Webinar Wednesdays WHAT HAWAII EMPLOYERS CAN EXPECT IN
Webinar Wednesdays WHAT HAWAII EMPLOYERS CAN EXPECT IN THE TRUMP ERA Anna Elento-Sneed December 2016 envision, strategize and actualize
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. 2 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
DISCUSSION TOPICS • How “Laws” Are Actually Changed • The “Wish List” – – – U. S. Department of Labor (USDOL) Equal Employment Opportunity Commission (EEOC) National Labor Relations Board (NLRB) Occupational Safety & Health Administration (OSHA) Obama Executive Orders Legislation • The “Real World” 3 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
HOW “LAWS” ARE ACTUALLY CHANGED • U. S. Constitution – The Constitution is the framework for our entire legal system – Article V procedures: • Congress must propose amendment by 2/3 majority vote in House of Representatives & Senate or Constitutional Convention must be called by 2/3 of State Legislatures – President is not involved in this process • Proposed amendment must be ratified by ¾ of states (38 of 50 states) – Republicans now have 32 governors – But State Legislatures are all over the place • Federal Statutes – United States Code contains the general and permanent laws of the U. S. • Includes creation and empowerment of federal agencies – Procedures: • Bill originates in the House of Representatives or Senate; may be amended • Bill must approved by both Houses and President to become law – Republican party is of January 20, 2017 will purportedly control both Houses and the Presidency 4 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
HOW “LAWS” ARE ACTUALLY CHANGED • Federal Regulations – Regulations are issued by federal agencies, boards or commissions • Explains how agency intends to administer and enforce a law – Rulemaking Process: • Agency required to consult with the public when creating, modifying or deleting rules in the Code of Federal Regulations – Agency publishes proposed rule in the Federal Register – Public submits comments to agency – Agency considers feedback, makes changes where appropriate and responds to public comments received – Agency publishes final rule in the Federal Register with specific date when rule becomes effective and enforceable; must include responses to public comments • Process can take years 5 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
HOW “LAWS” ARE ACTUALLY CHANGED • Presidential Executive Orders – E. O. s are directives by President that have the power of federal law • Used to create committees or organizations • Used to direct and manage how federal government operates – E. O. s can be changed or overturned: • By the President • By Congress passing legislation (but subject to veto by President) • By the U. S. Supreme Court if it declares the E. O. to be unconstitutional • U. S. Supreme Court Decisions – Article III of Constitution establishes federal judiciary • Original jurisdiction (e. g. disputes between states) • Appellate jurisdiction (appeals of cases involving issues of Constitutional or federal law) • Judicial review (ability of Court to declare Legislative or Executive act unconstitutional) – Court decisions are based on majority rule • Currently have 4 -4 split with one vacancy on the Court 6 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – USDOL • Salary Threshold for Exempt Employees – This is a federal regulation – Options for halting enforcement • Litigation – – “National” injunction issued by federal district court judge; applies to litigants only – Case has been appealed by USDOL to Fifth Circuit » If Fifth Circuit agrees with USDOL, injunction disappears » Regardless of who wins, the case will be appealed to U. S. Supreme Court – Cases on same issue can be instigated in other federal circuits (e. g. Ninth Circuit) » Can be initiated by USDOL » Can be initiated by private litigants (individual or class action lawsuits) • Executive Order – – Trump Administration could order USDOL to stop enforcement – Subject to lawsuit forcing judicial review by U. S. Supreme Court • Agency Repeal – – Must go through rulemaking process – Trump Administration must appoint new Secretary to USDOL and Asst. Secretary of USDOL, W&H to make this happen – Prediction: No resolution until 2018 at earliest; in the meantime, employers take a risk 7 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – USDOL • “Persuader Rule” – This is a federal regulation requiring employers & their attorneys to report activities that either: (1) persuade employees about unionization or collective bargaining; or (2) advise employers about labor disputes – Options for halting enforcement • Litigation – Lawsuits were already filed in three states; injunction obtained in one, but case on appeal – Cases will be appealed up to U. S. Supreme Court • Executive Order – – Trump Administration could order USDOL to stop enforcement – Subject to lawsuit forcing judicial review by U. S. Supreme Court • Agency Repeal – – Must go through rulemaking process – Trump Administration must appoint new Secretary to USDOL to make this happen – Prediction: No resolution until 2018 at earliest; in the meantime, employers take a risk 8 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – EEOC • ADA Guidelines on Leaves of Absence – This is an interpretive “guidance” issued by EEOC staff; not a regulation • Followed by the staff as if it were a regulation • Requires change in internal policies and procedures – There is only one vacancy (out of 5 positions) on Commission • Trump Administration has not made an appointment – Options for halting enforcement • Executive Order – – Trump Administration could order EEOC to stop enforcement – Subject to lawsuit forcing judicial review by U. S. Supreme Court • Employers could ignore and then fight enforcement effort by EEOC – Trump Administration could refuse to “fund” EEOC lawsuits – Employees would have to litigate issue up through federal court system – Ultimate success depends upon make up of Supreme Court – Prediction: This will take years to resolve; in the meantime, employers take a risk 9 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – EEOC • Interpretation of “Sex” to include LGBT – This situation is due to federal circuit court interpretations of Title VII • Ninth Circuit (which includes Hawaii) includes LGBT within definition of “sex” • Other federal circuits do not • Conflict in Circuits will go to U. S. Supreme Court – Supreme Court is split on most issues • Not clear how they would rule on this issue – particularly with respect to bathrooms & locker rooms – Options for halting enforcement: • Amendment of Title VII to prevent expansion of definition • Appointment of conservative justice to U. S. Supreme Court – Litigation of case to Court after seat is filled – Prediction: No resolution until 2018 at earliest; but plaintiffs in Hawaii can sue under Chapter 378 which prohibits discrimination on the basis of gender identity & expression 10 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – NLRB • “Quick Election” Rules – This is a federal regulation • Lawsuits filed challenging legality of rules; will take years to resolve – Other options for halting enforcement • Executive Order – – Trump Administration could order EEOC to stop enforcement – Subject to lawsuit forcing judicial review by U. S. Supreme Court • Employers could ignore and then continue to challenge rules in a conservative circuit – Trump Administration could refuse to “fund” NLRB efforts – Employers would have to litigate issue up through federal court system – Ultimate success depends upon make up of Supreme Court • Agency Repeal – – Must go through rulemaking process – There are currently 2 vacancies (out of 5 positions); Trump Administration has not made an appointment – Prediction: This will take at least 2 -3 years to resolve; in the meantime, employers take a risk 11 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – NLRB • NLRB Decisions on Joint Employer Status, Email, Handbooks, Etc. – These are agency interpretations; not regulations • Various court challenges have been made; will take time to resolve – Other options for halting enforcement • Executive Order – – Trump Administration could order NLRB to stop enforcement – Subject to lawsuit forcing judicial review by U. S. Supreme Court • Employers could ignore and then continue to challenge rules in a conservative circuit – Trump Administration could refuse to “fund” NLRB efforts – Employers would have to litigate issue up through federal court system – Ultimate success depends upon make up of Supreme Court • New “Board” could overturn precedent – There are currently 2 vacancies (out of 5 positions) – Trump Administration has not made an appointment – Prediction: This will take at least 3 -4 years to resolve; in the meantime, employers take a risk 12 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – OSHA • Rule on recordkeeping and reporting of workplace injuries requires – This is a federal regulation • No ongoing litigation to enjoin it • Must repeal rules – Options for halting enforcement • Executive Order – – Trump Administration could order OSHA to stop enforcement – Subject to lawsuit forcing judicial review by U. S. Supreme Court • Employers could ignore and then challenge rules in a conservative circuit – Trump Administration could refuse to “fund” OSHA efforts – Employers would have to litigate issue up through federal court system – Ultimate success depends upon make up of Supreme Court • Agency Repeal – – Must go through rulemaking process – There are currently 1 vacancy (out of 5 positions); Trump Administration has not made an appointment – Prediction: This will take at least 2 -3 years to resolve; in the meantime, employers take a risk 13 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – OBAMA E. O. s • E. O. s Likely To Be Canceled – 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 • Not certain if it will be in “First 100 Days” 14 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “WISH LIST” – Legislation • Affordable Care Act (“Obamacare”) – Federal legislation • Complex statute involving three agencies: IRS, USDOL & U. S. Dept. of Health • Also involves legislation and agencies in 50 states and territories – Candidate Trump called for repeal – President-Elect Trump now saying he wants to retain certain portions (i. e. pre-existing condition clause and coverage for adult children in school) – Incoming Administration now concerned with complexity of the law • Immigration – Federal legislation – Candidate Trump called for amendment (deportation, end to DACA, build a wall) – President-Elect Trump now quiet and scaling back deportation – Also wants to expand E-Verify to all employers 15 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “REAL” WORLD • Labor & employment laws normally change when the Administration changes from one political party to the next – The speed of the change depends upon how organized the incoming party is – The Trump Administration is “behind the curve” – Until he can fill the positions, the career bureaucrats will “follow the rules” • Situation seems more “shaky” because of politics – – – 16 Labor & employment laws have become “political” Republican party not totally united Democrats are still a force Result will likely be a 3 -way negotiations Clearly written statutes and regulations will be increasingly rare Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “REAL” WORLD • Should expect employers and employees to resort to litigation – Will “cherry pick” the courts they file claims in – Will continue to have conflicts in the federal circuit courts of appeal – Conflicts may have to be elevated to Supreme Court • Supreme Court appointments will be critical – Priority will be to fill vacancy created by Scalia’s death • Will be difficult process • Will not be completed in time for current Court session (which ends in June 2017) • May not see impact until 2017 -2018 session (with cases coming out in June 2018) – Whether Court becomes more conservative will depend on whether more seats open up, and each appointment will be a “fight” 17 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
THE “REAL” WORLD • Even if Federal laws become more conservative and more “employer friendly, ” that does not mean Hawaii employers will get relief • Examples: If this federal law is “repealed” Hawaii has… Affordable Care Act Hawaii Prepaid Health Care Act LGBT protections under Title VII HRS Chapter 378 EEOC regulations on leaves for disabled employees DLIR interpretation of HRS Section 378 -32 (unlimited leaves for WC disabilities) Paid sick leave for employees of federal contractors/subcontractors ? ? 18 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
FINAL THOUGHTS • Labor and employment laws will continue to be volatile • You should expect: – Confusing statutes and regulations – Increased litigation – Shift in enforcement activities from federal to state agencies • Changes will not be overnight – will take time • Employers will need to monitor developments closely – Figure out what laws really impact your company – Get organized – Be ready to adapt when changes actually happen 19 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary January 7, 2022
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