Bass, Berry & Sims attorney Doug Dahl provided insight for an article in InsuranceNewsNet on the impact to employee benefits based on future regulatory shifts in a Trump administration, especially surrounding the Affordable Care Act, the final Department of Labor (DOL) fiduciary rule and the DOL overtime rule. “This expansionary trend for the DOL is likely to be significantly restricted under the Trump presidency, taking a back seat to agencies more aligned with Trump’s agenda,” Doug noted. “Trump’s presidency makes the viability of repealing or at least delaying these rules much more likely.”
The full article, “Regulation Reversal the Ultimate Trump Card?” was published by InsuranceNewsNet on January 19, 2017, and is available online.
In an article published by the Society for Human Resource Management (SHRM), Bass, Berry & Sims attorney Tim Garrett provided insight on a 2015 National Labor Relations Board (NLRB) ruling that reinstated a worker who made racist remarks to replacement workers during a strike. Tim states that an employer that does nothing in response to racist slurs risks liability under Title VII Civil Rights Act of 1964, regardless of NLRA protections. In this case, Tim stated “the board accepted a ‘vicious personal attack’ based on stereotypes that society is trying to overcome.”
Recent NLRB decisions, such as the one in this case protecting free speech as part of concerted activity, are contradictory to guidance issued by the Equal Employment Opportunity Commission (EEOC) recommending training all employees on civility. The SHRM article outlines the inconsistent approach between the two agencies and ways to overcome the differences.
The full article, “EEOC Guidance on Harassment Calls for Civility Training,” was published by SHRM online on January 13, 2017, and is available online.
In an online article published by Quick-Service Restaurant (QSR) magazine, Bass, Berry & Sims attorney Tim Garrett discussed options that employers have in the wake of the injunction placed on the Department of Labor’s (DOL) overtime rule and the subsequent appeal filed by the DOL. The timing of the rule has put many employers in a tough spot, with many having prepared for a December 1, 2016, effective date, only to have an injunction placed on the rule on November 22. Employers now face the decision of whether to undo implemented changes with the hope that the rule will not go into effect in the next few months, or to keep changes in place. “It’s been our consistent advice that those who have already announced and implemented changes either in salaries or in classifications, should probably stick with those and not attempt to undo them, which would likely be more disruptive,” said Tim. “The savvy employers know that this is not just a budget issues, but a morale issue.”
The full article, “What is the Future of the Overtime Rule?” was published on January 6, 2017, by QSR magazine and is available online.
In an article published by The Corporate Counselor, published by ALM’s Law Journal Newsletters, Tim Garrett discussed the latest developments and next steps surrounding the Department of Labor’s (DOL) overtime rule. The November 22, 2016, injunction of the rule and subsequent appeal by the DOL have created uncertainty for employers, with some having prepared for the rule to go into effect in December 2016 only to have the rule challenged and stalled. President-elect Trump’s appointment of Andrew Puzder as labor secretary, a known advocate of deregulation, has caused speculation that the salary level rule will be changed before implementation. “The ruling does provide the new administration with an opportunity to stop, or modify, the new salary level,” Tim said. “The legal landscape has provided significant opportunity for change through the political landscape.”
The full article, “Injunction of the DOL’s Overtime Rule and its Appeal,” was published in the January 2017 issue of The Corporate Counselor and is available online or the PDF below.
Download Document – The Corporate Counselor (January 2017)
Bass, Berry & Sims attorney Tim Garrett provided insight into the financial and administrative impact that hospitals encounter as a result of worker strikes and disruptions in work activity. Tim discussed the speculative nature of predicting the costs associated with such disruptions and the logistical challenges hospitals face from an administrative standpoint. In the article, Tim states “they [the physicians] may not want to have to rely on replacement workers in the midst of a walkout, so they may decide not to proceed with a certain surgery if it’s not an urgent situation or may seek other options.”
The full article, “Strike or No Strike, Labor Disputes Can Take a Toll on Hospital Finances,” was published by Becker’s Healthcare on December 20, 2016, and is available online.
For the first time since 2002, the Equal Employment Opportunity Commission (EEOC) has updated its guidance on national origin discrimination in the workplace in an effort to address important legal developments over the past 14 years. In 2015, the EEOC reported 11 percent of the charges filed alleged national origin discrimination. The EEOC’s recent Strategic Enforcement Plan for 2017-2021 includes protecting immigrant and migrant workers from discrimination as a top substantive priority, and this guidance is another step toward increasing the EEOC’s enforcement efforts in this area. Of course, with the election of President-elect Donald Trump last month, the EEOC’s guidance is subject to change. However, the guidance is a useful tool to analyze employers’ existing policies and practices of preventing national origin discrimination with an eye toward the EEOC’s focus for enforcement action. Continue Reading
Just one month after the U.S. District Court for the Eastern District of Texas shut down a Fair Pay and Safe Workplaces final rule, the District Court has enjoined the implementation of the Department of Labor’s (DOL) final rule updating its Fair Labor Standard Act (FLSA) exemptions. Had these gone into effect, they would have had a significant impact on government contractors’ labor costs.
In 2014, President Obama directed DOL to update and modernize its overtime regulations to be consistent with the intent of the FLSA. The FLSA provides for minimum wage and overtime pay protections for those covered by the Act. Exempted employees generally fall into the executive, administrative and professional (EAP) categories, and DOL has used the following three tests to determine whether an exemption applied: salary basis test, salary level test and duties test. “Exempt” employees are not eligible for overtime pay (time and a half) for hours worked over 40 in a work week.
Bass, Berry & Sims attorney Tim Garrett discussed a case pending before the U.S. Court of Appeals for the Eighth Circuit relating to a striking employee’s termination for yelling racist comments at replacement workers. Although the employee’s firing was upheld by an arbitrator, an administrative law judge (ALJ) did not defer to that ruling and ordered the company to reinstate the employee, citing protection for the striker’s conduct under the National Labor Relations Act (NLRA). The National Labor Relations Board agreed with the ALJ, and the company has appealed to the Eighth Circuit.
The full article, “After NLRB Gives Job Back To Worker Fired For Racism On Picket Line, Appeal Follows,” was published by Forbes on November 30, 2016, and is available online.
On November 8, 2016, the future of the Patient Protection and Affordable Care Act (ACA) became more uncertain. Republicans in Congress have been working to repeal the ACA since it was passed in 2010, and now, with control of both houses of Congress and the White House, they may finally get the chance to do so. President-elect Trump has stated that the Trump Administration will work with Congress to repeal the ACA and replace it with a “patient-centered healthcare system” that includes Health Savings Accounts (HSAs), the return of high-risk pools and the “modernization” of Medicare. Trump announced this week the nomination of Georgia Congressman Tom Price, a physician and long-time critic of the ACA, as Secretary of the Department of Health and Human Services. Additionally, Speaker Paul Ryan has set forth his “A Better Way” healthcare reform plan that would repeal and replace the ACA. Ryan’s plan includes substantial reform to Medicaid through per capita allotment financing and block grants; the creation of a “Medicare Exchange” in which private plans would compete with traditional fee-for-service Medicare; and Medicare “premium support” payments that would be paid by Medicare directly to the private plan or the fee-for-service program to subsidize its cost. Continue Reading
In an article published by Government Executive, Bass, Berry & Sims attorney Richard Arnholt provided insight on the state of the Fair Pay, Safe Workplaces rule following a preliminary injunction issued by a Texas district judge in October blocking parts of the rule. Richard argues that the president and agencies went around Congress in a quest for efficiency and cost savings, but provided no reliable data to prove the need for the rule, while forcing contractors to provide detailed reporting on non-final decisions and determinations of alleged labor law violations that could end up denying them a contract without due process.