Tag Archives: Department of Justice

Predicting the Unpredictable: Labor and Employment Law in 2017

This post is part one of a two-part series.

Since Santa did not leave the Wicked Witch of the West’s crystal ball under my tree, Emmett Lathrup “Doc” Brown’s DeLorean parked outside my house, or provide me with access to Bill and Ted’s telephone booth, I am unable say with certainty what 2017 will hold for employers. However, I am confident that several labor and employment issues will take, or remain, on center stage, as the President-Elect has indicated that once he takes office, he plans to repeal many of the executive orders and regulations implemented by the Obama administration that businesses have generally criticized as burdensome. Further, two nominations for leadership positions made by the President-Elect that will influence the employment arena are the nominations of Jeff Sessions to lead the Department of Justice and Andrew Puzder to lead the Department of Labor.

Jeff Sessions is known for taking positions contrary to those advocated by civil rights organizations, especially those supporting LGBT rights, and he is on record opposing the legalization of marijuana. This will be interesting because under the Obama administration the DOJ has been actively working to expand LGBT rights (think North Carolina), and has not been actively enforcing federal marijuana prohibitions in states where the drug is legal (think Colorado).

As for Andrew Puzder, he is an executive whose businesses have been investigated for wage and hour violations by the DOL. He is on record stating that American workers are overprotected. He is generally opposed to minimum wage increases, and he finds paid sick leave requirements burdensome. As Secretary of Labor, Puzder will be responsible for the agency that enforces many of the employment laws that businesses deal with on a regular basis, including the FLSA, the FMLA and OSHA.

If these two nominations are confirmed by the Senate and their past statements are indicative of how they will manage their agencies, businesses may see regulations curtailed and less aggressive enforcement of employment laws. As a business owner, such changes may equate to fewer regulations, less time dedicated to dealing with government agency investigations, and possibly lower labor expenses.

If some predictions on how Sessions and Puzder will lead their agencies under a Trump presidency come to pass, worker protections may be greatly diminished. If protections are impacted to the extent that workers feel that neither their employers nor their government has their best interests in mind, they may seek advocates to assist in improving the terms and conditions of employment. Think Sally Field in her Oscar willing performance in Norma Rae. If employees seek to unionize, the result may be more burdensome for employers than the existing regulatory framework.

Only time will tell how the new administration will impact the labor and employment arena. If employee protections do begin to decline, employers that value employees and treat them well are less likely to see the involvement of outside advocates.

Part two of this post will specifically address several of the issues mentioned above, including the DOL’s overtime regulations and Florida’s Medical Marijuana Law. Stay tuned.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

“One-Stop” Online Portal for Workers to Submit Complaints about their Employers?

For years, employers have been required to post notices providing employees with information about their rights and the government agencies that can assist them if they believe that their rights have been violated. Now, the Department of Labor, along with the Department of Justice, Equal Employment Opportunity Commission, and the National Labor Relations Board, is developing a website, www.worker.gov, that will be a “one-stop” platform for employees to electronically submit complaints with the appropriate government agencies. The website will help workers understand and exercise their rights and will operate as a portal that predicts workers’ needs without forcing them to guess which federal agency or statute covers their situation.

The website is currently under development. At this time, the site merely provides guidance to specific types of employees (day laborers and office, nail salon, restaurant, and construction workers) regarding their rights and how to file complaints. Through a series of questions, the website directs employees to the appropriate government agency responsible for dealing with the specific complaint.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

For Employers with as Few as Four Employees, Mistakes in “Onboarding” Can Lead to U.S. Department of Justice Investigations

The EEOC is not the only federal agency charged with investigating and prosecuting employment discrimination in private-sector workplaces. The Department of Justice’s Office of Special Counsel (“OSC”) is charged with investigating and prosecuting citizenship discrimination and document abuse for employers with four or more employees, as well as national origin discrimination for employers that have between 4-14 employees, thereby encompassing smaller businesses that fall below the 15 employee threshold required for Title VII coverage. The authority for the OSC investigations is provided for in the Immigration and Nationality Act’s anti-retaliation provision. Businesses with at least four employees should ensure that the person completing I-9 paperwork on behalf of the company is properly trained, or risk an investigation by the OSC and the potential imposition of civil and criminal penalties.

For a summary of the OSC’s authority as compared to the EEOC see:
https://www.justice.gov/sites/default/files/crt/legacy/2013/05/08/EEOC_v_OSC_Flyer2.pdf

A summary of the acts prohibited by the INA can be found at:  https://www.justice.gov/crt/types-discrimination

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558