Employment Law Forecast: 2017 and Beyond. Alexis C. Knapp SPHR, SHRM-SCP, MS-HRM, JD Shareholder, Littler Mendelson

Transcription

1 Employment Law Forecast: 2017 and Beyond Alexis C. Knapp SPHR, SHRM-SCP, MS-HRM, JD Shareholder, Littler Mendelson

2 About G&A Partners

3 Agenda Uncertainty and Reality What to Do About The Hype Traditional Labor Law (in Union and Non-Union Settings) Social Media Issues What the DOL is Up To What the EEOC is Up To Medical Issues in the Workplace The Fate of the ACA Alexis C. Knapp SPHR, SHRM-SCP, MS-HRM, JD Shareholder, Littler Mendelson

4 Uncertainty Abounds Budget cuts Revised (eliminated) regulations (the 2:1 Executive Order) Enforcement of existing regulations Existing decisions and interpretations

5 The Reality Don t get caught up in the hype the regulations which so significantly impact your dealings with your employees are likely here to stay, in some form Decrease in aggressiveness and volume perhaps, BUT the Plaintiffs bar is still out there Change in the major substance of long-standing laws and regulations unlikely Reporting requirements (EEO-1 rules) may change And there s still an app for that...

6 Paying Attention to Labor Law In the Union and Even Non-Union Workplace

7 National Labor Relations Board (NLRB) No shortage of traditional labor issues for trump s National Labor Relations Board (NLRB) to tackle Micro bargaining unit rules Expansion of definition of employee in the context of joint employer, temporary worker, independent contractor, and supervisory status cases Quickie Election Rules Assault on employer property rights, including e- communication systems

8 But My Business is Non-Union... So, why should I care about the NLRB?

9 Section 7 of the NLRA Employees shall have the right to selforganization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.

10 So What Does that Even Mean? Protected activity includes employee rights to: Discuss wage rates, bonuses, and benefits with one another Openly discuss thoughts on discipline Complain about unsafe working conditions/refuse to work in unsafe conditions Complain about mismanagement by a supervisor or manager Complain about a policy or practice or decision they do not like Criticize management s actions Enlist outside support

11 Employer Handbooks/Policies Under Attack Social media Confidentiality (including pay secrecy) Employee (mis)conduct Contact with outsiders At-will employment disclaimers that cannot be modified Complaint/dispute resolution policies Photos/recordings Loitering/visitors/solicitation/bulletin boards Confidentiality of investigations? Purple Communications whose system is it anyway?

12 So What Should You Look For? Do your policies (or practices) restrict employees ability to discuss or complain about working conditions, wages, benefits, favoritism, or management actions, or prevent enlistment of outside help?

13 Social Media Meets the NLRA What employers can and cannot do

14 Developments in Wage and Hour Law

15 The DOL s Budget The White House budget proposal (announced 3/16/17) cuts the DOL s 2018 budget by $2.5 billion (21%) Aimed at job training programs the administration does not think are effective or efficient Will boost funding for programs to minimize fraudulent use of unemployment Reduces OSHA training grants Cuts, if passed, will likely reduce the number of audits and enforcement actions

16 DOL Cancels Obama-Era Guidance Last year, we wondered if they ve survive... On June 7, 2017, the DOL withdrew two guidance memos on independent contractor classification and joint employment issues What it means (and doesn t mean) Will there be more? Will more activist states take over? And some priorities are still intact...

17 Continuing DOL Priorities Off-the-clock work Employees have to record all of their working time In your organization, who decides what is working time? Supervisors cause all sorts of trouble Adjusting time cards I ll make it up to you later Don t clock in/out other than as scheduled Auto-deduct for meal periods Not illegal but leads to class actions Make sure employees understand your timekeeping system and recordkeeping the midnight example

18 Continuing DOL Priorities Regular rate calculation It s not just time and a half DOL still focused on whether you have done it right Include all non-discretionary wages (and don t get too excited about the word discretionary ) Common mistakes include bonuses, incentives, shift premiums, etc. If you pay ANYTHING extra at all to your nonexempt employees, vet that process with G&A Partners and/or your counsel

19 Continuing DOL Priorities Minimum wage Easy one to get right at the federal level Don t forget the state and local minimums Many of these issues are for not complying with a state/local requirement Also comes up in tandem with off-the-clock claims

20 Continuing DOL Priorities Overtime exemptions Salaried exempt The default position is non-exempt Allegedly exempt managers, assistant managers, working supervisors, all will be scrutinized Salaried non-exempt Is your plan compliant? And what happened to that big change from last year???

21 The Rule We Scrambled to Comply With The Overtime Rule that was supposed to take effect 12/1/2016 Minimum salary was $455/week or $23,660/year Increase to $913/week or $47,476/year Everyone frantically gathered data, made tough decisions and communicated them BUT THEN... Rule enjoined 11/22/2016 Found Rule likely unenforceable because exemption to be based on duties, not minimum salary DOL appealed 12/1/2016 NOW WHAT? Unclear what the Trump administration will do Briefing still going on

22 So What Did Your Organization Do? What did you do on 12/1/16? Continue with re-classification plans Many took this approach because the plans had been made and announced Wait and see Potential state law notice risks if you had told people pay would change and it did not Employee morale issues Did all of this press make employee claims of misclassification more likely?

23 Other Exempt (Salary) Reminders Salary basis test Deductions very difficult to do BEWARE! (29 CFR ) In question at the federal level right now, BUT don t forget the state and local rules States and localities imposing minimum salary requirements Ex. AK, CA, CO, ME, NYC and OR are above the federal requirements (NY will be as of 2020)

24 EEOC Update

25 EEOC Priorities The EEOC commissioners are saying that the Agency will continue to follow its most recent strategic enforcement plan (SEP ) Elimination of barriers in recruitment and hiring Protecting vulnerable workers (immigrants, migrant workers, underserved communities) Preventing systemic harassment Preserving access through efforts to fight retaliation Ensuring equal pay

26 EEOC Priorities Emerging issues LGBT protections (Title VII) Inflexible leave policies (ADA) Accommodation of pregnancy-related limitations (PDA, ADA?) National origin/religious discrimination against individuals who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent Still seeing an interest in criminal history issues Still looking at severance/release docs have you?

27 The Focus on Medical Issues in the Workplace FMLA, ADA, Pregnancy and More

28 FMLA: What s New New Poster (2016) Available at compliance/posters/fmla.htm New Employer s Guide (2016) Available at employerguide.htm New(ish) forms (2015) Available at rule/militaryForms.htm

29 More FMLA Increase in state and federal legislative activity to expand FMLA (nothing yet at the federal level, but that may change Trump s own announcement about paid family leave?) Recent push to add things to FMLA (e.g., recent Congressional proposal for paid parental bereavement, March 2017) Recent increase in DOL on-site investigations for FMLA violations (budgets?) Joint litigation involving employers and their TPAs More litigation period (there has been a TON this past year!) What happens when FMLA is over (or doesn t apply)? Leave as an accommodation...

30 Is This On Your Radar Yet? Leave as an Accommodation Under the ADA

31 ADA Leave When FMLA is exhausted (or doesn t apply), leave (or more leave) from work may still be required as a reasonable accommodation under the ADA, regardless of what your policies say or what your historical practices have been.

32 The EEOC s View* The EEOC s Enforcement Guidance on Reasonable Accommodation/Undue Hardship Under the ADA, available at: #leave (Questions 16-23) The EEOC s Recent Resource Document, Employer- Provided Leave and the ADA, issued May 9, 2016, available at *Note: The courts like us a little better than the EEOC does on this issue but tread carefully!

33 Pregnancy Anecdotally, we are seeing lots of activity ADA, PDA and state law protections What the EEOC has to say: ancy_guidance.cfm (June 25, 2015) The Supreme Court s involvement in Young v. UPS and the continuing microscope on light duty for workers comp only What does this mean for you?

34 Attendance-Based Discipline & Terminations Yes, we are going to talk about this. Again. 2011: A record-breaking $20M EEOC settlement involving a major cellular provider for rigid application of an attendance points policy (largest ADA settlement in EEOC history) Started a trend of EEOC enforcement in this arena that continues today In November 2015, a major food service company settled with the EEOC for $1.7M for the same issue Dozens of class action lawsuits against employers for rigid application of neutral absence control policies What this means for employers

35 Caution: You May Be Asking Too Much One more repeat topic. Too important to ignore. What medical information you are actually entitled to (might surprise you) The EEOC s position a glance into the Agency s perspective Informal Discussion Letter evaluating a sample ADA policy/forms (Feb 2014): accommodation_02_25.html Increasing enforcement regarding overbroad requests for employee medical information The courts are agreeing Punitive damages? Don t blame your third party administrator

36 FMLA & ADA: Lessons from the Case Law For employers, the technicalities matter For employees, they matter far less Inflexible policies are fatal for employers Engaging in the process is much of the battle even if the answer is no You better ask and keep asking (don t let it break down with you) Honest belief cases still good but don t get cocky

37 Paid Sick Leave (Chasing the Impossible?) Be aware of every jurisdiction in which you have employees (there are 40+ laws now) There is no such thing as a one-size-fits-all policy But do not throw in the towel just yet you may offer a sufficient benefit (if your policy explains it correctly)

38 The ACA ACA...or AHCA (American Healthcare Act)? The bane of your existence the Employer Mandate and determining full-time employee status Currently, every Republican proposal on the books proposes zero penalties for violation of the Employer Mandate (going after revenue side by eliminating penalty) If stricken, you can stop furiously counting hours if you say they are full-time, they will be full-time BUT FOR NOW Employer Mandate still on the books ACA reporting still required and probably won t go away Tax benefits for employers who offer coverage not going away in current proposals

39 Where To Go From Here Continue your compliance efforts working with G&A Partners or your counsel and being proactive Self-audit your wage and hour practices low hanging fruit for plaintiffs lawyers and the DOL Watch discipline and terminations for attendance, insubordination and other offenses that used to be no-brainers Pay attention to medical issues and RESPOND Keep your eyes and ears open there s more to come!

40 Questions? *You can type questions in the Go-to-Webinar menu bar as shown.

41 Questions? Q&A

42 #AskMDE If we didn t get to your question during today s presentation, tweet us (@GAPartners) using #AskMDE, and our experts will reply with an answer shortly! Or, you can your questions to info@gnapartners.com.

43 Reminders The recording of this webinar will be available on the G&A Partners website soon ( This webinar has been pre-certified for 1 hour of general recertification credit toward PHR, SPHR and GPHR recertification through the HR Certification Institute. We will send out an to all those who are confirmed as attended with the program ID code to note on your HRCI recertification application form. The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute's criteria to be pre-approved for recertification credit.

44 Upcoming Webinar Join our next Webinar! Diversity In The Workplace On July 27 we explore the benefits of embracing diversity in the workplace.