It’s Official, Donald Trump is Our Nation’s 45th President: What Does This Mean for Employers? Presented by: Mauro Ramirez Pamela Williams Phone: (713) 292-5606 Phone: (713) 292-5622 mramirez@fisherphillips.com pwilliams@fisherphillips.com fisherphillips.com
The Dismantling of the Affordable Care Act and What This Means for Employers and Employees fisherphillips.com
Executive Order Regarding Affordable Care Act -- First Full Day in Office • No specific relief for • No immediate impact for employers mentioned in Order employers • Some commentators suggest no specific actions will be taken until 2018 fisherphillips.com
“Repeal and Replace” – Ideas Floated • Trump has promised to repeal • Trump has not yet offered a the Cadillac Tax – has bipartisan comprehensive replacement support plan, but the primary components appear to be: 1. Free Market Across State Lines 2. Tax Incentives and Credits 3. State Control of Medicaid 4. Elimination of individual and employer mandates fisherphillips.com
“Create a Dynamic Healthcare Market” – Ideas Floated • Interstate sales of health insurance • Modify existing laws inhibiting the sale of health insurance across state lines • Increase healthcare pricing transparency • Help consumers and regulators compare plans through disclosure of data (how often claims are denied, the availability and cost of in-network providers, etc.) • Allow access to cheaper prescription drugs abroad • Impose Medicare pricing fisherphillips.com
“State Decision-Making Power” – Ideas Floated • Block-grant Medicaid funds • Give states the freedom to spend the money how each chooses • Work with states to create and expand high-risk pools for individuals who don’t/can’t maintain continuous coverage fisherphillips.com
What will stay the same? • Prior to assuming office, Trump met with Obama to discuss healthcare reform • Trump then announced intentions to keep: • the ban on insurers denying coverage for pre-existing conditions • the provisions allowing young adults to remain on parents’ health plans fisherphillips.com
What will be different? • Short-term – Probably very little • Long-term - employers may see cost saving opportunities: • No Employer Mandate • No 30 hour coverage requirement • No reporting for ALEs (Applicable Large Employers, generally those with 50 or more employees) • Possibly fewer coverage mandates for benefits provided • Caps on benefits reinstated • Long-term - Possibly more challenges for individuals with health conditions to find affordable coverage – • No discussion of protecting fair premium/community rating requirements, only coverage for preexisting conditions fisherphillips.com
What should you do? • Continue compliance with ACA • Changes will not happen quickly • To get a repeal and replace through: • Republicans must agree on a replacement plan – many ideas • Need 60 votes in the Senate (the minimum number of votes needed to overcome a democratic filibuster) fisherphillips.com
What the transition to a Trump Administration Could Mean for OSHA and Employers fisherphillips.com
OSHA’S Top 10 Most Cited Violations Fiscal Year 2016 1. Fall protection, general requirements (1926.501) 2. Hazard Communication (1910.1200) 3. Scaffolding (1926.451) 4. Respiratory Protection (1910.134) 5. Lockout/Tagout (1910.147) 6. Powered Industrial Trucks (1910.178) 7. Ladders (1926.1053) 8. Machine Guarding (1910.212) 9. Electrical – wiring method (1910.305) 10. Electrical – general requirements (1910.303) fisherphillips.com
Most Frequent General Duty Clause Citations 1. Forklift Hazards – 26.9% - Lack of seatbelts - Improper lifting of personnel 2. Crane Hazards – 21.7% 3. Dust Explosions -12.0% 4. Struck-by Vehicle -10% 5. Ladder Fall – 5.8% 6. PVC Piping Rupture -5.4% 7. Fire and Explosions -5.4% 8. Fall Hazards – 5% 9. Automobile Lifts and Jacks – 4.6% 10. Storage Rack Hazards – 3.6% Source: Tracy Cekada and Christopher Janicak – Indiana University of Pennsylvania 2016 fisherphillips.com
Transitioning to a Trump Administration Impact on OSHA - General 1. Less Regulations 2. More focus on Compliance Assistance 3. Little or no increase in OSHA budget 4. More business friendly Interpretive Letters 5. Expanded Partnerships and Alliances with Trade Associations and Businesses 6. Hiring freeze fisherphillips.com
Transitioning to a Trump Administration Impact on OSHA - Specific 7. Non-Company Personnel Participation In OSHA Inspections 8. Restroom Access for Transgender Workers 9. Fair Pay and Safe Workplaces fisherphillips.com
Ten Labor and Employment Tweets to Expect from President Trump fisherphillips.com
"Having a low minimum wage is not a bad thing for this country.” fisherphillips.com
Obama Administration Advocated for $10.10 federal minimum wage New Rules • white collar exemptions (salary basis amount) • State of Nevada, et al. v. United States DOL (E.D. Tx.) • home health care workers (companionship/live-in domestic) • Home Care Ass’n of America v. Weil (DC Cir.) New Interpretations • independent contractors (economic realities test) • Administrator’s Interpretation No. 2015-1 • service advisors (automobile dealership) • Encino Motor Cars v. Navarro (9th Cir.) • mortgage loan officers (administrative) • Perez v. Mortgage Bankers Association (US SCT) fisherphillips.com
Trump Administration Trump • favors some minimum wage hike? • favors some change in white collar exemption rules? DOL’s posture toward employers is likely to change – eventually • Chevron deference—legal principle of deference to agencies when statutory language is unclear • focus on compliance, not enforcement • return of opinion letters fisherphillips.com
Trump Administration Lessons from former Secretary of Labor nominee -- Andrew Puzder (before he withdrew) • opposed $15 per hour minimum wage • opposed changes to white collar exemption rules Can expect future nominees to take similar positions fisherphillips.com
“I will end the use of the H-1B visa as a cheap labor program.” fisherphillips.com
Obama Administration Supported Immigration Reform • Sanctuary City — Deportation Detainers • 2012 Deferred Action for Childhood Arrivals • (DACA) Deferred Action for Parents of Americans • Expanded DACA • Blocked by Federal Courts • H-1B Visa Reform • Cap exempt categories for tax-exempt organizations • fisherphillips.com
Trump Administration Executive Order • Increase Enforcement — Build the Wall! • • E-Verify — Expand Use • Employment Based Approach to Reduce Illegal Workers H-1B • • Attorney General Jeff Sessions — Opposes “threat” to U.S. professional employees • Trump — Open to expanding H-1B for foreign graduates of U.S. colleges fisherphillips.com
“I love the right to work; it’s better for the people.” fisherphillips.com
Obama Administration Appointed pro-union NLRB Expanded the coverage of protected concerted activity under Section 7 of the NLRA • handbook policies – Wendy’s International • email access – Purple Communications • social media/Facebook firings – Pier Sixty • class action waivers – D.R. Horton • pickets/protest on employer property – Capital Med Ctr Broadened the “test” for “joint employers” • McDonald’s Enacted “quickie election rules” fisherphillips.com
Trump Administration NLRB appointments • Currently 2 Democrats,1 Republican, 2 vacancies • Current G.C. 4-year term ends November 2017 Reverse Obama Board • Rulemaking • Decisions • Positions on appeal Promote right-to-work laws Transparency on use of union dues Death knell for the persuader rule But what about his “blue collar” support? fisherphillips.com
“Latinos love Trump, and I love them.” fisherphillips.com
Obama Administration EEOC • Criminal Background Checks • LGBT Discrimination: • EEOC v. Boh Bros. Constr. Co. LLC - Same-sex harassment and failure to conform to gender stereotype ($451,000) • EEOC v. Lakeland Eye Clinic, P.A. - Transgender discrimination for employee fired after presenting as woman ($150,000) • Transgender Bathroom Access: Discrimination based on transgender is sex discrimination • Equal Pay Rules: Require Disclosing Pay Data by Race and Gender on EEO-1 in 2018 fisherphillips.com
Trump Administration EEOC • Commission currently 3 Dems and 2 Reps • Changing to 3 Reps and 2 Dems • Criminal Background Checks: May cease litigations • LGBT Discrimination: • Victoria Lipnic, potential new Chair, dissented from EEOC position in LGBT cases under Title VII. • Lipnic favors more Commission review before litigation initiated • Transgender Bathroom Access: • “Use the Bathroom They Want” • Federal government should not be involved • Equal Pay Rules: May rescind or revise before 2018 fisherphillips.com
"I Will Appoint Supreme Court Judges Who Will Uphold the Constitution." fisherphillips.com
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