2017 EMPLOYMENT LAW TRENDS TO WATCH FOR Webinar Wednesdays 2017 EMPLOYMENT LAW TRENDS TO WATCH FOR Anna Elento-Sneed January 18, 2017 envision, strategize and actualize

Please consult an attorney if you have specific legal issues. Disclaimer This presentation is provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult an attorney if you have specific legal issues.

DISCUSSION TOPICS Legislative Trends Agency Trends Court Trends Workforce Trends

LEGISLATIVE TRENDS Congress “Repeal” of Affordable Care Act (Obamacare) Legislation will be enacted quickly, but implementation will likely be delayed Hawaii’s Prepaid Health Care Act should not be affected Insurance rates could be affected Immigration Reform Funding for enforcement may increase Visa procedures may change Effort to extend E-verify to all employers may begin Separation of Powers Restoration Act of 2016 Legislation changes Administrative Procedures Act to allow federal courts to review administrative decisions de novo Eliminates Chevron and Auer deference Would significantly change enforcement of employment laws & increase appeals to courts Need to watch to see if it applies to state agencies as well

LEGISLATIVE TRENDS Hawaii State Legislature “Counter-Trumps” Paid sick leave bill Bill to provide additional increases in the minimum wage Bills to modify insurance statutes to include more benefit coverages (preclude pre-existing conditions, coverage for adult children up to age 26, coverage for contraceptives) Bill to clarify definition of “independent contractor” No increases in or reduced funding for State agencies Staffing shortages Delays in administrative cases Employer registrations Claims processing Investigations Administrative hearings Appeals

AGENCY TRENDS Federal Department of Labor Deferred enforcement & eventual repeal of Increase in Salary Threshold for Exempt Employees Agency battles over new Persuader Rule Reduction in Administrative Interpretations Equal Employment Opportunity Commission Withdrawal of proposed regulations amending EEO-1 Change in enforcement priorities (away from gender identity, sexual orientation and pay equity) Reduction in litigation filed by EEOC Review of enforcement guidelines

AGENCY TRENDS Federal National Labor Relations Board Trump Administration will likely gain majority on Board Internal agency battles to overturn Board decisions: Browning-Ferris Industries (joint employer test) D.R. Horton (mandatory arbitration agreements) American Red Cross Arizona (at-will forms for employee handbooks) and other Board decisions on employee handbook policies) American Medical Response of Connecticut, Inc. (negative comments about employer posed on social media) Purple Communications, Inc. (employee use of company email for personal communications) Specialty Healthcare (union organizing in micro units) May also affect NLRB position on court cases as General Counsel’s term expires in late 2017

AGENCY TRENDS Federal Occupational Safety and Health New guidelines for anti-retaliation programs just issued No comments from Trump Administration May try to change guidelines on bathrooms (which address transgender concerns) Funding for enforcement could be trimmed Office of Federal Contract Compliance Programs Cancellation of Orders – Likely “targets” 13495 (2009) re Nondisplacement of qualified workers under Service Contracts Act 13496 (2009) re Notification of Employee Rights Under Federal Labor Laws 13502 (2009) re Use of Project Labor Agreements for Federal Construction Projects 13518 (2009) re Employment of Veterans in the Federal Government 13548 (2010) re Increasing Federal Employment of Individuals with Disabilities 13658 (2014) re Establishing a Minimum Wage ($10.10) for Federal Contractors & Subcontractors 13665 (2014) re Non-Retaliation for Disclosure of Compensation Information 13673 (2014) re Fair Pay and Safe Workplaces (pre-award certifications) 13706 (2015) re Paid Sick Leave for Federal Contractors Affirmative Action will remain, but audits will likely go down

AGENCY TRENDS State Department of Labor and Industrial Relations Continued funding and staffing shortages which affects processing time for claims and investigations Workers compensation cases Unemployment insurance cases Wage & hour investigations Work injury cases HIOSH investigations Focus on “high profile” cases and partnering with other agencies/organizations “Bias” against independent contractor situations Hawaii Civil Rights Commission Increase in charges as employees file with HCRC in lieu of EEOC

COURT TRENDS U.S. Supreme Court Incoming administration will fill vacant seat on Court with a conservative Court will take up several labor & employment cases Murphy Oil USA (5th Cir.), Epic Systems Corp (7th Cir.) and Ernst & Young (9th Cir.) – whether mandatory arbitration agreements are illegal if they contain class action waivers Raymours Furniture Co. Inc. (2nd Cir.) – class action waivers in wage & hour cases Gloucester County School Board v. G.G. – whether U.S. Dept. of Educ. allowed to interpret federal law prohibiting sex discrimination to include discrimination based on gender identity Court also expected to take up: Browning-Ferris - definition of “joint employer” under NLRA Oregon Restaurant and Lodging, et al. v. Thomas Perez, et al. – DOL expansion of tip pool rule to prohibit restaurants from requiring waithelp to share tips with kitchen workers

COURT TRENDS Circuit Courts of Appeal 5th Circuit 9th Circuit Texas and Arkansas cases challenging new Persuader Rule 9th Circuit Wage and hour cases (e.g. service advisors in car dealerships are non-exempt) Independent contractor cases All Circuits LGBT discrimination cases

COURT CASES State Courts Shortage of judges Cases being reassigned Expect backlog until vacancies are filled Hoping Intermediate Court of Appeals will resolve Coca-Cola Whether employees on WC are entitled to unlimited leave of absence with guaranteed reinstatement to their former positions) May see increase in cases filed in state court as employees try to avoid federal courts

WORKFORCE TRENDS Roughly 20% - 25% of work force is age 55 or older Retirements are picking up The demand for professionals & skilled workers are increasing Accountants IT and other “tech” positions Human resources Teachers There is an increasing “knowledge” gap in business Strategic planning Marketing Project management

WHAT COULD THIS MEAN FOR HAWAII? Increasing “disparity” between federal and state laws Reduction in union organizing Push by labor to expand protections under state laws to compensate for lessening protections under federal laws Increase in litigation and mediation/arbitration, and less reliance on federal agencies Shift in cases from federal to state courts Employers will want cases to be filed in federal courts Employees will draft lawsuits to stay in state courts

WHAT CAN HAWAII EMPLOYERS DO? Purchase adequate insurance coverage Employment practices liability insurance, directors & officers, excess policies Review your policies & procedures with an “eye” for risk management You need documentation of legitimate, nondiscriminatory business reasons for actions Assess and “map” your staffing You need to know who does what, and how many people are needed to get the job done Identify gaps and develop short term and long term plans to fill gaps Recruitment will take many months, if not years If you have to recruit out of country, visas will take even longer Develop a detailed spreadsheet of your labor costs Compensation, benefits, outsourcing costs Understand how changes will affect your company’s bottom line WATCH THE NEWS!