1. 2017 EMPLOYMENT LAW TRENDS TO WATCH FOR
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2017 EMPLOYMENT LAW TRENDS TO WATCH FOR
Anna Elento-Sneed
January 18, 2017
envision, strategize and actualize

2. 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.

3. DISCUSSION TOPICS Legislative Trends Agency Trends Court Trends
Workforce Trends

4. 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

5. 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

6. 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

7. 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 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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!