WHITHER FLSA AND NLRA CHANGES? IP Protection Update 7/19/2018 WHITHER FLSA AND NLRA CHANGES? Laurence J. Donoghue January 26, 2017 Mark M. Whitney, Esq. -- mwhitney@morganbrown.com / nenoncompetes.com

PROPOSED WAGE AND HOUR REGULATIONS: Significant Increases in Exempt Salaried Levels (from $455 to $913 per week) Annual indexing of exemption levels Scheduled to take Effect 12/1/16

11th Hour Court Injunction Blocks Changes Current Litigation Status: Pending Appeal on an Expedited Basis Could Have Decision in early Spring. However…

IP Protection Update 7/19/2018 Mark M. Whitney, Esq. -- mwhitney@morganbrown.com / nenoncompetes.com

What Will Trump Administration Do? Drop appeal? Propose substitute regulation (perhaps at a lesser weekly rate)? Impact of 1/20/17 “freeze” on regulations?

OTHER DEPARTMENT OF LABOR INITIATIVES ON THE CHOPPING BLOCK “Blacklisting” rule for federal contractors Fiduciary rule for retirement plans EEOC pay disclosure rules Sick pay for government contractors

The Power of Appointment: President appoints Secretary of Labor Current nominee: Andrew Puzder: CEO of Hardee’s and Carl’s Jr. Restaurants

President will this year be able to appoint 2 members of National Labor Relations Board, giving Republicans a majority

“Obama Board” NLRA Activism

National Labor Relations Act, Section 7 “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, and shall have the right to refrain from any or all such activities…”

NLRB Decisions Interpreting/Expanding Section 7 Employees may use employers email systems for non-work purposes, including union organizing (Purple Communications) Ban on waivers of class/collective actions (D.H. Horton/Philmar) Restrictions on social media policies (various decisions)

Other NLRB Rules on the Chopping Block? “Quickie election” rules Joint employer rulings “Micro units” for collective bargaining

Principle of Unanticipated Consequences? Increased state law activities/enforcement Example: MA AG recently proposed bill allowing AG to bring minimum wage/overtime civil actions

What Should Businesses (and their Lawyers) do in 2017 Keep updated (Google alerts, law firm updates, blogs, etc.) Monitor state and local law developments