2016 Year in Review. Doug Currier Beth Smith

Transcription

1 2016 Year in Review Doug Currier Beth Smith

2 In A Nutshell Expansion of WARN Act and Title VII in the Courts Marijuana legalization Administrative rules and court injunctions Persuader Rule and FLSA Minimum Salary Pushback on non-competes and gig economy

3 In the Courts Does Title VII extend federal protection to sexual orientation and gender identity? No, but the 7 th Circuit just said yes Discrimination on the basis of sexual orientation is the same as discrimination on the basis of gender stereotypes Will the Supreme Court weigh in? MHRA already protects LBGTQ But could raise jurisdictional issues

4 In the Courts Individual liability for WARN Act violations WARN Act requires notice and disclosure for mass layoffs and plant closures Stiff penalties for non-compliance Wisconsin LLC laid off workers, then declared bankruptcy Bankruptcy court would not let LLC manager hide behind the corporate form Are you insured for this?

5 In the Courts Manager Rule has a pulse! Argument that you cannot claim to be a whistleblower if it was your job to blow the whistle in the first place Cited and approved in many cases Then attacked on many fronts and given up for dead and then

6 In the Courts Alabama court held that HR Director was just doing her job by passing along a sexual harassment complaint [T]he employee engages in a protected activity if she crosses the line from being an employee performing her job, to an employee lodging a personal complaint.

7 In the Agencies Dual Employer Liability United Plastics hit for 1.4 million for using an employment agency that did not pay overtime OSHA Penalty Hike Willful violations will cost you twice as much NLRB Can t ban confrontational clothing Can t have a policy that prohibits non-work activities

8 In the Agencies Persuader Rule Old rule requires registration only when advisors spoke directly to employees about union activities New rule would require registration when any advisor (attorney) provides advice about union activities, even if indirect Set to take effect in July, injunction issued in June

9 In the Agencies DOL Minimum Salary Minimum salary for exempt employee set to more than double to $47, Scramble to either increase salary or rearrange job duties Injunction by Texas District Court, waiting to hear from 5 th Circuit AFL-CIO petitioned to join DOL in case Trump wont pursue the case

10 In the Legislatures Defend Trade Secrets Act Better protection against employees stealing secrets But comes with a mandatory notice of immunity for disclosing in certain circumstances Connecticut bans the box Massachusetts passes equal pay law

11 In the Legislatures And of course recreational marijuana is now legal in Maine and Massachusetts

12 Coming in 2017 DOL Continuing to focus on proper classification and joint employer liability Federalization of workers comp New WCB Rules and Regulations Gig economy More scrutiny on non-compete agreements

13 Coming in 2017 EEOC to prioritize Eliminating barriers to hiring Protecting vulnerable workers (migrants) Equal Pay Preserving access to legal system Preventing systemic harassment

14 Thoughts on New Administration Bureaucracy always slow to respond Looks for changes in defending cases Rule making still a very slow and deliberate process

15 In Times of Uncertainty, Go Back to Basics Clear, written performance expectations Documentation of performance problems Review accident reporting protocols Review essential job functions Engage with preferred providers Reward safety Review internal documentation Prioritize old cases

16 2016 Legal Year in Review Workers Compensation 48 Appellate Division decisions 1 Law Court decision

17 Issue Trends Most Decisions Appealed Most Important Decision Most Common Appeal

18 What Will 2017 Bring? Federalization of workers comp. Opioid prescription reduction/control OSHA s new anti-retaliation rules On-Demand economy New WCB Rules and Regulations MAE Education vs Enforcement

19 Action Items Review reporting protocols Update training Review Essential Job Functions Engage with Preferred Provider Reward Safety Review Internal Documentation Prioritize Old Cases