My 2017 Predictions: It Won't Be Pretty

We've now seen one week of the new Administration, and so we know Mr. Trump was not kidding about his extreme promises. This will not be a good year for employees. The only thing I'm sure of is that we really have no idea what will happen this year. But I'll do my best to predict the unpredictable:

Executive orders: Okay, this wasn't a hard one since it's already started. We'll see lots of executive orders curtailing employee rights, LGBT rights and women's rights. I've already made some predictions about what regulations Trump will scrub,  and the reversal of protections for employees of federal contractors.

Obamacare gone: I've written about what will happen with the end of Obamacare, and the resulting end of nursing breaks if Obamacare is repealed. This is already starting to happen.

Marijuana jailings: I've also written about what will happen if the Feds start to enforce marijuana laws. I stand by my predictions, despite being called a fear-mongerer.

LGBT rights curtailed: We've started to see this already. A bill to allow LGBT discrimination on religious grounds has been introduced and Trump promises to sign it. They are likely planning to overturn President Obama's order on LGBT discrimination regarding federal contractors. There will be attempts to overturn gay marriage altogether, and to at least treat it as a second class kind of marriage where clerks can refuse to perform ceremonies. We may see an attempt at a federal bathroom bill similar to the obnoxious North Carolina bill. We'll see states moving to curtail LGBT rights, but we'll also see some states moving to protect them. There will be a true red/blue dichotomy. Florida will be a state that remains unfriendly to the LGBT community, and our legislature will feel emboldened to trample on rights.

Muslim discrimination: Already, Trump has attempted to keep even permanent residents who happen to be Muslim from re-entering the country after traveling for funerals and education. This will affect employees who have to travel for work. Many Muslims will lose their jobs when they can no longer safely leave the country. The blatant acts of discrimination by the Administration will embolden racists who feel they have the right to discriminate against brown people. This will be a horrible, horrible year to be Muslim. Some states will try to step up protections for Muslim people. The blatant discrimination will also help recruiting efforts for terrorist organizations.

Sex discrimination: There will be active attempts to ban abortion rights for women. This will turn women into second-class citizens. It's only a matter of time, once abortion becomes illegal again, that sexist politicians will turn their eyes on other aspects of women's reproductive and health issues. Once women can't control their own bodies without political interference, they will be hampered in their careers. There is a whole scary element of the Trump regime that believes women shouldn't work, so don't expect any pro-female laws. We may see some attempts to reverse sexual harassment and other protections for women, but I don't think this will happen immediately. They will be too busy harassing gays and Muslims this year.

EEOC changes priorities: EEOC is already backing down on lawsuits involving transgender rights. They will stop pushing cases where they have asserted that Title VII protects against LGBT discrimination, so it will be up to employee-side employment attorneys to push the issue. Also gone will be arguments that banning hire of those with criminal records has a disparate impact on race/national origin.

No help with overtime: President Obama's attempt to expand overtime and update antique standards for overtime will be overturned.

Non-Christians: Religious discrimination laws protect all religions and sincerely held beliefs, but there will be a push to marginalize any protections for anyone who is not Christian. Those who believe the U.S. is a Christian nation will push to force us all into their narrow religious beliefs. It will become open season on non-Christians.

This is truly the most depressing set of predictions I've ever made. And I could go on. I think very few other than rich white males will have a good year, employment law-wise. I'm hoping the resistance will stay strong, but I still fear that, with the House, Senate, Presidency and soon the Supreme Court under the thumb of right-wing conservatives, we are in for a very bad year. I really most sincerely hope I am wrong.

Cassandra Redux? How I Did On My 2016 #Emplaw Predictions

Every year I have done predictions for what I expected to happen in employment law and I'm usually right. After 30 years of law practice, it turns out I know stuff, despite what my teenagers say. Here's what I predicted for 2016 and how it turned out:

Political firings: I predicted a rash of political firings for discussing politics at work, and of course this happened. But it was less about the actual politics and more about the undercurrents. This year, there were more blatant comments about women, gays, the disabled and other protected groups than I've seen in my 30 years of law practice, and much of that was because of the tone of the political campaigns.

LGBT discrimination: I predicted that some states and localities would pass laws against LGBT discrimination, but my home state of Florida would fail again. That's exactly what happened. What I didn't predict was the rash of anti-gay legislation that would arise. From bathroom bills to religious exemptions, some states tried everything they could to put the screws to the gay community this year.

Obama to the rescue: I predicted the President would continue to be active with his pen and squeeze in some more pro-employee executive orders before he left office and he did. The new President says he'll reverse them all on his first day.

Clear choice: I predicted that the candidates for President would make their positions on working people very clear. That was certainly true. I told you to vote very carefully. I said you could easily lose many workplace rights if you vote wrong. Well, you're about to see how bad it can get.

EEOC step up: I predicted that EEOC would step up its activities in one final burst before the new President got a chance to gut it, and they did. There were a whole bunch of new guidances issued on mental disabilities, harassment, wellness notices, national origin, federal sector discrimination, retaliation, and affirmative action for people with disabilities.

NLRB step up: I predicted that NLRB would also try to help working people as much as it can while it still could, and that employers would complain bitterly. Yep.

Do-nothing Congress: I predicted Congress would do zip to help working people. They did nothing.

Criminalization: I said we'd see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages would walk. That happened.

Joint employer: I predicted that whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with would be a hot issue this year and that the Supremes wouldn't decide the issue. That indeed continued to be a hot topic, with DOL and NLRB taking a big lead on the issue.

Guns at work redux: I predicted that employees and the NRA would push to allow employees with concealed weapons permits to carry into the workplace. We did see more of those guns-at-work parking lot laws, and Florida legislators are trying to repeal a law prohibiting guns in airports (doh!). We didn't see the push to take the guns from the parking lots to the workplace this year, but that push is coming.

So, I did pretty well, even though 2016 was a year nobody could have predicted. Next up are my predictions for 2017.  Today, I'll be busy helping protect working people while they still have rights and ignoring the festivities in D.C.

What #Employmentlaw Regulations Will Trump Scrub?

As the inauguration gets closer, the new Trump Administration is making lots of promises about what they intend to do. Apparently number one on the list is undoing as many of the Obama Administration's Regulations and Executive Orders as they can. I already talked about some Executive Orders that benefit employees of federal contractors that are at risk. So what else may disappear or change soon?

Here are some employment-related regulations to keep an eye on:

• OSHA retaliation procedures: OSHA has issued new procedures for handling retaliation complaints under various laws, such as Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act. 
• Federal unemployment rules: DOL implements rules on federal unemployment compensation, which provides extra compensation to the unemployed during periods of high unemployment. The latest, Federal-State Unemployment Compensation Program; Implementing the Total Unemployment Rate as an Extended Benefits Indicator and Amending for Technical Corrections; Final Rule, could be in for a change. Other rule changes on unemployment to watch for will be those relating to drug testing of applicants.
• Overtime regulations: DOL regulates minimum wage and overtime rules. The latest rule changes could be overturned. Watch for changes to, for example, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.
• Safety regulations: OSHA has tightened safety standards on many industries. These include the very recent Occupational Exposure to Respirable Crystalline Silica; Correction and Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems).
• Social Security disability: Whether you qualify for disability benefits can be determined by very specific rules. Some recent ones at risk include Unsuccessful Work Attempts and Expedited Reinstatement Eligibility, Revised Medical Criteria for Evaluating Mental Disorders, and Revised Medical Criteria for Evaluating Neurological Disorders.
• EEOC: The Equal Employment Opportunity Commission issues regulations and guidance for determining whether various types of illegal discrimination have occurred. Some recent changes include Regulations Under the Americans With Disabilities Act and Genetic Information Nondiscrimination Act.
• Federal Employee ethics rules: We just saw the attempt to limit ethics requirements in Congress. Some ethics rules to watch include Standards of Ethical Conduct for Employees of the Executive Branch; Amendment to the Standards Governing Solicitation and Acceptance of Gifts from Outside Sources and Interpretation, Exemptions and Waiver Guidance Concerning the Federal Criminal Conflict of Interest Statute Prohibiting Acts Affecting a Personal Financial Interest; Amendment to Definition of “Employee”.

These are just some examples of the many, many executive branch regulations that could change soon. The truth is that nobody has any idea what the new administration will actually do. Both employers and employees are justifiably nervous about what may happen in the next four years. Stay tuned.