1. 2018 LABOR & EMPLOYMENT LAW TRENDS …
Webinar Wednesdays
2018 LABOR & EMPLOYMENT LAW TRENDS …
“Trump Era: Volume 2”
Anna Elento-Sneed
January 18, 2018
envision, strategize and actualize

2. DISCUSSION TOPICS National Labor Relations Board (NLRB)
Equal Employment Opportunity Commission (EEOC)
U.S. Department of Labor (USDOL)
Office of Federal Contract Compliance Programs (OFCCP)
U.S. Supreme Court
Congress
Hawaii State Legislature and the Hawaii Dept. of Labor & Industrial Relations (DLIR)
The “Real” World
Future Trends

3. NLRB Trump has his team in place
Board has begun overturning Obama-NLRB rulings
Joint employer status (Browning-Ferris)
Back to the old definition of “joint employer”
Need “direct and immediate control” over terms & conditions of employment
Employee handbooks (Lutheran Heritage Village – Livonia)
No longer strictly scrutinizing employer policies to see if employees can “reasonably construe” them to be interference with their Section 7 rights
Board will now consider “nature and extent” of a rule’s “potential impact on NLRA rights” and an employer’s “legitimate justifications” for the rule
Unilateral changes in unionized companies (DuPont)
Reversed decision requiring employers to bargain with unions before implementing changes to employment conditions
Back to Shell Oil rule – not a “change” if it’s consistent with past practices

4. NLRB Board has begun overturning Obama-NLRB rulings
Micro-units (Specialty Healthcare)
Reversed ruling giving preference to union’s proposed organizing group
Returns old practice of allowing employers to argue that proposed organizing group should be larger than sought by union
Settlements (United States Postal Service)
Reversed ruling that no longer permitted NLRB administrative judges to accept a respondent’s offered settlement terms unless the offer constituted a “full remedy” for all violations alleged in the complaint
Returns old practice of giving Board and NLRB administrative judges discretion to accept settlements offered if it furthers the purposes of the NLRA
Quickie Election Rules
Also expect regulations on union election procedures to be changed back to old procedures

5. NLRB General Counsel reviewing other policies
Concerted activity (i.e. is obscene, vulgar or other highly inappropriate conduct protected)
Employer handbook rules
Purple Communications (employee use of company systems)
Joint employer
Quietflex (whether work stoppages are protected)
Off-duty employee access to property
Conflicts between NLRA and other statutory requirements
Weingarten (conduct by union representatives)
Disparate treatment of represented employees during bargaining
Successorship
Unilateral changes
Total security (duty to bargain before imposing discretionary discipline)
Duty to provide witness statements to union
Dues check-off
Remedies

6. NLRB Recent “roll backs” do not mean these issues are settled
NLRB decisions are appealable to federal circuit courts of appeal
Hawaii is in the 9th Circuit Court – the most liberal circuit
Conflicts between circuit courts of appeal are common
Issues must then be resolved by U.S. Supreme Court
E.g. Mandatory arbitration clauses
E.g. Association fees for public employee unions
Republicans in Congress trying to enact laws to make changes “stick”
Bill to amend NLRA and FLSA to specifically define joint employer status
Bill to establish “right to work”
Union organizing could slow down, once again
But litigation may increase

7. EEOC New EEOC leaders only recently nominated
Temporary Chairperson kept things going for most of year
Nominations to fill positions finally made, but must still go Senate confirmation process
“Roll backs” have started, but are still being worked on
EEO-1 Reports
Rules that would require detailed compensation data were suspended
EEOC is considering whether to re-write (for now, using old forms)
Title VII
AG Sessions reversed government position on “transgenders”
Doesn’t affect Hawaii because of Chapter 378

8. EEOC Some Obama Administration initiatives remain in force
ADA’s expanded definition of “disability”
EEOC guidance on leaves of absence
Class action cases for “systemic disability discrimination” still a priority
Other issues continue to be fought in the courts
Transgenders
Religious discrimination
Mandatory arbitration & class action waivers
And there’s still some “quirky” proposals
Trump Administration proposal to merge EEOC with OFCCP

9. USDOL USDOL is filling in its positions
New Secretary of Labor appointed mid-2017
Trump nominees for OSHA and USDOL Solicitor completed confirmation process and now awaiting Senate approval
A few “roll backs” have started
Exempt employees
Revising regulations on minimum salary requirements for exempt executives, administrators and professionals
Additional changes anticipated
Roll-back of “tip pool” rule
OSHA sanctions
“Persuader” rule

10. OFCCP New Director just installed
Trump Administration Roll Backs have been few
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
Roll-backs may not be extensive

11. U.S. SUPREME COURT 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
Janus v. AFSCME (7th Cir.) – whether “agency shops” for public employees unions violate the First Amendment
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission – whether state’s enforcement of its anti-discrimination law violated First Amendment protections for religious beliefs
Former clerks also urging Court to take up a case to further define sexual harassment and employer obligations

12. CONGRESS Legislation passed Bills anticipated Tax reform Budget cuts
Impact on corporate strategy
Impact on individual tax exemptions
Impact on benefit plans (especially health care)
Bills anticipated
Budget cuts
Immigration
Impact on visas
Impact on enforcement
Joint employer
Title VII (sex discrimination, religion, harassment)

13. HAWAII STATE LEGISLATURE AND DLIR
Difficult to predict because its an Election year
Possibilities:
Wages
Hawaii is at $10.10 as of 1/1/18
Could see Legislature propose more changes to counteract IRC amendments and USDOL position
Budget “freeze” (which will affect staffing)
DLIR
DLIR Director position is vacant
May attempt to adopt regulations to counter changes at federal level, but will be hampered by budget and staff constraints

14. THE “REAL” WORLD
Trump Administration and Congress are disorganized and slow – everything is “politicized”
Businesses and people are resorting to courts and local government
Expect Hawaii State Legislature, Agencies and Courts to remain pro-employee
State government is under pressure, and slow to move
State budget issues are significant
State workforce is in upheaval
Officials are focused elsewhere
Developing Consensus: “Solutions” must be developed independent of government

15. FUTURE TRENDS Unbalanced Workforces Worker shortages Skill shortages
Diversity issues (ethnicity, sex/gender, religion, age, disability)
Corporate culture
Employee expectations (work-life balance)
Compensation & benefits
Training and re-training

16. FUTURE TRENDS Increasing Use of Contingent Workers
Who are we talking about?
E.g. part time workers, temporary contract employees, subcontractors, franchisees, staffing agency workers, PEOs, independent contractors, workers in the “gig” economy
What happens when we use contingent workers?
Challenges in managing quality and quantity of work
Increased government scrutiny (especially in Hawaii)
Lawsuits, particularly class action lawsuits
Union organizing (depending on how they approach younger workers)
Increased labor costs

17. FUTURE TRENDS Global Industry Consolidation
Mergers and acquisitions are increasing
Increase in national and multinational companies
Medium size companies disappearing
States are competing for businesses
Migration of companies & workers expected
Small business is under pressure
Recent tax changes will create significant challenges
Access to capital is limited
Ability to attract skilled workers is limited
Competition is fierce
To survive, businesses must embrace technology & constantly adapt

18. FUTURE TRENDS Technology Will Continue to Drive Change
What are we talking about?
“Hard” science (AI, IoT, Block Chain & CRISPR)
Automation and innovation is constant
Distribution, collection and consolidation of information processing
What does it mean for employers?
Increased productivity expectations, elimination of some jobs, creation of other jobs
Skills gaps & training challenges
Protection of IP (non-compete & confidentiality agreements)
Cybersecurity, privacy and electronic discovery issues
Lack of regulation, lack of uniformity, incompatibility of systems
Inability of government to keep up – which leaves “corporate giants” to fill in gaps

19. BOTTOM LINE FOR THE FUTURE
Continued volatility in labor & employment laws
Uncertainty in the quality & size of the labor pool
Continued pressure on employers to “make do” with human resources they have
Stressful workplaces
More litigation
Possible resurgence in unionization
Human Resources is, and will remain, critical in an increasingly automated, tech-driven world

20. WHAT SHOULD YOU DO? BE BOLD — CHANGE THE WAY YOU DO THINGS! ENVISION
Talk to the C-Suite: Where do they want the company to go in 5 years?
Talk to Managers: What do they need to make the vision come true?
Talk to the Employees: What do they need to be successful?
STRATEGIZE
Identify your workforce strengths, weaknesses, opportunities, threats
Develop processes to take advantage of strengths & opportunities, address weaknesses & eliminate threats
Propose your solutions to the C-Suite & Management … OWN IT!
ACTUALIZE
Break your plan down into monthly checklists
Organize your team and run your checklists
Communicate your successes as you go

21. JUST PUT ON YOUR HELMET -
DREAM BIG.
JUST PUT ON YOUR HELMET -
YOU CAN DO IT!
… and remember,
we’re here to help.
We got this!

22. 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.