Recent Court Decision Illustrates How Crucial Anti-Harassment Training Is

In a decision issued on April 27, 2017, the Second Circuit Court of Appeals interpreted the standard for establishing a “hostile work environment” claim more broadly than many HR professionals and employment lawyers would normally expect. Employers should be aware of the implications of this decision and understand how to avoid liability for hostile work environment.

Employees alleging discrimination under Title VII often claim that they were subjected to a “hostile work environment.” Generally, a hostile work environment under Title VII is created by offensive conduct, based on a person’s membership in a protected class (such as race or gender), that is severe or pervasive enough to alter the victim’s working environment. Over the years, there have been many court decisions discussing what constitutes a hostile work environment, and one often-repeated standard is that an “isolated incident” is generally not sufficient to establish a hostile work environment.

Yet the Second Circuit held in Daniel v. T&M Protection Resources LLC that the plaintiff’s supervisor’s use of a racial epithet was “by itself, sufficiently severe to constitute an actionable hostile work environment within the meaning of Title VII.” The supervisor had called the plaintiff a “f- – ing n – – – – r.”

In other words, a one-time remark by a single “bad apple” could be the basis for an employer to be held liable under Title VII for hostile work environment, if it is severe enough. This means that anti-discrimination and anti-harassment training for employees and managers is more important than ever. Having your employees and management undergo such training on a regular basis can go a long way toward reducing the likelihood that an employee will “go rogue” and engage in conduct for which the company could be held liable.

In addition, anti-discrimination and anti-harassment training can help an employer establish that it did everything possible to disseminate its harassment and discrimination policy to its staff. Other helpful steps include posting the policy on bulletin boards, including it in a well-written, regularly updated employee handbook, and distributing it during the on-boarding process (and having new hires sign an acknowledgement of receipt). Taking these steps can reduce the potential for an employer to be held liable for discrimination/harassment.

If your employees and managers have not completed training in 2016, you should make it a priority in 2017 to diminish the company’s exposure to expensive litigation.

If you have questions about this issue, or would like to inquire about updating your policy or scheduling training sessions, please contact one of PMP’s experienced HR professionals.

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Should you have any questions about this matter, please do not hesitate to contact PMP. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.

 



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Federal Contractors – No time for Complacency

In April, President Trump proposed a budget proposal that included a possible 21 percent cut for the DOL budget. Some federal contractors may be interpreting that to mean that the OFCCP will be less active during the Trump administration, given likely budget constraints. But that is not necessarily accurate. In all likelihood, the OFCCP will continue doing what it is supposed to be doing – auditing federal contractors. A smaller budget is not going to stop the OFCCP from investigating complaints.  True, a new director for the OFCCP has not been named yet and it may have been a slow start for audits in 2017, but Secretary of Labor R. Alexander Acosta has just been sworn in, so things may gear up fast now.

It may have gone unnoticed that, in spite of not having a Director at the OFCCP since November of 2016 when Patricia Shiu stepped down, the OFCCP has continued to close cases with large settlements since their fiscal year began in October.  Here are just a few:

  • 4/25/2017 – Palantir Technologies will pay $1,659,434 in back wages and other monetary relief for allegations of hiring discrimination against Asian applicants in the hiring and selection process for engineering positions.
  • 3/27/2017 – American Ordnance of Iowa has agreed to pay two former security officers a total of $50,000 in back pay and other damages for alleged failure to accommodate them as required by Section 503 and ADA.
  • 1/1/2017 – LexisNexis Risk Solutions will pay over $1.2 million in back pay and provide additional relief to 211 employees to resolve allegations of systemic pay discrimination against women at its facilities in Alpharetta, GA and Boca Raton, FL.

So, to any federal contractors out there who are thinking they can slack off:  think again.  As a federal contractor you are still obligated to update your affirmative action plans yearly among other things.  Additionally, you should:

  • Review and analyze your data to assure that you can defend any results that are + or – 2-standard deviation;
  • Assure that you can prove that you have listed every job (with a few exceptions) with appropriate Employment Service Delivery System (ESDS) (where the job is located) along with organizations that work with Veterans, Individuals with Disabilities, Women and Minority;
  • Compensation analysis is still a very hot topic with the OFCCP and DOL (see LexisNexis case above) – when was the last time you conducted a pay equity analysis? You should also review your policies and procedures for starting salary, bonuses, overtime allocation and how location may affect pay;
  • Train your hiring team to follow good practices in the number of applicants reviewed, how applicants are rejected or moved forward in the hiring process, and how applicants are interviewed and selected for hire, promotion and for termination.

Remember that the burden is on you, the contractor, to defend your outreach, selection for interview, hire, compensation, promotion and termination.  You are non-compliant unless you can prove – through your own record-keeping – that your company’s personnel decisions were made in a non-discriminatory fashion.

As every good scout learns – “Be Prepared.”   It’s a good motto that can work for you, too!

To discss your company’s compliance matters, update your AAP or assure that your analyses are done correctly, please contact PMP’s Affirmative Action Compliance Department.  PMP is proud of its exceptional record of successfully closed OFCCP audits.   We can help with any compliance challenge you may have!

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Should you have any questions about this matter, please do not hesitate to contact PMP. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.



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Effective Date of the New York State Paid Family Leave Act Looms Ever Closer

As many New York employers are already aware, last year New York State enacted a comprehensive paid family leave law. The New York Paid Family Leave Act (NYPFLA) will go into effect on January 1, 2018. As of that date, employees in New York will be eligible for wage replacement during leaves of absence taken to bond with a new child, to care for a close relative with a serious health condition, or to handle certain situations arising from a family member’s call to active military duty.

While January 1, 2018 may still seem like a long way off, employers should take full advantage of the time remaining to prepare for compliance. To assist in this preparation, we have collected our responses to the most frequently asked questions we have received from clients regarding the NYPFLA.

What employers are covered under the law?

The NYPFLA’s requirements will apply to all employers with one or more employees in New York.

What employees are eligible to take paid leave?

Any full-time employee who has been on the job for 26 consecutive weeks is eligible. Part-time employees (employees working fewer than 5 days per week) become eligible for leave on their 175th day of work.

For what purposes can an employee use paid leave?

Employees may use the leave as maternity/paternity leave – i.e., to bond with the employee’s child during the first twelve months after the child’s birth or the first twelve months after the placement of a child for adoption or foster care with the employee. The leave can also be used to participate in providing care, including physical or psychological care, for a family member of the employee due to a serious health condition of the family member. In addition, the leave can be used because of any qualifying exigency arising out of the fact that the employee’s spouse, domestic partner, child, or parent is on active military duty (or has been notified of any impending call or order to active duty).

How much leave is an eligible employee entitled to?

Starting January 1, 2018, employees will be permitted up to eight weeks of leave. Starting January 1, 2019, that amount will increase to 10 weeks, and as of January 1, 2012, it will increase to 12 weeks.

Do employees receive their full salaries during a leave?

No, employees are entitled only to partial wage replacement, the amount of which will increase over a period of several years after the law’s effective date. On January 1, 2018, employees on leave will be entitled to wage replacement equal to 50 percent of their weekly wage or, if less, 50 percent of the state average weekly wage (currently the state  average weekly wage is $1,296). That percentage will increase annually for three years as follows: 55 percent in 2019, 60 percent in 2020, and 67 percent in 2021.

Are employers expected to pay foot the bill for this paid leave?

Employers will not be required to pay wage replacement to employees on leave out of their own pockets. Rather, the payments will be funded via small paycheck deductions applied to the wages of all New York workers. The New York State Superintendent of Financial Services is scheduled to set the maximum employee contribution amount on June 1, 2017. Employers are to begin collecting the weekly employee contribution on July 1, 2017.

How is the NYPFLA different from the Family and Medical Leave Act (FMLA)?

The most obvious difference is that leave under the NYPFLA is paid, while FMLA leave is unpaid. But there are numerous other differences, including the following examples:  NYPLA applies to all New York employers, even those who are not covered under FMLA due to having fewer than 50 employees within 75 miles of a work site. FMLA provides twelve weeks of leave, while NYPLA will not provide twelve weeks until January 2021. Of course, these are only a few of the many differences between the two laws. Generally speaking, employers should be aware that the two laws are not interchangeable, and what applies under one may not be applicable under the other.

Note: Currently, regulations issued under the new law are still in their proposed –i.e., not final — form. When the final rules have been issued, PMP will, if needed, supplement this article to account for any changes in the final rules.

As New York State employers gear up to comply with the NYPFLA by January 1, 2018, PMP is here to answer any questions you may have about the new law.

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Should you have any questions about this matter, please do not hesitate to contact PMP. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.



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Federal Contractors Beware! How Well-Prepared Are You In 2016?

In the last 18 months the federal contractor community has experienced more changes in regulations and additional Executive Orders than ever before. As most contractors are preparing to update their affirmative action plans (AAP), they should be aware of all of the changes and new requirements which make updating this year’s AAP more challenging than ever.  Contractors not working with a knowledgeable expert risk finding themselves in a nightmare scenario from which it will be very expensive to exit.

To detail all of the changes would make this article into a thesis, listed below is a recap of the most recent changes with the most pertinent points. There are additional details that this recap does not cover. For clarification or additional information, please contact PMP’s Affirmative Action Compliance Department.

  • Regulations effective since March 24, 2014 – Put greater emphasis on Protected Veterans and IWD outreach, self-identification, etc.
    • Contractors must request voluntary self-identification as “Protected Veteran and/or “Individual with Disability” (IWD) from applicants and new hires. For IWD identification, the OFCCP issued form must be used.
    • Resurvey workforce for IWD status within the first year of being subject to the regulations (using OFCCP issued form)
    • Established a 7% hiring benchmark for Protected Veterans
    • Established a 7% utilization goal for IWD per job group for contractors with 100 or more employees (for those with fewer than 100 employees, the goal is 7% for the entire workforce)
    • Additional data collection is required for these two categories using the applicant flow data
  • Regulation effective since October 14, 2014 – Revised OFCCP audit letter increased items for submission from 11 to 22.
    • Greater emphasis on compensation and how starting salaries are determined, as well as bonuses and overtime criteria
    • Data required on contractor’s outreach efforts and results for Protected Veterans and IWD
    • Analysis of Applicant vs. Hire will now be conducted by each individual race (vs. all others) rather than “minority vs. non-minority”
  • Executive Order #13665 – Non-Retaliation for Disclosure of Compensation Information (Effective 1/11/2016)
    • Requires posting as well as distribution of OFCCP language on this regulation
    • Language must be made part of handbook or employee manual
    • Applicants and employees must be made aware of this via the required paragraph being displayed or distributed electronically
    • “EEO is the Law” poster will soon be updated but in the meantime the current poster plus the supplement should be posted on bulletin boards and on career website
    • Contracts must include this language
    • If Unionized, the union must be sent the language
  • Executive Order #13672 – Prohibits discrimination based on Sexual Orientation and Gender Identity
    • Update all policies where EEO statements list protected statuses to include these two protected statuses
    • Advise Union (if applicable) of updated language
  • Executive Order #13658 – Increased minimum wage. Effective 1/1/2016 the rate is $10.15 for those working 20% of the time or greater on government contracts (subject to certain criteria)
  • Executive Order #13706 – Paid Sick Leave becomes effective 1/1/2017 – PMP will make more details available as soon as they are released.

Most contractors have reached the conclusion that trying to remain compliant without outside assistance from a knowledgeable consultant who specializes in OFCCP regulations has become impossible. Dealing with a consultant for assistance with your affirmative action compliance should not be an expensive venture. A good consultant can review in detail what policies need to be updated, what should be on your bulletin boards, and what needs to be available to applicants on your website. If 2015 was any indication, should you be audited, you can expect it to be a long and drawn out process. You will be asked for far more data than ever before along with a long telephone conference on your compensation policies and procedures. It is prudent for contractors to conduct a pay equity analysis now, before the OFCCP dives into your data.

Applicant flow remains an area where the OFCCP continues to achieve high financial settlements. Not knowing how to correctly identify an “applicant” vs. a job seeker, having too small or too large of an applicant pool, and not having good documentation will sink you every time during an audit. To assist contractors in navigating this tricky road, PMP is conducting a workshop on Wednesday, March 16. Visit http://www.pmphr.com/Job-Seeker-or-Applicant.html for more details.

No doubt that being a federal contractor is more of a challenge. It will take far more time and effort to remain compliant. PMP is here to help. PMP offers our readers a free “Checklist of 2016 Compliance with Regulatory Changes” which can assist contractors in navigating the treacherous sea of recent OFCCP regulations and Executive Orders. Please contact Grace Conti for your free copy at gconti@pmpHR.com.

PMP offers cost-effective support for federal contractors. PMP is very proud of its exceptional record of successfully closed OFCCP audits. Partner with PMP to assure your compliance before the OFCCP comes knocking at your door!



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Expected Changes to Workplace Laws Under President Trump – Part II

In Part I of this series, we examined expected changes at the U.S. Department of Labor under President Trump’s presidency.  In Part II, we will take a look at changes already made, and others expected to come, at the Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB).  Under a Trump administration we are likely to see significant shifts in these agencies from Obama-era policies and regulations.  A more employer-friendly shift is expected, though not all Obama administration policies and rulings are expected to be wiped away.

Equal Employment Opportunity Commission (EEOC)

On January 25, 2017, President Trump appointed Victoria Lipnic as acting chair of the EEOC.  Lipnic was previously a Commissioner of the EEOC.  While a Commissioner, Lipnic voted against the EEOC’s July 2015 decision that sexual orientation discrimination is gender discrimination prohibited by Title VII.  In addition to appointing Lipnic, Trump can fill another vacant commissioner position.  But for now, the Democrat-appointed commissioners outnumber Republican-appointed commissioners.  Trump will have the opportunity to nominate the EEOC’s new general counsel.

President Trump has stated a desire to focus on job growth, which is something Lipnic will make a focal point for the EEOC.  Recently, Lipnic stated, “it is a new day and to the extent [we can] help foster employment opportunity and economic growth . . . that is something we will be focused on.”  Consistent with President Trump’s beliefs, Lipnic has said the EEOC will be mindful of ways to refocus regulations so as to foster job growth.

However, this is not to say the EEOC will forego its enforcement activities.  The EEOC, under Lipnic, is likely to pay attention to employer responsibilities in joint employment, independent contractors, and the gig economy.  Equal pay issues are also likely to be a focus of the EEOC going forward.  In the past, the EEOC has filed few equal pay cases but Lipnic considers this a “priority.”  In addition, since 2017 is the Age Discrimination in Employment Act’s 50th anniversary, Lipnic has stated that age claims will see an increased focus by the EEOC.

National Labor Relations Board (NLRB)

On January 26, 2017, President Trump appointed Philip Miscimarra as acting chairman of the NLRB, taking over from Democrat Mark Gaston Pearce.  Miscimarra is presently the sole Republican member of the Board.  However, the NLRB has 2 vacant seats, both of which President Trump is likely to fill with Republican appointments.  Trump will also appoint a new NLRB General Counsel in November 2017, when the current term of Richard Griffin, Jr. expires.

During the Obama administration, the NLRB issued far-reaching decisions and rules most of which were not employer friendly.  Most notable among these decisions was the NLRB’s controversial joint employer standard in Browning-Ferris Industries of California, Inc.  That 2015 decision broadened the joint employer standard to encompass relationships where the potential joint employer has the ability to control employees’ terms and conditions of employment even if such control is never exercised.  That decision could be reversed by a Trump-appointed NLRB as Miscimarra opposed the ruling.

Other NLRB rulings that may be reversed include those: limiting employers’ ability to prohibit employee use of social media to air workplace grievances; striking down employer handbook policies as overly broad because of perceived “chilling effects on concerted activity”; favoring “micro units” which consist of small numbers of employees as proper bargaining units; and the enactment of the quickie election rules which significantly cut the time for employers to combat union election campaigns.

It may take a few years before decisions like those mentioned above are reversed.  However, we expect the NLRB to curtail its activity in the non-union sector where it has been focusing on employer actions that chill concerted activity.

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Should you have any questions about this matter, please do not hesitate to contact PMP. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.

This article is intended for general information only and should not be construed as legal advice.



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The Evolving Legal Landscape of Discrimination on the Basis of Sexual Orientation

In the United States, federal and state laws differ with respect to whether they explicitly prohibit discrimination in employment on the basis of sexual orientation. The state of New York has prohibited discrimination based on sexual orientation since 2003. But the federal law governing employment discrimination, Title VII of the Civil Rights Act of 1964, does not list sexual orientation as a protected class. This means that it is difficult for a plaintiff-employee to bring a claim under federal law arguing he or she was the victim of employment discrimination on the basis of being gay.

In March, the Second Circuit Court of Appeals addressed this issue in a case brought by a gay man who alleged that his supervisor had harassed him based on his sexual orientation and “effeminacy.” The plaintiff alleged that the harassment violated Title VII because it constituted discrimination based on sex, in that it resulted from gender stereotyping. In other words, he argued that the true reason his boss had harassed him was that he (the plaintiff) did not conform to his boss’s notions of how a man should be – e.g., masculine rather than effeminate, macho rather than submissive, etc. The court held that, because the plaintiff claimed that his supervisor perceived him as effeminate and submissive and harassed him for those reasons, his claim came within Title VII’s prohibition against sex discrimination.

Cases like this one, in which federal courts interpret Title VII in connection with sexual orientation discrimination, are notable since in many states there are no laws prohibiting discrimination on the basis of sexual orientation. In those states, plaintiff-employees claiming this type of discrimination have no alternative but to try to frame their case in terms that would implicate Title VII – even when this exercise feels like trying to fit a square peg into a round hole.

Employers in New York with four or more employees are bound by the state law mentioned above, and thus prohibited from discriminating based on sexual orientation.  A number of other states have similar laws, but they vary widely in scope and application. In all states, however, refraining from discrimination based on sexual orientation is, at the very least, the best practice. Employers should be proactive in diminishing their exposure to litigation by scheduling anti-harassment and anti-discrimination training for all supervisors and managers on a regular basis.  Companies should also have a well-written, zero tolerance policy in both their handbook and on company bulletin boards.

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PMP will continue to monitor this rapidly changing legal landscape. Should you have any questions about sexual orientation discrimination, please do not hesitate to contact one of our HR professionals. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.



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New York State New Direct Deposit Rules Cancelled…For Now

For now New York State regulations which would have imposed new notice and consent standards for paying employees’ wages via direct deposit have been revoked. The regulations, which were set to go into effect March 7, 2017, were found to exceed the authority of the Department of Labor and were invalidated on that basis. The DOL has 60 days to appeal the determination.

Stay tuned for more info…



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Salary History Inquiries Now Prohibited in Philadelphia

Employers who do business in Philadelphia, take note! It is now illegal to ask job candidates in Philadelphia about their salary history. This means you cannot ask an applicant about his salary at his current job or past jobs. Many employers routinely seek this information from job seekers to help them determine what salary to offer the candidate. Opponents of this practice say it perpetuates a cycle of lower pay for women and minorities. Philadelphia follows Massachusetts in banning salary inquiries; last year Massachusetts became the first state to pass such a law.

The Philadelphia ban will become effective May 23, 2017.



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Is Career Transition/Outplacement Services Right for Your Company?

The Great Recession of 2008 is not that far in our rear view mirror and its effects are still being felt by many employers.   Companies may find it necessary to realign themselves for the future by exercising different staffing techniques which may include downsizing, right-sizing, layoffs and terminations.  So how can a company navigate through these difficult actions and keep their company positioned for growth?

An experienced Career Transition provider can assist employers with messaging, ensuring business continuity, maintaining the employer brand and keep the remaining employee’s morale positive. The following are some benefits of utilizing Career Transition Services:

  • Terminated employees who receive Career Transition assistance are less likely to sue their employers for dismissal
  • Significantly lowers unemployment costs to the company as Career Transition increases the rate at which downsized employees get new jobs
  • Human Resources and management are not tied up assisting downsized employees with Career Transition coaching
  • It will protect your company’s brand and reputation
  • Remaining staff will feel less apprehensive about being laid off if they know they will get help finding their next opportunity
  • Helps keep morale of remaining staff positive
  • Protects your reputation as an employer of choice
  • Keeps client/public opinion positive

Add to this list one of the most important reasons to use Career Transition Services which is that it is the right thing to do.  Let’s take a look at this example:  you have an executive who has been with you for a long time but his skills are no longer relevant.  You know you have to terminate him but he has been a loyal employee.  By providing Career Transition Services you are providing valuable assistance to help him find his next opportunity – making the process speedier and less stressful than if he had to do it alone.  Likewise, HR professionals and Management often have to make the tough decision to lay off employees, through no fault of their own, due to a downturn in the business.

Whether your company needs to lay off many employees or terminate only one executive, PMP Career Transition Services can provide job search assistance in the following ways:

  1. Provide support to managers and Human Resources professionals on notification day
  2. Give emotional support and consultation on next steps to downsized employees on notification day
  3. Organize in-house job fairs
  4. Create and deliver customized Job Search workshops
  5. Give one-on-one Career Coaching including generational preferences, career changes, where and how to look for opportunities, resume construction, career assessments, interviewing skills and creating a brand on Linkedin. This can be provided in person or remotely.

Working with an experienced Career Transition Counseling during downsizing of employees can significantly improve the process for both the employer and their employees.  To quote one of PMP’s Career Transition Clients, “In using Mary Simmons for career transition services to help a group of employees we had to let go, I knew they would be in great hands and receive a wealth of knowledge and support.  They said it was a great help to have someone who would assist in resume writing, interviewing techniques, and aid in networking and her welcoming personality made the process a much more pleasant experience. Mary has quickly become my go-to person when it comes to Career Transition services.”

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Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter.  Please keep in mind that in addition to our staff of seasoned HR professionals, we also have affiliated employment lawyers on hand to address any questions you may have regarding compliance. Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.

 

This article is intended for general information only and should not be construed as legal advice.

 

 

 



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Expected Changes to Workplace Laws Under President Trump – Part I

Though President Donald Trump has not yet stated in detail his plans with respect to labor and employment issues, it can reasonably be expected that his administration will upend current federal labor and employment law trends.  While former President Obama’s administration focused on a middle class economics agenda, it is likely that President Trump will pursue policies more friendly to businesses.

For the past eight years the Obama administration put in place employment regulations mainly through executive orders and administrative rulings.  That will provide President Trump and his administration significant opportunities to effect change and alter the workplace landscape at the federal level.  We can expect the Trump administration to scale back existing regulations which may influence state and local governments to do the same.

On February 24, 2017, President Trump issued an executive order entitled Enforcing the Regulatory Reform Agenda, which requires each federal agency to develop a regulatory reform task force to identify burdensome regulations for repeal, replacement, or modification.  Within 90 days the task forces are to evaluate regulations and issue recommendations.  While the executive order contains broad language, this could result in reform to various workplace regulations.

In Part I of this series, we take a look at anticipated changes at the Department of Labor (DOL) under President Trump.  We will examine potential changes at other federal agencies in our April newsletter (Part 2).

Nomination of Alex Acosta for Secretary of Labor

President Trump announced that he intends to nominate Alex Acosta as Secretary of Labor after Andrew Puzder withdrew his candidacy (as of this writing, Senate has not yet approved him).  Mr. Acosta was appointed to serve as a member of the National Labor Relations Board by President George W. Bush and served on the Board for about eight months.  Mr. Acosta has also served as Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice as well as U.S. Attorney for the Southern District of Florida, where he increased the office’s focus on white-collar crime.

At this point it is difficult to predict how Mr. Acosta would steer the DOL if confirmed by the Senate.  However, based on his background and brief NLRB stint, Mr. Acosta may advocate for increased agency rulemaking and more management-friendly positions on workplace regulations.

Department of Labor, Wage and Hour Division

The Obama administration issued a final rule toward the end of President Obama’s term that would have significantly altered overtime pay regulations and increased the minimum salary level for exempt employees.  However, the final rule was prevented from going into effect by a federal district court judge after various states and business groups challenged the rule.  The DOL, under new leadership, may withdraw the appeal or initiate the administrative process to alter the regulation.  Likewise, a republican-led Congress may pass legislation to invalidate the final rule.

The Obama DOL has also narrowed the definition of those who can be considered independent contractors while expanding the circumstances when businesses can be held as joint employers.  A Trump DOL may modify these interpretations to more business-friendly constructions.

Department of Labor, Office of Federal Contract Compliance Programs (OFCCP)

The OFCCP is the agency that oversees federal contractors and subcontractors, protects workers from discriminatory practices, and promotes diversity.  They ensure compliance with certain wage and discrimination laws specific to federal contractors and subcontractors.  The Obama administration was very active in OFCCP rulemaking.  President Trump may seek to modify or repeal the Fair Pay and Safe Workplaces executive order (a/k/a the “blacklisting” order). The order requires federal contractors (and subcontractors) to disclose past employment law violations and to provide wage statements that detail wages and hours to employees and independent contractors.  There is currently litigation pending to enjoin the final rule and Congressional republicans have introduced a joint resolution of disapproval to permanently block the final rule pursuant to the Congressional Review Act.

Among other things, the Trump administration may also seek to modify President Obama’s executive order raising the minimum wage for federal contractors to $10.20 on January 1, 2017, as well as an executive order requiring paid sick leave to employees working for federal contractors.

Department of Labor, Occupational Safety and Health Administration (OSHA)

There could be a number of changes to OSHA standards issued by President Obama’s administration such as modification of the new record-keeping rule requiring certain employers to file injury and illness information with the government by July 1, 2017 and thereafter on an annual basis, as well as the standard of proof for retaliation under many of OSHA’s whistleblower statutes.

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Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter.  Please keep in mind that in addition to our staff of seasoned HR professionals, we also have affiliated employment lawyers on hand to address any questions you may have regarding compliance. Contact us at 800-921-2195 or 516-921-3400.

 

This article is intended for general information only and should not be construed as legal advice.

 

 



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