Anticipated Labor and Employment Changes Under the · PDF fileEmployment Changes Under the...

© 2017 Epstein Becker & Green, P.C. | All Rights Reserved. ebglaw.com

Anticipated Labor and Employment Changes Under

the Trump Administration

Presented by:Julie Badel, Peter A. Steinmeyer and Mark M. Trapp

Epstein Becker & Green, P.C.Association of Corporate Counsel Chicago Chapter

April 19-20, 2017

Firm: 43255251v2

© 2017 Epstein Becker & Green, P.C. | All Rights Reserved. | ebglaw.com

Presented by

2

Julie BadelMember of the Firm

[email protected]

312-499-1418

Peter A. Steinmeyer

Board of Directors, Member of the Firm

[email protected]

312-499-1417

Mark M. Trapp

Member of the Firm

[email protected]

312-499-1425


The EEOC Under the Trump Administration


Structure and Function of the EEOC

The EEOC is composed of five presidentially appointed commissioners who serve five-year terms:

• Chair - current Acting Chair is Victoria Lipnic (R)

• Vice Chair (vacant)

• Three additional commissioners

o Chai R. Feldblum (D), Jenny R. Yang (D), and Charlotte A. Burrows (D)

o Yang’s term ends on July 1, 2017, paving way for a Republican majority by the second half of 2017

Additionally, the EEOC has a General Counsel, who is also appointed by the President and serves a four-year term (position currently vacant)

EEOC functions include:

• Developing and implementing a strategic enforcement plan

• Voting on whether to pursue lawsuits

• Developing enforcement guidance and other tools for compliance


Targeting compensation systems and practices that discriminate based on sex

• President Trump has asserted some willingness to address “women’s issues,” including equal pay, paid family leave, child care tax credits, and empowering female entrepreneurs

o Women’s issues were on the agenda at the President’s recent Strategic and Policy

forum—a meeting with select CEOs of prominent global companies

o During Canadian Prime Minister Justin Trudeau’s recent visit to Washington, Trump and

Trudeau announced the creation of the Canada-United States Council for Advancement

of Women Entrepreneurs and Business Leaders

Targeting compensation systems and practices that discriminate based on other protected classes

• Discrimination based on age likely to remain a priority• Uncertain whether this will remain a priority concerning other protected classes

Strategic Enforcement Plan for 2017-2021Ensuring Equal Pay


Inflexible leave polices

• Will likely remain a priority

Accommodating pregnancy-related limitations under the ADA and PDA

• Unclear whether will remain a priority under Trump’s focus on women’s issues

Protecting LGBT individuals from discrimination

• Uncertain whether this will remain a priority for 2017-2021

• Commissioner Feldblum has stated that this will likely not be a developing policy in 2021 as

this will ultimately be settled by the courts

Clarifying employment relationship and protections of temporary workers, staffing agencies, independent contractors, etc.

• Will likely remain a priority

Addressing discriminatory practices against Muslims, Sikhs, or persons of Middle Eastern or South Asian descent

• May not remain a priority

Strategic Enforcement Plan for 2017-2021Emerging and Developing Issues


Channeling of individuals into specific jobs due to their status in a particular group

Restrictive application process (including online systems that are inaccessible to individuals with disabilities)

Screening tools that disproportionately impact workers based on protected status (criminal background checks, date of birth inquiries, medical questionnaires)

Lack of diversity in certain industries (e.g. technology)

• Uncertain whether any of these items will remain a priority

Strategic Enforcement Plan for 2017-2021Eliminating Barriers in Recruitment and Hiring—Systemic Issues


Protecting “vulnerable” workers including immigrant workers, who may often be unaware of their rights or reluctant to exercise them

Preventing systemic harassment that arises due to policies, practices, or patterns of harassment

Preserving access to the legal system by focusing on:

(1) overly broad waivers that limit substantive rights

o Confidentiality provisions

o Non-disparagement provisions

o Covenant not to sue provisions

(2) retaliatory practices that dissuade others from exercising their workplace rights

Strategic Enforcement Plan for 2017-2021Additional Priorities That May Change


Pay Data Requirements – EEO-1 Data

The revised EEO-1 form would require employers to provide data on employee’s compensation and hours worked broken down by ethnicity, race, sex, and job category

This new EEO-1 form is a top target for reversal under the Trump Administration

• Acting Chair Lipnic voted against the new EEO-1 form

Opponents argue that:

• The data cannot reliably predict whether pay differences arise from unlawful biases

• The costs of collecting such data is overly burdensome


The proposed guidance recommends training employees on “workplace civility”; however, this is at odds with the NLRB’s position favoring “free speech” in the workplace

The proposed guidance states that the EEOC “disagrees with courts that have analyzed ‘unwelcomeness’ as an element” of a plaintiff’s preliminary sexual harassment showing

Acting Chair Lipnic co-authored this guidance, so it is uncertain which parts of the guidance may be modified

Proposed Enforcement Guidance on HarassmentReleased January 10, 2017


EEOC Tactics May Change

The promotion of job growth and employment opportunities is a stated priority

The EEOC may move away from pursuing national systemic cases and focus on regional cases/issues

The EEOC may focus on mediation in an effort to preserve resources to move through its backlog of cases

The EEOC may also move away from its aggressive approach in the conciliation stage where it has been criticized for demanding unreasonable sums and not negotiating in good faith

The EEOC may also move away from delegating significant power to its regional offices and its General Counsel


Significant decision expanding “sex discrimination” under Title VII to include discrimination on the basis of sexual orientation

Federal courts have routinely rejected the claim that sexual orientation is a protected class pursuant to Title VII, even recently.

• Jameka Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. March 10, 2017).

• Christiansen v. Omnicrom Group, Inc., (2d Cir. March 27, 2017) (declining to overrule prior

panels, but allowing “gender stereotyping” claim)

Seventh Circuit not the first court to hold that Title VII protects sexual orientation, but first Court of Appeals to take this step

• A limited number of federal trial courts, and the EEOC in Baldwin v. Foxx, EEOC Appeal No.

0120133080, 2015 WL 4397641 (July 15, 2015) had previously done so.

Due to the split in authority between the federal appellate courts, the issue is likely to be resolved by the Supreme Court.

Recent Seventh Circuit Title VII DecisionApril 4, 2017


The DOL Under the Trump Administration


Andrew Puzder – withdrew his name from consideration amid controversy

Alexander Acosta – experience in labor relations, business, and education –views not as well known as Puzder’s

Likely management friendly

Impact of proposed budget cuts

Secretary of Labor


May 18, 2016 – DOL published amendments to its white collar exemption regulations which would have more than doubled the current $455 minimum salary to $913 per week (“Final Rule”)

Employers spent much of Summer and Fall preparing for the Final Rule

On November 22, 2016, the Court in the Eastern District of Texas issued a nationwide preliminary injunction blocking the DOL from implementing the Final Rule

On December 1, 2016, the DOL filed a notice of appeal to the U.S. Court of Appeals for the Fifth Circuit

On February 22, the DOL sought a second extension to file its reply brief until May 1

DOL may drop the appeal

FLSA/Overtime Issues


Need to be mindful of current or impending state law requirements

New York and California have higher salary requirements than minimum salary thresholds

Increase state enforcement

FLSA/Overtime Issues


On July 15, 2015, the Administrator of the Wage Hour Division of the U.S. DOL issued an interpretation detailing how workers are to be classified between employees and independent contractors for purposes of coverage under the FLSA

• Presumption that most workers are employees

Contractor/Joint Employment Issues


Similar to the Administrative Interpretation on misclassification, on January 20, 2016, the Administrator of the Wage Hour Division of the U.S. DOL issued an interpretation explaining scope of joint employment liability

No current expectation that DOL will actively pursue these initiatives through investigative efforts or enforcement

Employer should still make this a compliance priority

• Plaintiff’s Bar

• State and local enforcement

Contractor/Joint Employment Issues


DOL Enforces FMLA

• During his first address to Congress, the President called for paid family leave for new parents

• Chance of congressional approval?

Meanwhile, on a statewide level, New York and California have also been at the forefront of the movement for generous paid family leave requirements

Paid Family Leave


To date – less visible about enforcement actions

Several of OSHA’s recent regulations are likely to be curtailed

Likely to see the DOL back away from policy of allowing broad access to unions to participate in OSHA walk through inspections

OSHA Update


The NLRB In the Trump Administration


Structure and Functions of the NLRB

The Board

• The NLRB is composed of five Board Members appointed by the President and confirmed by the Senate for five-year terms

o Acting Chair Phillip A. Miscimarra (R)

– Term expires December 13, 2017 – named Acting Chair on January 23, 2017

o Mark Gaston Pearce (D)

– Term expires August 27, 2018

o Lauren McFerran (D)

– Term expires December 16, 2019

o Two vacancies

• By tradition, three Members from the President’s party, two from the other

o President Trump has not yet nominated candidates for vacancies

o Panel of three Members can decide cases

22

Board Members and Vacancies



The Board’s Functions – A Quasi-Judicial Body

• Conducts elections

• Investigates ULPs and facilitates settlements

• Reviews decisions of Administrative Law Judges in ULP cases

• Enforces orders

• Determines and carries out litigation and enforcement strategy

The Board will only decide cases and address issues in cases that come before it

• Limited ability to set its own agenda/take up issues

• Limited rulemaking under Administrative Procedures Act

• Historically a “pendulum affect” when party in power changes.

Board Functions



The General Counsel of the NLRB – Richard F. Griffin, Jr.

• Four-year term ends November 4, 2017

• Former General Counsel of International Union of Operating Engineers (IUOE)

• Served on the Board of Directors for the AFL-CIO Lawyers Coordinating Committee

Role of the General Counsel

• Responsible for the investigation and prosecution of unfair labor practice cases and for the

general supervision of the NLRB field offices in the processing of cases

• Independent from the Board

• Decides what theories and arguments to present to the Board to consider for new

interpretations and to request reversal of existing interpretations of the Act

Next General Counsel

• Will be nominated by President, subject to Senate confirmation

o See NLRB v. SW General, Inc., 85 U.S.L.W. 4097 (March 21, 2017).

• Likely to have a different background and priorities

Board General Counsel


What will a “Trump NLRB” mean for employers?

Setting the baseline

• The majority of Board decisions are unanimous with Democratic and Republican appointees agreeing on outcome

oThe Board can only decide issues the General Counsel brings before it in cases

oMost “merit” charges settle before reaching the Board

oMost ULP cases do not involve “hot issues” – most are based on facts and established principles

• Once a full Board is in place, look for it to reconsider and move away from some of the Obama Board’s decisions

oThe Obama Board emphasized Act’s protection in non-union settings

• Representation Elections are held more quickly since the 2015 Amended Election Rules took effect – Union win rate up in 2016

o 2016 win rate was highest in recent history (72%)



Protected Concerted Activity

• The Obama Board emphasized a broad reading of protected, concerted activity, and the rights of unrepresented/non-union workers under the Act

oWork rules, disparagement, recording and photography, and social media rights

oBroadened view of “protected activity”

• Fresh & Easy Neighborhood Market, Inc. (2014)

oProtection of employment laws (Miscimarra and Johnson dissent)

• Sabo, Inc. (2015)

o Issues of common concern (Miscimarra dissents)

• Omni Commercial Lighting, Inc. (2016)

oExtension of earlier concerted activity (Miscimarra dissents)



Handbooks, Work Rules, and Policies

• In Lutheran Heritage Village, 343 NLRB 646 (2004), adopted a new standard for determining whether “facially neutral” policies, handbooks, and rules would be found to be unlawful

oUnder that test, a rule is only unlawful if:

(1) employees would reasonably construe the language to prohibit Section 7 activity;

(2) the rule was promulgated in response to union activity; or

(3) the rule has been applied to restrict the exercise of Section 7 rights.



Handbooks, Work Rules, and Policies

• William Beaumont Hospital, 363 NLRB No. 162 (2016) – Now Acting Chair Miscimarra dissent calls for a different standard for evaluating facially neutral policies – proposed balancing test:

o Potential adverse impact of the rule on NLRA protected activity

o Legitimate justifications the employer may have for maintaining the rule

• In Verizon Wireless Inc., 365 NLRB No. 38 (February 24, 2017) Acting Chair Miscimarra reiterated his objection to the Lutheran Heritage Village test as one that “defies common sense” and calling for it to be replaced with the balancing standard articulated in his Beaumont Hospital dissent



Employee access to and use of employer email systems for union activity and other protected concerted activity• In Purple Communications, Inc., 361 NLRB No. 136 (2014), the Obama Board

expanded employee rights – “we decide today that employee use of email for

statutorily protected communications on nonworking time must presumptively be

permitted by employers who have chosen to give employees access to their email

systems” for union related communications and other protected activity

• In Verizon Wireless Inc., Miscimarra also took direct aim at Purple Communication,

calling its standard “incorrect and unworkable” – argued for return to the former

standard in Register Guard, would “once again recognize the right of employers to

control the uses of their own property, including their email systems, provided

they do not discriminate against NLRA-protected communications by

distinguishing between permitted and prohibited uses along Section 7 lines.”



The Board’s Standards for Determining Joint Employer Status• In 2015, in Browning Ferris Industries, the Board adopted a much looser

test for determining whether two employers are joint employersoNo longer required showing of exercise of control over terms and conditions of

employment of the co-employer’s employees – right to do so sufficient

oExpect the Trump Board to reexamine and return to traditional standards

oMiller & Anderson – opened door to elections in units including both primary and secondary employees without employer agreement

oAppealed, argued before DC Circuit recently

One Day Strikes and Striker Replacement Cases – Obama Board has moved to curb employers’ rights – expect a Trump Board to move back



The Trump Board can be expected to revisit decisions over who is an employee

• Columbia University – Board found in 2016 that graduate teaching and research assistants were employees with rights under the Act, with the right to bargain collectively

• Northwestern University – Board found that scholarship football student-athletes are employees under the Act (declined to conduct election on other policy grounds)

• Pac 9 – Board held it is a ULP for an employer to misclassify an employee as an independent contractor



The Trump Board will likely reject the Obama Board’s position on class action waivers and mandatory arbitration of claims/disputes in non-union workplaces

• The Obama Board’s Murphy Oil decision held that arbitration agreements that include class action waivers violate Section 8(a)(1) of the Act – Board view is that they interfere with/prohibit forms of protected, concerted activity

• Federal Circuit Courts of Appeals are split on this issue – opponents argue that Federal Arbitration Act permits employers to require individual arbitration

• U.S. Supreme Court has granted certiorari – case is expected to be heard in October 2017 term, Gorsuch will be on case

• Board’s General Counsel Griffin is continuing to issue complaints

• A Trump Board will probably not agree with Murphy Oil


2015 Amended Election Rules

• Shortened time frames

• Eliminated procedural and other safeguards in interest of “speed”

• Specialty Healthcare – so-called “micro-unit” case, placed much greater weight on union preferences and allowed small bargaining/election groups that historically would have been found inappropriate

Expect a Trump Board to revisit these issues

New Amendments to the Election Rules are possible but would take time

Congress may act

• RESPECT Act would address supervisory status

• Congress may amend the Act to “overrule” Specialty Healthcare

What will a “Trump NLRB” mean for employers?Representation Elections


Questions?


Presented by

35

Julie BadelMember of the Firm

[email protected]

312-499-1418

Peter A. Steinmeyer

Board of Directors, Member of the Firm

[email protected]

312-499-1417

Mark M. Trapp

Member of the Firm

[email protected]

312-499-1425

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