Attorney Watch List: What’s in the Forecast for Employment Law?


TrumpLaborPic

As President Donald Trump approaches the end of his first 100 days in office, stakeholders in the employment law field patiently await the administration’s next steps.

In an interview with Bloomberg BNA, John S. Ho provides a watch list on employment law issues, as well as predictions on how the Trump administration will handle them. Mr. Ho is a member at Cozen O’Connor’s New York office.  

The Nomination of Alexander Acosta for Labor Secretary 

Although every nominee comes with some controversy, there seems little doubt that Acosta will be confirmed. His significant legal experiences from different perspectives make it tough to characterize him as someone with an extreme ideology. Given that nominee Acosta has experience as a law school dean, National Labor Relations Board member, attorney with the U.S. Attorney’s Office and Chairman of the Board at U.S. Century Bank, there is an expectation that he potentially could bring a more balanced approach with respect to the Labor Department’s agenda. That said, at least for most agencies within the DOL, a focus from enforcement to compliance seems likely.

The ‘Gig Economy’ and Independent Contractors

Addressing the misclassification of employees as independent contractors was a top priority under the Obama administration. It seems unlikely that the Trump administration will continue to attack this issue as aggressively, particularly in light of the proposed budget cuts to the DOL. It is expected that the department will focus more on assisting employers with compliance rather than enforcement, which historically has been true under a Republican administration. 

However, employee misclassification also has been addressed by state initiatives in recent years. There is no evidence to suggest that won’t continue. Many states have passed legislation combating misclassification by either increasing penalties or passing rebuttable presumption statutes that assume individuals are employees unless a certain rigid test is met. Private civil lawsuits against companies like Uber and Lyft continue to highlight the legal risks in classifying individuals as independent contractors, particularly in certain industries.

Editor’s Note: For an overview of the global gig economy, check out Gigging ‘Round the World: Regulating the Global Gig Economy on the blog.

The Overtime Rule

Conventional thinking and the “word on the street” is that the Trump administration most likely will back off the appeal. There’s some expectation that the administration may go back to the drawing board and propose some increase to the salary level test. This would be lower than the current rule under attack, e.g., maybe a number in the mid-30 range and almost certainly without automatic updates. Such a new proposal would need to head back to the rulemaking process, including a public comment period, so it isn’t likely that we will see changes to the DOL regulations (29 C.F.R. pt. 541) for some time.

This is another area where many states have taken independent action by raising their state law equivalent to the FLSA’s salary level test. This trend should continue, particularly if the federal rules changes are abandoned. I expect this to persist as worker advocate groups become more active and vocal at the state level in response to the potential rollbacks at the federal level. 

Joint Employment

The NLRB obviously has been very active in expanding the joint employer doctrine in recent years. With President Trump expected to make at least two appointments to the five-person board, it is likely that we ultimately will see board decisions that will revoke or rollback the broader joint employer tests established in Browning-Ferris, No. 186 and in similar cases. Specific franchisor-franchisee heavy industries, such as fast food, soon may be getting some welcome relief in this area.

Federal Anti-Discrimination Laws

Earlier in the year, President Trump named EEOC Commissioner Victoria Lipnic acting chair of the agency, which has received an overall warm response from management attorneys given her background and experience. In public comments, Lipnic reaffirmed the EEOC’s central mission of enforcing anti-discrimination laws but suggested that the agency may focus more on job growth as a priority. This is an issue the president has continuously stressed.

The strategic enforcement plan for 2017-2021 looks to continue some common themes, including pursuing high-profile matters that would have a broad impact on various industries or geographic areas. However, Lipnic has stated the need to carefully look at resources before making strategic decisions to commit to such litigation.

Lipnic also has discussed the revised EEO-1 Report, which she had previously voted against as a commissioner. She has indicated that regulations regarding the revised EEO-1 may be examples of rules subject to the President’s directive imposing a freeze on all new federal regulations until they have been reviewed by a presidential appointee. 

Notwithstanding these comments and a change in leadership, businesses shouldn’t expect any quick, dramatic changes to the EEOC. Although the agency has greater control over matters like the contents of an EEO-1 form, federal courts will decide certain key legal issues, such as the applicability of Title VII’s protections to sexual orientation and gender identity. The U.S. Court of Appeals for the Seventh Circuit’s recent decision finding that Title VII covers sexual orientation now makes it the law of the land in that jurisdiction, unless the Supreme Court overrules it or Congress addresses the issue.

Social Media

Although not limited to a specific agency, the evolution of social media continues to be an area that requires close monitoring. As employers know, social media issues can cut into virtually every single employment area including but not limited to harassment, labor-relations and wage-hour. This is particularly true for whistleblowing. In fact, earlier this year the Occupational Safety and Health Administration used a Facebook posting to pursue retaliation charges. Employers need to understand the important role of social media in drafting, implementing and enforcing workplace policies and procedures, as well as what they can and can’t do in terms of using social media. 

 

Stay tuned for my next blog post covering the 2017 ABA National Symposium on Technology in Labor and Employment Law, where experts will forecast the next four years under the new administration.

 

 

 

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like The Fair Labor Standards Act and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.