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The Trump Effect: How President Trump’s Federal Appointments and
De-regulation Will Transform the Workplace
Laura AlanizPartner
Thompson Coe713-403-8397
Mark ClarkPartner
Thompson Coe713-403-8286
David ComeauxMcKesson Corporation
Lead Counsel - Employment281-863-4804
Topics
Department of Labor: Then and Now
National Labor Relations Board under Trump
Work Place Safety under OSHA AND BSEE
New Leadership
Secretary of Labor: Alexander Acosta
Deputy Secretary of Labor: Pat Pizzella
Wage and Hour chief : Cheryl Stanton
Deputy assistant secretary for policy: Nathan Mehrens
Press Release
Acosta announces the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors. 06/07/2017
Independent Contractor Classification
BEFORE: DOL under Obama issued
Administrator's Interpretation 2015-1 Issued in July 2015 the agency's interpretive guidance on
independent contractor classification.
Independent Contractor Classification Under Obama
Applied an economic realities test to classify workers as employees or independent contractors.
But the guidance took an expansive view of who is an employee for purposes of the Fair Labor Standards Act (FLSA).
Explained six factors the WHD would use to determine employee status.
Six Factors
Is the Work an Integral Part of the Employer’s Business?
Does the Worker’s Managerial Skill Affect the Worker’s Opportunity for Profit or Loss?
How Does the Worker’s Relative Investment Compare to the Employer’s Investment?
Six Factors
Does the Work Performed Require Special Skill and Initiative?
Is the Relationship between the Worker and Employer Permanent or Indefinite?
What is the Nature and Degree of the Employer’s Control?
Independent Contractor Classification
NOW: June 2017 DOL withdrew the Administrator's
Interpretation 2015-1 The agency's announcement specifically
states that the withdrawal does not change employer responsibilities under the FLSA.
What has changed?
The independent contractor test will no longer start with the presumption that all workers are employees.
Pre-guidance, the “economic realities” test for determining whether a worker is an employee or independent contractor focused on a business’s control over the worker, rather than the worker’s economical dependence on the business.
Joint Employer
BEFORE:• In January 2016, DOL's Wage and Hour
Division (WHD) issued:
“Joint Employment Under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act”
DOL’s Focus under Obama
The possibility of joint employment should be regularly considered in FLSA cases, particularly where: the employee works for two employers who
are associated or related in some way with respect to the employee; or
the employee’s employer is an intermediary or otherwise provides labor to another employer.
Considerations
Economic realities analysis is employed. BUT the focus is not only on control.
Hiring and firing is not determinative.
Whether the employer directly determines employee hours or pays the employee is not a deciding factor.
Considerations (con’t)
There is no requirement that joint employers: continuously monitor workers, have near absolute control over the workers, or be constantly “looking over” the workers'
shoulder. Control may be restricted or exercised only
occasionally, but the employer may still be considered a joint employer under FLSA.
Joint Employer
NOW DOL withdrew 2016 informal guidance on
joint employment Effect: return to requiring “direct control “
1. Power to hire/fire2. Supervision and control over employee work
schedules or conditions of employment3. Rate and method of pay 4. Maintenance of personnel records
Opinion Letters
June 2017 DOL announced it will reinstate the use of
opinion letters. Opinion letters allow employers to seek
assistance from the DOL's WHD about wage and hour issues. Able to do anonymously.
Why it matters?
Defense for Any Employer provides an affirmative defense for any
employer who can demonstrate that it reasonably relied on it
Any other employer can cite the letter as a defense provided its compensation practice aligns
with the details the agency describes
Internship Test
January 5, 2018 WHD announced that it is doing away
with its six-factor intern test Now will use "primary beneficiary" test
See Glatt v. Fox Searchlight Pictures, Inc.
Internship Test: Glatt v. Fox Searchlight Pictures, Inc.
Glatt v. Fox Searchlight Pictures, Inc.
Examines the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship.
What’s Coming?
DOL announced its plans to continue to rollback many rules issued under the Obama administration:
January 2018: The Office of Labor-Management Standards plans to issue a final rule to rescind the persuader rule, 1. Comments on the proposal to rescind the rule by Aug. 11.
October 2018: WHD plans to issue a proposed rule to revise the 2016 final overtime rule.1. Comments on the DOL’s request for information on the overtime
rule by Sept. 25.
Persuader Rule
Required employers and their laborrelations consultants, including legal counsel, to disclose relationships and other information related to activities
undertaken directly or indirectly to influence employee decisions concerning union representation.
What to expect?
Change back to previous interpretation of the advice exemption under the Labor Management Reporting and Disclosure Act (LMRDA), e.g. Only need to disclose consultant activities
undertaken with an object, “directly or indirectly,” to persuade employees.
Do not have to file a report covering services by reason of giving “advice.”
These times are a changin’ . . .
History- Overtime Rule
May 2015: Obama’s DOL proposedregulations that would significantlyexpand eligibility for overtime pay bymore than doubling the salary thresholdfor the FLSA’s “white-collar” exemptions. Raising minimum weekly salary from $455 to
$913.
December 1, 2016: Regulation was to go into effect December 1, 2016.
History- Overtime Rule
November 2016: US District Court for the Eastern District of Texas issued a nationwide preliminary injunction enjoining implementation and enforcement of the rule.
July 2017: DOL issued a Request for Information seeking new comments, data, and information on an appropriate salary level for exempt employees.
History- Overtime Rule
August 2017: US District Court issued a final decision that invalidated the rule.
Ruling appealed to 5th Circuit DOL asked that appeal on the preliminary
injunction be dismissed on injunction But, DOL still pursuing appeal on issue of
whether the DOL has the authority to issue a rule that includes a minimum salary level component
What to Expect?
For now the previous (since 2004) minimum salary level of $455 per week ($23,600/year) for the white collar exemptions remains in place.
Salary level under this DOL likely to $30,000, rather than the $47,000+ level set forth in the Obama-era rule.
NLRBNational Labor Relations Board under Trump
NLRB – National Labor Relations Board
5-member Board, appointed by president By custom (not law), 3-2 aligned with
president’s party
General Counsel – appointed by president
26 Regions – staffed by career professionals
Federal labor laws
Statutes National Labor Relations Act
Regulations Subject to rule-making procedures
Board Decisions Appealable to Federal Circuit Courts (geographic
or DC Circuit)
NLRB law -- what has changed
Board Decisions - December 2017 Hy-Brand Indus. Contractors – reversed
Browning-Ferris decision on Joint Employment
PCC Structurals – reversed Specialty Healthcare decision that permitted “micro bargaining units”
NLRB law -- what has changed
Board Decisions - December 2017 The Boeing Company – overturned Lutheran
Heritage (Bush-era NLRB decision) that handbook rules were invalid if they could be “reasonably construed” to prohibit exercise of Section 7 rights.
Raytheon Network Centric Systems – reversed E.I. duPont decision that employers had to bargain over even minor decisions, regardless of accepted past practice.
NLRB – what will be changing
Rulemaking Quickie Election Rules
Case Law – Murphy Oil Supreme Court – oral argument October 2017 Whether waiver of class / collective action violates
NLRA
GC Memo – Instruction to Regional Follow current law, but Watch out for good test cases
NLRB – what could be changing (?)
Decisions that could be overturned –Examples
Purple Communications (2014) – permits employee use of company email for organizing
Total Security (2016) – duty to bargain over individual discipline before first contract
NLRB – what could be changing (?)
Decisions that could be overturned –Examples
Pier Sixty (2015) – obscene, vulgar, racist language on social media is “protected concerted activity”
Piedmont Gardens (2014) – permits employee access to property while off-duty
WORK PLACE SAFETYOSHA Regs and Enforcement Under the Trump Administration
THE POLITICS OF WORK PLACE SAFETY
OSHA AFTER TRUMP
President Trump signed an Executive Order on Jan. 30, 2017, requiring federal agencies to cut two regulations for every new one proposed. The White House published a guidance memo three days later clarifying that the Executive Order would apply only to those regulations with a proposed cost of $100 million or more.
FEWER REGULATIONS BEING IMPLEMENTED BUT NO PRE-EXISTING OSHA REGULATIONS BEING REPEALED
As expected under the new administration, potential regulatory action from OSHA has been cut by more than half, according to the Department of Labor’s updated agenda released July 20.The report, typically published twice a year, lists the statuses of and projected dates for all regulations. The updated agenda lists 14 OSHA regulations in three different stages – pre-rule, proposed rule and final rule – compared with 30 on the fall 2016 agenda.
It is also important to note that the Department of Labor has not issued any notice to rescind existing OSHA regulations
VOLKS RULE
AKM LLC d/b/a Volks Constructors v. Sec’y of Labor 675 F.3d 752 (D.C. Cir. 2012)
Court ruled that OSHA had to issue penalty within SOL of 6 months from incident not, within 6 months of end of record keeping period.
December, 2016 OSHA issues a new rule changing its REGS to make it clear that penalty could be assessed within six months of end of record keeping requirement.
March, 2017 Congress uses the Congressional Review Act to approve a resolution repealing the OSHA Reg. Trump signs.
May, 2017 Democrats in the Senate introduce the Accurate Workplace Injury & Illness Records Restoration Act to reinstate the rule. The bill dies in committee.
OSHA NOT GOING PUBLIC AS OFTEN WITH VIOLATIONS
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) no longer issues press releases identifying offenders in enforcement actions and fines levied on companies that break workplace safety rules.
ENFORCEMENT ACTIONS HAVE INCREASED
The Administration’s deregulation agenda, has not slowed down the enforcement actions of the U.S. Occupational Safety and Health Administration (“OSHA”). In 2017, OSHA conducted 32,396 inspections compared with 31,948 in fiscal year 2016. In addition, the average penalty per serious violation rose to $3,645 per violation in fiscal year 2017 compared with $3,415 during the previous year.
DEPARTMENT OF INTERIORNOT CHANGING SEMS
We have no plans to alter two significant rules enacted following Deepwater Horizon,the Drilling Safety Rule and the Safety and Environmental Management Systems Rule. The SEMS approach rightly moves operators toward a performance-based safety approach, allowing the government, industry and independent third parties to focus on improving safety outcomes. We are also strengthening our inspection program by implementing risk-based process that focus our efforts on potential safety problems. I am confident that we will be able to achieve the goal of integrating a risk-based inspection protocol in 2018. Through these efforts, and many others, we are moving forward toward meeting the Administration’s goal of achieving energy dominance without sacrificing safety. Scott Angelle, Director of Bureau of Safety and Environmental Enforcement.
IN RE LARRY DOIRON, INC.
In re Larry Doiron, Inc., 2018 WL 316862, a (5th Cir. Jan. 8, 2018). Mark Clark and Jeff Bridger of Thompson Coe, Lead Counsel for Oil
States and Zurich. Davis & Sons Six Factors No Longer the Primary Test for Maritime
Contracts Offshore Doiron Test: First, is the contract one to provide services to
facilitate the drilling or production of oil and gas on navigable waters? . . . Second, if the answer to the above question is “yes,” does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract? If so, the contract is maritime in nature.
Thank You
Laura Alaniz713-403-8397
Mark Clark713-403-8286
David Comeaux281-863-4804
