Class Warfare: Supreme Court Agrees to Hear Cases on Arbitration Class Action Waivers

Business man signing a contract

The NLRB wants to stop class action waivers in employment arbitration agreements, arguing they violate the National Labor Relations Act. This issue has been raging for several years and divided federal courts. As reported in our November 2, 2015, blog post, the Fifth Circuit Court of Appeals upheld a class action waiver in the important Murphy Oil case. Undaunted, the NLRB has asked the U.S. Supreme Court to review the issue and the high court has agreed to do so in a series of three cases, one of which is Murphy Oil.

What does this mean for employers? If the Supreme Court holds that class action waivers are enforceable in employment arbitration agreements the NLRB’s attack on this issue will end. However, if the Supreme Court rules in favor of the NLRB, the decision could have far reaching impact on employers’ use of class action waivers in arbitration agreements. Such waivers are often the saving grace for employers facing costly class or collective action lawsuits as the class allegations fall away when the employer compels arbitration and then asserts the class waiver provisions. Without such provisions employers should brace for more employment class actions. If you have those waivers or are considering implementing them, keep an eye on this case, including whether President’s Trump’s choice for a ninth justice will be seated in time to participate in the decision.

 

C’est La Vie: No ‘Right to Disconnect’ in U.S., But Non-Exempt Workers Must Be Paid for ‘Connected’ Time

Digital displays surrounding us from everywhereCould a “right to disconnect” become law in the U.S.? France is trying it. Effective January 1, a new French law went into effect giving workers a “right to disconnect” when not at work. French employers with 50 or more employees have to adopt written policies restricting the hours that workers can send or receive emails, text messages, or any other digital, work-related communication. The new law is meant to allow workers to escape from the pressure to always monitor company emails and give them the legal right to ignore their work emails while off the clock, as well as truly give them an opportunity to unwind.

In the U.S., there has been no reported discussion from state or federal legislators about actually implementing a similar “right to disconnect.” However, that does not mean off-the-clock employees are without rights, as a 2015 lawsuit in U.S. District Court seemed to reinforce.

Even without a formal “right to disconnect,” non-exempt employees have a right to be paid for their work—even work-related communications while off-the-clock. In addition, all of that off-the-clock time checking and sending work-related emails and text messages must be counted toward the 40-hour-per-week overtime threshold and may have to be paid at an overtime rate. Failure to do so can lead to costly wage litigation, liquidated damages, and attorneys’ fees.

There are tools to help eliminate risks from off-the-clock work related to emails and texts. Employers should implement a policy specifically prohibiting non-exempt employees from working while off the clock, including an express bar on checking or responding to company emails and text messages while clocked out. The policy should also require non-exempt employees to report such off-the-clock time so they can be compensated for it. Your policy can still provide that non-exempt employees who perform off-the-clock work or who work overtime without authorization will be disciplined. However, employers cannot withhold pay as a consequence of violating the policy. Employers should also train their managers and supervisors not to send emails and text messages to non-exempt employees when they’re not at work to try and avoid the legal pitfalls that can result.

So while there’s no legal “right to disconnect” in the U.S., employers may want their non-exempt employees disconnecting to avoid troublesome wage-and-hour issues.

Obama Trumped? Top Five Trump Targets of Executive Orders Include Employment-Related Obligations

The White HouseEmployers that contract with the federal government are about to face a whole new ballgame with the Trump Administration. In Trump: The Art of the Deal, Mr. Trump explained that deals are his “art form” and that making big deals is how he gets his “kicks.” President Obama issued many executive orders and presidential memoranda that imposed new restrictions and requirements on government contractors, and Trump has made clear that he takes a dim view of them. Trump’s “Contract with the American Voter” provided that he would “cancel every unconstitutional executive action, memorandum and order issued by President Obama” and his campaign website promised to “[c]ancel immediately all illegal and overreaching executive orders.”

With all of this in mind, federal contractor employers should expect the Trump administration to negotiate deals, both in style and substance, differently from those of the Obama administration. What will government contracting be like with the Trump Administration? We believe these Obama executive orders will be among the “First Five to Dive” under a Trump administration:

  1. Executive Order 13495: “Nondisplacement of Qualified Workers Under Service Contracts.” This was one of President Obama’s first executive orders, signed January 30, 2009. It requires a new federal contractor to offer jobs to workers employed by the outgoing contractor. It effectively gives the workers a right of first refusal to obtain jobs with the new contractor. Opponents say that this order limits the efficiency of new contractors.
  2. Executive Order 13502: “Use of Project Labor Agreements for Federal Construction Projects.” A project labor agreement (PLA) is a pre-hire collective bargaining agreement with a union that establishes the terms and conditions of employment for a construction project. President Obama signed this order on February 6, 2009, to require the use of PLAs on all federal construction projects valued at $25 million or more. Critics say that the order increases federal construction costs and limits the competitiveness of non-union contractors.
  3. Executive Order 13673: “Fair Pay and Safe Workplaces.” This order, signed by President Obama on July 31, 2014, requires prospective federal contractors to disclose labor law violations. Government officials are then required to consider a prospective contractor’s violation history when awarding contracts. The order also bars contractors from imposing pre-dispute arbitration agreements on their employees. Several companies sued to block implementation of this order, and on October 24, 2016, a federal district court in Texas sided with the employers against the Obama administration.
  4. Executive Order 13706: “Establishing Paid Sick Leave for Federal Contractors.” President Obama signed this order on September 7, 2015. It mandates that federal contractors allow employees at least one hour of paid sick leave for every 30 hours worked. The House Freedom Caucus has notified Trump’s transition team that this order needs to be rescinded. The Freedom Caucus also wants Trump to rescind Executive Order 13658, “Establishing a Minimum Wage for Contractors,” which sets a $10.10 minimum wage for the employees of federal contractors.
  5. Executive Order 13665: “Non-Retaliation for Disclosure of Compensation Information.” This order prohibits federal contractors from taking adverse employment actions against employees who disclose compensation information to other employees. President Obama signed the order on April 8, 2014. Critics of the order say that it increases government costs because salary transparency increases the employee expense of federal contractors.

Federal agencies have adopted rules implementing many of Obama’s executive orders, including those listed above. As a result, the rulemaking process will have to be used to eliminate these restrictions, and that process won’t be completed on “day one.”

In The Art of the Deal, Trump wrote: “The best thing you can do is deal from strength, and leverage is the biggest strength you have. Leverage is having something the other guy wants. Or better yet, needs. Or best of all, simply can’t do without.”

Trump is not one to voluntarily give up his leverage in a business deal. If federal contractors want or need the removal of government restrictions like those outlined above, Trump will likely expect something in return. Contractors can expect Trump to negotiate for lower prices, faster turn-arounds, and better deliverables.

President Obama limited government outsourcing, but a Trump administration will likely increase outsourcing. In his contract with the American voter, Trump promised a hiring freeze on all federal employees except those in the military, public safety, or public health, with the goal of reducing the federal workforce through attrition. At the same time, Trump has promised increased spending on defense, immigration enforcement, infrastructure, prison privatization, energy, law enforcement, cybersecurity, and school choice. Companies in these industries will likely have many new opportunities to obtain government contracts. On the other hand, spending on environmental enforcement and education regulations will likely decrease, and companies in these industries may have fewer opportunities.

Federal contractors should also be on the look-out for new regulations on hiring former government contracting officers. In a recent television interview, Trump said that “the people that are making these deals for the government, they should never be allowed to go to work for these companies.”

If you need assistance regarding revised employer obligations, Bradley has the experience to help. Our Governmental Affairs Group, Labor & Employment Group, and Government Contracts Practice Group can help with how these changes affect how you treat your employees. This multidisciplinary approach provides our clients with the broad range of experience and expertise needed to address their specific goals.

Hear That Whistle Blowing? Tracking Awards Under the False Claims Act

Whistleblower in BusinessIf you do business with the federal government (think Medicare reimbursements, government contracts, student loans, etc.) and you have employees, you need to keep up with the recent False Claims Act (FCA) cases and the bounties whistleblowers are getting. There is no end in sight for the trend of increased whistleblower activity under the FCA. In 2016 alone, whistleblowers (many of whom are employees or former employees) received over $519 million as their shares of the FCA settlements and judgments and filed 702 new actions. As it does each year, Bradley has assembled an overview of the year’s major False Claims Act developments and opinions to keep you abreast of the status of law. You may find our 2016 Year in Review here.

You Mean It’s Un-American to Hire Only Americans? DOJ Issues Final Rule on Unfair Immigration-Related Employment Practices

Definition "discrimination"If you thought it would be safer to require every new hire to be an American citizen—think again. The U.S. Department of Justice (DOJ) has a new rule revising its prior regulations on Section 274B of the Immigration and Nationality Act (INA), which prohibits unfair immigration-related employment practices. This new rule, effective January 18, 2017, is intended to clarify the standards for determining whether a prohibited practice has occurred and updates the DOJ’s enforcement procedures.

First – A Little Background

Under Section 274B (8 U.S.C. § 1324b), employers may not do the following:

  • Discriminate on the basis of national origin against any individual who is authorized to work with respect to hiring and firing. This applies to employers with between 4 and 14 employees. (An employer with at least 15 employees is covered by Title VII rather than the INA.)
  • Discriminate on the basis of citizenship status against any “protected individual” who is authorized to work with respect to hiring and firing. “Protected individuals” include U.S. citizens, recent lawful permanent residents, temporary residents, asylees, and refugees. Lawful permanent residents who do not apply for U.S. citizenship within six months of eligibility lose their “protected” status. This applies to employers with 4 or more employees. However, discrimination on the basis of citizenship status is permissible if otherwise required to comply with a separate law, regulation, executive order, or government contract.
  • Engage in “unfair documentary practices” relating to verifying an employee’s work eligibility on Form I-9 (a/k/a “document abuse”). Specifically, employers may not (1) request that an individual present more or different documents than are required to establish work eligibility or (2) refuse to accept documents that reasonably appear to be genuine if done “for the purpose or with the intent of discriminating against” the individual on the basis of national origin or citizenship status.
  • Intimidate or retaliate against any person because that person files a charge alleging a violation, participates in the investigation of such a charge, or otherwise contests action that may constitute an unfair documentary practice or discrimination based on national origin or citizenship status.

Aggrieved individuals may file a charge against the employer with the DOJ’s Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel), whose office is responsible for enforcement. The charge must be filed within 180 days of the alleged unfair practice.

The Special Counsel’s office has 120 days to undertake an investigation and determine whether to file a complaint with the Office of Chief Administrative Hearing Officer (OCAHO). If the Special Counsel opts not to file a complaint, it must issue a notice to the charging party, who then has 90 days to file a private complaint with OCAHO.

The Special Counsel also may, on its own, initiate investigations of unfair immigration-related employment practices and file a complaint with OCAHO. All complaints – whether arising out of an individual charge or a Special Counsel-initiated investigation – are heard by an Administrative Law Judge (ALJ) within OCAHO, who can award back pay and assess civil penalties.

So What Does the New Rule Do?

According to the DOJ, the new rule revises the existing Section 274B regulations to “clarify the full extent of the prohibitions against unfair immigration-related employment practices and to eliminate ambiguities in the regulatory text.”

  • Defines “Discriminate.” Perhaps the most significant revision is the inclusion of new language defining the term “discriminate.” According to the DOJ, this language is intended to incorporate the “intent” requirement added to Section 274B in 1996. This new definition does make clear that an employer’s action does not constitute an unfair immigration-related practice unless that action is taken with the intent of treating persons differently because of their national origin or citizenship status.
  • Makes it Easier to Establish Intent. Unfortunately, however, the DOJ has also added language that may make it easier, in some situations, for an employee to establish the requisite discriminatory intent. The new rule now explicitly provides that intentional discrimination may exist “regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.”

This means that, if an employer treats an employee differently because of his citizenship status during the Form I-9 process, the employee may be able to establish a violation even if the different treatment was innocent or actually intended to help the employee satisfy the Form I-9 requirements. Indeed, in the summary accompanying the new rule, the DOJ noted that an employer might be guilty of an unfair documentary practice if the employer were to ask about an employee’s citizenship or immigration status and then suggest specific documentation the employee might provide based on his response.

  • Clarifies and Revises the Procedures for Filing and Processing Charges. The new rule also makes several changes regarding the ways in which charges may be filed with the Special Counsel, how those charges are to be processed, and when and how the Special Counsel may file complaints with OCAHO.
  • Changes the Timing for Special Counsel to File Complaints. The most significant change to the INA enforcement processes relates to the timing for when the Special Counsel must file a complaint with OCAHO. An individual must file a complaint within 90 days of the Special Counsel’s notice that it is not filing a complaint. Under the new rule, it’s clear that the Special Counsel is not bound by that same 90- day period. Rather, the Special Counsel may continue to investigate any timely-filed charge after providing such notice and may file a complaint based on that charge at any subsequent time. The new rule also provides that the Special Counsel may file a complaint based on a Special Counsel-initiated investigation at any time so long as that investigation was opened within 180 days of the alleged practice.

And This Means What for You?

With this new rule, employers could see an uptick in these claims. Employers must be careful to avoid any conduct that might be considered discriminatory under the amended regulations and should conduct their Form I-9 processes in a manner that is consistent for all employees, regardless of citizenship or immigration status.

Remember – it’s important to make sure your employees are authorized to work, but it’s also important to do that in a way that does not lead to claims of discrimination and document abuse.

Emotional Rescue: Fifth Circuit Recognizes Mental Distress Damages in FLSA Retaliation Claim

EvictionCan a plaintiff get emotional distress damages in a wage and hour claim? In December 2016, the Fifth Circuit issued an opinion of first impression where it found that a plaintiff filing a retaliation claim as part of an overtime wage dispute can seek emotional distress damages. In Pineda v. JTCH Apartment, LLC, Santiago Pineda did maintenance work around the apartment complex where he and his wife lived. In exchange for the work, Mr. Pineda received a discount in rent, which he ended up considering insufficient and filed a lawsuit seeking unpaid overtime. In response, the apartment complex issued a notice to the couple stating that they were being thrown out of their apartment for nonpayment of rent. The amount of rent demanded equaled the rent reductions Mr. Pineda had been receiving in payment for his employment. The Pinedas left the apartment and amended their lawsuit to include a retaliation claim, including damages for emotional harm. At trial they presented proof of marital discord, sleepless nights, and anxiety about where their family would live. The Pinedas claimed that the mental distress was a result of the retaliation—-throwing them out of their apartment.

The trial court refused to instruct the jury on damages for emotional harm resulting from the alleged retaliation. The jury awarded Mr. Pineda damages on the claims that were allowed to go to the jury. The Plaintiffs appealed on numerous issues, including the trial court’s failure to let the jury consider emotional distress damages for the retaliation.

The Fifth Circuit pointed out that the question of whether emotional damages for retaliation under the FLSA is proper is one of statutory interpretation. The 1977 FLSA amendments specifically included a remedies provision for claims of retaliation under the overtime statute. That amendment allowed plaintiffs to recover not just wages and liquidated damages, but also “such legal or equitable relief as may be appropriate.” The Fifth Circuit noted that several other Circuits had already upheld damages for emotional distress by referencing that statutory language. One of those Circuits, the Seventh, noted that compensation for emotional distress is appropriate for intentional torts such as retaliatory discharge. The Court noted that while not all wage and overtime claims involve willful actions by an employer (e.g., an employer can inadvertently pay less wages than the law requires), an employer “cannot unintentionally retaliate against an employee who complains about it.” Therefore, the Fifth Circuit concluded that the jury should have been allowed to award the Plaintiffs emotional distress damages based on the FLSA retaliation.

For employers, this decision again emphasizes how important it is to avoid any acts that can be construed as retaliation in response to an employee complaining about alleged wage problems. In this case, the retaliation was fairly easy to spot due to the direct correlation between the complaint and the eviction of the family. However, even subtle changes in a complaining employee’s work situation (e.g., moving the employee to a different shift, changing work assignments, etc.) may end up as fodder for a retaliation claim. In addition, emotional distress damages do not demand a high level of proof—-sleepless nights, anxiety, and marital discord require no documentation or expert testimony. For these reasons, employers must be careful of actions taken after an employee or former employee makes a wage complaint.

Apply Here! (with Everyone Else): ADA Does Not Mandate Noncompetitive Reassignment

Apply Here! (with Everyone Else): ADA Does Not Mandate Noncompetitive ReassignmentWhen you can’t reasonably accommodate a disabled employee in the current position, do you have to give the employee a vacant position or can you follow your usual, competitive process? In EEOC v. St. Joseph’s Hospital, Inc., the Eleventh Circuit found that employers need only provide meaningful equal employment opportunities to comply with the Americans with Disabilities Act (ADA), not turn nondiscrimination into discrimination against the non-disabled. Importantly, the Court also found that giving the disabled 30 days to apply for other positions was a reasonable accommodation.

Background

Ms. Bryk was a nurse in the psychiatric ward St. John’s Hospital. After experiencing back pain, she was diagnosed with a condition known as spinal stenosis and began using a cane. Without the cane she could only walk short distances and stopped frequently, but her use of the cane in the psychiatric ward caused concern over patient safety where mentally-ill patients could use the cane as a weapon. The Hospital raised the concern with Ms. Bryk, who then provided a doctor’s note recommending use of the cane. The Hospital ultimately advised Ms. Bryk that she could not use the cane in the psychiatric ward and gave her 30 days to identify and apply for another position with the hospital. Notably, the Hospital waived its normal prohibitions on internal candidates applying for a transfer unless they had been in their current position for six months and had no written warnings in their record. Thus, the Hospital allowed Ms. Bryk to compete with other internal applicants and not be left in the general pool of applicants. Ms. Bryk applied for three positions during the 30-day period, but the Hospital did not interview her for any of the positions.  After the 30-day application period ended, the Hospital terminated Ms. Bryk. Given her newly unemployed state, Ms. Bryk filed an EEOC charge and the EEOC ultimately sued the Hospital for disability discrimination, claiming the Hospital failed to reasonably accommodate her.  The parties filed cross-motions for summary judgment, and the district court found that the 30 day period to identify a vacant position was reasonable as a matter of law, but whether the Hospital provided a reasonable accommodation by reassigning her was a question of fact for the jury.  At trial, the jury determined that the Hospital failed to provide a reasonable accommodation but that the Hospital made good faith efforts to identify the reasonable accommodation so the district court rendered judgment in favor of the Hospital.

ADA General Requirements

The ADA prohibits discrimination against a qualified individual on the basis of disability and requires employers to provide reasonable accommodations that allow a disabled employee to perform the essential functions of the job. An aggrieved employee must show that at the time of an adverse employment action, she had a disability, was a qualified individual, and was subjected to unlawful discrimination because of her disability.  Ms. Bryk was disabled based on her “gait dysfunction” and was a qualified individual. The case, however, focused on whether the ADA required Ms. Bryk to be reassigned without competition for the position. The EEOC contended that the ADA mandated noncompetitive reassignment and that the district court’s failure to instruct the jury that the ADA required reassignment without competition was erroneous.

Court’s Findings

The Court held that the ADA does not require reassignment without competition for, or preferential treatment of, the disabled. While the ADA requires reasonable accommodation it does not dictate how an employer must reasonably accommodate. Part of the ADA’s non-exhaustive list of possible, not mandatory, accommodations states that the employer may include “reassignment to a vacant position,” but does not imply that that reassignment is always reasonable.

Relying on previous cases, the Court noted that “employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies.” One related U.S. Supreme Court case, U.S. Airways, Inc. v. Barnett, held that the ADA does not “ordinarily” require an employer to assign a disabled employee to a particular position if to do so would override the employer’s established seniority system. Such a framework comes into play where the job reassignment/reasonable accommodation is alleged to violate the disability-neutral policy of the employer. Although it did not have an established seniority system, St. Joseph’s Hospital had a “best-qualified applicant policy” and the Court reasoned that:

Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable “in the run of cases.” As things generally run, employers operate their businesses for profit, which requires efficiency and good performance.  Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.

After holding that the ADA does not mandate noncompetitive reassignment (thus upholding the challenged jury instruction ), the Court went on to affirm the jury’s verdict in favor of the Hospital. The jury found that although the Hospital failed to reasonably accommodate Bryk by not assigning her to one of the three vacant positions, it absolved itself from ADA liability by its good faith efforts to assist Bryk with applying for the positions, waiving requirements that would have barred her from applying for positions, and giving 30 days for her to apply.

30 Days Was a Reasonable Amount of Time to Apply for Vacant Positions

The Hospital provided Ms. Bryk 30 days to find and apply for a new job. Curiously, Ms. Bryk did not use the bulk of the 30 days—instead she went on vacation and waited three weeks to begin her job search. The Hospital would have extended the period for any position for which Ms. Bryk was being actively considered. However, once the 30 days expired and she had no scheduled interviews, the Hospital terminated her.  It told her she could continue identifying and applying for other positions. The Court affirmed all that to be a sufficient approach.

Takeaways

Employers are often challenged to find a reasonable accommodation and mandating that a qualified individual be placed into a new position without even having to compete for that position would have placed a significant burden on employers.  There are several takeaways from this decision.

  • It is reasonable to have the disabled employee compete for a vacancy. The Court concluded “that the ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position.”
  • 30 days to apply for internal vacancies is reasonable.
  • Be flexible. Consider bending some rules to accommodate the disabled employee. Waiving eligibility requirements as an accommodation is easy and considered reasonable. Before you pull the trigger, look at the current status—is the employee about to have an interview? Waiting to hear back from an interview? Waiting a few days to see if the employee gets selected for the vacancy could save you a lawsuit.

100 Percent Tie Off: New OSHA Fall Protection Standard for General Industry Employers

100 Percent Tie Off: New OSHA Fall Protection Standard for General Industry EmployersFor our general industry employers, you have new fall protection standards. As the Occupational Safety and Health Administration uses the term, “general industry” means all employers not in construction, agriculture, or maritime industries.

The new rule goes into effect soon – on January 17, 2017 – and employers were given only 60 days of notice to come into compliance. Since the new rule is over 500 pages long, you might want to start reading it now. The full text of the new rule can be found on the Federal Register website.

The new rule has been in the making for a long time. The proposed rule goes back to 2010. The intent of the new rule is to update and modernize fall protection and working surfaces standards for general industry employers and to provide options that are more in line with standards in the construction industry.

So what does the new rule require? Here are some of the highlights:

  1. Employers are allowed to select the fall protection system that works for them (beyond the traditional railing systems). This will allow general industry employers to consider systems similar to those used in the construction industry.
  2. The options for fall protection include traditional guardrail systems, safety nets, ladder safety systems, positioning systems, travel restraint systems, and personal fall arrest systems.
  3. New ladder safety requirements also are included. Many of these involve load requirements and inspection requirements.
  4. Requirements for actual safety harnesses to be worn by employees are included. So-called “body belts” are not allowed.
  5. Walking-working surfaces must be regularly inspected.
  6. Training in fall protection must be provided, especially to employees in high hazard situations.
  7. Certain historical exceptions for employees in “climbing” occupations have been replaced with ladder requirements.
  8. And, if you have high-altitude window washers, those employees must use descent systems limited to 300 feet.

Again, most of these requirements come into effect on January 17, 2017 (absent some immediate action by our newly elected government leaders). Some of the training deadlines have been delayed until May 17, 2017, and some of the ladder, fall protection system, and tie-off anchorage requirements do not come into effect until 2018. Bottom line though, for non-construction employers, the new rule should be considered now, and plans for compliance should begin right away.

President Trump—How Will He Change the Courts and What Does that Mean for Employers? (3rd in a 3 Part Series)

US Supreme Court in Washington DC.In this final post in a three-part series on what employers can expect from the new Trump administration, we consider possible Supreme Court nominees and future rulings affecting labor and employment law.

Judicial Appointments

President Trump’s election injects uncertainty into the Supreme Court’s makeup and future rulings, including employment-related cases. Because the Senate did not hold confirmation hearings on President Obama’s nominee, Merrick Garland, President Trump gets to nominate the new justice. In September, Mr. Trump released a list of 21 potential nominees, including Judge William Pryor of the Eleventh Circuit. Any nominee from this list would likely tilt the Court in a conservative direction. Considering the advanced age of several other members of the Court—particularly Justices Ginsburg, Kennedy, and Breyer (ranging in age from 83 to 78)—it is likely that President Trump will have at least one additional nomination.

The elections left the Republicans with a narrow 52-48 majority in the Senate, which will affect the debate over the coming Supreme Court nomination. The Senate rules still allow for a filibuster of a judicial nomination, which could prevent a vote on the nominee unless 60 senators vote in favor of proceeding. Republican control of the chamber significantly enhances the prospects for approval of the President-elect’s preferred nominee.

A Trump appointee would immediately affect the Court’s decisions in a number of significant labor and employment cases in the upcoming term, including:

  • Enforceability of Class Action Waivers

Epic Systems Corporation v. Lewis (16-285), Ernst & Young LLP v. Morris (16-300); National Labor Relations Board v. Murphy Oil USA, Inc. (16-3070), and Patterson v. Raymours Furniture Company, Inc. (16-388). These consolidated cases present a common question: are class action waivers contained in mandatory arbitration provisions enforceable under the Federal Arbitration Act and National Labor Relations Act? The Ninth and Seventh Circuits have held that mandatory class action waivers violated the NLRA; the Second, Fifth, and Eighth Circuits have held them to be lawful.

  •  The Validity of Some NLRB Decisions

National National Labor Relations Board v. SW General, Inc. (15-1251). In this case, the Court will review the D.C. Circuit’s ruling that Lafe Solomon, the former Acting General Counsel of the National Labor Relations Board, violated the Federal Vacancies Reform Act when he continued serving as Acting General Counsel after President Obama nominated him to a full term as General Counsel. If the Court agrees that Solomon was ineligible to continue as Acting General Counsel, actions taken after his nomination could be invalidated. Oral arguments were held in this case on November 7, 2016.

  •  Review of EEOC Enforcement Subpoenas

McLane Company v. Equal Employment Opportunity Commission (15-1248). This case asks the Court to resolve a circuit split on the proper standard of review applied to a district court decision to quash or enforce an EEOC subpoena. The Ninth Circuit has used a de novo standard of review, while eight circuits have held that the district court decision should be reviewed with deference.

  •  Compulsory Union Fees:

Serna v. Transport Workers Union of America (16-484). Here the Court will consider whether a union has the right to collect compulsory fees from represented employees who are non-members, where the employees are subject to the Railway Labor Act. The Fifth Circuit held that a union could, under its agreement, collect fees from those non-member employees.

 In addition to his influence over the direction of the Supreme Court, President Trump will have the opportunity to reshape the federal judiciary by nominating judges for the nearly 100 empty seats in federal district and appellate courts.

There is still a lot of uncertainty about what’s to come once President Trump takes office, finalizes his Cabinet and names a Supreme Court candidate, so continue to follow our Labor & Employment Insights blog for the latest developments. And if you have specific concerns or questions, please contact one of the attorneys in Bradley’s Labor and Employment Practice.

What Employers Can Expect from the New Administration – Part 2: Immigration, the Affordable Care Act & Social Issues

What Employers Can Expect from the New Administration – Part 2: Immigration, the Affordable Care Act & Social IssuesIn our second in a three-part series on what to expect from the Trump administration, we discuss immigration policy and the Affordable Care Act (ACA), as well as what may be in store for parental leave, marriage equality and transgender bathrooms.

1. Immigration

During the campaign, Mr. Trump signaled that his administration would take a tough stance on immigration, promising to “build a wall” along the U.S.-Mexican border and to deport millions of undocumented workers. Pinning down the details of the president elect’s immigration policy has proven to be somewhat elusive, however, and it is too early to make many hard and fast predictions.

That said, it is clear that Mr. Trump’s immigration agenda will significantly impact employers. For starters, we should expect a much more aggressive approach to workplace immigration compliance. Employers should anticipate that Form I-9 audits and investigations will be stepped up — so don’t forget to start using the new Form I-9 no later than January 22, 2017. Additionally, ICE may be given the green light to resume the high-profile worksite raids that were prevalent during the Bush era. The president elect has done little to assuage these kinds of concerns, proposing to hire hundreds of new ICE agents to ramp up the government’s immigration enforcement efforts.

Mr. Trump also has pledged to end the Deferred Action for Childhood Arrivals (DACA) initiative, which the Obama Administration rolled out in 2012. Under DACA (administered by USCIS), more than a half million young, undocumented aliens (the so-called “Dreamers”) have been shielded from deportation and provided legal work authorization. The new president could terminate the DACA program with the stroke of a pen, although his precise intentions are not clear. His options range from simply ordering USCIS not to accept or approve any new DACA applications to more drastic measures, such as revoking already approved DACA applications and work permits or (more drastic still) using the information previous DACA applicants provided to institute deportation proceedings against them. Recently, however, Mr. Trump suggested that his stance on DACA may be softening, stating that he may seek to “work something out” regarding the Dreamers. In addition, last week, a bipartisan bill designed to extend DACA’s protections and benefits for three years was introduced in Congress – although it’s certainly not clear that this legislation has the support needed for passage.

Other changes impacting employers may come later, through some form of immigration reform legislation. Mr. Trump has voiced support for mandating E-Verify for all employers, and it’s almost certain that any proposed legislation will include mandatory E-Verify. Additionally, some of the president-elect’s closest advisors have pressed for changes to the existing legal immigration landscape, including the visa programs commonly used to secure foreign talent. Some of those within Mr. Trump’s inner circle have been particularly critical of the H-1B program for temporary “specialty occupation” workers and have floated proposals designed to make the use of that program more difficult, such as increasing the wage requirements and instituting a labor market test. During the campaign, however, the president-elect was more equivocal about these legal immigration programs, sometimes making remarks that seemed contradictory. At this point, it is not possible to predict how these issues will shake out, but employers certainly need to stay tuned.

2. Affordable Care Act

During the campaign, Mr. Trump consistently stated that he would repeal and replace the Affordable Care Act (ACA). In recent interviews following the election, the president elect has indicated that he would consider keeping certain popular provisions of the Act, such as those preventing pre-existing condition limitations and those allowing coverage of adult children to age 26. These provisions are also generally popular among members of Congress and will likely remain in place. Congress likely will eliminate other aspects of the ACA, such as the employer mandate and the penalties for not offering or providing insurance coverage to employees. A guiding principle for designing a replacement plan could involve encouraging insurance industry competition through mechanisms such as Mr. Trump’s proposal to allow insurance companies to compete across state lines. He has also proposed a few means for reducing the costs of health insurance, including allowing the full deduction of health insurance premiums from taxes and expanding the availability of health savings accounts. In sum, developing and maintaining a system that includes certain popular reforms without coverage mandates will be a challenging task, and it is quite possible that the transition out of the ACA will take a few years.

3. Social Issues Such as Parental Leave, Marriage Equality, and Transgender Bathrooms

Mr. Trump has commented about many other issues that could affect employment policies. During his campaign, he proposed a parental leave policy requiring six weeks of paid leave for mothers following childbirth. This policy would not apply to fathers or to parents who welcome children through adoption or surrogacy. As part of the policy, Mr. Trump has suggested a tax deduction to employed individuals for care expenses for up to four children and elderly dependents.

With respect to same-sex marriage, employers should not expect White House efforts to disturb the Supreme Court’s 2015 Obergefell decision legalizing same-sex marriage. While Mr. Trump did not spend much campaign time discussing LGBT rights, in a recent 60 Minutes interview the president-elect said he did not have a problem with same-sex marriage and felt that the Obergefell decision was settled law, rendering it a non-issue.

Mr. Trump has flip-flopped on the issue of transgender bathroom policy. In the Spring of 2016, Mr. Trump said that he thought that transgender individuals should be able to use whatever bathroom they preferred. Later, however, he criticized President Obama’s executive order requiring public schools to allow transgender students to use the opposite sex’s bathroom and said he thought that individual states should make those decisions. Several weeks ago, the Supreme Court granted certiorari to review a lawsuit that would test the validity of the executive order on transgender bathrooms. If the new president rescinds the executive order, this could moot the case or require the Supreme Court to remand it to the Fourth Circuit for reconsideration.

Stay tuned for our next blog post in this series about expected judicial appointments and future rulings on several employment-related cases. If you have specific concerns or questions, please contact one of the attorneys in Bradley’s Labor and Employment Practice.

LexBlog