Elaine V. Brzezinski, Esq.

Transcription

1 The Trump Effect Accretive Solutions Q Learning Series August 17, 2017 Elaine V. Brzezinski, Esq.

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3 Since January 20, 2016 Recap January 20, 2017 Executive Orders, Memos Immigration Changes within a few Federal Agencies EEOC Department of Labor National Labor Relations Board State & Local Reactions (?) What s Next

4 Executive Orders/Memorandum 42 Executive Orders 29 Memoranda Issues Environment Border Security, Terrorism, Plan to Defeat Isis Drugs Opioid Epidemic Whistleblowers at the Veterans Administration Pipelines (Dakota, Keystone) American Innovation

5 Employment Related EOs = 3 Revocation of Obama Administration Executive Orders - Federal Contracting Congressional Review Act Buy American, Hire American Immigration Expanding Apprenticeship in America Health Care

6 Federal Contracting Obama EOs Fair Pay & Safe Workplaces Known as the "contractor blacklisting regulations, the rules were finalized towards the end of the Obama administration; would haverequired government contractors and subcontractors to report alleged violations of 14 federal labor and employment laws Arbitration

7 Congressional Review Act Signed by Clinton Prior to Trump, used only once by any administration So far, Trump has used it 13 times Trump directed Congress to overrule an agency rulemaking Invalidated the regulations that implemented Obama s Fair Pay and Safe Workplaces Executive Order (EO 13673)

8 Trump: Immigration -H-1B Visa Applications accepted starting April 1, 2017 Consistent with last 5 years, cap reached in 5 days 85,000 available, with 20,000 reserved for master s degrees H-1B Applications FY 2014 FY 2015 FY 2016 FY 2017 FY 2018

9 Trump: Immigration -H-1B Executive Order, April 18 th Buy American, Hire American Reforms to ensure H-1B are given to the most skilled and highly paid Challenged agencies to come up with new rules and guidance to prevent fraud and abuse Trump dislikes the lottery system USCIS: Will take a more targeted approach in visiting companies with H-1B workers Unclear result Executive Order? Legislation? If you have employees or contractors who are on H-1Bs, may face increased scrutiny

10 Immigration -Continued Migrant workers H2A Visas Temporary Farmworker Visa Over 150,000 H2A issued 2016, 2017 Litigation over working conditions Green Card talk of reduction by half of green cards available

11 Equal Employment Opportunity Commission Federal government agency that enforces antidiscrimination laws under Title VII (GRAND) States, Cities, Counties frequently have similar agencies that enforce similar statutes Headed up by 5 commissioners, which are appointed by the President In addition to enforcing the law, the EEOC promulgates rules, interpretations, and develops an enforcement strategy

12 The EEOC and the Trump Administration Headed up by 5 commissioners, appointed by the President. Acting Chair Victoria Lipnic (R) Commissioner Chai R. Feldblum (D) Commissioner Jenny R. Yang (D) (Expired July 1, 2017; 60 day extension) Commissioner Charlotte Burrows (D) Commissioner - Vacant General Counsel Vacant Appointed Janet Dhillon as Chair June 29; awaiting Senate confirmation Focus? Field offices?

13 Settlements Since January 20, 2017 Mach Mining - $4.25 Million to group of women applicants who were denied jobs; company also agreed to hiring goals 34 women IDEX Corporation - $380,000 disability; claim company fired employee because he had cancer American Dental Assn - $1.95 Million; Executives discharged for voicing concerns about discrimination Downhole Technology - $120,000 race and retaliation. Allegation that fracking company racially harassed employee

14 Settlements Since January, 2017 Rosebud Restaurants - $1.9 million race discrimination in hiring; 13 restaurants in Chicago Bass Pro Shops - $10.5 Million Hiring/recruiting of African American and Hispanics; retaliation. Lawsuit filed September 21, 2011 UPS - $2 Million 90 current and former employees; nationwide disability; failure to provide reasonable accommodations 132 Press Releases, January 20 August 14

15 EEOC Looking ahead Lawsuits with press release, January 20 th to present January 20th to August 14th Pay Age Religion Race Retaliation Sex Disability Lawsuits are up around 7% year over year Theories Charges backlog Trump Administration Issue Focus Systemic discrimination focus (?) Pay disparities less focus (?)

16 EEO-1 Form Change? Annual filing Obama Administration Implemented changes Current Status? House Bill to prohibit EEOC from spending money to implement the revisions Not included in final version, House appropriations bill Acting Chair Lipnic sent letter to Office of Information and Regulatory Affairs (OIRA) requesting final decision no later than end of August

17 EEOC Change: EEO-1 Forms

18 EEO-1 Form, If.then Private employer with less than 100 employees or federal contractor with less than 50 employees, not required; be careful with subsidiaries Federal contractor with employees, provide race/sex information within 10 job categories; due March 31, 2018 Private employer or federal contractor with 100 or more employees, lots of additional information required; due March 31, 2018

19 New Requirements Report race/sex within 10 job categories Report Compensation Data using EEOC s 12 pay bands Who: Snapshot of employee population, October 1 December 31, 2017 Report Hours Worked Hours Worked is NOT Hours Paid Not as easy as reporting W-2 information Back out vacation, leave of absence, etc.

20 Questions Remain What does hours worked mean for the exempt population? If no race reported, what to do? Transgender community Partial years of service - New Hires, Terminations Part time, break and then return to work

21 What will happen with the information? Stated Purpose Early assessment of charges EEOC to publish periodic reports of aggregated data to facilitate voluntary compliance Enhance training programs EEOC will review when charge(s) filed Compare, run statistical analysis Unclear what the information will tell them Freedom of Information Act requests 10 days to object Plaintiffs Press Competitors

22 Take-Aways Budget time and money to comply HR, IT, Payroll, Finance, Legal Need a project plan, start to finish Gathering, review, updating, etc. Even inputting the data will take time Data is sensitive salary information Great care needs to be used Consider review of data under privilege To know, understand and be prepared to defend what information is being provided Keep an eye on end of August

23 LGBT Issues Some states and municipalities already include LGBT (or segments) as a protected class EEOC interprets discrimination based upon LGBT as a form of sex discrimination Hively v. Ivy Tech, 7 th Circuit, April 4, 2017 Split in the circuits gender stereotype Executive Order 11246, amended Prohibits employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin. So far, still in play Topic likely headed to Supreme Court The Equality Act (H.R. 2282; S. 1006) was introduced into Congress on May 2 and, if passed, will amend Title VII and Title IX to make discrimination based upon LGBTQ status unlawful

24 Sexual Harassment Fox News Carlson v. Ailes (July 2016) Carlson did not sue Fox she sued Ailes personally. Settlement, $20 Million 2 weeks after lawsuit filed, Ailes leaves Fox, $40 Million Laurie Dhue (Summer 2016) Settlement over $1 Million Andrea Tantaros (August 22, 2016) Still pending, moved to arbitration Among her claims, alleges Bill Shine told her she need to let this one go after complaining of sexual harassment. Shine will leave Fox in the next several weeks Allegations of pay disparity, cyber attacks

25 Sexual Harassment Fox News Juliet Huddy (September 2016) $1.6 Million Tamara Holder (March 2016) Settlement $2.5 Million Alleged Francisco Cortes sexually harassed her (VP Fox News Latino) Settlements (April 1) NY Times reports settlements with 5 women Amount for 3 of the 5 = $13 Million Laurie Luhn, $3.15 Million

26 Sexual Harassment Fox News Julie Roginsky (April 3, 2017) Sued Roger Ailes; claims her job was given to Heraldo Rivera when she did not engage in a sexual relationship with Ailes; Pending Bill O Reilly (April 19) $25 Million Loss of sponsors Via tweet from Lisa Bloom, Esq. Monday June 19 th New York State Division of Human Rights is investigating Fox News

27 Fox News Eric Bolling Anchor, suspended August 5, 2017 Allegation sent inappropriate photos to female co-workers Pending investigation Since investigation, new accusation of sexual harassment Bolling sued Yashar Ali, Huffington Post Defamation Allegedly Ali said Bolling sent lewd text messages and graphic photographs of himself Francisco Cortes, former VP of Fox sued Fox News Claims: Fraud and breach of contract Fox issued a statement, which breached the settlement agreement; statement disparaged and defamed him

28 Secretary of Labor R. Alexander Acosta Sworn in April 28, 2017 Trump directive to save small business from crushing burdens of unnecessary regulations that are stunting job growth and suppressing wages. Harvard law & undergraduate Background: Served on the NLRB; Assistant Atty General Civil Rights; US Attorney for Southern District of Florida; Law professor

29 Department of Labor Fair Labor Standards Act New Federal Regulation Was to be effective December 1, 2016 FLSA Overtime Law Exempt and Non-Exempt Exempt Categories (no overtime) Executive, Administrative, Professional, Outside Sales, Computer Employees, Highly Compensated Three Part Test How paid (salary basis) How much (salary level) What they do (duties test)

30 FLSA Proposed Changes -Obama Salary Level Change White Collar (Executive, Administrative and Professional) Exemption to $47,476 (formerly $23,660) Highly Compensated to $134,004 (formerly $100,000); bonus calculations treatment Amount to be updated every 3 years Estimates were that the change meant more than 4.2 million people will be eligible for overtime Cost estimate: $1.8 Billion in year 1

31 FLSA Proposed Changes -Obama November 22, 2016 Texas judge issued nationwide injunction December 1, 2016, Department of Labor appealed to the 5 th Circuit, with request that the appeal be expedited Department of Labor asked for an extension on its reply brief first to May 1, then June 30 to allow incoming leadership personnel adequate time to consider the issues. Reply brief filed June 30, 2017 Tricky argument Department of Labor had the authority, but the salary level is the wrong amount

32 FLSA Current Status Request for Information, July 26, days to provide; deadline September 25, 2017 DoL is reviewing the dollar amount, inflation, salary levels, by geography, industry, etc. Does not mean they will do anything; simply asking for input Secretary Acosta, thinks somewhere around $33,000 is right for the change to the salary test 6/ /request-for-information-defining-anddelimiting-the-exemptions-for-executiveadministrative

33 Independent Contractors -Obama Department of Labor focus during Obama administration IRS and 32 States (including Texas) Work Share Information sharing and coordinated enforcement Department of Labor: Due to a trend in organizational restructuring, the misclassification of employees as independent contractors has increased Economic Realities Test

34 Independent Contractors -Trump June 7, 2017, Department of Labor withdrew guidance letter on independent contractors. Economic realities test is eliminated Control test appears to be back Contract labor on the rise in the US Lyft Uber Randstad study says that by % of the US workforce may be contingent workers

35 Other Changes DoL Press Release June 6, Stepped up visa program fraud and abuse enforcement investigations Task Force on Apprenticeship Expansion (one of Trump s Executive Orders). Nominations closed August 8 th Roughly 25% of field auditors are eligible for leave or retirement

36 National Labor Relations Board Governance for collective bargaining National Labor Relations Act, Commissioners Chair Philip Miscimarra (R) (Ends in December) Mark Gaston Pearce (D) Lauren McFerran (D) Marvin Kaplan (R), confirmed Aug 2, sworn in Aug 10 William Emanuel nominated June 28; stalled in Senate General Counsel Richard Griffin, Jr (Ends in November)

37 Union Membership -US

38 Looking Ahead -Unions United Auto Workers Mississippi Nissan plan in Canton, Mississippi rejected union representation - August 2, 2017 Margin 2-1 6,500 employees House Bill Employee Rights Act Require unions to obtain permission to spend dues on purposes other than collective bargaining Impacts on non-union workforce Close examination of handbooks, social media, etc.

39 Working Families Flexibility Act May 2, U.S. House of Representatives passed the Working Families Flexibility Act Amends the FLSA Choice: Overtime or bank time (really comp time) House bill caps accrual at 160 hours Eligibility: Completed at least 1000 hours in the 12- month period before agreeing to comp time Trump appears poised to sign off; hurdle in the Senate; prior versions of comp time have languished

40 Trump Administration Next? Dodd Frank & Sarbanes Oxley Review Early on, support for paid 6 weeks of maternity leave and encouraged employers to provide child care at work More on immigration Appointments with directives to the various agencies Executive Orders Memorandum

41 State/Local Changes Salary Inquiry States and some cities placing a ban on salary history question Why? So far: Massachusetts (effective July 1, 2018) New York City (effective October 31, 2017; signed May 4) Philadelphia (being litigated) San Francisco (effective, July 2018)

42 Applicants Salary History Inquiry -Pending California Connecticut District of Columbia Illinois Indiana Maine Maryland Mississippi Missouri New Jersey New York Rhode Island Texas Vermont

43 State/Local Changes Leaves 7 states and District of Columbia; and approximately 27 cities (always changing) Arizona California Connecticut Massachusetts Oregon Vermont Washington District of Columbia

44 Medical and Recreational Marijuana Recreational Medical Essentially none *As of March 27, 2017

45 Medical and Recreational Marijuana 29 states, D.C., Guam and Puerto Rico Marijuana is still unlawful under federal law But now decisions in favor of employee AZ, CT, DE, IL, ME, NV, NY, MN and RI Connecticut: job candidate offer rescinded -positive for medical marijuana; used to treat PTSD. Evidence would not be under the influence during work hours. Employer nursing home, cited federal laws, including ADA (which excludes illegal drug use from protections). The court said none of the laws make it illegal to employ a marijuana user. Noffsinger v. SSC Niantic Operating Company, LLC (D. Conn. 8-17). August, 2017

46 Medical and Recreational Marijuana Massachusetts: Marketing rep fired after one day on the job; positive drug test. Employee warned employer used medical marijuana for gastrointestinal disorder. Barbuto v. Advantage Sales & Marketing, LLC (Mass. 7-17). Court: May need to accommodate by modifying drug policies. July, 2017 Plan while you can; pay attention to this trend

47 Student Loan Repayment Result of huge student loan debt, especially among millennials Employers are offering student loan repayments as part of Total Rewards package Student Loan Repayment Act (House Bill 615) offers tax credits to companies that offer student loan repayments

48 Alternative Dispute Resolution Class Action Waivers Arbitration agreements Class action waivers Does waiver violate the National Labor Relations Act? Supreme Court Argument will be heard the first day the Court hears arguments in October 3 cases consolidated Result? Extreme - If Court decides class claims waivers are valid, may mean end to class action claims related to employment

49 It s Time To.. Audit I-9 (new form is required September 18th) Audit E-Verify, if applicable Get IT, Payroll, Finance & Legal set up for EEO- 1 forms Review wage and hour Consider doing it under privilege Review policies, handbook, etc. Consider alternative dispute resolution

50 Questions? Elaine V. Brzezinski, Esq linkedin.com/in/ebrzezinski

51 Legal Disclaimer This document is not intended to give legal advice. It is comprised of general information. Employers and/or individuals facing specific issues should seek the assistance of an attorney.