Section 1 - Beltway Buzz - Ogletree Deakins · 2018-11-12 · Overtime Changes. The Fair Labor...

2018 LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1-1

BELTWAY BUZZ

THE MIDTERMS ARE OVER . . . NOW WHAT?

James J. Plunkett – Ogletree Deakins (Washington, D.C.)



Beltway Buzz: The Midterms Are Over . . . Now What?

by James J. Plunkett

The 2018 midterm elections have just concluded so it will be some time before we can really assess their impact. However, regardless of the legislative priorities in Congress, executive branch agencies continue apace with their labor and employment policy agendas. This white paper sets forth the recent and important federal regulatory developments impacting the workplace.

I. DEPARTMENT OF LABOR (DOL)

On April 28, 2017, Alexander Acosta was sworn in as the Secretary of Labor. While Cheryl M. Stanton (nominated to be Administrator of the DOL’s Wage and Hour Division (WHD)), and Scott A. Mugno (nominated to be Assistant Secretary of Labor for OSHA) await Senate confirmation, DOL continues its efforts to take a more cooperative approach towards compliance and ease the regulatory burdens on employers.

A. Occupational Safety and Health Administration (OSHA)

Tracking of Workplace Injuries and Illnesses. In 2016, OSHA published a rulerequiring electronic submission of injury and illness records and online public access to such records. The 2016 amendments required establishments with at least 250 employees, or with at least 20 employees in a high-risk industry, to electronically submit their illness and injury records to OSHA annually, beginning in 2017. The amendments to the regulations also include provisions designed to prevent employers from retaliating against employees for reporting work-related injuries or illnesses.

After the original effective date was delayed, on July 30, 2018, OSHA published a notice of proposed rulemaking (NPRM) in the Federal Register seeking comments on a proposed measure that would partially rescind the 2016 amendments to its recordkeeping rule.

Here is what OSHA proposes to change:

• Employers with at least 250 in a single establishment would no longer need to electronically file (e-file) 300 and 301 logs (but they would still need to e-file the 300A summary annually). The reason for this change given in the proposed rule is that collection of the 300 and 301 logs “adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy.”

• The proposed rule would also add a requirement for employers to submit their employment identification numbers when e-filing 300A summaries to “reduce or eliminate duplicative reporting.”

What OSHA is not changing:

• Employers with 20–249 employees in designated industries would still be required to e-file their 300A summaries annually.



• The proposed changes make no mention of OSHA’s interpretation that suggests post-accident drug testing and safety incentive programs may be a violation of one or more the following provisions:

o 29 C.F.R. §1904.35(b)(1)(i) (“You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”)

o 29 C.F.R. §1904.36 (“In addition to § 1904.35, section 11(c) of the OSH Act also prohibits you from discriminating against an employee for reporting a work-related fatality, injury, or illness.”)

OSHA made no attempt to walk back its interpretation that Part 1904.36 allows the agency to issue citations for employee whistleblower discrimination or retaliation without a complainant and without regard for Section 11(c)’s requirement that whistleblower complaints be filed by a complainant within 30 days of an adverse action. OSHA’s failure to propose changes to the interpretation of the remaining rules means that employers with post-accident drug testing programs and safety incentive programs may be at risk. Many regional and area offices will likely continue the status quo with respect to those areas, at least until an assistant secretary is in place.

B. Wage and Hour Division (WHD)

Overtime Changes. The Fair Labor Standards Act (FLSA) guarantees most employees both a minimum wage and overtime pay for hours worked beyond 40 in a single week. However, certain “white collar” employees are exempt from these protections if they: (1) are paid on a salary basis (“salary basis test”); (2) receive a minimum specified salary amount (“salary level test”); and (3) primarily perform executive, administrative, or professional duties defined in the regulations (“duties test”). In 2016, the Obama DOL finalized a rule that dramatically increased the salary level from the $23,660 per year to $47,476 per year – an astonishing 100% increase. The 2016 final rule also included an automatic increase in the salary basis every three years, with no regard to changing business or economic conditions and without statutory authorization. The business community challenged the rule as unnecessarily costly and in violation of the FLSA. In late 2016, a federal district court in Texas issued a nationwide preliminary injunction that prevented the DOL from enforcing the new salary level that was scheduled to go into effect on December 1, 2016. On its way out the door, the Obama administration appealed this injunction to the Fifth Circuit Court of Appeals, but this was subsequently withdrawn when the district court permanently enjoined the overtime changes on August 31, 2017.

On July 26, 2017 the DOL issue a request for information (RFI) on the Part 541 overtime regulations that were finalized in 2016. In this RFI, the DOL is seeking new comments, data, and information on an appropriate salary level for bona fide executive, administrative and professional exempt employees pursuant to section 13(a)(1) of the FLSA, as defined in the Part 541 regulations. The DOL allowed for a comment period of 60 days, which closed on Monday, September 25, 2017. However, DOL has stated that an NPRM on the overtime regulations likely won’t issue until January 2019. However, in the meantime, the DOL has indicated it will also propose amendments or clarifications to the definition of “regular rate of pay” for calculating overtime pay, and that this proposal would like appear before the broader overtime proposal.



PAID Program. The Payroll Audit Independent Determination (PAID) program is an innovative pilot program by the DOL aimed at encouraging employers to audit their pay practices and self-report minimum wage and overtime violations to the DOL. The program was designed to avoid expensive litigation and make sure that improper pay practices are corrected immediately and prospectively. In return for self-reporting under the “protection” of the PAID program, and paying all back wages owed to employees (under supervision of the DOL), an employer can avoid liability for double liquidated damages, civil penalties and attorney fees because an employee who accepts the payment had to sign a release and could not later sue for those damages in litigation.

Touted as a six-month pilot program when it began in April, 2018, the DOL hoped to create a vehicle to remedy wage violations quickly, without litigation, and through a process that was more streamlined than a routine WHD investigation. However, participating in the PAID program had conditions. For example:

• The employer had to be covered by the FLSA, which excluded smaller employers.

• The employer had to be acting in “good faith” as determined by the DOL and cannot have been found to be in violation of FLSA minimum wage or overtime requirements within the last five years.

• An employer was not eligible to participate in the program if it was currently under investigation by the WHD for the same pay practice, or was in threatened or current litigation on the issue.

• The employer had to verify that it reviewed its compensation practices for potential FLSA violations.

• The employer had to identify specific violations it found, the identity (names, addresses, phone numbers) of impacted employees, the time period of the violations, and the amount of back wages owing.

• The employer had to provide substantial documentation to the DOL about each violation.

• The employer had to commit to future compliance.

Participation in the PAID program has its risks. For example, all of the information provided to the DOL, including the specific violations found during the self-audit, were subject to disclosure under a Freedom of Information Act (FOIA) request to other employees or the media. Also, employees who were notified of the violation and promised back payment of wages could refuse the payment and sue for liquidated damages and a longer statute of limitations (three years) if the violation was found to be willful. Stated differently, employers had to self-disclose a wage violation without any assurance that all impacted employees would accept the payment and sign a release.

Additionally, the PAID program applies only to violations of federal law. Because many states have higher minimum wage rates and fewer overtime exemptions, an open question is whether the release signed by employees in return for back wage payments under the PAID program would preclude a state law claim.



Given these risks, the viability of the PAID as an effective compliance tool has been questioned and employers considering its use should obtain careful legal advice. The pilot program concludes in October 2018 and the DOL will evaluate whether to continue the program on a more permanent basis, with or without modifications.

Recent Opinion Letters. On June 27, 2017, the DOL announced that it will reinstate the issuance of WHD opinion letters as one of its methods for providing guidance to employers and employees on federal wage and hour laws. An opinion letter is an official, written opinion by the WHD addressing how a particular law applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion. The letters were a division practice for more than 70 years until 2010 when the DOL/WHD ceased issuing them in favor of providing general guidance in what the agency called “Administrator’s Interpretations.”

Opinion letters serve a valuable compliance function in that they are responses directed at fact-specific inquiries posed by a requester. This positive step to reinstitute the issuance of opinion letters will assist employees and employers better understand their rights and responsibilities, respectively, under the FLSA and the Davis-Bacon Act, as well as other statutes for which the DOL/WHD has issued interpretations. More importantly, these opinion letters can constitute administrative rulings or interpretations that employers can cite as litigation defenses, as provided in section 10 of the Portal-to-Portal Act amendments to the FLSA. Although the issuance of new opinion letters ended seven years ago, the DOL/WHD has continued to maintain opinion letters that were issued after 2000 on its website. These letters continue to serve as a source of guidance for employers, employees, attorneys, and the courts.

On August 28, 2018, the WHD released six opinion letters—four involving the FLSA and two involving the Family and Medical Leave Act (FMLA). The opinion letters address the following topics:

• FMLA2018-2-A: Whether organ donation is a serious health condition.

• FMLA2018-1-A: Concerning the Family and Medical Leave Act (FMLA) and “no-fault” attendance policies.

• FLSA2018-20: Whether time spent voluntarily by an employee participating in wellness activities, biometric screenings, and benefit fairs constituted compensable time.

• FLSA2018-21: Whether an entity that sells a technology platform that processes credit card payments for online and retail merchants constitutes a retail or service establishment eligible for the section 7(i) exemption from overtime.

• FLSA2018-22: Whether examination graders who grade credentialing examinations administered by a nonprofit entity qualify as volunteers.

• FLSA2018-23: Whether food service operations that are functionally integrated with the operations of a motion picture theater are a single establishment for purposes of the motion theatre exemption from overtime in section 13(b)(27).

Because opinion letters are fact-specific, before relying on any opinion letter, employers are advised to discuss with counsel whether their workplaces and policies are comparable to the facts described in the particular opinion letter.



C. Office of Compliance Initiatives

In late August 2018, the DOL announced the creation of the Office of Compliance Initiatives (OCI) and unveiled two new websites, worker.gov and employer.gov. In a news release, the DOL said that OCI will “promote greater understanding of federal labor laws and regulations, allowing job creators to prevent violations and protect Americans’ wages, workplace safety and health, retirement security, and other rights and benefits.” OCI also “will work with enforcement agencies to refine their metrics to ensure the efficacy of the [DOL’s] compliance assistance activities.”

According to the DOL, OCI will provide leadership and support to the DOL’s enforcement agencies, with the goal of “advancing the expansion and development of innovative approaches to compliance assistance and enforcement.” Its work will include the following:

• “Facilitating and encouraging a culture that promotes compliance assistance within the [DOL]

• Providing employers and workers with access to high-quality, up-to-date information about their obligations and rights under federal labor laws and regulations

• Assisting enforcement agencies in developing new strategies to use data for more impactful compliance and enforcement strategies

• Enhancing outreach to stakeholders for the Department's enforcement agencies”

The two new websites announced in conjunction with the creation of OCI are designed to assist workers and employers that have compliance questions. Worker.gov “provides a centralized base of information focused on worker protections” under various federal laws. Employer.gov provides employers with information about their responsibilities under such laws, and it includes a resource section specifically designed for small business owners.

Although the websites do not provide a comprehensive listing or analysis of all rights and responsibilities that exist under every federal employment and labor law, they do address topics that fall outside the jurisdiction of the DOL, such as employment discrimination laws that are enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

D. Office of Federal Contract Compliance Programs (OFCCP)

OFCCP has issued several recent directives as part of DOL’s efforts to maximize the effectiveness of compliance assistance outreach:

Directive 2018-05: Analysis of Contractor Compensation Practices During a Compliance Evaluation. This directive rescinds Direction 2013-03 and replace it with Directive 2018-02 to “(1) further clarify and provide additional transparency to contractors about OFCCP's approach to conducting compensation evaluations; (2) support compliance and compensation selfanalyses by contractors under applicable law, and OFCCP regulations and practices; and (3) generally improve compensation analysis consistency and efficiency during compliance evaluations.”



Directive 2018-07: Affirmative Action Program Verification Initiative. This directive comes out of OFCCP concerns that federal contractors are not fulfilling their duty to develop AAPs within 120 days of the commencement of the contract and to maintain and update them on an annual basis. This directive establishes “a program for verification of compliance by all contractors with AAP obligations,” permitting OFCCP review of certifications of compliance of annual updates, potential compliance checks, and annual submission of AAPs to OFCCP for review.

Directive 2018-06: Contractor Recognition Program. In establishing this directive, OFCCP’s stated purpose was “[t]o recognize contractors with high-quality and high-performing compliance programs and initiatives” and “[t]o highlight specific contractor programs and initiatives that are innovative, have achieved demonstrable results, and that could be taught or incorporated into contractor peer mentoring programs.” According to OFCCP, recognition programs can support proactive compliance and encourage contractors’ best or model initiatives and practices.

Directive 2018-08. In Directive 2018-08, OFCCP outlines requirements for its staff to follow in the scheduling, pre-desk audit, desk audit, pre-onsite, offsite analysis, and conciliation stages of an OFCCP audit. Some of the more interesting commitments from OFCCP include:

• OFCCP reserves discretion to grant extensions to timely submission of affirmative action programs (AAPs) in extraordinary circumstances.

• Failure to submit timely AAPs and support data will result in an immediate issuance of a show cause notice (OFCCP noted this would not “require OFCCP National Office approval”).

• The issuance of a show cause notice will not necessarily mean a mandatory conciliation agreement, which is a departure from previous policy.

• OFCCP will limit its desk audit review to the information sought by the Scheduling Letter and Itemized Listing and will not request information for such things as data to refine indicators, employment applications, and manager interviews until the desk audit has been completed.

• OFCCP will close audits quickly where there are no indicators of discrimination or other evidence of violations, noting an ideal time to do so would be 45 days after receiving a complete submission.

• Any requests for supplemental information must include the “basis for the request, be reasonably tailored to the areas of concern, and allow for a reasonable time to respond.”

• OFCCP will include a high-level summary of preliminary indicators of discrimination in an onsite confirmation letter and released a sample letter.

• Contact contractors “ideally at least once every 30 days” with status updates.

• Collaborate with contractors during the conciliation process, including sharing factors used to calculate back pay, among other information, and offering to



include Branch of Expert Services or the Office of the Solicitor staff in these discussions.

• Provide apprenticeship programs and “proactive corporate-wide solutions” as part of the compliance effort to have wider reach for workers and applicants.

Directive 2018-09. Continuing its efforts for transparency and responding to the GAO’s findings that OFCCP “[s]takeholders and contractors fear that OFCCP for assistance would call attention to them and possibly make them a target,” OFCCP announced in Directive 2018-09 a new Ombud Service. The directive acknowledges that OFCCP does not currently have an independent mechanism for external stakeholders to provide feedback and recommendations or to share concerns about a particular open matter.

The directive is clear that the ombud will not advocate on behalf of a contractor or OFCCP, nor give legal advice or opinions or be involved in compliance evaluations or conciliation efforts. The directive requires the individual who fills this role to:

• Listen to stakeholders about OFCCP matters and areas for improvement

• Promote and facilitate resolution of issues at the district and regional office levels

• Implement resolutions of certain issues at the district and regional offices after stakeholders have “exhausted” these “channels”

• Accept and review matters from the OFCCP National Office

• Refer routine requests for compliance and technical assistance to the OFCCP Help Desk

The ombud will also have the discretion to reject a referral. The National Office is tasked with designating or hiring someone for this role who will report to the career deputy director.

II. NATIONAL LABOR RELATIONS BOARD (NLRB OR BOARD)

On April 16, 2018, John Ring was sworn in to fill the vacant and tie-breaking fifth seat on the NLRB. Ring’s position as Chair of the Board, along with fellow Republicans Marvin E. Kaplan and William J. Emanuel, gives Republicans a majority on the Board. Mark G. Pearce’s second term expired on August 28, 2018, and although he has been renominated, the Senate has not acted on his nomination. This means the Board has a three-to-one Republican majority, and the Board will look to roll back some of its controversial decisions of the last several years.

A. Quickie Elections

The NLRB’s “quickie election” rule went into effect in 2015. Through various changes to the union election process, the quickie election rule shortens the timeframe between when the employer receives an election petition and when the election actually occurs. Additionally, the rule requires employers to provide the unions with personal information about workers, such as home addresses, home phone numbers, personal email addresses, shift schedules, and work locations.



By dramatically reducing the campaign period, the quickie election rule limits an employer’s ability to communicate with its employees about the pros and cons of unionization and employees will hear only one side of the story. The rule is intended to boost sagging union membership rolls, while depriving employees of information needed to make a rational decision about whether they wish to be represented by a union.

Undoing the quickie election rule would be quite an undertaking, both legally and logistically. Accordingly, it is unclear how the Board plans to address these changes to the election procedures. In December 2017, the Board announced a Request for Information (RFI) seeking public comment on representation election regulations, specifically focusing on the quickie election rule. The deadline for public responses was April 18, 2018. The Board is currently in the process of reviewing these comments.

B. Joint Employer

In Browning-Ferris Industries (BFI), 362 NLRB No. 186, the Board overturned its clear bright-line test for determining whether an entity is the joint employer of another company’s employees. The old test looked to see which business entity retained direct and immediate control of the workers (e.g., ability to hire, fire, discipline, etc.). In contrast, the BFI test found joint employment even where one company only has the right to exert indirect or potential control over the terms and conditions of another company’s employees.

In December 2017, the Board overruled BFI in a case called Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017). In overturning BFI, Hy-Brand returned the Board to its long-standing test, articulated in two 1984 cases, TLI, Inc., 271 NLRB 798, and Laerco Transportation, 269 NLRB 324. However, the return to the Board’s traditional joint employer standard was short lived.

By order dated February 26, 2018, the NLRB vacated Hy-Brand decision due to questions and concerns regarding the participation of Member William Emanuel in the decision. As a result of the NLRB’s order, BFI is once again extant Board law. The decision to vacate Hy-Brand was based in part on a report from the NLRB’s inspector general determining that because Member Emanuel would have been ethically prohibited from participating in BFI due to the involvement of his former law firm in that underlying case, he was similarly prohibited from participating in Hy-Brand because it involved the same legal arguments advanced and argued in Browning-Ferris. Importantly, the firm at which Member Emanuel was a shareholder before joining the Board did not represent BFI in the underlying case, but rather, another entity involved in the case.

The pending challenge to the BFI decision will now proceed back to the U.S. Court of Appeals for the District of Columbia Circuit.

Subsequently, on September 13, 2018, the Board proposed a rule to correct that mistake and return balance to the labor-management landscape. The Board does not often engage in rulemaking and usually makes policy through adjudication. At the same time, issuing a regulation on this vital matter has the advantage of providing long-lasting stability and predictability for all stakeholders.



The proposed rule corrects the broad and ambiguous joint-employer standard set forth in BFI and returns the Board to its traditional “direct and immediate” standard. The Board proposes the following joint-employer standard:

Under the proposed rule, an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.

The proposed regulation also offers 10 “compare and contrast” examples to illustrate the new standard. For instance:

EXAMPLE 3 to § 103.40. Company A supplies line workers and first-line supervisors to Company B at B’s manufacturing plant. On-site managers employed by Company B regularly complain to A’s supervisors about defective products coming off the assembly line. In response to those complaints and to remedy the deficiencies, Company A’s supervisors decide to reassign employees and switch the order in which several tasks are performed. Company B has not exercised direct and immediate control over Company A’s lineworkers’ essential terms and conditions of employment.

EXAMPLE 4 to § 103.40. Company A supplies line workers and first-line supervisors to Company B at B’s manufacturing plant. Company B also employs supervisors on site who regularly require the Company A supervisors to relay detailed supervisory instructions regarding how employees are to perform their work. As required, Company A supervisors relay those instructions to the line workers. Company B possesses and exercises direct and immediate control over Company A’s line workers. The fact that Company B conveys its supervisory commands through Company A’s supervisors rather than directly to Company A’s line workers fails to negate the direct and immediate supervisory control.

Not surprisingly, Member Lauren McFerran—who was in the majority in BFI and dissented from the Board’s first attempt to correct the joint-employer standard—dissented from the proposal. Member McFerran essentially argues that BFI was decided correctly. Look for labor unions and worker advocates to mirror McFerran’s dissent in their comments.

Comments will be due to the Board on November 13, 2018, and reply comments will be due on November 20, 2018. The Board will then review the comments and make any necessary changes before issuing a final rule, but probably not until 2019. Litigation over the new rule will likely follow. Thus, the Board’s proposal is another step in the joint-employer saga that will certainly have more chapters to follow. Given both the Board’s relative inexperience in the rulemaking process and its checkered history in attempting to promulgate rules, nothing is certain at this time.

C. Union Manipulation of Bargaining Units – Specialty Healthcare

In 2011’s Specialty Healthcare decision, the Board announced a new standard for determining the composition of bargaining units, making it easier for unions to gerrymander the



workforce and force their way in to an employer’s business. The Board and its regional directors have applied the Specialty Healthcare rationale in a variety of workplace settings, including department stores, manufacturing facilities and even a winery.

On December 15, 2017, a divided Board overturned Specialty Healthcare in a decision called PCC Structurals, Inc., 365 NLRB No. 160. PCC Structurals thus returns the Board’s “appropriate unit” policy to the traditional community-of-interest standard used for the majority of the NLRB’s history. As a result of overturning Specialty Healthcare, the Board will focus again on not only the commonality between individuals within a petitioned-for unit but also the commonality of those employees with others outside the petitioned-for unit. This focus will likely result in more findings that various narrowly-drawn units are not appropriate and thus lessen the number of “micro-units” ordered by the Board’s regional directors. However, in at least one recent case, a Board Administrative Law Judge failed to properly apply PCC Structurals when certifying a fractured unit at a manufacturing facility. So Specialty Healthcare might not be completely gone after all.

III. CONCLUSION

As 2018 comes to a close, the labor and employment regulatory landscape has shifted in a way that eases burdens placed on employers over the last several years. Perhaps more significantly, the DOL and its component agencies – WHD and OFCCP, in particular – have made real progress in taking a cooperative approach to compliance, rather than simply relying on their enforcement authority. However, with the 2018 midterms behind us and the 2020 general election looming, employers should remain vigilant of continued changes in the future.

1


Presented by

James J. Plunkett (Washington, D.C.)

Washington, D.C.

2

The American Electorate, November 7, 2018

Midterm Elections – Top Takeaways

A “Blue Wave” but not a tidal wave

Divided government

– Democrats control House

– Republicans control Senate and Executive branch

Opportunities for compromise?

– Infrastructure?

– Criminal justice reform?

3

Midterm Elections – Top Takeaways

Local matters (governorships, ballot measures)

Historical diversity (women, Native Americans, Muslim Americans)

Senate – two more years of Republican judicial nominees

Oversight or overreach?

H.R. 1 – ethics, government overhaul, election reform

Gun control, DREAM Act, etc.

116th U.S. Congress

2019-2021

4

Lame Duck (Nov. 14 – Dec. ???)

Leadership fights

Government funding (December 7)

Nominations – package deal?

Retirement bill (RESA)?

Multiemployer pension reform

Coast guard reauthorization

Farm bill

What Do Election Results Mean for Employers?

More gridlock

Policymaking through regulatory and administrative action (see, e.g., USCIS)

Increased Congressional oversight

5

2019 U.S. House of Representatives:Labor and Employment Issues

House Education & Workforce Committee

Bobby Scott (D-VA), Chairman

6

Oversight

Letters, document requests, etc.

Hearings

Subjects: NLRB recusals, DOL OT and JE rulemakings, etc.

Oversight

Impact:

Chilling effect

Slows regulatory process

Oversight of businesses, as well!

7

“Legislation by Shaming”

Congress – broad subpoena power

Authority to investigate almost anything that might be subject of legislation or oversight

From the Desk of Bobby Scott (D-VA)

“Dear CEO, We are investigating the prevalence of

workplace sexual harassment in your industry…. We read in the newspaper that you have

locked out your employees… We understand that your company received

a citation…”


8

“Accordingly,

Please send to us all documentation…

Please respond to the following questions…

We request that you appear before the Committee…


Legislative Agenda

#MeToo, arbitration, and NDAs

Paid leave

Pay equity

Minimum wage

Pregnancy accommodation

Independent contractors

Workplace Democracy Act

9

Arbitration

Ending Forced Arbitration of Sexual Harassment Act of 2017

EMPOWER Act (bans NDAs that “solely” benefit the employer)

* Both are bi-partisan

10

Paid Leave

FAMILY Act (Gillibrand bill)

Economic Security for New Parents Act (Rubio bill)

Workflex in the 21st Century Act

Senate Health, Employment, Labor & Pensions Committee

Sen. Lamar Alexander (R-TN), Chairman

11

Senate Health, Employment, Labor & Pensions Committee

Nominations

– NLRB: Mark Pearce nominated

– EEOC: Commissioners, GC

– DOL: WHD, OSHA

– DOL: BLS

2019 Regulatory Landscape

Overtime

Joint employer (both DOL and NLRB)

Ambush elections

OSHA injury and illness reporting

Immigration – continued scrutiny on high-skilled visas

Association retirement plans

Wellness

12

2019 L&E Predictions

Little L&E activity from Congress

Some regulatory activity (but litigation will create uncertainty)

Continued developments at the state and local level

2020 Elections

13

14

Each has endorsed legislation that would:

Implement card check organizing

Codify broad joint employer standard

Limit pre-dispute arbitration

Enact new penalties on employers

Codify rescinded persuader regulation

Etc., etc…

15

President Trump Approval Rating

Republicans Democrats Independents

September 10, 2018

88% 6% 33%

* According to Real Clear Politics data

Republican Primary Challengers?

16

Republican Primary Challengers?

Who was the last incumbent president to lose in a primary election?

Franklin Pearce (1856)

Benjamin Harrison (1893)

Warren G. Harding (1923)

Lyndon B. Johnson (1968)

17

Is this the worst our politics have ever been?

18

How can it get better?

We need to galvanize around institutions, ideas, or people that span political and

cultural divides.

19

Civics Education

20

21


Presented by

James J. Plunkett (Washington, D.C.)

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Section 1 - Beltway Buzz - Ogletree Deakins · 2018-11-12 · Overtime Changes. The Fair Labor...

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