Prepared by: Theane Evangelis, Karl Nelson, Eugene Scalia ... · Labor & Employment Developments in the Trump Administration Prepared by: Theane Evangelis, Karl Nelson, Eugene Scalia

Labor & Employment Developments in the Trump Administration

Prepared by: Theane Evangelis, Karl Nelson, Eugene Scalia and Jason Schwartz

May 10, 2017

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MCLE Certificate Information

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mailto:[email protected]


Panelists• Jason Schwartz, Washington, DC - [email protected]

• Eugene Scalia, Washington, DC - [email protected]

• Karl Nelson, Dallas – [email protected]

• Theane Evangelis, Los Angeles – [email protected]

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L&E Developments in the Trump Administration

• Federal

• States and municipalities (non-CA)

• California

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Personnel

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The Pace of Appointments• Secretary of Labor R. Alexander Acosta

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Acting Solicitor of Labor Nicholas C. Geale


National Labor Relations BoardPhilip A. Miscimarra, Chairman (Term expires 12/16/17)

Mark Gaston Pearce (Term expires 8/27/18)

Lauren McFerran (Term expires 12/16/19)

Two Vacancies

General Counsel: Richard F. Griffin, Jr. (Term expires 11/4/17)

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Equal Employment Opportunity Commission• The Commission

• Victoria A. Lipnic, Acting Chair (Term expires 7/1/20)• Chai R. Feldblum, Commissioner (Term expires 7/1/18)• Jenny R. Yang, Commissioner (Term expires 7/1/17)• Charlotte A. Burrows, Commissioner (Term expires 7/1/19)• One Vacancy

• The General Counsel• Vacant

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Transition Process

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The Short Term:Addressing Your Predecessor’s Priorities

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April 12, 2017

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• Fiduciary Rule

• Beryllium Standard


The Long Term

• The Gorsuch effect

• Class actions

• Deference to agencies

• Amicus programs

• “Two-for-one”

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Some Key Substantive Issues

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Where Do We Go From Here?• Overtime Rule• Fair Pay and Safe Workplaces Executive Order• Joint Employer Standards• Family Leave• Background Checks• EEO-1, Pay Equity and Promotions• Immigration Enforcement• Whistleblower Provisions in Employment Agreements• Others

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<Presentation Title/Client Name><Presentation Title/Client Name>

State and Local Outlook

Outside the Beltway: State and Local Developments

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Equal Pay Initiatives• “Pay Equity” Legislation

– Since 2016, at least 180 bills introduced across the country aimed at pay equity and the “gender pay gap.”

– Several states leading the way:• California• Massachusetts• Maryland• New York

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Equal Pay Initiatives• Restrictions on Prior Pay Inquiries

– Nearly 20 states have followed Massachusetts 2016 legislation forbidding employers from inquiring about salary history.

– Municipalities have followed suit:• Philadelphia

– Currently subject to legal challenge– Pending state legislation to preempt local ordinances

• New York City• Pay Transparency

– In 2016, states including California, Delaware, Maryland and Connecticut passed or strengthened laws restricting discipline of employees who discuss wages with coworkers.

– Seventeen states now have "pay secrecy" laws, and several are looking to strengthen existing law.

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Paid Leave• Growing Patchwork of State and Local Laws

– Vermont – effective January 2017• one hour of paid sick time for every 52 hours worked

– Missouri – March 2017 executive order • six weeks paid birth/adoption leave for executive employees

– Arizona – Effective July 2017• one hour of paid sick time for every 30 hours worked

– New York – Phase in beginning January 2018• 50% of average wage (increasing to 67% in 2021)

– Washington – effective January 2018• one hour of paid sick time for every 40 hours worked

– San Francisco – six weeks of fully paid leave – District of Columbia - $1000 maximum weekly payout

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Gig Economy Issues

• Regulating a New Model for Work– Employee vs. independent contractor status– Organizing rights and collective bargaining– Mandatory background checks

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State vs. Local Tension

• “Blue” Cities in “Red” States– Increasing efforts to preempt local initiatives

• pay equity • minimum wage• paid leave• ban the box

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State Outlook: California

The Western Horizon: California Legislative Trends

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New Key Laws in California• Wage and Hour

– SB 3: Increased the minimum wage to $10.50 on January 1, 2017. The minimum wage will increase each year until it reaches $15 on January 1, 2022, for employers with more than 25 employees.

• Each minimum-wage increase is delayed by one year for employers with fewer than 25 employees.

– AB 2535: Clarifies, in line with longstanding industry practice, that employers need not list total hours worked on wage statements for exempt employees.

– SB 1063: “Wage Equality Act.” • Now, employees who perform substantially similar work under

similar conditions must generally be paid equally, regardless of sex, race, or ethnicity.

• In another change, now, “prior salary cannot, by itself, justify any disparity in compensation under the bona fide factor exception.”

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New Key Laws in California• Employee Rights

– AB 2337: For employers of 25 or more, requires that new employees receive notice of employment-related rights accorded to victims of domestic violence, sexual assault, or stalking.

– AB 1843: Provides that employers may not ask potential employees questions about most juvenile convictions during interviews.

– AB 1732: Requires that all single-user restrooms in any business be designated as “all gender.” Creates a mechanism by which a building inspector may review companies for compliance.

– SB 1001: Prohibits employers from (1) requesting “more or different documents than are required under federal law” for potential employees to prove legal presence in the country, (2) from “refusing to honor documents tendered that . . . reasonably appear to be genuine,” and (3) from “[a]ttempt[ing] to reinvestigate or reverify an incumbent employee’s authorization to work” by requesting more or different documents.

– Castro-Ramirez v. Dependable Highway Express, 2 Cal.App.5th 1028 (Aug. 29, 2016): California Court of Appeal, in a groundbreaking decision, extended FEHA’s reach to require reasonable accommodation for employees associated with disabled individuals. On November 30, 2016, the California Supreme Court denied review of the case.

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New Key Laws in California• Employee Rights in Contracts Requiring Forum-Selection Clauses

– SB 1241: Provides that employers with workers who “primarily reside[ ] and work[ ] in California” may not require, as a condition of employment, that employees “agree to a provision that would require the employee to adjudicate outside of California a claim arising in California” or “deprive the employee of the substantive protection of California law with respect to a controversy arising in California.”

• Allows employees to void such provisions, and only such provisions, in their employment contracts.

• However, there are two important carve outs:– The law exempts contracts that an employee signs with the

advice of counsel.– The law applies only to contracts entered into, modified, or

extended after January 1, 2017.

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On the Horizon• Proposed employee-protections introduced to the California legislature:

– AB 1565: Increase salary basis for exempt status from $43,680 to $47,472 or twice the state minimum wage, whichever is greater.

– AB 168: Prohibit employers from seeking prior salary information from applicants and would also require an employer, upon request, to provide a pay scale for a position to an applicant.

• Legislature tried and failed to pass this bill before.• Note that California employees cannot obtain relief under federal law, either. On April

27, 2017, Ninth Circuit declined to read the federal Equal Pay Act to forbid employer consideration of prior salary when determining employee’s new salary. See Rizo v. Yovino, 2017 WL 1505068 (9th Cir. 2017).

– AB 5: Employer must offer additional hours up to 8 in a day/40 in a week to current employees before hiring new employees.

• San Jose, San Francisco, and Emeryville have similar laws.– SB 63: Smaller employers (20 employees or more) would have to provide 12 weeks of job

protected leave for child care and bonding.– PAGA Fixes? AB 281 [expand cure provisions], AB 1429 [limit Labor Code provisions for which

plaintiff could seek penalties], AB 1430 [limit ability to sue by increasing role of LWDA]

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Thank You – please visit our website for slides & audio recording: www.gibsondunn.com/publications/pages/webcasts.aspx

• Jason Schwartz, Washington, DC - [email protected]

• Eugene Scalia, Washington, DC - [email protected]

• Karl Nelson, Dallas – [email protected]

• Theane Evangelis, Los Angeles – [email protected]

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Prepared by: Theane Evangelis, Karl Nelson, Eugene Scalia ... · Labor & Employment Developments in the Trump Administration Prepared by: Theane Evangelis, Karl Nelson, Eugene Scalia