January 05, 2018
The sexual harassment issue is likely to receive early attention at both the federal and state level—with arbitration agreements in the crosshairs—as a bevy of other workplace regulation issues, including paid leave, overtime, and joint employer, remain very much in play.
Sexual Harassment While it remains to be seen how the sexual harassment issue will play out in the policy arena, early attention in Congress is focused on a bipartisan bill targeting private sector employers that prohibits pre-dispute arbitration agreements from covering any gender discrimination claims, including those regarding compensation, hiring and terminations, or promotions. The "Ending Forced Arbitration of Sexual Harassment Act," which was introduced at the end of 2016, would also require a judge—rather than an arbitrator—to determine whether an arbitration agreement is enforceable. Additionally, the bill would enable employees covered by an arbitration provision in a union contract to immediately go to court instead of first going through arbitration for any legal claim, despite the fact that both Congress and the courts have been generally favorable to arbitration as an alternative to costly litigation. As this debate proceeds, the U.S. Supreme Court is expected to decide soon whether to reverse an Obama NLRB ruling banning class action waivers in arbitration agreements. Meanwhile, as reported above, combating sexual harassment is expected to be a top issue in a number of other state legislatures this year, with several bills already introduced. New York Gov. Andrew M. Cuomo (D) recently announced he will propose legislation to void forced arbitration policies that prevent sexual harassment cases from being brought in courts, and a bill to require that companies that do business with the state disclose the number of sexual harassment adjudications and nondisclosure agreements they have executed each year.
Paid Leave The Republican Congress is eager to address calls for increased paid leave by employers, with the addition to the tax reform bill of an employer tax credit for providing FMLA leave. Yet, the greatest need remains providing relief to multi-state employers. In November, Rep. Mimi Walters (R-CA) introduced the Workflex in the 21st Century Act (H.R. 4219), which would create a voluntary, preemptive national framework for employers to provide uniform paid leave benefits and flexible work arrangements to their employees along the lines of our Workplace 2020 proposal. In December, the House Education and the Workforce Committee held a hearing on workplace leave policies, with considerable attention given to the Walters bill. The next step in the legislative process would be to hold a hearing specifically on H.R. 4219, but it has not been scheduled yet.
Overtime Rule This year, the Labor Department will publish a proposal to replace the Obama-era overtime rule that was struck down in 2015. Secretary Alex Acosta has publicly indicated DOL will propose increasing the salary level threshold and may propose to automatically increase it periodically. Any final rule will not go into place until sometime in 2019.
EEO-1 Equal Pay Report Equal Employment Opportunity Commission action to rescind this ill-advised Obama era mandate that was stayed by the Office of Management and Budget in 2016 pending further review will have to wait until President Trump’s nominees to the Commission are confirmed this year. Although acting Chair, Victoria A. Lipnic, has publicly indicated the EEOC might abandon its effort to collect pay data, the nominees for chair and commissioner, Janet Dhillon and Daniel Gade, committed to finalizing pay data collection at their Senate committee hearing in September. The U.S. District Court for the District of Columbia also has yet to rule on a challenge to OMB’s decision by pay equity advocates. The Senate could confirm the EEOC nominees before April.
NLRB Deadlocked Until New Chair is Confirmed Following a flurry of significant decisions at the end of 2016 rolling back Obama-era changes on joint employment, employee handbook policies, and so-called micro unions, the pace of activity at the National Labor Relations Board will slow down now that the Board is evenly split again. President Trump has not yet announced a nominee to replace former Chairman Philip Miscimarra, whose term expired in December. However, the Board may continue to work on its request for information regarding whether it should retain or change its 2014 expedited election rule, which significantly altered the process for conducting union organizing elections. The public comment period ends on February 12, 2018, and it will likely be two years before any changes are made.
Joint Employer Legislation and a Potential Supreme Court Landmark The Supreme Court is scheduled to consider whether it will take up a Fourth Circuit Court decision on joint employment under the Fair Labor Standards Act. The meeting comes less than a month after the NLRB reversed an Obama-era decision on joint employment for collective bargaining purposes and less than two months after the House passed the HR Policy-supported Save Local Business Act (H.R. 3441), which would clarify the definition of who is a "joint employer" under the Fair Labor Standards Act and the National Labor Relations Act. HR Policy and other business groups have urged the U.S. Supreme Court to review a decision by the Fourth Circuit in the DirecTV case, which holds employers jointly liable unless they can prove that they are "completely disassociated." It is unclear whether the Senate with its narrow Republican majority will take up the House-passed bill.
Action on Nominations The Senate will have to move on a number of key nominations that were left unfinished at the end of 2017, including:
As noted above, President Trump also has not yet announced a nominee to replace former NLRB Chairman Philip Miscimarra whose term expired in December. Although these nominees could move fairly quickly under unanimous consent in the Senate, Democrats are expected to use a variety of procedural rules to delay confirmation.