Labor and Employment Law in a Trump Administration Jeffery L. Thompson Constangy, Brooks, Smith & Prophete, LLP Telephone: 478-621-2423 Email: jthompson@constangy.com

What to Expect from President Donald Trump

First – Let’s Recap Predictions v. Results

Updated: 11/6/16

Results from Counties Across the Country

Donald Trump’s Plan for America

Stock Market (Oct. 2016 – Now) Election Night

Supreme Court Nomination - Neil Gorsuch 10th Circuit Court of Appeals Judge A lot like Justice Scalia – interprets the Constitution consistently with the understanding of those who drafted and adopted it. Generally results in decisions that mirror conservative values, but not always.

Federal Contractors Fair Play & Safe Workplaces – report labor law violations when bidding on government contract Congress is taking steps to block the implementation. Paid Sick Leave – Trump has voiced support for paid maternity leave but these may be determined to be too expansive Pay Transparency – don’t expect any changes here Sex Discrimination / LGBTQ Discrimination – Trump is not going to overturn the Executive Order from 2014 that protects employees from anti-LGBTQ discrimination while working for federal contractors. EEO1- Reporting – may be here to stay considering Trump’s (and his daughter’s) stance on equal pay

OSHA: Reasonable Reporting Rule Effective August 10, 2016, OSHA implemented some new reporting and record-keeping rules. In so doing, it also implemented an “anti-retaliation” provision related to work injuries and accidents. §1904.35(b)(1)(i). Employers are required to inform employees of their right to report work injuries/illnesses free from retaliation and to establish “a reasonable procedure” for employees to report work injuries/illnesses “promptly and accurately.” Enforcement begins 12/1/2016 (it has been delayed due to legal challenges)

OSHA’s Reasonable Reporting Rule Employers must: Have a “reasonable procedure” for employees to report work-related injuries and illnesses, and Not discriminate or retaliate against employees who report such injuries or illnesses

What is a Reasonable Procedure? A procedure is not reasonable “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” The new rule states that blanket post-injury drug testing policy would deter proper reporting. Post-Accident drug testing is still allowed – as long as there is a “reasonable possibility” that drug use was a contributing factor in the injury or illness.

Valid Reasons for Post-Accident/-Injury Drug Tests Drug-Free Workplace Policies/ State Workers’ Compensation Laws Reasonable Suspicion of Drug Impairment “Reasonable Possibility” Situations

Immigration 5% of the workforce are undocumented workers. Trump’s plans to remove these workers would have an impact on employers. Plans to make e-verify mandatory for all employers, which would make it more difficult for undocumented persons to be hired.

Immigration Jan. 27th Executive Order The purpose was to prevent terrorists and terrorist sympathizers from coming to the united states. The Secretary of Homeland Security is to determine was information is needed from countries to confirm the identity of the person seeking a visa for admission to the United States. Entry into the United States of individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen were suspended for 90 days from Jan. 27. Allowing State and Homeland Security departments to make exceptions on a case-by-case basis. Refugee Admission Program was suspended for 120 days. Implementing of a biometric entry-exit tracking system for all travelers to the US.

Do You Employ Foreign Nationals? Non-Immigrant visa holders from the seven “suspended” countries should not travel outside of the U.S. because it is possible they will not be readmitted. Non-Immigrant visa holders from predominantly Muslim countries should avoid non-essential travel outside of the U.S. Permanent legal residents should avoid non-essential travel outside of the U.S.

Equal Employment Opportunity Commission EEOC’s Strategic Enforcement Plan for 2017 to 2021 targeted the following areas: Inflexible leave policies Disability discrimination Lack of accommodations for pregnancy-related limitations Sexual orientation discrimination Pay equity Systematic discrimination Priority to use medication to resolve discrimination charges This plan might change some – like less aggressive approach to fighting sexual orientation discrimination in courts. However, the extent of the change is unknown.

Department of Labor Andrew Puzder has been nominated to be the Secretary CEO of fast-food chains Hardee’s and Carl’s Jr. Currently trying to divest his interest so that he may be go through his Senate hearings without the conflict of interest. No $15 minimum wage Puzder supports, like Trump, a $9 or $10 minimum wage Putzer does not support employer-paid sick leave Raising the salary threshold for exempt employees under new DOL rule. Likely the rule will not be enforced in its current form. BUT must be confirmed by the Senate first!

Other Important Trump Actions Federal hiring freeze All Executive Departments and Agencies must freeze all pending regulations until the administration could review them. Trump has also advised Departments and Agencies to repeal two regulations for every one they have.

Latest Rules, Regulations, and Court Decisions

DOL’s New Overtime Rule

Wage and Hour: Final Rule’s Key Provisions Standard minimum salary increased to $913 per week or $47,476 annually HCE annual compensation increased to $134,004 Established a mechanism for automatically updating the salary and compensation levels every three years Amended the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments to satisfy up to 10 percent of the new standard salary level No changes to the duties tests

Court Strikes Down Overtime Rule On November 22, 2016, a Texas District Court issued a preliminary injunction preventing the new rules from going into effect on Dec. 1, 2016. A preliminary injunction means that the Judge would have to make a final determination on the merits of the case in the future. Trump has not voiced an opinion on this issue. A Trump-Administration DOL may not choose to defend the case or they may take the opportunity to revise the regulations further.

National Labor Relations Board

Labor Relations Lurched to the left Quickie Elections Employee Handbook Policies Micro Bargaining Units Merged Units Trump will have the opportunity to appoint a majority of Republican board members, which should stop the move to the left.

Labor Relations Trump appointed Philip A. Miscimarra as Acting Chairman of the NLRB. Miscimarra served as the sole Republican on the NLRB since 2013. This is welcome new for employers as Miscimarra has written the dissenting opinion on many cases on the above issues.

Grad Students at Private Universities May Unionize In August, the NLRB rules that graduate research and teaching assistants at Columbia are entitled to collective bargaining under the National Labor Relation Act. This reversed a 2004 decision where the NLRB found that graduate students at Brown University could not unionize. What does this mean? Many believe that unionization of graduate students will alter the relationship between professor and student, and possibly damage that relationship. Collective Bargaining could include bargaining on curriculum for the students. The decision will likely be appealed, and could be overturned with a new Trump appointed member of the NLRB.

Resident Advisors– Unionize? In December, RAs at George Washington University filed a petition to unionize. This is the first student worker organization to attempt to unionize following the Columbia graduate student decision. GW officials are opposing this unionization because it would unnecessarily insert a third party into the relationship between RAs and the University for the limited amount of time the RAs are in their position. Expect to see many more student workers/organizations attempt to unionize in response to the Columbia decision.

Are You Stressed?

Are You Stressed Out? Try these stress reducers: Reset Priorities Start Day Off Right Exercise/Diet Be Thankful for Friends and Family Don’t Be So Hard On Yourself Plan Regular Get Aways Set Some Positive and Achievable Goals Develop a Debt Free Plan Find Time to Be Alone Remember Who You Work For

Constangy, Brooks, Smith & Prophete, LLP Questions Jeffery L. Thompson Constangy, Brooks, Smith & Prophete, LLP 478-621-2423 jthompson@constangy.com