Anticipating A Trump Administration
2017 Promises to Be an Interesting Year for Workplace Law
“May you live in interesting times” is an expression that has been interpreted as both a blessing and a curse. And when it comes to workplace law, developments over the past year have positioned Oregon lodging and restaurant operators for what will no doubt be considered an “interesting” 2017. Let’s take a look at what we expect to transpire in the year ahead, and you can interpret for yourself whether the changes will be blessings or curses.
OVERTIME EXEMPTION RULE
As you know by now, late in 2016, a federal judge blocked a rule that would have dramatically increased wages for many white-collar exempt workers days before scheduled implementation. The rule, which was intended to take effect on December 1, now sits in limbo awaiting resolution at an appeals court. Meanwhile, the Trump administration is now in charge of the U.S. Department of Labor (USDOL), and we expect that the new president and his Secretary of Labor will not support the increases. However, altering the rule is not as easy as flipping a switch, and could require a lengthy administrative process. If the court resurrects the rule, expect to see steps taken in 2017 to slow or halt the wage increases.
On the federal level, the government has already enacted plans that will require all businesses with over 100 workers to provide detailed information about their pay practices in an effort to address gender discrimination. Although the first mandated report won’t be due until March 2018, the information collected on that form will include compensation data from 2017 – so your current pay practices are now under the microscope like never before.
Once again, President Trump and his advisors are not fans of these burdensome new requirements. While we can expect the new administration to take steps to limit or eliminate the disclosures, Oregon employers are not out of the woods when it comes to pay equity. The state legislature will debate a proposed law that would ratchet up equal pay protections and open the door to a flood of new legal requirements for employers. If the new law passes, expect to see a rise in legal claims filed against Oregon employers.
POST-ACCIDENT DRUG TESTING
If you are like most employers, you have a written policy requiring your workers to “immediately” report workplace injuries, and you automatically send any employees involved in workplace accidents to mandatory drug testing. But if the Occupational Safety and Health Administration (OSHA) has anything to do with it, you will be forced to alter these programs in 2017.
OSHA believes that forcing an “immediate” report could lead to retaliation claims and unwarranted discipline, so it recently rewrote rules and now instructs you to give your employees a reasonable amount of time (such as until the end of the shift or eight hours) to report such incidents. The agency also believes blanket post-accident drug testing policies violate its new anti-retaliation rules, and instructs employers to only conduct drug testing when you have a reasonable basis to believe that the incident or injury was likely to have been caused by the employee’s impairment, and that the drug test will determine whether the employee was impaired at the time of the incident or injury.
The agency’s interpretations may shift once the new president and his labor secretary have taken the time to assess the situation and develop their own view of the anti-retaliation rule. For now, however, 2017 will see the dawn of a new day when it comes to workplace safety practices.
The Oregon legislature is expected to consider a complex and burdensome “restrictive scheduling” law in 2017, similar to the law passed in Seattle in late 2016. The Seattle law will require certain employers to provide a “livable schedule” to their employees two weeks in advance. It will also require employers to provide workers with a right to request their desired shifts, the right to “on-call” pay, and a prohibition on back-to-back closing and opening shifts, among other things. If Oregon passes a similar law (or if the Portland City Council pushes forward with such a proposal), employers are up for yet another administrative nightmare in 2017.
IMMIGRATION NOTARIOS NO MORE
One law that will change for sure relates to “immigration notarios,” referring to those non-lawyer notary publics who provide immigration counseling, advice, and representation to those who might feel they need a bit of assistance but don’t want the hassle or expense that comes with legal counsel. Starting January 1, 2017, these notarios are considered illegal under Oregon state law. You and your workers will need to retain the services of a licensed member of the State Bar or you’ll run the risk of being part of a now-illegal scheme.
Finally, the past year saw the 9th Circuit Court of Appeals uphold a controversial USDOL rule that prohibits businesses from requiring employees to share their tips even if the tipped employees are paid minimum wage. This decision has already pushed many Oregon restaurants and hospitality businesses to alter their labor and tip pooling practices, although employers are holding out hope for a reprieve by the Supreme Court. If President Trump nominates and the Senate approves a conservative ninth justice to the Court in 2017, and the Court accepts the case for review, we can hope for better days ahead in the New Year and beyond. | Rich Meneghello, Fisher Phillips
RICH MENEGHELLO • RMeneghello@fisherphillips.com
Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing the interests of employers in all aspects of workplace law. Rich will lead a panel discussion on March 13th in Portland that will cover key workplace laws facing the hospitality industry. Visit OregonRLA.org/events
for more info. Rich can be reached at 503.205.8044 or RMeneghello@fisherphillips.com, or followed on Twitter @pdxLaborLawyer.