2017: THE JOURNEY INTO THE UNKNOWN

Transcription

1 2017: THE JOURNEY INTO THE UNKNOWN 2017 PCI Human Resource Conference April 23-25, 2017 San Antonio, Texas Christine E. Reinhard All Rights Reserved Schmoyer Reinhard LLP

2 The Last 8 Years Patient Protection and Affordable Care Act of 2010 (Obamacare) Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 Lilly Ledbetter Fair Pay Act of

3 The Last 8 Years Executive Orders Apply to federal contractors Addressed areas such as: o Equal pay o Non-discrimination on basis of sexual orientation or gender identity o Minimum wage increase o Disclosure of previous federal labor law violations o Paid sick leave o Sharing of salary information o Project labor agreements (PLAs) o Notification of rights under NLRA o Right of first refusal if service contract changes 2

4 The Last 8 Years EEOC Focused on systemic discrimination Interpreted existing discrimination provisions to cover sexual orientation and gender identity Expanded EEO-1 reporting to include compensation 102, ,000 98,000 96,000 94,000 92,000 90,000 88,000 86,000 84,000 82,000 Total Charges Filed , Total Charges Filed 3

5 The Last 8 Years NLRB Scrutinized employer policies Recognized micro-bargaining units Disallowed class action waivers Shortened period between union petition and election Loosened test for determining joint employer status Attempted to require disclosure of consultants used during union campaign 4

6 The Last 8 Years DOL Abandoned use of opinion letters in favor of broader administrative interpretations o Joint employment (2016) o Independent contractors (2015) o Home care services/home care workers (2014) o Mortgage loan officers (2010) o Changing clothes (2010) Raised salary threshold for overtime exemption Increase penalties for safety violations Instituted electronic reporting of injury and illness 5

7 The Last 8 Years As of January 1, 2017, minimum wage rose in 19 states, raising total to 29 states with a minimum wage higher than federal minimum of $7.25 per hour 1 6 states have passed right-to-work laws banning union membership as a condition of employment, raising total of such states to 28 nationwide 2 1 National Conference of State Legislatures. (2017). State Minimum Wages 2017 Minimum Wage By State. 2 National Right to Work Committee. (2016). State Right to Work Timeline. 6

8 The Last 8 Years State or local governments also passed laws: Mandating paid sick leave time or paid time off Expanding leave coverage or available rights Prohibiting discrimination based on sexual orientation and/or gender identity Legalizing marijuana Implementing ban the box legislation aimed at use of criminal background checks Establishing flexible scheduling laws applicable to hospitality and retail employees 7

9 2017 Executive Orders January 20, 2017 Directed all federal agencies to waive, defer, grant exemptions, or otherwise delay the implementation of any provision or requirement of the ACA that would impose a fiscal or regulatory burden, including any cost, fee, tax, or penalty January 30, Directed all federal agencies to identify two prior regulations for elimination for every single new regulation implemented 8

10 2017 Other Executive Actions January 20, 2017 White House Chief of Staff issued a memorandum to all federal agencies to freeze all pending regulations If regulation has been published, but not yet taken effect, agencies are to postpone implementation for at least 60 days January 25, 2017 Department of Justice requested extension from 5 th Circuit Court of Appeals of appeal of overtime injunction; extension granted until May 1,

11 New Players Secretary of Labor Nominees Andrew Puzder Alexander Acosta EEOC Acting Chair Victoria Lipnic NLRB Acting Chairman Philip A. Miscimarra 2 vacancies on 5 member Board Mark Gaston Pierce - Term through August 2018 General Counsel Richard F. Griffin - Term through November

12 What To Expect in 2017 & Beyond Executive Orders Options: o Issue a new EO that rescinds or alters earlier EO, one by one o Order agencies to repeal rules set by prior administration o Issue blanket order to repeal all EOs under prior administration President Trump has announced he will continue EO prohibiting discrimination based on sexual orientation or gender identity January 30, 2017 Joint congressional resolution of disapproval of Fair Pay and Safe Workplaces EO issued 11

13 What To Expect in 2017 & Beyond EEOC New General Counsel to be nominated with departure of David Lopez in December 2016 Possible rollback of July 2015 decision to interpret Title VII to encompass sexual orientation and gender identity discrimination Possible rollback of requirement for employers with 100 or more employees to disclose aggregate compensation by gender, race, and ethnicity across pay bands beginning in March

14 What To Expect in 2017 & Beyond NLRB Continuation of current agenda for majority of 2017 Possible future reversal of numerous Board decisions affecting handbooks and policies Possible return to pre-obama rules rejecting miniunits and disallowing union security provisions Unclear if will alter joint employer or class action waiver stance 13

15 What to Expect in 2017 & Beyond DOL Possible rollback of OSHA electronic recordkeeping Likely scale back of OSHA joint employer enforcement for same violation Possible repeal or whittling away of whistleblower protections and remedies under Dodd-Frank and Sarbanes-Oxley Unclear whether salary threshold for FLSA exemption status may increase 14

16 What To Expect in 2017 & Beyond Possibility of paid maternity leave for new mothers based on campaign promise May see national right-to-work law More state and local action, such as: Higher minimum wage or prevailing wage More or expanded paid leave Extension of anti-discrimination protections Courts may fill the void with employee friendly interpretations 15

17 Key Employment Cases in 2017 U.S. Supreme Court EEOC subpoena authority Class action waivers DOL rulemaking authority in tip pooling case D.C. Circuit Browning Ferris NLRB ruling Seventh Circuit Hively v. Ivy Tech Second Circuit Christiansen v. Omnicom Eleventh Circuit Evans v. Georgia Regional Hospital 16

18 QUESTIONS & ANSWERS 17