Category: Labor Law

November 21, 2017

What Are Employers Thankful for in 2017?

In advance of Thanksgiving 2017, I thought I would recap some of the most significant labor and employment law developments so far this year. Let’s take a look at what’s making employers thankful this holiday season!

I recognize that some do not personally agree with all of the policy and legal issues discussed here, but they are generally “positives” for employers with respect to the employment relationship.

No Increase (Yet) to Federal Overtime Threshold

This time last year, employers across the country were preparing for a huge increase in the salary level for many common FLSA overtime exemptions. The Department of Labor’s new rules then scheduled to take effect December 1, 2016, would have more than doubled the salary requirement from $455 weekly to $913 per week. In addition, the rules provided for automatic increases to the threshold every 3 years.

Then, on November 22, 2016, a federal judge in Texas enjoined the rule before it took effect. The Department of Labor preserved its rights to keep fighting, but under President Trump it has shifted its priority toward reconsidering the rules. The injunction is still on appeal, but it is clear the Trump DOL will not try to implement the 2016 rules.

It seems likely that the DOL will instead come up with a new set of rules. They will probably increase the salary requirement to a level below $913 per week. But we are probably at least a year away from any changes taking effect.

Republican Control of the National Labor Relations Board

Attorney Peter B. Robb was sworn in as General Counsel of the National Labor Relations Board on November 17, 2017. He replaces Obama-appointee Richard F. Griffin, Jr., who served from November 4, 2013 to October 31, 2017.

Robb has represented employers in labor and employment law for approximately the past 30 years. For more on his background, read this earlier post.

As chief prosecutor for the NLRB, Robb will have significant control over the agency’s agenda during his 4-year term.

Two President Trump nominees had already joined the 5-member Board, giving Republicans a 3-2 majority over the agency’s adjudicatory body. Read more about new Labor Board members Marvin Kaplan and William Emanuel.

Experts anticipate that the Republican majority will reverse many pro-labor decisions from the Obama-era NLRB. Some prime targets for review are decisions related to:

Joint employer doctrine
Mandatory arbitration/class-action waivers
Micro bargaining units
Union election procedures
Social media policies
Graduate student collective bargaining
Employee use of employer-provide email accounts
Confidentiality of internal investigations

Although employers must continue to abide by the National Labor Relations Act, including respecting employees’ Section 7 rights, they should gradually regain more leeway to run their businesses with the new Board.

Congressional Disinterest in Employment Laws

Sure, healthcare and taxes are major topics of interest for all businesses. And they’re very much on the table. But there has been little meaningful discussion of further regulating the employment relationship at the federal level.

If anything, this Congress may eventually try to loosen burdens on employers. This could include legislation to expedite issues that the NLRB and Department of Labor could more slowly address through adjudication and rulemaking. Efforts are already underway to relax existing joint employer tests, for example.

One issue raised by Trump’s campaign, paid family leave, remains just off the back burner. However, the most viable legislation floated so far seems to involve optional leave programs. It seems clear that the Republican Congress isn’t eager to impose more burdens on employers just because the President threw an idea out there.

What Else Would Make Employers Thankful?

Here are just a few thoughts about some other issues that would make employers thankful going forward. Some would be easier to achieve than others

1. More effective means of preventing workplace harassment.

Sexual harassment has become a hot media topic recently. This is unfortunate in that the harassment, including assault, occurred in the first place. But at least the recent accounts are shining a spotlight and motivating people to do something about it.

This does, however, have a significant potential impact on employers. Various employment discrimination laws prohibit harassment based on many protected characteristics not limited to sexual harassment. It’s reasonable to assume that more employees will come forward to report harassment in light of the recent societal openness on the subject. This will require employers to expend resources on investigations and enhanced training. Plus, some will inevitably be held liable, meaning settlements, legal fees, and damages awards.

For some well-run businesses, this will mean increased costs, both direct and to productivity. They should recognize the inevitable and try to come up with innovative ways to prevent harassment. Areas of consideration include hiring, performance reviews, management accountability, and even exit interviews. This may well not be an area where the law will help employers. But, if necessary, the existing laws can help provide the motivation to act.

2. Resolution of the Affordable Care Act debate.

Congress remains within a couple Senate votes from repealing the Affordable Care Act (“Obamacare”). Like it or hate it, employers need to know what’s going to happen with this law that still hasn’t fully taken effect. The only thing that seems clear is that many of the existing (in writing) requirements upon employers will never actually materialize. But it’s still something of a guessing game to determine what will apply and when.

Most likely, we’ll have a new set of rules in this area within a couple of years. But who knows what they’ll look like! With the ever increasing cost of health insurance, uncertainty surrounding employers’ responsibilities is a major headache, at best.

3. Clarity in dealing with employee disabilities.

There are so many laws that apply when addressing an employee medical situation. These include the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Family and Medical Leave Act (FMLA), worker’s compensation laws, state disability discrimination laws, and more.

It’s hard enough to comply with any one of these sets of rules, let alone all of them together. They leave many traps for the unwary and the well-intentioned employer alike. Even though employers usually want to be fair to employees with medical conditions, they must consider other employees and effective operation of the business as well.

For now, employers just have to accept that managing these situations is complicated. Perhaps one day some wise lawmakers can come up with a good a solution that make many employers thankful.

You may also be interested in reading 5 Big Legal Questions for New York Employers.

November 8, 2017

Peter Robb Is New NLRB General Counsel

On November 8, 2017, the U.S. Senate confirmed Peter Robb to a 4-year term as the next General Counsel of the National Labor Relations Board. Robb previously served as an NLRB attorney, but has been in private practice for the past 30+ years.

The Senate voted 49-46 along party lines. Before Robb’s confirmation, Jennifer A. Abruzzo had served as Acting General Counsel since Richard Griffin’s term expired on October 31, 2017.

The new NLRB General Counsel will be responsible for investigating and prosecuting unfair labor practice cases and overseeing the NLRB field offices.

Meet the New NLRB General Counsel

Peter B. Robb most recently practiced labor and employment law with Downs Rachlin Martin PLLC in Vermont since 1995. He previously practiced with Proskauer Rose LLP.

From 1981-1985 he served as chief counsel to NLRB Member Robert P. Hunter (R). Before that, he had been an NLRB field attorney and a supervisory attorney with the Federal Labor Relations Authority.

Robb received his B.A. from Georgetown University and his J.D. from the University of Maryland School of Law.

About Jennifer Abruzzo

Jennifer Abruzzo became the NLRB’s Deputy General Counsel on November 4, 2013. That was the same day that Richard Griffin began his 4-year term as General Counsel. Before that, she held other positions in the General Counsel’s office. In total, Abruzzo has spent more than 20 years with the National Labor Relations Board. Her other positions have included Field Attorney, Supervisory Field Attorney, and Deputy Regional Attorney in the Miami, Florida office. She also served as Deputy Assistant General Counsel in the Division of Operations-Management in Washington, D.C.

Abruzzo is not known to have taken any significant action during her one week as Acting General Counsel.

Rosemary Collyer is the only woman to have served as NLRB General Counsel in a non-acting capacity. She held the position from 1984-1989. She is now a Senior United States District Judge on the U.S. District Court for the District of Columbia and the Presiding Judge of the U.S. Foreign Intelligence Surveillance Court.

Status of NLRB Transition

Robb’s confirmation as the new NLRB General Counsel completes the initial transition from the Obama-era Labor Board. The General Counsel operates independently from the 5-member National Labor Relations Board, but has considerable influence over the cases brought to the Board for adjudication.

With two Trump appointees (William Emanuel and Marvin Kaplan) already serving on the Board, the 3-2 Republican majority will likely get to work rolling back many positions taken by their recent pro-labor predecessors.

However, NLRB Chairman Philip Miscimarra has announced he will not accept a new term when his expires in December. This will create a third Labor Board vacancy in President Trump’s first year in office. Morgan, Lewis & Bockius LLP partner John Ring and California attorney/politician Mike Stoker have been mentioned as potential nominees.

October 19, 2017

5 Big Legal Questions for New York Employers in October 2017

In July, I discussed 5 Big Legal Questions for New York Employers. Three months later, we’re still dealing with the same issues. Let’s update where we are.

Question 1: Healthcare???

July Prediction: Obamacare reigns for the foreseeable future, probably into 2018. Republicans will need to slow down and construct a fully workable alternative before repealing and replacing . . . before the mid-term elections next November. Wild card: This is Congress’ lead issue, and one that affects tens of millions of Americans. Republican leadership may make significant concessions in any other area to get something through.

October 2017 Update: Multiple Senate attempts to repeal/replace the Affordable Care Act have come up short. Most recently, on October 17, 2017, Senators Lamar Alexander (R-Tenn.) and Patty Murray (D-Wash.) announced a bi-partisan healthcare plan. The deal would extend subsidies to health insurance companies for two years. President Trump eliminated the subsidies by Executive Order a week earlier. Initial reports suggest that Trump may not support the stop-gap measure. It’s not yet clear when or whether the Senate would vote on the plan. Or whether the House of Representatives would also accept the approach.

Scorecard: So far, the prediction was sound. Senate Republicans didn’t quite “slow down” as forecast. Rather, Senator John McCain (R-Arz.) cast a deciding vote against repeal in late July. He also helped prevent later repeal efforts. To date, the Affordable Care Act is still in place, albeit eroding slowly through the President’s actions. The powers that be don’t all agree on what to do, but everyone knows something has to be done. We’re still in wait-and-see mode, as predicted in July.

Question 2: FLSA Salary Threshold???

July prediction: The DOL will come out of litigation later this year or early next year with the preserved right to set a salary level for the exemptions. Over the next year or so, they will propose a new rule with a salary requirement somewhere between $455 and $913. The new threshold will probably be close to the midpoint of those two numbers. Wild card: Congress could amend the FLSA to fundamentally alter the related exemptions. Any such amendments would likely make more employees exempt and/or simplify the classification of employees as exempt/non-exempt. For example, a salary only test for non-manual workers would presumably reduce administrative burden on employers and reduce the risk of costly litigation.

October 2017 Update: On August 31, 2017, a U.S. District Court in Texas issued its final ruling that the Department of Labor exceeded its authority when it implemented the 2016 rules increasing the exemption salary level requirements. The decision permanently invalidates the rule, and DOL, which now agrees with the court, is not appealing. On July 26, 2017, the the DOL issued a Request for Information on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees under the FLSA. The comment period ended in September.

Scorecard: Still on track. The court decision invalidating the Obama-era rule did not prohibit the DOL from setting a new salary level. For now, the pre-existing $455 weekly salary requirement remains in place. The DOL’s Request for Information foreshadows new rules. It’s still reasonable to assume they will increase the salary level. But the court’s decision almost guarantees that the new threshold will be below $913 per week.

Question 3: Federal Paid Family Leave???

July Prediction: Nothing meaningful happens in 2017 at least. It’s hard to fathom this Congress touching paid family leave with Obamacare still on the books. It’s also hard to imagine them tackling paid family leave in connection with healthcare, which is already complicated enough in its own right. Wild card: If the Democrats make significant inroads in the 2018 elections, this could be an issue where the White House reaches across the aisle beginning in 2019.

October 2017 Update: Republicans in Congress haven’t taken up this issue. With significant tax cuts on the table, funding new federal leave mandates for workers probably isn’t.

Scorecard: As predicted. There is growing popular support on this issue. And President Trump is, if unwittingly, on board. But it’s still not a Republican priority, even among labor and employment issues.

Question 4: New York State Paid Family Leave???

July 2017 Prediction: Many employers will not make deductions until they better understand the program. For some, this will be after final regulations are issued. For others, it will be very late in 2017 when they finally realize they have to pay for this additional component of their disability insurance policy. There will be frustration by both employees and employers when the deductions start, not to mention when employees become eligible for leave. Because the leave is administered as an insurance benefit, employers will not have full control, yet still may have to simultaneously adhere to FMLA requirements and maintain adequate staff to get the work done. Wild card: If/when some form of federal paid family leave takes effect, New York employers may have a nightmare scenario of trying to simultaneously understand and live with both sets of laws.

October 2017 Update: The New York Workers’ Compensation Board (WCB) issued final regulations on the Paid Family Leave Program on July 19th. (That was the same day I published the original post addressing this question. I was not yet aware of the final rules when it went up. I was at the time attending a conference where the General Counsel of the WCB later spoke about Paid Family Leave!) The final regulations appear to require employers to notify employees who are eligible to waive participation in the Paid Family Leave Program. Earlier this month, the WCB finally issued an opt-out form for employers to present to employees for this purpose.

Scorecard: Looking good. Employers who haven’t spoken to their disability insurance carrier about their Paid Family Leave premiums should do so immediately. Depending on the anticipated costs and payment due dates, employers may want to begin making deductions. Before doing so, they should allow eligible employees to opt out.

Question 5: NLRB???

July 2017 Prediction: Employers who have changed policies and procedures to satisfy the Obama Board won’t rush to change them back. But they may be less conservative in other areas, such as dealing with unions regarding current/potential bargaining units. It will take several years for a Republican majority to decide cases in all areas touched by the Obama NLRB. But the NLRB could act relatively quickly to change the “quickie” union election rules issued by the Obama Board. That could perhaps occur by early 2018. Wild card: The Republican Congress may try to amend the National Labor Relations Act to more swiftly, comprehensively, and dramatically undue the Obama Board’s actions. Although there have already been bills proposed to do this (which is not unusual of Republican lawmakers), it’s too soon to tell whether any such efforts will take priority and gain enough support before the 2018 elections.

October 2017 Update: The Senate has confirmed Republican attorneys Marvin Kaplan and William Emanuel as Members of the National Labor Relations Board. This gives Republicans a 3-2 majority on the Board. Peter Robb, President Trump’s nominee to become the NLRB’s General Counsel, is now waiting for a vote by the Senate and for Richard Griffin’s term to end at the beginning of November. The only potential wrinkle in the equation towards more employer-friendly decisions is that Chairman Miscimarra’s term will end in December. He will not continue for another term. So Trump must nominate another Board member to fill his spot. Any gap between expiration of Miscimarra’s term and confirmation of a new Board member would leave the NLRB with a temporary 2-2 Republican-Democrat deadlock.

Scorecard: Too early to tell. Everything is still trending towards a reversal of key Obama-Board decisions. But it remains to be seen how quickly the new Republican members can change course. There is even some speculation that the Board will become more aggressive than ever in setting policy by rulemaking. This way, they wouldn’t have to wait for new cases to bring critical issue back before the NLRB for adjudication. Opponents would likely challenge the Board’s authority to proceed in that fashion.

Looking Ahead

These won’t be the only legal questions for New York Employers in the coming months. I’ll check back in with updates on these issues and others.

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