Newly elected President Trump will have a significant impact on shaping the executive agencies that impact employers, unions and the workplace in general, not to mention the fact that he may hand pick up to four new Supreme Court Justices. There is no doubt that legislation, regulation, and court cases during the Trump Administration will have lasting effects on employers in 2017 and beyond.
On February 20, 2017, Conn Maciel Carey’s Labor & Employment and OSHA attorneys will host an in-person briefing in its Washington, DC office to discuss the practical impact of the Trump Administration on the legal landscape in key areas for the workplace, including:
- The effort to repeal the Affordable Care Act;
- The rollback of regulation and former President Obama’s Executive Orders, including the Department of Labor’s overtime rule, the persuader rule, and OSHA’s anti-retaliation rule;
- The National Labor Relations Board under Philip Miscimarra’s Chairmanship;
- Anticipated court decisions from the Supreme Court, including whether employers can include class action waivers in arbitration agreements;
- OSHA enforcement, regulatory and policy developments to expect during the Trump Administration’s inaugural year.
Networking will start at 8:30 am, and the briefing will last from 9:00 am – 10:30 at 5335 Wisconsin Avenue, NW, Suite 660. To register for this complimentary briefing, please contact firstname.lastname@example.org.
We hope to see you there!
On November 16, 2016, a Texas federal judge permanently blocked the U.S. Department of Labor (“DOL”) from enforcing its persuader rule in National Federation of Independent Business, et al. v. Thomas E. Perez, et al., Case No. 5:16-CV-066-C. As we previously reported in a prior post, when the DOL published the final rule in March 2016, it imposed substantial reporting obligations on employers. The old rule required disclosure of the use of an outside consultant if the consultant engaged in direct persuader activity, such as if the consultant directly communicates with employees about union representation. The new rule, however, added reporting for indirect persuader activities; for example, providing communication materials to an employer to hand out to employees. These types of activities typically, but not exclusively, arise in the context of a union organizing drive.
The DOL’s insistence on imposing stricter reporting requirements on employers stems from what the DOL perceived as a loophole in the Labor Management Reporting Continue reading
Update: June 27, 2016
The DOL has been ordered by a federal court not to enforce the Persuader Rule on a national basis after July 1, 2016 because the court was persuaded (sorry for the pun) that the rule would cause irreparable harm to business groups.
Had the final rule not been enjoined, after July 1, 2016, in accordance with the DOL’s Persuader Rule, all employers will be required to report financial agreements with consultants and attorneys retained to give advice that could be viewed as efforts to “persuade” workers on union-related matters.
As we reported when the DOL published the final rule in March 2016, the new rule imposes substantial reporting obligations on employers. The old rule required reporting if the consultant engaged in direct persuader activity, such as if the consultant directly communicates with employees about union representation. The new rule adds reporting for indirect persuader activities; for example, when providing communication materials to employer to hand out to employees. These activities typically, but not exclusively, arise in the context of a union organizing drive. The final rule provided that it applies to “arrangements and agreements as well as payments (including reimbursed expenses) made on or after” July 1.
But, in an important development, the DOL has recently interpreted its new Persuader Rule Continue reading
By: Kara M. Maciel, Jordan B. Schwartz and Daniel Deacon
On March 23, 2016, the U.S. Department of Labor (DOL) finalized the long-awaited “persuader” rule requiring employers and their labor relations consultants, including attorneys, to report any activities by these consultants that could be construed as an attempt to “persuade” employees regarding their right to organize a union and bargain collectively. Although employers were required to report when consultants spoke to employees under existing law, the new rule will require employers and consultants to report activities where a consultant is only tangentially involved in giving advice, even if that advice is never considered or followed by the company. The rule will have a major impact on businesses as it overturns long-standing precedent regarding how employers can legally manage organizing campaigns.
The DOL’s insistence on imposing stricter reporting requirements on employers stems from what the DOL perceived as a loophole in the Labor Management Reporting and Disclosure Act of 1959 (LMRDA). The LMRDA requires labor organizations, consultants, and employers to file reports and disclose expenditures on labor-management activities. The law was designed primarily to prevent abuse, corruption, and improper practices by labor organizations, employers, and labor relations consultants. It requires two sets of reports: (1) labor organizations have to report a wide array of financial information, including information about how much they spend on organizing campaigns; and (2) employers who hire labor relations consultants to directly persuade employees one way or another on organizing and bargaining issues must also report these relationships, including the amount of money spent on these activities. However, Section 203(c) of the LMRDA does not require employers to report when they hire a consultant simply for advice, which is commonly referred to as the advice exemption. In the past, “advice” was interpreted as including “indirect” persuasion, thus relieving employers from reporting guidance they received from consultants regarding what to say to employees. Continue reading
2015 has been a busy year for government agencies in terms of Labor & Employment Rulemaking, and this trend will only continue into the New Year. Thus, as the holiday season swings into full gear and the end of 2015 is right around the corner, we want to take this opportunity update you on important Labor & Employment regulations rules that are set to be released in the coming months.
Rules issued by the U.S. Department of Labor’s Wage and Hour Division
- Revisions to Overtime Regulation. As we have previously explained here, the Wage & Hour Division (WHD) of the U.S. Department of Labor (DOL) has released proposed regulations that will dramatically expand the number of workers who could be eligible for overtime. Specifically, the WHD has proposed raising the minimum salary threshold for employees to be exempt from overtime from the current level of $455 per week to $970 per week, or $50,440 per year. In addition, the WHD is considering whether it should modify the existing “duties” test in order for a worker to be exempt from overtime. There have been nearly a quarter of a million comments submitted to the WHD regarding these new regulations. It is currently anticipated that the WHD will issue its final regulations in the summer of 2016.
- Impact of the Use of Electronic Devices by Nonexempt Employees on Hours Worked. The DOL plans to issue a Request for Information (RFI) to gather information about employees’ use of electronic devices to perform work outside of regularly scheduled work hours and away from the workplace, as well as information regarding last minute scheduling practices being utilized by some employers that are made possible in large part by employees’ use of these devices. While this is not intended to become an actual rule at this time, the information gathered may be used to support some form of guidance in conjunction with the overtime regulation. The RFI is expected that to be issued in February 2016.
- Regulations Requiring Federal Contractors to Provide Paid Sick Leave. Executive Order 13706 requires federal contractors and all levels of subcontractors to provide paid sick leave at the rate of one hour per every 30 hours worked, up to 7 days annually. Contractors include any company merely leasing space from the federal government such as a day care center in a federal office building. The Executive Order specifies the purposes for which this leave must be available, which include both the employee’s health and those of their family. The terms of when this leave can be used are taken directly from the Healthy Families Act, including making the leave available to deal with domestic violence. It is anticipated that a proposed regulation implementing this Executive Order will be issued in February 2016.