• Employers: Saddle up for '17 -- There's a New Sheriff in Town!
  • March 13, 2017 | Author: Richard G. Vernon
  • Law Firm: Lerch, Early & Brewer, Chartered - Bethesda Office
  • Textile Services Magazine

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    With a new administration coming on line this month, now is a “time for risk-free forecasts, predictions, and prophesies.” Hence, we’ve once again dusted off our crystal ball, and are focusing on what is likely to be the impact on employers of an all-Republican triad from Capitol Hill to 1600 Pennsylvania Ave.

    As of early December, 2016, the Trump Administration-To-Be (TATB) had publicly talked about its general plans with respect to, among other subjects, foreign policy, national security, trade, health care, immigration, jobs, taxes and the economy. It has largely remained, silent, however, with respect to issues that may affect employers more immediately, that is, the direction in which it will point the employment-implementing agencies, such as the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). On Dec. 8, 2016, President-elect Donald Trump named Andrew Puzder, CEO of CKE Restaurants as labor secretary, noting that he’d ease regulatory burdens on business to fuel job growth and boost wages. Beyond that, we can only surmise what direction the Department of Labor (DOL), including the Wage-Hour Division (WHD), Office of Federal Contract Compliance Programs (OFCCP) and the Occupational Safety and Health Administration (OSHA) will take. In this vacuum, we offer the following possibilities:

    National Labor Relations Board

    During the course of the Trump administration, changes will come to both the National Labor Relations Board, which determines the scope of the National Labor Relations Act (NLRA) and whether an employer has violated it; and its general counsel, who investigates claims and issues complaints that are ultimately determined by the NLRB. Republicans, who are viewed as more friendly to business than Democrats, will be in charge.

    In general, then, we believe the NLRB will likely return to implementing the original purpose of the law — protecting employees’ rights to unionize — rather than stretching the law’s interpretation so as to regulate — many would say, excessively policies in nonunion workplaces that provide the vast majority of jobs in the United States. A number of the Obama-appointed NLRB decisions, which threw out decades-old opinions, thus could be overturned.

    In this connection, the NLRB may begin to narrow the scope of, or even reject in its entirety, its own holding in the Browning-Ferris decision issued in August 2015. In that case, the NLRB held that two (or more) separate and unrelated employers — that have a particular kind of working business relationship — could be found to be a “joint employer” of what would ordinarily be viewed as employees of only one of the employers. In that case, a waste-recycling company and a staffing company that provided some employees to the recycler were found to be a joint employer of all of the employees in question. The impact of this decision has been of great concern for any business that regularly, among other things, uses a contractor such as a janitorial service, a staffing agency, or contracts with suppliers or vendors.

    Equal Employment Opportunity Commission

    The Equal Employment Opportunity Commission has not yet been remotely mentioned by the TATB. The agency thus will likely try to continue to focus on the items listed in its 2013-’16 Strategic Enforcement Plan. As noted in our March 2016 article, these will include class-based (systemic) claims and lawsuits involving, in particular:
    • Hiring decisions that intentionally exclude individuals with particular protected characteristics, such as race, sex, religion, national origin,and age (so-called ‘failure-to-hire” cases). In this connection, it’s likely that the commission will continue to challenge employers’ use of criminal and credit histories in the hiring process and pre-employment testing practices.
    • The scope of the Americans with Disabilities Act, including accommodation of women’s pregnancy-relatedlimitations.
    • The extent to which lesbian, gay, bisexual, and transgender applicants and employees are protected under Title VII.
    • Pay equity disputes generally involving female employees earning less than their male co-workers.
    As with the NLRB, however, membership ultimately will change at the highest policy-making levels of the EEOC. As a result, the focus of the commission could narrow, along with its practice of expanding the scope of existing principles under the laws it enforces. In a related connection, we also anticipate that Congress and the Trump administration are unlikely to enact the pay-equity bills now pending before lawmakers.Department of Labor

    The Department of Labor enforces a wide range of laws, and our prior prediction for 2016 was accurate in that the DOL focused on a variety of regulatory and enforcement efforts in the following areas:
    • Revision of the salary level necessary for exempt status under the “white-collar exemption” tests applicable to the Fair Labor Standards Act.
    • Misclassification of independent contractors as employees.
    • Investigations into proper payment of overtime among “gig workers,” who may (or may not) be independent contractors.
    • Implementation of new OSHA rules with respect to recordkeeping and tracking of workplace injuries.
    As for the new salary level set for the white-collar exemptions, employers received a pre-Christmas gift from a federal district court in Texas, which, on Nov. 22, 2016, issued an injunction, preventing implementation of the new standard of $47,476 as the requisite salary for exempt status. The litigation continues (the Labor Department has appealed), but the Trump administration’s new secretary of labor could revisit the new standard.

    On May 11, 2016, OSHA issued a final rule updating injury data-collection standards, which took effect on Jan 1, 2017. OSHA said that the purpose of its new rule was to “apply¿the insights of behavioral economics to improve workplace safety and prevent injuries and illnesses.” However, it remains to be seen, whether the new administration will retain the new requirements that some employers say are burdensome and will require them to reveal confidential data.

    Executive Orders

    Finally, the business community is also holding its breath with respect to repudiation by the new administration of any of President Barack Obama’s Executive Orders (E.O.s) that affect the workplaces of federal contractors.

    This past summer, the Federal Acquisition Regulatory Council, consisting of three federal agencies, had issued a final rule implementing the president’s “Fair Pay and Safe Workplaces” Executive Order— the so-called “blacklisting” E.O. Under the rule, prospective and existing contractors on certain government contracts were required to disclose administrative determinations, arbitration awards and civil judgments, which found—or in some cases only alleged—violations of 14 enumerated labor laws and state law equivalents. While a federal court on Oct. 25, 2016, blocked implementation of this part of the rule, the paycheck transparency portion of the E.O. remains in effect. Starting Jan. 1, 2017, it requires contractors and subcontractors—among other things—to provide detailed paystubs to their employees and to notify workers, whom the employers consider to be independent contractors, that they are being treated in that manner. It remains to be seen whether the new administration will retain these provisions.

    Another E.O., issued on Sept. 7, 2016,established a paid sick-leave requirement for the benefit of employees of federal contractors. As is the case with the other areas described above, it is possible that an anticipated business-friendly Trump administration may re-visit this issue.

    In the same vein, President Obama’s long-standing E.O.s from early in his administration, including EOs from 2009, which—among other things—mandated the use of project labor agreements on major federal construction projects, also are likely to be reviewed.

    With all of this being said, employers just remember that regardless of what the federal government does in the employment arena, state and local legislatures could aggressively try to give back to employees some of the rights that may be diminished at the federal level. In addition, plaintiffs’ employment lawyers are continuing to pursue employees’ rights through litigation, and they may be more combative than in the past.

    In short, 2017 could provide employers with some issues to cheer about, but they’ll still face a variety of challenges and compliance issues. Either way, it’ll be an interesting ride, and one that’s likely to include a few trails not taken during the Obama years.