A workplace law review of 2016 and a look toward 2017

The past year saw three massive game changers for employers, with a few bright spots to celebrate

Rich Meneghello

When it comes to workplace law, 2016 was a tough year for employers, with few bright spots to celebrate.

THREE MAJOR GAME CHANGERS

The past year saw three massive game changers for employers. First, the nation was prepared for a new reality beginning December 1. Under new U.S. Department of Labor (USDOL) rules, employers would have to pay white collar workers $47,476 per year in order for them to be classified as exempt from overtime – more than double the previous minimum threshold. However, on November 22, in the most shocking development of the year, a federal court judge blocked the rules from taking effect as scheduled. Employers now sit in limbo during this uncertain time period, waiting to see if an appeals court will resurrect the rules, and unsure whether the incoming Trump administration will modify or undo these changes in the new year.

The second major change came in January, when the federal government announced plans to revise the EEO-1 form requiring all businesses with more than 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 pay practices soon will be under the microscope like never before.

Third, the Occupational Safety and Health Administration (OSHA) announced plans in May to radically enhance injury and illness data collection from employers. The new rule will require many employers to electronically submit information about workplace injuries and illnesses to the government, and this data will be posted on OSHA’s public
website. Hand-in-hand with this announcement came a heightened anti-retaliation focus, which could impact employers’ abilities to carry out common practices such as requiring employees to participate in postaccident drug tests.

BIG SHIFTS IN LABOR LAW

Seemingly not a month went by in 2016 without a monumental development in the traditional labor world, almost all of which boosted unions and harmed employers. The bad news started in February when Justice Scalia, a longtime conservative champion on the Supreme Court, unexpectedly passed away. Within weeks of his death, the Court declined to overrule a case that upheld state rules forcing public sector employees to pay agency shop fees to their unions, which seemed poised to tilt against unions before his demise.

In an expected but still disappointing development, the National Labor Relations Board (NLRB) followed up last year’s joint employment decision with an equally disastrous ruling in July, making it easier to combine jointly employed temporary workers with an employer’s existing workforce to form a union. Employers were shocked, however, when the NLRB held that an employer violated the National Labor Relations Act (NLRA) by hiring permanent replacements during an economic strike, overturning decades of precedent allowing employers to hire such replacements regardless of motive.

WHAT’S IN STORE FOR 2017?

After enduring a year like 2016, there’s nowhere to go but up. And there are some positive signs on the horizon when it comes to the immediate future of workplace law. We expect that President Trump will restore the conservative status quo to the Supreme Court, and could roll back some of the more onerous regulations facing employers. However, given his unpredictable nature, employers cannot rest assured that things will fall their way in regard to traditional labor, wage and hour, immigration, pay
equity scrutiny and numerous other workplace concerns.

There also are some dark clouds on that same future horizon. Seattle passed a complex and burdensome “secure scheduling” ordinance in September, which will require certain employers to provide a “livable schedule” to their employees two weeks in advance. The new law also will require employers to provide workers with the right to request their desired shifts, the right to “on-call” pay, and prohibit backto-back closing and opening shifts, among other things. No doubt other local and state governments will seek to follow in Seattle’s footsteps and craft similar regulations in 2017, creating union-like working conditions without the need for an actual union.

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. He can be reached at 503.205.8044 or RMeneghello@fisherphillips.com, or followed on Twitter @pdxLaborLawyer.

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