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Presented by Jackson Lewis P.C.
Christopher M. Valentino, Esq.Jackson Lewis P.C. | Long Island
[email protected] 631.247.4653
May 22, 2017
Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation
800 attorneys in 57 locations nationwide
Current caseload of over 6,500 litigations approximately 650 class actions
Founding member of L&E Global
A leader in educating employers about the laws of equal opportunity, Jackson Lewis understands the importance of having a workforce that reflects the various communities it serves
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THE MATERIALS CONTAINED IN THIS PRESENTATION WEREPREPARED BY THE LAW FIRM OF JACKSON LEWIS P.C. FOR THEPARTICIPANTS’ OWN REFERENCE IN CONNECTION WITHEDUCATION SEMINARS PRESENTED BY JACKSON LEWISP.C. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORETAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESEMATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OROTHER ADVICE.
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Legal and policy changes at the national level will undoubtedly alter the rules currently followed by employers
Development will happen at various levels:
o Judicial
o Legislative
o Executive (regulatory)
o State
There’s a lot to keep track of to ensure compliance!
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Background
Republican president; Republican majorities in both houses of Congress; and Supreme Court has a conservative majority
Potential reversal of Obama Administration’s employee‐friendly enforcement positions and rules
o President Trump does not believe in the over‐regulation of business
When will these changes occur?
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Background
President Trump has shown more populist tendencies than traditional Republican candidates.
Unexpected support for some worker‐friendly ideas, such as paid maternity leave, possible universal health care.
Some speculate he may support an increase in the federal minimum wage.
Support of organized labor?!?.
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What have we seen in the first 100 days under President Trump and what should we expect?
Nominations: Justice Gorsuch, Federal judges, Secretary of Labor, Chair of NLRB, EEOC Acting Commissioner
Repeal of Fair Pay and Safe Workplaces Executive Order
Delay by DOJ of appeal of overtime rule
President Trump issued memorandum to DOL regarding Fiduciary Rule
Executive Order on Dodd Frank
AHCA possibly will repeal Obamacare
Travel ban 2.0, Executive Order on enhanced screening procedures
Buy American Hire American Executive Order8
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The Courts
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Federal Courts
More than 100 vacancies in US Federal District Courts and Courts of Appeals
o Compare to President Obama’s 59 vacancies when he took office
While not all were Republican appointments significant impact, regardless
o Immigration, anti‐discrimination, transgender rights, etc.
o Few cases make it to the Supreme Court. Trump’s impact on federal courts cannot be understated.
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Supreme Court
Meet Neil Gorsucho Recently confirmed Supreme Court Justice
o Federal judge on US Court of Appeals for the 10th Circuit in Denver.
• Was appointed by President George W. Bush in 2006 and received unanimous confirmation.
o B.A. Columbia University (1988), J.D. Harvard Law School (1991), Doctorate of Legal Philosophy, Oxford University (2004)
o Clerked for D.C. Circuit and Supreme Court
o Practiced law with Kellogg, Huber, Hansen, Todd, Evans & Figel
o Served as Deputy Associate Attorney General at DOJ
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Gorsuch’s Position
Power of administrative agencies –
o Explicitly called for reconsideration of the doctrine of Chevron deference to administrative agencies, including those that regulate labor and employment such as the EEOC and NLRB.
• Under Chevron doctrine, federal courts must defer to executive branch’s interpretation of federal law.
o When given the opportunity, Gorsuch may vote to decrease agency deference.
Filing deadlines – Gorsuch applied discrimination charge filing deadlines strictly against plaintiffs
Has rejected whistleblower claims
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Gorsuch’s Position
Religious liberty
o Judge Gorsuch’s most notable benefits‐related opinion was a concurrence in which several employers successfully challenged the contraceptive mandate imposed by the Affordable Care Act on religious‐liberty grounds.
o Gorsuch likely to vote in favor of religious liberty
Limits on ADA
o Tenth Circuit determined that a leave of absence of more than six months was an unreasonable accommodation.
o Gorsuch: “It’s difficult to conceive how an employee’s absence for six months … could be consistent with discharging the essential functions of most any job in the national economy today.”
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What this Means for HR Professionals
The leanings/decisions of the courts will shape the employment law universe within your particular jurisdiction
Legal developments will happen in a piecemeal fashion if your company operates in several jurisdictions, the laws may differ
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What about Trump’s impact on government agencies?
Government Agencies – In General
Shift from aggressive enforcement compliance
Education v. penalties
Ongoing court challenges to some rules may be disposed of via settlements or withdrawals
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The Regulatory Freeze and Other Executive Actions
On January 20, 2017, White House sent out a government‐
wide memorandum cautioning administrative agencies to
delay recently‐published rules for at least 60 days.
o The memo also advised agencies to stop issuing new rules.
On January 23, 2017, the White House issued freeze on the
hiring of Federal civilian employees, which since has been
lifted.
One‐In‐Two‐Out Rule ‐‐ January 30, 2017 Executive Order.
o “[I]t is important that for every one new regulation issued,
at least two prior regulations be identified for elimination.”
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Department of Labor
Expected to be more business‐friendly
o Shift in focus to achieving compliance rather than aggressive enforcement
o Acting Solicitor of Labor, Nicholas Geale – “I think you’ll see in the new administration that we will do a lot more outreach and attempt to assist, particularly, small employers who may not have the ability to have excellent counsel.”
Expected to permit employers greater flexibility in using independent contractors, for example, and provide businesses with more certainty in expanding through use of franchises.
Anticipate more relaxed approach to joint employer analysis.
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Secretary of Labor
Meet R. Alexander Acosta
Newly confirmed
Background
o U.S. Attorney for the Southern District of Florida
o NLRB Board Member
o DOJ Civil Rights Division
o Labor and Employment Law at Kirkland & Ellis
o Dean of Florida International University College of Law
What to expect
o More middle‐of‐the‐road approach.
o During confirmation hearing, noted that Trump is his “boss” and that “we all work for the president and we all will ultimately follow his direction unless we feel like we can’t.”
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DOL: 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, with automatic increases thereafter.
The decision has been appealed to the Fifth Circuit Court of Appeals.
o Will not be heard until at least the summer
DOJ asked for another delay in filing its brief on behalf of the DOLregarding the overtime rule. Likely awaiting confirmation of Acosta.
Bills have been introduced to Congress to block, delay, or slow the salary level
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DOL: Fiduciary Rule
Fiduciary Rule addressed the expanded definition of who is considered a fiduciary under ERISA and the Internal Revenue Code
President Trump issued a Memorandum to the DOL directing an examination of the Fiduciary Rule to determine whether it may “adversely affect the ability of Americans to gain access to retirement information and financial advice”
Rule, which was set to take effect on April 10, 2017, was delayed 60 days, until June 9, 2017
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DOL: OFCCP
GAO recently issued a report critical of controversial OFCCP enforcement methods, including relying solely on statistical “red flags” without any anecdotal evidence to support claims of discrimination
Under Trump‐appointed DOL and OFCCP leadership, will likely return to enforcing traditional theories of discrimination, as opposed to advancing the law.
Change in leadership not likely immediate – currently “business as usual”
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DOL: OFCCP
Courtesy Scheduling Announcement Letters (CSALs)
o Provide contractors with advance notice of potential audits
o First wave dated February 17th with 800 notices sent out to 375 companies
Began sending out scheduling letters for audits on March 17 –keep a look out!
o Contractors only have 30 days to submit their affirmative action plan and supporting documents from the date of receipt of a scheduling letter
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National Labor Relations Board
The NLRB is a five‐member board
o Trump named current NLRB Board member, Philip A. Miscimarra, as Chair.
Under President Obama, the NLRB drastically changed existing policies and legal precedents for both unionized and non‐union employers.
There are two open seats on the Board right now, with a third scheduled to open next year.
These open seats will be filled by Trump appointees, resulting instantly in a more business‐oriented NLRB.
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Focus of NLRB
This new board with a Republican majority will likely revisit numerous recent NLRB rules and decisions, including those involving:
o Class action waivers (an issue on which the Supreme Court granted cert recently);
o Joint employers;
o Inclusion of temporary workers in bargaining units with an employer’s regular workers;
o Quickie election rule; and
o Protected concerted activity revisited
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The new Board also is not likely to make additional changes the current Board would make, such as:
o Extending Weingarten rights to non‐union workplaces, and
o Making misclassification of employees as independent contractors a separate violation of the National Labor Relations Act.
Reversing Board decisions:
o It will take time for cases to filter through the appeals process and be heard by the more conservative Trump board.
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Equal Employment Opportunity Commission
President Trump appointed Acting EEOC Commissioner, Victoria Lipnic, Republican
o Unlikely to support the initiatives of the previous administration
o Voted against July 2015 decision that sexual orientation is gender discrimination
o Voted against pregnancy discrimination guidance EEOC issued in July 2014
o Noted that emphasis of Trump Administration may be slightly altered to emphasize job growth and to collaborate with employers
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Lipnic’s Views
“I am committed to the mission of the agency . . . But it is a new day [under the Trump administration] and to the extent where we can help foster employment opportunities and economic growth, that is something we should be focused on.”
Revised EEO‐1 Report ‐ Revised EEO‐1 is an example of a regulation that “would fall squarely under” the Trump Administration’s new approach to rethink existing regulations.
“Individual cases matter . . . I’m not of the view that it should be all systemic all the time.”
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EEOC Appointments
Commission is now 3 Democrats and 1 Republican
o It will be several months before Republicans have majority
President Trump can nominate a new General Counsel, who requires a Senate hearing and approval
Might not feel like a different EEOC until 2018
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EEOC Under President Obama
Under President Obama, the EEOC utilized fairly aggressive local district office field staff to pursue large systemic cases.
It fully deployed the disparate impact and accommodation doctrines to challenge otherwise neutral business practices.
The EEOC’s litigation efforts focused in some areas on expanding the letter of the law (e.g., LGBT issues, criminal background checks) and EEOC process issues (conciliation, subpoenas).
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EEOC Strategic Enforcement Plan
In mid‐October 2016, EEOC issued its updated Strategic EnforcementPlan for 2017‐2021, which reiterates many of the agency’s priorcommitments and set forth several new priorities, including:
o Qualification standards and inflexible leave policies under theADA;
o Complex employment relationships and structures in the 21st
century workplace; and
o Backlash discrimination against those who are Muslim, Sikh, orpersons of Arab, Middle Easter, or South Asian descent.
Although SEP will technically last through the Trump administration,Lipnic may direct different methods of enforcement.
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EEOC: Agency Guidance
Recently‐issued EEOC guidance on retaliation, national origin discrimination, and pregnancy discrimination may be rescinded or curtailed.
Much of the guidance reflects existing case law, but in some areas, the EEOC has advocated for more expansive protections than most courts have been willing to endorse.
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EEOC Will Still Likely Pursue . . .
Age Discrimination
Religious Accommodation
Gender equity in pay and benefits
ADA Accommodation (especially if the employer did not engage in interactive process)
Large and small disparate treatment cases where statistical and anecdotal evidence support finding of discrimination
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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 employers and aggregate hours worked.
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 the new reporting.
o Senator Lamar Alexander, R‐Tenn. and Senator Pat Roberts, R‐Kan., penned a letter to the White House OMB against the EEO‐1 revisions: “These revisions will place significant paperwork, reporting burdens and new costs on American businesses, and will result in fewer jobs created and higher prices for American consumers.”
The new administration is likely to rescind the changes before first reporting is due in 2018, or may revise the reporting requirements to ease the burden on employers.
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What this Means for HR Professionals
We cannot yet predict the exact direction of the DOL, OFCCP, NLRB, or EEOC. The trickle down from the change in administration is only just starting to materialize at the department/agency level.
Conduct business as usual until we hear otherwise.
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What about some of President Trump’s other proposals, like health care and immigration?
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Health Care
One of President Trump’s first actions upon taking office was related to health care
Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal (Executive Order No.13765 ‐ Jan. 20, 2017)
Section 1. It is the policy of my Administration to seek the prompt repeal of the Patient Protection and Affordable Care Act (Public Law 111‐148), as amended (the "Act").
Tom Price, a congressman from Georgia, confirmed to serve as Secretary of Health and Human Services.
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ACA & Health Care
Yesterday, House passed American Health Care Act to repeal and replace the Affordable Care Act.
o Includes option for states to obtain limited waivers from certain federal standards (ex. Pre‐existing conditions) in the interests of lowering premium costs and expanding number of insureds.
o Now, on to the Senate!
Stay tuned!
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Immigration
Travel Ban 2.0 – Blocked by federal courts in Hawaii and Maryland
o Suspends processing of visa issuance for individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen
In conjunction with the E.O., President Trump signed a presidential memorandum on short‐term enhanced screening and vetting procedures.
H‐1B visas
o March 3, 2017 USCIS suspended premium processing of H‐1Bs beginning in April
o April 18, 2017 – President Trump signed Buy American Hire American E.O., which seeks to address H‐1B visas to ensure they are only awarded to the “most‐skilled or highest‐paid petition beneficiaries” and not solely according to lotto.
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Immigration: Ask These Questions
Employers should be asking:
o Do we have employees from one of the six countries who need to travel abroad and who will need to apply for a visa to return to the United States?
o Do we have employees of any nationality working on U.S. visas who work with technologies, particularly those that are subject to export licenses or could be used for military or security purposes?
o Do we have employees working abroad who wish to enter the U.S. as business visitors and who have traveled to the six countries listed in the E.O., plus Iraq or other countries of potential concern to the U.S. government?
o Are our employees traveling internationally with company‐issued laptops or handheld computers (PDAs) that may be subject to search by border authorities?
If the answer is “yes” to any of these, anticipate possible delays in visa processing or during inspection upon return the U.S.
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Other Potential Changes
Paid maternity leave
o Trump has suggested requiring employers to provide six weeks of full or partially‐paid maternity leave
o Tax deductions for child care and elder care
o An expanded Earned Income Tax Credit as a child care rebate
o A dependent care savings account to complement the existing dependent care flexible spending account
Repeal of Sarbanes‐Oxley Act and Dodd‐Frank Act?
Post‐Employment Restrictions
o Unlikely to continue White House initiatives to prohibit non‐compete agreements
o Antitrust Guidance for Human Resource Professionals – issued by the DOJ and the FTC is not likely to be a priority for the Trump administration. The guidance threatened criminal prosecution of HR professionals who entered into “naked” no‐poach agreements. 41
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OK, I get what’s going on federally. How are statesreacting?
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Response by States and Localities
Some states and localities may “step up” to increase worker protections if the Trump Administration is, or is perceived to be, insufficiently worker‐friendly.
Areas of possible state and local activity include:
o Minimum wage and overtime;
o Pay equity;
o Paid sick leave and other paid leaves;
o LBGT rights; and
o Criminal background checks and credit checks.
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Main Takeaways
Likely gradual shift in focus from aggressive enforcement compliance
However, many changes have not happened yet
o Continue business as usual
Stay informed of not only federal laws, but also local laws that may affect your company
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QUESTIONS?
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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.
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