Labor & Employment Law Trends in the Trump Era

1. 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 email 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 AdministrationRoll 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 • Tax reform • 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 • Hawaii State Legislature • 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. DREAM BIG. JUST PUT ON YOUR HELMET - YOU CAN DO IT! … and remember, we’re here to help. We got this!

22. 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.