2019 Employment Law Outlook: Trump Era, Volume 3

When you start the year off with a government shutdown, where do you go from there? The combination of an administration and Congress both disorganized and at odds with each other results in highly politicized action (and inaction). ES&A President Anna Elento-Sneed presented a webinar on the "2019 Employment Law Outlook: Trump Era, Volume 3," identifying issues to watch, including:

  • National Labor Relations Board (NLRB)
    • Joint employer status: The battle continues between Browning Ferris (2015) and Hy-Brand (2017). Net effect: uncertainty over the standard, and controversy over whether "issue" preclusion is an appropriate ethical standard for recusal.
    • Independent contractor test: SuperShuttle (2019) supplants FedEx (2014). 
    • Concerted action and employee handbook cases: See Allstate Maintenance LLC (2019). Net effect: Expect more unfair labor practice cases being litigated at NLRB.
    • Prosecution of unfair labor practice (ULP) cases: Board must defer processing of ULP cases to grievance and arbitration procedure. Net effect: NLRB regional directors may not interpret the new policy the way the Board does, possibly resulting in increased litigation.
  • Equal Employment Opportunity Commission (EEOC)
    • EEOC understaffed and no longer has quorum at this time
    • Promised "rollbacks" still being worked on: wellness regulations; EEO-1 reports; Title VII (note: doesn't affect Hawaii due to Chapter 378)
    • Issues continuing to be fought in courts (including at the state level) include: transgender rights; religious discrimination; #MeToo
    • Growing interest in: use of tech in pre-screening of applications; accommodation of hearing impairments
  • U.S. Department of Labor (USDOL)
    • Leadership still shaky
    • Promised "rollbacks" still being worked on: exempt employee salary threshold; "persuader" rule; OSHA work injury reporting
  • U.S. Supreme Court
    • Class action waivers: In Epic Systems Corp., Murphy Oil USA, and Ernst & Young, the Court ruled employers could require employees to sign class action waivers as a condition of employment. Net effect: Arbitration agreements being challenged under state contract laws.
    • Agency fees: In Janus, the Court ruled compelling agency fees constitutes a First Amendment violation. Net effect: Increasing litigation challenging public union dues assessments; public unions re-examining their business models. 
    • Past salary history. Note: Hawaii law now prohibits employers from considering past salary history
    • Religion v. LGBT rights: Cases of interest include: Altitude Express; BostockR.G. & G.R.Harris Funeral Homes; and the continuing saga of Masterpiece Cakeshop.
    • Exhaustion of administrative remedies: Fort Bend County v. Lois M. Davis - can federal courts hear a workplace bias claim even if the worker didn't first complain to the EEOC?
    • Chevron/Auer doctrine: Should federal courts defer to government agency interpretations of its own rules?
  • Congress 
    • Tax reform: How will its full impact be felt on: corporate strategy, individual tax exemptions, benefit plans, and nonprofits and employee benefits?
    • Anticipated bills: budget; immigration; joint employer; Title VII
    • More challenges to ACA. Note: Will not affect Hawaii Prepaid Health Care Act, which has ACA exemption
  • Hawaii Supreme Court pending case
    • Josue v. BCI Coca-Cola: Must Hawaii employers provide unlimited leave of absence and guaranteed reinstatement to employees with a compensable work injury? 
  • Hawaii State Legislature bills introduced

See slides below, with decision-making and appointments color-coded blue for Democratic administration and red for Republican.