The Compassionate Medical Cannabis Act was signed by Governor Rick Scott on June 16, State lawmakers passed this measure with bipartisan support after receiving impassioned appeals from parents seeking access to the form of marijuana known as Charlotte s Web. The name Charlotte s Web comes from a Colorado girl whose epileptic seizures showed a positive response to the drug. The Charlotte s Web substance is not for smoking and is specially cultivated to be very low in tetrahydrocannabinol (THC - the element within cannabis that gets users high). Charlotte s Web is an oil placed under the tongue. On March 25, 2016 House Bill 307 passed and was signed into legislation. This Bill Amends the Compassionate Medical Cannabis Act now known as the Compassionate use of low-thc and Medical Act. Expanded to allow for medical marijuana use, the Act now allows for the use of all parts of any plant of the genus Cannabis; not just low-thc marijuana. Among other things, the Act was expanded to include individuals who are terminally ill, not just individuals with epilepsy, cancer, and other afflictions causing seizures or severe and persistent muscle spasms. 32 How It Works A patient must have been diagnosed with a qualifying condition. Qualifying Patient must register with Compassionate Use Registry which has been set up by the Florida Dept. of Health. Only One Physician May Prescribe per Patient. Treatment Plan Submitted to UF School of Pharmacy (and any changes). A patient must have tried other treatments without success. An ordering physician must determine the risks of use are reasonable in light of the benefit to the patient. No more than 45 day supply. There are currently 6 approved dispensaries in the State

12 What You Need To Know Dept. of Health - rules by June 2017; implementation by September Dept. will control the procedures for issuance and annual renewal of qualifying patient Identification Cards. It is likely that the number of employees who would be considered Qualified Individuals under the law is very small. Therefore, you are not likely to be dealing with legitimate medical marijuana cases on a regular basis. The State Law Does NOT Allow A Qualifying Individual To Operate a Vehicle, Aircraft, Train, or Boat While Under The Influence. - You may test positive but not be under the influence. - Under the Influence means that you may have the side effects of euphoria (the high ). - Therefore, a Qualified Individual will have to plan consumption to ensure they are not under influence while at work if operating a vehicle, aircraft, train or boat. 34 What You Need To Know (cont.) Even Though The Florida Law Specifically Prohibits Being Under Influence When Operating Vehicle Etc. As An Employer You Are Required By OSHA To Provide A Workplace Free Of Recognized Hazards And May Place Other Limitations. Employer may establish work rules (which should already be in place) that an employee is prohibited from operating any equipment or performing any task while under the influence of any substance (including prescription drugs) which may render the operation of equipment or task unsafe because of some impairment. The Law DOES NOT Require An Employer To Accommodate An Employee Seeking To Consume Marijuana At Work. There is no requirement that you allow Bobby to consume marijuana in the restroom, break room, smoking area. If an employee requires marijuana use to function at work, then you can determine if the request by the employee to go home to consume is a reasonable accommodation (under Florida law; as there is no such recognition under Federal Law). 35 What You Need To Know (cont.) The Law DOES NOT Authorize the Consumption of Marijuana In Public Places. There is no Florida law that allows public consumption of marijuana and Federal Law makes it a criminal offense. Therefore, if you see an employee consuming marijuana or see it on a Facebook posting etc., you can act on it. Drug Tests Cannot Determine Exactly When Marijuana Was Consumed, So Employees Who Are Not Qualified Individuals Under the Medical Marijuana Law May Argue It Was Off- Duty. In Florida this does not matter. There is no prohibition against terminating an employee 36 12

13 What You Need To Know (cont.) For unlawful use of drugs while off duty. There is no recreational use exception or law. Regardless of Medical Marijuana Law, No State Law Provides Protection To A Qualified Individual Who Appear to Work Under the Influence. Employee Must Still Perform Essential Functions of Job Just Like Anyone Else. The Law Does Not Provide Free Pass For: Slurred Speech Inability to Focus or Communicate Inappropriate Behavior Outbursts For Federal Contractors marijuana policies are governed, first and foremost, by the federal Drug Free Workplace Act. 37 What To Do If the Employer Has a Drug Testing Program, the use of Marijuana by Employees Who Are Not Qualified Individuals Remains Grounds for Discharge. If the Employer Has Drug Testing Program, the use of Marijuana by Employees Who ARE Qualified Individuals Must Meet Requirements (Outside of Work, Not Be Impaired At Work, Establish The Employee is A Qualified Individual). If Employer Has No Drug Testing Program- take same action as above based on behavior. 38 THANK YOU With 800 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/employee relationship