1. envision, strategize and actualize Trends & Issues to Watch For In 2016 Anna Elento-Sneed January 2016 Webinar Wednesdays

2. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary DISCLAIMER This presentation is provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult an attorney if you have specific legal issues.

3. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary TRENDS TO WATCH … CLOSELY Growth in Use of Contingent Workers Increasing Workforce Diversity Demands for Work-Life Balance Proliferation of Technology in the Workplace Politicization of the Workplace Aging Labor Force

4. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary CONTINGENT WORKERS The Trend –Full time employees are becoming an anachronism –Contingent workers may become the “new norm” –Contingent workers include: Part time workers Temporary contract employees Workers from subcontractors or affiliates Workers of franchisees Staffing agency workers Employees from PEOs Independent contractors

5. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary CONTINGENT WORKERS The Issues –Misclassification of employees as independent contractors Uber (USDOL, Hawaii DLIR)(drivers) –Challenges to wage & hour exemptions Home Care Association v. Weil (USDOL)(exemptions for home health care workers) –Franchisor liability for actions of franchisees McDonalds (NLRB) –Joint employer arguments Browning Ferris Industries of California (NLRB) (staffing agency workers) Miller & Anderson Inc. (NLRB) (unionization of workers employed simultaneously by separate companies)

6. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary CONTINGENT WORKERS The Impact On Employers –Increased government agency investigations Federal - NLRB, USDOL, IRS State – Unemployment Insurance Division, Wage Standards Division, Disability Compensation Division –Lawsuits, particularly class action lawsuits –Union organizing –Increasing labor costs

7. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary WORKFORCE DIVERSITY The Trend –Demographics of American workforce is changing Race Sex Education Age (see discussion below) –Congress, state legislatures and courts are expanding protected classifications and concepts of equal employment opportunity –Protected groups are becoming more assertive Disabled LGBT Religious Ethnic groups

8. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary WORKFORCE DIVERSITY The Issues –Understanding new or expanded protected classifications Sex (male, female, transgenders) Gender identity and expression Sexual orientation –Defining the limits equal employment opportunity Equal treatment (transgenders, same sex marriage) Reasonable accommodation (disabled, work injuries, pregnancy, mental impairments, religious) –Managing competing interests Religion v. sexual orientation Disabled employees v. replacement hires Harassment

9. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary WORKFORCE DIVERSITY The Impact On Employers –Balkanized workforces –Increased government agency investigations: Federal – EEOC, OFCCP, OSHA State – HCRC, DLIR Wage Standards Division (work injury cases) –Lawsuits, particularly class action lawsuits

10. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary WORK-LIFE BALANCE The Trend –Employees requiring time off to care for aging parents, children and/or grandchildren –Employees seeking flexible work schedules –Employees demanding living wages

11. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary WORK-LIFE BALANCE The Issues –Paid sick leave Government contractors Hawaii State Legislature –Increases in minimum wage –Limitation of FLSA exemptions USDOL regulations on salary test –Flexible work schedules –Telecommuting EEOC guidelines on reasonable accommodations

12. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary WORK-LIFE BALANCE The Impact On Employers –Increased labor costs Wages Benefits –Union organizing –Staffing challenges

13. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary TECHNOLOGY IN THE WORKPLACE The Trend –Technology has become ubiquitous More and more functions are being automated Technology & software is constantly updated –Technology is increasing productivity expectations and eliminating jobs –Bring Your Own Device programs are becoming popular Smart phones “Wearable” devices –Government cannot keep up, so businesses are “filling” the gaps

14. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary TECHNOLOGY IN THE WORKPLACE The Issues –Reductions in force –Skill gaps & training challenges –Non-compete agreements –Confidentiality agreements –Cybersecurity issues –Electronic discovery issues –Lack of regulation, lack of uniformity, incompatibility of systems –Government entities creating problems rather than helping to solve them

15. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary TECHNOLOGY IN THE WORKPLACE The Impact On Employers –Job security issues –Poor employee morale –Loss of trust –Lower productivity and performance –Privacy concerns –Management stress

16. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary POLITICIZATION OF THE WORKFORCE The Trend –Agencies are more liberal –Courts are more conservative –Congress is too polarized agree on anything –And it’s an election year!

17. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary POLITICIZATION OF THE WORKFORCE The Issues –NLRB’s “revision” of long-standing rules/concepts Quickie election Rules on social media and handbook policies Joint employer rules –Congress’ fight on Affordable Care Act NLRB authority EEOC class action cases –U.S. Supreme Court cases on class action lawsuits Tyson Foods (FLSA case) Associated Builders & Contractors of Texas v. NLRB (“quickie election” rule)

18. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary POLITICIZATION OF THE WORKFORCE The Impact On Employers –Quickie NLRB elections –Constantly changing rules –Litigation over compliance issues –Loss of productivity –Management stress

19. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary AGING LABOR FORCE The Trend –There are growing numbers of older workers in the labor pool The “retirement age” has gone up More and more workplaces have 3-4 generations of employees –“Baby boomers” are expected to retire in the next 5-10 years Significant retirements are expected in the public sector Major industries (e.g. tourism) also anticipate significant retirements

20. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary AGING LABOR FORCE The Issues –Disability accommodations –Performance standards Physical abilities Mental abilities –Benefit costs Medical coverage Retirement plans –Generation gap Communication challenges Discrimination & harassment claims

21. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary AGING LABOR FORCE The Impact On Employers –Increased labor costs –Skill gaps Loss of experience Lack of technical skills –Loss of productivity –Morale problems –Government agency investigations –Litigation

22. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary BOTTOM LINE Continued volatility in labor & employment laws –Lack of clear “direction” from government –Lot of “talk” due to upcoming elections Uncertainty in the quality and size of the labor pool Continued pressure on employers to “make do” with the human resources they have –Alternatives to employees –Technology innovations Stressful workplaces More litigation Possible resurgence in unionization

23. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary FOR MORE INFORMATION If you have any follow up questions, email us at –aes@esandalaw.comaes@esandalaw.com –tgibo@esandalaw.comtgibo@esandalaw.com For access to these materials, email bdasilva@esandalaw.com bdasilva@esandalaw.com Watch for ELA webinar on 2015-2016 cases Our next webinar will cover –The IRS and the Affordable Care Act