United States: Top Ten Employment Regulations Or Initiatives Employers Want Trump To Dump Or Fix

After the Obama administration's employee friendly policies, employers will have a wish list of changes they believe a Trump administration would favor.  Here are ten items that should be at the top and why employers want to see action.

No. 1: The Overtime Changes to the Fair Labor Standards Act.

Dump or Fix? Dump.  The dramatic rise in the salary test from $23,660 to $47,476 will cost employers over $1.2 billion according to the Department of Labor's own calculations.  The indexing provision has no legal basis under the FLSA and, according to the Society for Human Resource Management, almost two thirds of employers will cut back workplace flexibilities based on the need to track an additional 4.2 million workers entering the overtime eligible category.

No. 2: Fair Pay and Safe Workplaces Executive Order and Implementing Regulations

Dump or Fix?  Dump.  This requirement that certain federal contractors report labor law violations in order to receive federal contracts generated significant concern among federal contractors.   With the ultimate sanction being debarment from federal contracting, government investigators gained significant leverage in forcing contractors to admit and settle labor law cases.  A nationwide injunction has scuttled the measure for now.

No. 3. Attacks on Arbitration under the National Labor Relations Act and other laws.

Dump or Fix? Dump.  Broad efforts to abolish arbitration span from the NLRB's rulings against arbitration agreements to DOL's ban on pre-dispute arbitration provisions in FPSW.  Not only are these efforts contrary to the Federal Arbitration Act's dictates that they are legal, they restrict efficient and less costly ways to resolve legal disputes. 

No. 4:  Changes to the EEO-1 Form

Dump or Fix:  Dump The changes require employers to undertake expensive efforts to report certain types of compensation information regarding their workforces to the EEOC.  Aimed at addressing pay equity concerns, this collection of information will yield very little usable information regarding real differences in pay. Moreover, the form of data required would allow little or no practical assessment of pay. Further, EEOC's subpoena powers and the ability to initiate directed pay investigations under the federal Equal Pay Act allow the Agency to collect pay data in its investigations and negates the need to collect this information for investigative purposes.  The first report will be due March 30, 2018. But employers will need to report 2017 data so clarity around the administration's intentions will help employers plan.

No. 5:  The Persuader Changes to the Labor Management Reporting and Disclosure Act

Dump or Fix? Dump.  The rules required that employers and consultants report so-called "persuader" activities.  Reporting requirements would have placed consultants and attorneys at a disadvantage in providing advice regarding union activities.  While the rules attempted to carve out legal advice, two federal judges concluded otherwise with one ordering a nationwide injunction. 

No. 6: The Administrator's Interpretation on Joint Employment under the Fair Labor Standards Act

Dump or Fix? Dump.  DOL, along with the National Labor Relations Board, have been at the forefront of dramatically reworking joint employment as a means of expanding their jurisdiction to bring more employers under their enforcement umbrellas. Ostensibly geared towards addressing the "fissured workplace," this guidance relies on the vague economic realities test to increase employers' exposure to joint employment claims.  Many courts, however, don't agree that this is the proper test and the guidance, by focusing on construction worksites and omitting staffing agencies, offers little help to employers in most modern workplaces. 

No. 7:  Workplace Reporting changes to the Occupational Health and Safety Act

Dump or Fix? Fix.  The Occupational Health and Safety Administration (OSHA)'s enhanced accident tracking rules target retaliation against employees for reporting workplace accidents. In its recent guidance, the agency suggested that blanket, mandatory post-accident drug testing can be a form of unlawful discipline where the employer lacks what OSHA terms a "reasonable basis" for suspecting drug or alcohol impairment. Notwithstanding other concerns regarding the overall regulation, this provision directly thwarts employers' attempts to ensure workplace safety and combat onsite substance abuse.

No. 8:  DOL's Requirement that Federal Contractors Provide Paid Sick Leave

Dump or Fix?  Dump if not fixed.   The rule requires that federal contractors provide 56 hours of paid sick leave to employees working on certain federal contracts.  Many contractors already provide some form of paid sick leave and paid time off.  However, the rule does not allow contractors to take full credit for all the leave they currently provide. In addition, the rule adds to the significant patchwork of existing state law paid sick leave requirements.  One fix would be to allow contractors who already comply with the state law requirements to receive an exemption from the federal requirements.

No. 9:  OFCCP's Directive 307 on Compensation Discrimination

Dump or Fix? Fix.  In 2013, OFCCP issued a new directive on investigating compensation that allowed the Agency to create pay analysis groups to allege discrimination for wide swaths of workers in jobs with different skills, abilities and requirements. While the Directive states that it is grounded in Title VII principles requiring an analysis of workers who are similarly situated, the Agency's practices reflect little effort to meet that requirement. Title VII law also requires the Agency to consider legitimate reasons for differences in pay which the Agency frequently fails to consider.  A major fix would be for the guidance to require the Agency to disclose its methodology for creating groupings in its analysis and explain clearly how those groupings meet Title VII's requirements.

No. 10: OFCCP's Focus on Technology and Financial Services Firms

Dump or Fix? Dump.  OFCCP has stated its intent to target technology and financial service firms and open resource centers to focus on these sectors.  However, OFCCP has failed to identify any basis for targeting these firms.  Rather, after conducting tens of thousands of audits over the last 8 years, almost all of the agency's findings and enforcement actions have been in low wage industries. Little credible bases exist to target these sectors.

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Events from this Firm
26 Sep 2018, Seminar, Tokyo, Japan

Orrick’s Global Japan Practice is hosting a series of “Orrick Library” seminars to explore legal issues in various fields in Japan as well as the United States, Asia and Europe

26 Sep 2018, Conference, New York, United States

Employment Partner, Mandy Perry and Chair of Orrick's Global Employment Law Practice, Mike Delikat will be participating in the Global Business Protections 2018: International Restrictive Covenants and Confidential Information Conference.

10 Oct 2018, Conference, Florida, United States
Julie Totten is Program Chair of this year’s conference, Lynne Hermle is speaking on women in the courtroom, boardroom, and c-suite, and Erin Connell is speaking on pay equity and pay transparency.

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