Its Official, Donald Trump is Our Nations 45th President: What Does - - PowerPoint PPT Presentation

fisherphillips.com

It’s Official, Donald Trump is Our Nation’s 45th President: What Does This Mean for Employers?

Presented by: Pamela Williams

Phone: (713) 292-5622 pwilliams@fisherphillips.com

Mauro Ramirez

Phone: (713) 292-5606 mramirez@fisherphillips.com

fisherphillips.com

The Dismantling of the Affordable Care Act and What This Means for Employers and Employees

fisherphillips.com

Executive Order Regarding Affordable Care Act -- First Full Day in Office

• No specific relief for

employers mentioned in Order

• No immediate impact for

employers

• Some commentators suggest no

specific actions will be taken until 2018

fisherphillips.com

“Repeal and Replace” – Ideas Floated

• Trump has promised to repeal

the Cadillac Tax – has bipartisan support

• Trump has not yet offered a

comprehensive replacement plan, but the primary components appear to be:

1. Free Market Across State Lines

• 2. Tax Incentives and Credits
• 3. State Control of Medicaid
• 4. Elimination of individual and

employer mandates

fisherphillips.com

“Create a Dynamic Healthcare Market” – Ideas Floated

• Interstate sales of health insurance
• Modify existing laws inhibiting the sale of health

insurance across state lines

• Increase healthcare pricing transparency
• Help consumers and regulators compare plans

through disclosure of data (how often claims are denied, the availability and cost of in-network providers, etc.)

• Allow access to cheaper prescription drugs

abroad

• Impose Medicare pricing

fisherphillips.com

“State Decision-Making Power” – Ideas Floated

• Block-grant Medicaid funds
• Give states the freedom to spend the

money how each chooses

• Work with states to create and

expand high-risk pools for individuals who don’t/can’t maintain continuous coverage

fisherphillips.com

What will stay the same?

• Prior to assuming office,

Trump met with Obama to discuss healthcare reform

• Trump then announced

intentions to keep:

• the ban on insurers denying

coverage for pre-existing conditions

• the provisions allowing young

adults to remain on parents’ health plans

fisherphillips.com

What will be different?

• Short-term – Probably very little
• Long-term - employers may see cost

saving opportunities:

• No Employer Mandate
• No 30 hour coverage requirement
• No reporting for ALEs (Applicable Large

Employers, generally those with 50 or more employees)

• Possibly fewer coverage mandates for benefits

provided

• Caps on benefits reinstated
• Long-term - Possibly more challenges for

individuals with health conditions to find affordable coverage –

• No discussion of protecting fair

premium/community rating requirements,

• nly coverage for preexisting conditions

fisherphillips.com

What should you do?

• Continue compliance with ACA
• Changes will not happen quickly
• To get a repeal and replace through:
• Republicans must agree on a

replacement plan – many ideas

• Need 60 votes in the Senate (the

minimum number of votes needed to

• vercome a democratic filibuster)

fisherphillips.com

What the transition to a Trump Administration Could Mean for OSHA and Employers

fisherphillips.com

OSHA’S Top 10 Most Cited Violations Fiscal Year 2016

1. Fall protection, general requirements (1926.501) 2. Hazard Communication (1910.1200) 3. Scaffolding (1926.451) 4. Respiratory Protection (1910.134) 5. Lockout/Tagout (1910.147) 6. Powered Industrial Trucks (1910.178) 7. Ladders (1926.1053) 8. Machine Guarding (1910.212) 9. Electrical – wiring method (1910.305)

• 10. Electrical – general requirements (1910.303)

fisherphillips.com

Most Frequent General Duty Clause Citations

1. Forklift Hazards – 26.9%

• Lack of seatbelts
• Improper lifting of personnel

2. Crane Hazards – 21.7% 3. Dust Explosions -12.0% 4. Struck-by Vehicle -10% 5. Ladder Fall – 5.8% 6. PVC Piping Rupture -5.4% 7. Fire and Explosions -5.4% 8. Fall Hazards – 5% 9. Automobile Lifts and Jacks – 4.6% 10. Storage Rack Hazards – 3.6% Source: Tracy Cekada and Christopher Janicak – Indiana University of Pennsylvania 2016

fisherphillips.com

Transitioning to a Trump Administration Impact on OSHA - General

1. Less Regulations 2. More focus on Compliance Assistance 3. Little or no increase in OSHA budget 4. More business friendly Interpretive Letters 5. Expanded Partnerships and Alliances with Trade Associations and Businesses 6. Hiring freeze

fisherphillips.com

Transitioning to a Trump Administration Impact on OSHA - Specific

7. Non-Company Personnel Participation In OSHA Inspections 8. Restroom Access for Transgender Workers 9. Fair Pay and Safe Workplaces

fisherphillips.com

Ten Labor and Employment Tweets to Expect from President Trump

fisherphillips.com

"Having a low minimum wage is not a bad thing for this country.”

fisherphillips.com

Obama Administration



Advocated for $10.10 federal minimum wage



New Rules

• white collar exemptions (salary basis amount)
• State of Nevada, et al. v. United States DOL (E.D. Tx.)
• home health care workers (companionship/live-in domestic)
• Home Care Ass’n of America v. Weil (DC Cir.)



New Interpretations

• independent contractors (economic realities test)
• Administrator’s Interpretation No. 2015-1
• service advisors (automobile dealership)
• Encino Motor Cars v. Navarro (9th Cir.)
• mortgage loan officers (administrative)
• Perez v. Mortgage Bankers Association (US SCT)

fisherphillips.com

Trump Administration



Trump

• favors some minimum wage hike?
• favors some change in white collar exemption rules?



DOL’s posture toward employers is likely to change – eventually

• Chevron deference—legal principle of deference to agencies

when statutory language is unclear

• focus on compliance, not enforcement
• return of opinion letters

fisherphillips.com

Trump Administration



Lessons from former Secretary of Labor nominee -- Andrew Puzder (before he withdrew)

• opposed $15 per hour minimum wage
• opposed changes to white collar exemption rules



Can expect future nominees to take similar positions

fisherphillips.com

“I will end the use of the H-1B visa as a cheap labor program.”

fisherphillips.com

Obama Administration

• Supported Immigration Reform
• Sanctuary City — Deportation Detainers
• 2012 Deferred Action for Childhood Arrivals

(DACA)

• Deferred Action for Parents of Americans
• Expanded DACA
• Blocked by Federal Courts
• H-1B Visa Reform
• Cap exempt categories for tax-exempt organizations

fisherphillips.com

Trump Administration

• Executive Order
• Increase Enforcement — Build the Wall!
• E-Verify — Expand Use
• Employment Based Approach to Reduce Illegal

Workers

• H-1B
• Attorney General Jeff Sessions — Opposes

“threat” to U.S. professional employees

• Trump — Open to expanding H-1B for foreign

graduates of U.S. colleges

fisherphillips.com

“I love the right to work; it’s better for the people.”

fisherphillips.com

Obama Administration



Appointed pro-union NLRB



Expanded the coverage of protected concerted activity under Section 7 of the NLRA

• handbook policies – Wendy’s International
• email access – Purple Communications
• social media/Facebook firings – Pier Sixty
• class action waivers – D.R. Horton
• pickets/protest on employer property – Capital Med Ctr



Broadened the “test” for “joint employers”

• McDonald’s



Enacted “quickie election rules”

fisherphillips.com

Trump Administration



NLRB appointments

• Currently 2 Democrats,1 Republican, 2 vacancies
• Current G.C. 4-year term ends November 2017



Reverse Obama Board

• Rulemaking
• Decisions
• Positions on appeal



Promote right-to-work laws



Transparency on use of union dues



Death knell for the persuader rule



But what about his “blue collar” support?

fisherphillips.com

“Latinos love Trump, and I love them.”

fisherphillips.com

Obama Administration



EEOC

• Criminal Background Checks
• LGBT Discrimination:
• EEOC v. Boh Bros. Constr. Co. LLC - Same-sex harassment and failure to

conform to gender stereotype ($451,000)

• EEOC v. Lakeland Eye Clinic, P.A. - Transgender discrimination for

employee fired after presenting as woman ($150,000)

• Transgender Bathroom Access: Discrimination based on transgender

is sex discrimination

• Equal Pay Rules: Require Disclosing Pay Data by Race and Gender on

EEO-1 in 2018

fisherphillips.com

Trump Administration



EEOC

• Commission currently 3 Dems and 2 Reps
• Changing to 3 Reps and 2 Dems
• Criminal Background Checks: May cease litigations
• LGBT Discrimination:
• Victoria Lipnic, potential new Chair, dissented from EEOC

position in LGBT cases under Title VII.

• Lipnic favors more Commission review before litigation initiated
• Transgender Bathroom Access:
• “Use the Bathroom They Want”
• Federal government should not be involved
• Equal Pay Rules: May rescind or revise before 2018

fisherphillips.com

"I Will Appoint Supreme Court Judges Who Will Uphold the Constitution."

fisherphillips.com

Obama Administration



Justices Sonia Sotomayor and Elena Kagan

• solidified liberal wing with Ginsberg and Breyer



Impact of Obama appointees

• University of Texas Southwestern Med Center v. Nassar
• Vance v. Ball State University
• Friedrichs v. California Teachers Association



Transformation of the federal judiciary

• 2008 - D.C. Circuit - 6 judges appointed by Republican Presidents, 3

by Democrats, 2 vacancies

• 2016 - D.C. Circuit - 7 judges appointed by Democrat

Presidents, 4 by Republicans

fisherphillips.com

Trump Administration



Justice Scalia’s seat (and up to 3 more?)

– Justice Ginsburg is 83; Justice Kennedy is 80; and Justice Breyer is 78; and statistical models suggest a 40% chance of at least two vacancies before 2020



Class action waivers

• 7th and 9th versus 2nd, 5th and 8th



Wage & Hour

• Oregon Restaurant and Lodging v. Thomas

Perez

• Encino Motor Cars v. Navarro



Transgender bathroom rights

• Gloucester County School Board v. G.G.



Joint Employer status

• Browning-Ferris Industries

fisherphillips.com

“Pregnancy -- it’s a wonderful thing for the woman; it's certainly an inconvenience for a business.”

fisherphillips.com

Obama Administration



Urged Congress to pass Paid Parental Leave



FMLA

• Expanded military caregiver leave
• Encouraged greater intermittent leave



EEOC

• General Counsel P. David Lopez — Aggressive

Litigation

• Required Extended Leave as Reasonable

Accommodation

• Systemic Investigations of Employer Max

Leave Policies

• EEOC v. Sears ($6.2 million settlement)



Pregnancy: Young v. UPS, 2015 U.S. Supreme Court case

• Light Duty Required for Pregnant Employees

fisherphillips.com

Trump Administration



Has Proposed Expanded Family Leave and during campaign expressed approval for Hillary Clinton proposal of paid FMLA and

• ther expansions
• Tax Based Leave or Child Care Credits
• Andy Puzder — Opposes employer-paid sick leave



EEOC

• Appoint New EEOC Chair in July 2017
• Appoint New EEOC General Counsel
• Litigation tactics to decrease



Pregnancy

• Supports 6 weeks of paid leave



Expect Attendance Will Be Re-emphasized

fisherphillips.com

“On day one I will repeal as many executive orders as I can.”

1/11/2017

fisherphillips.com

Obama Administration

• OFCCP director, Patricia Shiu, was a plaintiffs’ attorney who

represented workers

• Regulations Issued:
• Job Opportunities for Protected Veterans
• Job Opportunities for Individuals with Disabilities
• Pay Transparency
• Established: Hiring benchmarks, self-identification

requirements, data collection and reporting

• Investigations: Systemic pay and discrimination

fisherphillips.com

Trump Administration



Trump

–

Has supported affirmative action in past

–

Has favored veteran’s causes

–

Has hired women and minorities

• Puzder, if confirmed, would select the OFCCP’s new

director

• OFCCP’s regulations and investigations likely to

change

• Eliminate Pay Transparency and data collection and

reporting, although Trump did indicate during the campaign that he supports the concept of equal pay for equal work

• Investigations focus on compliance and not systemic issues

fisherphillips.com

“Transgender people should be able to use whichever bathroom they want.”

fisherphillips.com

Which Way to the Restroom?

• April 2015: EEOC ruled that U.S. Army

discriminated against transgender woman by refusing use of women’s restroom

• May 2015: OSHA requires employers to provide

“meaningful” access to workplace restrooms, including for transgender employees

• Spring 2016: North Carolina and Mississippi

regulations regarding bathrooms stir national concern

fisherphillips.com

Which Way to the Restroom?

• July 2016: Massachusetts enacts transgender

accommodation law to permit transgender persons to use restrooms, changing rooms, and locker rooms that match their gender identity

• August 2016: Federal Judge in Texas deals blow

to Obama administration’s transgender school bathroom directive

• September 2016: California enacts law requiring

all single-occupancy restrooms to be identified as “all gender” and universally accessible

fisherphillips.com

Restroom and Transgender Issues

• Uncertainty surrounding Trump administration
• Likelihood that little will change because law is well-settled

fisherphillips.com

Background Checks and FCRA Compliance: Will Anything Change After January 20, 2017?

fisherphillips.com

EEOC traditionally focused on individual discrimination

• charges. . .but things have changed ….

fisherphillips.com

Systemic Discrimination

• In 2005, EEOC Chair established Systemic Discrimination Task Force

and shifted the EEOC’s emphasis to the investigation and litigation of systemic discrimination

• The EEOC has developed systemic discrimination plans for all 15

district offices

• “A strong systemic program is crucial to battling unlawful patterns or

practices of discrimination which have a broad impact on an industry, profession, company, or geographic location.”

• Unknown if Trump Administration will direct different emphasis

fisherphillips.com

Eliminating Barriers

• Focus on class-based recruitment and hiring practices
• Systemic barriers which have disparate impact on protected

groups

• EEOC will look closely at exclusionary policies or practices:
• Dates of birth inquiries
• Channeling of applicants into specific jobs
• Screening tools – criminal and credit checks, pre-employment tests

fisherphillips.com

Arrest and Conviction Records

• EEOC initiated an investigative strategy targeting pre-hire

selection criteria that impacts minorities

• Some National data suggests that criminal background checks

have disproportionate impact on minorities because they have higher conviction rates

• Pepsi reached a $3 million settlement with EEOC for manner

in which it was using criminal background checks to screen applicants

• Unknown if Trump Administration will attempt to change

focus

fisherphillips.com

Criminal Background Checks

• EEOC believes that an employer’s

policy/practice of excluding individuals from employment because they have criminal conviction records is unlawful unless the exclusion is “job-related and consistent with business necessity”

• Likely that Trump Administration will

not see this issue as a priority

fisherphillips.com

“Ban the Box” Movement

• Legislation limiting criminal background check

information

• 14 states and nearly 100 cities have adopted ban

the box for state hiring

• Many states and cities ban questions about prior

convictions on applications for private employment

• Unlikely that Trump Administration will

become involved in this issue

fisherphillips.com

The Fair Credit Reporting Act (FCRA)

• FCRA lawsuits are the latest trend in employment litigation

with many multi-million dollar settlements

fisherphillips.com

The Fair Credit Reporting Act (FCRA)

• The FCRA applies to background checks if an employer uses a

third party to verify:

• Educational background
• Job history
• Criminal record
• Credit history
• Driving record
• Other information

fisherphillips.com

The Fair Credit Reporting Act (FCRA)

• In 2014, 827 FCRA lawsuits were filed and

in 2015, over 2,000 FCRA lawsuits were filed

• In 2016, even more were filed before year-

end and are currently pending

fisherphillips.com

Significant Financial Exposure

• FCRA penalties range from $100 to

$1,000 per consumer report

• Attorney’s fees can be catastrophic

fisherphillips.com

Big Settlements Spur More Litigation

• Publix $6.8 million (March 2014)
• 90,000 potential class members
• Single line FCRA release
• Food Lion $3 million (March 2015)
• No “stand-alone” disclosure
• No pre-adverse action notice

fisherphillips.com

Big Settlements Spur More Litigation

• Home Depot $1.8 million (April 2014)
• FCRA disclosure and release of liability on one form
• Chuck E. Cheese $1.75 million (July 2015)
• Checks to class members $38 - $63. Attorney’s fees $577,000

fisherphillips.com

Unknown if Trump Administration WillEnter the FCRA Fray, But Unlikely As Law is Fairly Well-Settled and Regulations have been in place for a significant period of time

fisherphillips.com

Trump and the Gig Economy

• Trump didn’t mention the Gig Economy during

campaign.

• Trump’s tax plan will lower tax rates for independent

workers.

• Majority of regulation occurs on a state and city level.
• Less enforcement of misclassification at the federal

level?

fisherphillips.com

Intermediate Category of “Independent Workers”

• Policy groups pushing for third category of workers.
• “Independent Workers” would receive more benefits

than independent contractors but less benefits than employees.

• Critics say a third category would just lead to more

litigation.

fisherphillips.com

Thank You

Presented by: Pamela Williams and Mauro Ramirez Phone: (713) 292-5622 / (713) 292-5606 Email: pwilliams@fisherphillips.com / mramirez@fisherphillips.com