Sunday, March 26, 2017

Will Overtime Laws Change with Trump Presidency?


President Trump’s pick for Secretary of Labor, CKE Restaurants CEO Andy Puzder, withdrew his nomination in February 15. The withdrawal comes after controversies over his employing an undocumented immigrant to clean his home and abuse allegations from his ex-wife. Now, Alexander Acosta became President Trump's new pick to lead the Labor Department.
Trump’s original choice for labor secretary, fast-food executive Andy Puzder, was a vocal opponent of Obama’s reforms. It’s unclear where Trump’s new nominee, Alexander Acosta, stands on the issue.
Millions of Americans pay or workload may have changed for good due to the overtime rules. But the reforms are now tied up in court and face a dim future under Trump, whose administration is rapidly peeling back regulations on corporations. The new, business-friendly White House could decline to defend the reforms on appeal ― making it more likely they will die a slow death ― or choose to replace them with something more palatable for employers and less generous to workers.
If the reforms don’t survive in some fashion, a status quo will prevail in which hardly any Americans who work on salary qualify for overtime pay. It wasn’t always so. In 1975, an estimated 62 percent of salaried workers were covered by overtime law. But that figure has fallen to around 8 percent, as employers take advantage of regulations that haven’t been updated over time. As a result, overtime pay has become a foreign concept to an entire generation of salaried workers.
Under the Fair Labor Standards Act, hourly workers are entitled to time-and-a-half pay for any hours beyond 40 in a week, but the picture is more complicated for employees on salary. Whether or not they get overtime depends on how much they earn and what their job duties are. When workers are exempted from the law, companies can force them to work 60, 70, or even 80 hours a week without paying anything extra for it.
If the Trump administration does not defend Obama’s reforms, worker groups could end up defending them instead. If so, an appeals court could find Obama’s reform lawful, paving the way for it to be implemented. If not, states could still end up fashioning their own rules that take the place of federal ones, much like the minimum wage: California and New York already have their own regulations on overtime.
If Trump’s team put forward a rule with a lower salary threshold, which could placate business groups enough to prevent a legal challenge, while still bringing some workers new protections. Let’s wait and see whether 2017 will witness a minimum wage increase and federal labor law poster update in Trump presidency. And Trump may feel sufficient political pressure to replace Obama’s rule if he allows it to wither. After all, he promised higher wages for working-class Americans throughout his campaign.


Sunday, February 12, 2017

Labor Law: Anticipated Changes Under Trump Administration


The 45th president was inaugurated last month, but the Secretary of Labor position still must be confirmed. President Trump’s selection for the position, Andy Puzder, is the CEO of CKE Restaurants, the parent company of Carl's Jr. and Hardee's.

The president can dramatically influence the trajectory of regulations impacting the workplace, not just with the Secretary of Labor selection, but also with the selection for the chair of the Equal Employment Opportunity Commission, all of its commissioners and general counsel, as well as filling open positions to the National Labor Relations Board - all of which must be approved by the senate.
As with any change in administration, the agencies then hire like-minded leaders who will set the agenda for the next four years.
Changes in labor laws and federal agencies may greatly influence employers as well as employees. And such changes will surely be reflected on updates of labor law posters.

The following are the anticipated changes under Trump administration:
  • The federal minimum wage will likely increase to $9/hour, an increase of $1.75 from the current federal minimum wage of $7.25/hour since 2009.
  • DOL, Wage and Hour Division: One of President Obama’s major labor-related achievements was the overhaul of overtime pay regulations in a manner that would nearly double the minimum salary level at which an employee can be exempt from overtime pay. However, just before the final rule was to go into effect on December 1, 2016, a federal district court judge suspended the regulation while considering a legal challenge from 21 states and a coalition of business groups. Puzder, whose confirmation hearing is scheduled for February 7, 2017, has been critical of the overtime rule, arguing in a May 2016 op-ed in Forbes that it will “simply add to the extensive regulatory maze the Obama Administration has imposed on employers, forcing many to offset increased labor expense by cutting costs elsewhere.” Although the DOL has filed an interlocutory appeal challenging the district court judge’s preliminary injunction blocking the DOL’s overtime rule, the new Trump DOL could either withdraw the appeal (assuming a third party does not intervene to continue the appeal) or begin the administrative rulemaking process to change the regulation. Alternatively, the new Congress may pass legislation nullifying the regulation. In addition, during Obama’s presidency, the Wage and Hour Division issued administrator interpretations (guidance on how to interpret the laws, which are not legally binding on the courts) that sought to greatly expand when businesses can be held liable as joint employers and to narrow the circumstances in which workers could be treated as independent contractors exempt from federal wage and hour laws. Under President Trump, the Wage and Hour Division could scale back these administrator interpretations to provide more employer-friendly interpretations.
  • DOL, Office of Federal Contract Compliance Programs (OFCCP): The OFCCP is the agency that ensures that employers doing business with the federal government (federal contractors and subcontractors) comply with laws and regulations requiring nondiscrimination. The Obama administration made numerous changes to affirmative action requirements via executive orders, bypassing the congressional and administrative rulemaking processes. President Trump has stated his intention to revoke President Obama’s executive orders. Among the Obama initiatives that could be repealed under President Trump is the Fair Pay and Safe Workplaces executive order, known by its opponents as the “blacklisting” order. The order requires prospective federal contractors and subcontractors to disclose workplace law violations that occurred during the previous three years and to give wage statements detailing pay and hours to employees and independent contractors; it also prohibits arbitration agreements relating to Title VII of the Civil Rights Act or sexual assault. However, because the Federal Acquisition Regulatory Council issued a final rule implementing this order, it may take additional time for the rule to be changed. Litigation to enjoin the final rule is pending. In the meantime, the Trump administration could ask Congress to pursue repeal of the rule through use of the Congressional Review Act, a law that allows Congress to repeal new rules on an expedited basis through a resolution of disapproval, as long as the regulations were issued within 60 legislative days of the new administration. A number of other executive orders issued by President Obama may be scrutinized, including the executive order that raised the minimum wage contractors pay employees performing work on covered federal contracts ($10.20 per hour as of January 1, 2017) and the executive order that requires federal contractors to provide paid sick leave to employees working on government contracts.
  • DOL, Occupational Safety and Health Administration (OSHA): As DOL secretary, Puzder could review a number of OSHA standards that were issued over the last eight years. He is likely to curtail OSHA’s new record-keeping rule, which requires covered employers to file injury and illness information electronically with the government by July 1, 2017 (and on an annual basis thereafter); the information will then be posted online for the public. Puzder also might focus on the standard by which OSHA enforces the more than 22 whistleblower statutes under the agency’s whistleblower protection program. In the last several years, OSHA lowered the employee’s burden of proof necessary to prove retaliation.
  • Equal Employment Opportunity Commission (EEOC): On January 25, 2017, President Trump appointed EEOC Commissioner Victoria A. Lipnic as acting chair to take over the leadership role from Chair Jenny R. Yang. Lipnic joined the EEOC in 2010, and during her tenure, she was one of two commissioners who voted against the EEOC's July 2015 decision that sexual orientation discrimination is gender discrimination prohibited by Title VII. President Trump also will have the opportunity to nominate the EEOC’s new general counsel to replace David Lopez, who left in December 2016. Given the change in leadership, the agency’s enforcement priorities and litigation decisions will almost certainly shift. In recent years under Yang, the EEOC has made equal pay a top priority. In furtherance of this commitment, in September 2016, the EEOC announced final changes to the Employer Information Report (EEO-1), which will require employers to annually report aggregate compensation data for all employees by gender, race and ethnicity across pay bands. These changes are set to become effective in March 2018; however, under Lipnic, who had voted against the EEO-1 pay data report proposal, and other Trump appointees, the EEOC could seek to modify these changes before they come into effect.
  • National Labor Relations Board (NLRB): On January 26, 2017, President Trump appointed Philip A. Miscimarra, the sole Republican member of the NLRB, as acting chairman, taking over from Democrat Mark Gaston Pearce. The NLRB currently has two vacant seats, both of which President Trump is likely to fill with Republican members. Additionally, the term of NLRB General Counsel Richard F. Griffin, Jr. will expire in November 2017. With these new appointments, the NLRB’s controversial joint employer standard in Browning-Ferris Industries of California, Inc. could be reversed. The 2015 decision in Browning-Ferris broadened the joint employer standard to include relationships where the potential joint employer has the ability to control an employee’s essential terms and conditions of employment — even if it never actually exercises such control. (See 2016 Insights article “A New World for Joint Employers.”) In addition, since its 2012 decision in D.R. Horton, Inc., the NLRB has consistently maintained that the National Labor Relations Act prohibits arbitration agreements that require employees to waive the right to pursue labor-related class and collective actions. Recently, the U.S. Supreme Court agreed to hear, on a consolidated basis, three cases relating to the D.R. Horton decision and the circuit split that developed thereafter. Among the new president’s first orders of business will be to nominate a Supreme Court justice to replace the late Justice Antonin Scalia; a conservative Trump nominee likely would join a majority in rejecting the board’s position in D.R. Horton.


Saturday, January 21, 2017

19 States See Minimum Wage Increase in 2017

Across the U.S., 19 states will see a state minimum wage increase in 2017. However, the Federal government hasn’t raised minimum wages in over 7 years since 2009, when it raised it from $6.55 to $7.25, some of the states on this list will see rates as high as $11 in the increase. The state minimum wage increase can bring about major changes in the way you run your business if you’re in one of these states.



Alaska will increase from $9.75 to $9.80 per hour.
Arizona will increase from $8.05 to $10 per hour.
Arkansas will increase from $8 to 8.50 per hour.
California will increase from $10 to $10.50 per hour.
Colorado will increase from $8.31 to $9.30 per hour.
Connecticut will increase from $9.60 to $10.10 per hour.
Florida will increase from $8.05 to $8.10 per hour.
Hawaii will increase from $8.50 to $9.25 per hour.
Maine will increase from $7.50 to $9 per hour.
Massachusetts will increase from $10 to $11 per hour.
Michigan will increase from $8.50 to $8.90 per hour.
Missouri will increase from $7.65 to $7.70 per hour.
Montana will increase from $8.05 to $8.15 per hour.
New Jersey will increase from $8.38 to $8.44 per hour.
New York will increase from $9 to $9.70 per hour.
Ohio will increase from $8.10 to $8.15 per hour.
South Dakota will increase from $8.55 to $8.65 per hour.
Vermont will increase from $9.60 to $10 per hour.
Washington will increase from $9.47 to $11 per hour.


Employers in these 19 states are required to update their laborlaw posters for employees as minimum wage increases. Labor Law Posters have to be in an area where every employee is able to see them.

Not all minimum wage increases are very significant. Four states -- Alaska, Florida, Missouri, and Ohio -- are raising their minimum wages by just $0.05 per hour, while two more -- Montana and South Dakota -- are seeing just a $0.10-per-hour boost. New Jersey splits the difference with a $0.06-per-hour rise. These increases all have ties to changes in the rate of inflation, with most states choosing to link their minimum wages to rises in one of the Consumer Price Index data series. 

Proponents argue that raising the minimum is one of the most practical ways of improving living standards for the working poor and reducing inequality. But others believe that, when forced to pay more in wages, many employers were hiring more productive workers, so that the overall amount they spent on each job changed far less than the minimum-wage increase would have suggested. The more productive workers appeared to finish similar work more quickly.

This would raise questions about whether increasing the minimum wage is as helpful to those near the bottom of the income spectrum as some proponents assume. The higher minimum wage could cost low-skilled workers their jobs, as employers rush to replace them with somewhat more skilled workers.


In fact, when the minimum wage goes up for everyone, it is not so easy for employers to substitute better-skilled workers because the new minimum would not offer a more attractive wage. In many cases, more highly skilled workers see their wages rise after minimum-wage increases to keep them above the new minimum, making it all the more difficult to lure them away. Therefore, it is difficult for employers to replace low-skilled workers with better-skilled workers.

Saturday, January 07, 2017

OSHA Finds Safety Failures in Wisconsin Factory after Teen Worker Dies from Injuries

A federal investigation prompted by the death of a 17-year-old worker at a Columbus metal fabrication facility has resulted in multiple safety and health violations.

The U.S. Department of Labor’s Occupational Safety and Health Administration has issued 16 serious and one other-than-serious safety and health violations to G.D. Roberts & Co. Inc., for violations the agency’s inspectors found after a machine pinned and injured the teenaged worker on June 27, 2016. He died of his injuries on July 2, 2016, only two weeks after starting job.

“A young man suffered a tragic death shortly after starting a new job, leaving his family to grieve their overwhelming loss,” said Ann Grevenkamp, OSHA’s area director in Madison. “Proper lockout devices along with training could have prevented this tragedy.”

Investigators determined the worker was clearing scrap below a loading table for an operating laser-cutter system when the machine lowered onto the victim, trapping him beneath. OSHA found that the company failed to ensure procedures to lockout the machine to prevent unintentional movement were followed, and did not train its employees properly in such safety procedures.

The agency also found G.D. Roberts failed to:
–        Conduct periodic inspections of machine safety procedures.
–        Affix lockout devices to isolate energy prior to allow employees to enter machine hazard areas.
–        Conduct noise monitoring.
–        Provide employee’s audiograms.
–        Train workers about noise hazards.
–        Follow respiratory protection standards such as fit-testing, training and medical evaluations for employees.
–        Evaluate for airborne hazards.
–        Implement engineering controls for dust and other airborne hazard exposure resulting in employee overexposure.
–        Maintain chemical inventories.
–        Train workers in forklift operation.
–        Seek manufacturer approval prior to modifying forklifts.
–        Train employees about chemicals in use in the workplace and maintain a chemical inventory.

OSHA has proposed penalties of $119,725 to the company.

 OSHA requires standards that safeguard employees from hazardous situations while servicing or maintaining machines and equipment. The standard outlines measures for controlling hazardous machines that are either electrical, mechanical, pneumatic, hydraulic, chemical, or thermal. Employers must comply with the code by establishing procedures for shutting down and locking out and/or tagging out equipment while it is being serviced. The LOCK OUT TAG OUT INSTRUCTIONS poster helps keep your employees safe by presenting the basics of the code and outlining the fundamentals of a lock out/tag out safety program. Hence, besides a comprehensive pre-occupational safety training, complying with requirements of such safety poster could also help you reduce risks and avoid unnecessary costs and penalties.