Government, Human Resources, and Law

Employment attorney: 2017 holds much uncertainty

Miller Canfield lawyer says Trump administration may reverse employee-centric legislation of the past eight years.

January 6, 2017
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Labor laws. Pro-employee versus pro-business regulations. Immigration. LGBT rights. Marijuana legislation: These are some of the major legislative issues in play as the country transitions into a new presidential administration.

Employment attorneys at the Miller Canfield law firm recently gathered for a forum called “Hot Employment Topics in 2017” and discussed all of the above subjects.

Amy Zdravecky, a principal who specializes in labor and employment law at Miller Canfield’s Grand Rapids office, said most of what was discussed was speculative, as with any forecast, as no one knows what a Donald Trump presidency holds.

“Like many people, we were surprised by the election results. We had thought it would be more of the same, but now, it’s a total change of course.

“We don’t know if it’s a situation if everything will occur that was promised during the campaign.”

Because President-elect Trump has no background in politics, Zdravecky said attorneys are hard-pressed to guess what overall tone he’ll set regarding a number of issues without a voting record to analyze.

For starters, unions — his picks for the National Labor Relations Board (NLRB) leaders are set to occur next November; the overtime ruling — his secretary of labor nominee Andrew Puzder opposes the regulation and may drop the Department of Labor appeal to the injunction if he is confirmed by the Senate; and federal requirements for paid sick leave are up in the air, among many other issues.

Regarding unions, Zdravecky said the Obama administration set a very pro-employee, pro-union tone, as is often the case with Democratic administrations.

“Our view is that the trend has been to expand the rights of employees, making it easier for unions to organize, to engage in hand-billing, trying to organize — even on private property,” she said.

“It’s been a really pro-union atmosphere.”

But now, she said Trump, who leans pro-business, has a choice to make about which direction to go.

“Will he actually come down in favor of pro-business on everything, or will he try to give back to blue-collar workers or unions that said they voted for him? This is what makes this so difficult.”

On the overtime rule, which was set to raise the salary threshold at which executive, administrative and professional employees are exempt from overtime to $47,476 from $23,660, Zdravecky said the Texas federal judge’s injunction against the rule may become permanent under a Trump administration, and then employers may face a difficult decision.

“A lot of employers made changes to employee salaries to be compliant by Dec. 1. So, some employers are saying, ‘Do we reverse the changes we’ve made? Will we go back and undo this?’ Which is a big morale issue,” she said.

On the other hand, if the court decides in favor of the overtime rule, and employers haven’t complied with the changes proactively, Zdravecky said they may be liable for whatever overtime pay they didn’t cover from Dec. 1 onward.

She said the best course of action for employers is to keep detailed record of employees’ hours from Dec. 1 and thereafter, in case companies have to backtrack and disburse overtime pay.

While Trump has repeatedly promised change, immigration reform is a bit less clear-cut of an issue, Zdravecky said. Under a Trump administration, employees may face more workforce audits, so she said the best thing would be for “employers to self-audit.”

Under a new administrator, the Equal Employment Opportunity Commission (EEOC) also may face a change of course. According to Zdravecky, the EEOC has been “extremely protective of employee rights and looking at transgender issues and the rights of transgender, gay, lesbian or bisexual employees.”

With a less-LGBT-friendly leader, she said, courts may see more cases like the North Carolina bathroom law, which states transgendered individuals must use the bathroom that corresponds to the sex on their birth certificate, rather than the gender with which they identify.

Another hot-button concern is whether a pro-business administrator of the Occupational Safety and Health Administration (OSHA) will reverse OSHA’s guidelines that employers can’t drug test employees when they get into an accident.

“A lot of employers have testing requirements that say if you get into an accident, you have to have drug testing, because of workers’ comp requirements,” Zdravecky said. “A lot of workers’ comp carriers require this policy.”

But OSHA said employers can’t discipline employees for reporting an injury if the company handbook requires them to report it — and that discipline would include employees being terminated for a positive drug test.

“Many employers feel strongly about the testing,” Zdravecky said. “Employers are faced with, ‘Do we comply with OSHA regulations, or do we comply with what our workers’ comp carriers require, which is that we do the testing?’

“The potential pro-business stance with the Trump administration may say, ‘Of course you have to test your workers; you can’t have employees under the influence.’”

She said if the next OSHA administrator is pro-business, the current anti-testing guidelines “will probably go away.”

Another major topic the Miller Canfield outlook session addressed was marijuana laws across the country. Many states now have approved recreational use of the drug, but federal law says employers still can terminate their employees if they are under the influence at work.

The conflict in Michigan is medical marijuana cards are legal, “but the employer still has the right to enforce a zero-tolerance drug policy” at work, Zdravecky said.

She said she believes it’s highly unlikely recreational marijuana use will be approved with carte blanche on a federal level under a Trump administration.

Miller Canfield attorneys said their biggest challenge in 2017 will be navigating all of the uncertainty and gray areas of the new administration.

“Employers call us for advice — ‘Here’s my handbook policy, is it OK?’ — and we’ve been operating under this view of everything is pro-employee, and in order to be safe, you better revise this,” Zdravecky said.

“Will that continue or not? Employers want a definitive answer. They don’t want a, ‘Maybe this will occur.’”

She said the smartest thing employers can do is weigh the risks involved with changing policies to match potential new legislation.

“(I would say they should) make a risk assessment with every decision they make,” she said.

Zdravecky said the uncertainty won’t last forever.

“We’re going to know a lot in the first 90 days based on who’s confirmed (among Trump’s appointments) and what we’re seeing happen. Once we see trends in a certain area, we’re going to be much more likely to predict trends in other areas.”

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