NHRMA 2020 Conference - The Ever Changing Legal ...... President and Employer- 60+ lawsuits alleging failing to pay for their work - $104,000 fine from OSHA - June 2018 Personal driver

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The Ever Changing Legal Landscape for EmployersSeptember 7, 2018

Naomi D. Johnson, Bullard LawLiani J. Reeves, Bullard Law

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➢Who’s in Charge?

➢What’s Happening (Or Not)?

➢What’s Next?

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President and Employer

- 60+ lawsuits alleging failing to pay for their work

- $104,000 fine from OSHA

- June 2018 Personal driver for 25 years sues for unpaid overtime

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➢ Less Regulation for Businesses - Jan 2017 EO: “Two-For-One”

➢ Sympathetic Towards Employers - May 2018 EO: Streamlined Firing and Discipline of Federal Employees

➢Hostile Towards Unions- May 2018 EO: Renegotiated Union Contracts to Reduce Waste- May 2018 EO: Redefined “Taxpayer-Funded Union Time”

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➢Social Directives through EOs

• March 2018 EO: Transgender Military Ban

• April 2018 EO: Welfare Recipient Work Requirements

• April 2018 EO: Buy American and Hire American

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➢Department of Labor (DOL)➢Department of Justice (DOJ)➢Equal Employment Opportunity Commission (EEOC)➢National Labor Relations Board (NLRB)➢U.S. Immigration and Customs Enforcement (ICE)➢United States Supreme Court (SCOTUS)

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Mission“To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.”

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Jeff Sessions (R)

Sworn in on February 9, 2017

– Former U.S. Senator for Alabama

– “Growing up in the country, Sessions was instilled with certain core values – honesty, hard work, belief in God and parental respect – that define him today.”

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Employment Litigation SectionMission

➢Prosecute enforcement actions against state and local government employers under Title VII and USERRA

➢Initiate investigations and prosecute enforcement actions against state and local government employers where it has reason to believe that a “pattern or practice” of employment discrimination exists

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➢Agency Guidance Documents

➢LGBTQ Rights Under Title VII

➢“No-Poach” Agreements

➢ Joint Employer and Independent Contractors

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The “Brand” Memo: DOJ can no longer “use noncompliance with guidance documents as basis for proving violations of applicable law” in civil lawsuits alleging violations of federal law.

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Title VII: “It shall be an unlawful employment practice for an employer… to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of…sex[.]”

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1/25/2017: 8/24/2018:

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1/25/2017: 8/24/2018:

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➢ “No-Poaching” Agreements: two or more employers agree not to solicit each other’s employees

➢ “No-Hire” or “No-Switching” Agreements: prohibit the hiring of a worker even if not solicited

➢ Possible Antitrust Violations

- Criminal and civil violations

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➢More “business-friendly”

➢LGBTQ rights in flux

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Mission➢Enforcement of anti-discrimination and

harassment laws

➢Issues interpretations of those laws

➢Enforcement actions against employers

➢Regional offices with investigative authority

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Democrat Appointed

Republican Appointed

Nominated but not Confirmed:

CommissionersJanet Dhillon (Chair)(R) and

Daniel Gade (R)

General Counsel (R)Sharon Fast Gustafson

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Democrat Appointed

Republican Appointed

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➢Litigation in Target Industries

➢EEO-1 Pay Data

➢LGBTQ Rights Under Title VII

➢EEOC Strategic Enforcement Plan

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➢Retail Trade (15)➢Accommodation and Food Services (14)➢Health Care and Social Assistance (13)➢Manufacturing (10)➢Administrative and Support and Waste

Management and Remediation Services (7)

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• Covered Employers:

– Private employers with 100 or more employees

– Federal Contractors with 50 or more employees

• Wage info for 2017 to be submitted March 2018

• Preparation

– Self audits

– Review policies

– Review systems and data collection

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Title VII: “It shall be an unlawful employment practice for an employer… to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of…sex[.]”

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“Sexual orientation discrimination is, by definition, discrimination ‘because of … sex,’ in violation of Title VII.”

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect.”

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➢ Eliminating Barriers in Recruitment and Hiring

➢ Protecting Vulnerable Workers

➢Addressing Emerging Issues

➢ Ensuring Equal Pay

➢ Preserving Access to the Legal System

➢ Preventing Systemic Harassment

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➢More “business-friendly”

➢Shift from “expanding” law to “enforcing” law

➢Gender pay gap

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Mission

➢Promotes welfare of job seekers, wage earners and retirees

➢Administration and enforcement of roughly 180 federal labor laws, including those that guarantee:

• Safe and healthy work conditions (OSHA)

• Minimum wage and overtime (FLSA)

• Family and medical leave (FMLA)

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R. Alexander Acosta (R) Sworn in on April 28, 2017

– DC insider

– Previously served on the NLRB and as AAG for DOJ’s Civil Rights Division

– Stickler for procedure

– Will follow Trump Agenda

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➢Persuader Rule

➢FLSA Overtime Rule

➢Tip Pooling

➢Are You My “Employee”?

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March 2016: DOL Adopted “Persuader Rule”

– If engaged in any activity that indirectly persuaded,had to file report with DOL

– Effective 7/1/16

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- DOL rules increased the minimum salary level for Fair Labor Standards Act (FLSA) “white collar” overtime exemptions

- Effective 12/1/16

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July 2017: DOL public request for information to seek alternatives to the 2016 overtime rule

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April 2018:

– Allows businesses to collect tips earned by their employees and either redistribute them to non-tipped workers or keep them as part of their own profits

– Applies to those who earn at least the federal minimum wage

– To help reduce wage disparities between “back-of-house” workers and tipped workers

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➢ June 2017: DOL withdraws Joint Employer and Independent Contractor Administration’s Interpretations (AIs)

➢ “Direct and Immediate” Control Standard

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➢Taking actions that are favorable to employers

➢Less expansive definition of “employee”

➢Proposed merger DOL and DOE

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Mission

➢ Independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative

➢Acts to prevent and remedy unfair labor practices committed by private sector employers and unions

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➢The National Labor Relations Act (NLRA) applies to most private sector employers

➢Prohibits an employer from interfering with employees’ rights to engage in “concerted activity”

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Democrat Appointed

Republican Appointed

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Democrat Appointed

Republican Appointed

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➢ Past General Counsel – Richard F. Griffin, Jr. (D)

➢ New General Counsel – Peter Robb (R)– Confirmed November 8, 2017 for a 4-year term

(to November 2021)– Responsible for the investigation and prosecution of unfair

labor practice cases– Has already indicated his intent to upend Obama-era

precedent

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➢Employee Handbook Policies – Boeing (2017)

➢General Counsel June 2018 Memo

- Generally lawful

- Requires individualized scrutiny

- Generally unlawful

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Joint Employer – Browning Ferris alive again:

“Two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.”

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Expansion of Weingarten Rights – Circus CircusCasinos (2018):

Weingarten rights may arise even when an employee does not explicitly request union representation.

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➢Full board with a pro-business majority

➢Undoing of Obama’s pro-worker reforms

➢A new Board will also impact the General Counsel’s advocacy/advisory opinions

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Mission

➢Immigration Enforcement

➢Investigating Illegal Movement of People and Goods

➢Preventing Terrorism

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Ronald D. Vitiello,

- Acting Director since April 2017

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➢Enforcing Trump’s Aggressive Immigration Agenda

➢I-9 Inspections on the Rise (“Sanctuary” States, Cities, Counties Beware)

➢ICE Raids

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➢ Increased worksite investigations by “four to five times”

➢ Employer liability for Form I-9 violations can range from $220 to $2,191 per Form I-9 with violations

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➢Implement a strategy to navigate ICE worksite investigations and mitigate related fines and penalties:

–Prevention through knowledge and compliance

–Control through an action plan

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Republican Appointed

Chief Justice John G. Roberts (63)

Anthony M. Kennedy (Retiring) (82)

Clarence Thomas (70)

Samuel A. Alito (68)

Neil M. Gorsuch (50)

Democrat Appointed

Ruth Bader Ginsberg (85)

Stephen G. Breyer (80)

Sonia Sotomayor (64)

Elena Kagan (58)

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➢Epic Systems (2018): arbitration agreements with class and collective action waivers are enforceable

➢Janus v. AFSCME (2018): public sector fair share fees from workers who choose not to join the union are unconstitutional

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➢End of the Kennedy swing vote

➢If Kavanaugh confirmed, will signify a reliable conservative majority on the Court since the New Deal began

➢Major blows to U.S. labor movement expected to continue

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Naomi D. Johnsonnjohnson@bullardlaw.com

Liani J. Reeves lreeves@bullardlaw.com