Trump Says It's Okay For Federal Contractors To Break Employment Laws

Another week, another prediction sadly fulfilled. On December 2, I did a list of executive orders protecting employees of federal contractors that I predicted would be rescinded under Trump. A very important one just bit the dust.

The Fair Pay and Safe Workplaces Rule provided two important protections for employees that are now gone:

Blacklisting for employment/labor law violations: Anyone applying or bidding for a federal contract of $500,000 or more was required to disclose any employment or labor law violation. They had to disclose any administrative merit determination, arbitral award or decision, or civil judgment rendered against them within the preceding three-year period for a violation of any of a list of labor and employment laws, plus they have to update their violation information every six months and, for some contracts, obtain the same violation information from their covered subcontractors. This meant that federal contractors needed to be very afraid of things like a "cause" finding from EEOC. Punishment for repeat offenders could be up to cancellation or denial of a contract.

I predicted that employers would fear no more because they knew the rule would be gone soon.

No mandatory arbitration: The same executive order also banned agreements that require mandatory arbitration for discrimination and sexual harassment claims. Specifically, "for all contracts where the estimated value of the supplies acquired and services required exceeds $1 million, provisions in solicitations and clauses in contracts shall provide that contractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise." This also applied to subcontractors providing services or supplies over $1 million.

Federal contractors may now resume requiring employees to arbitrate.

Sad.

What A Broad Religious Exemption To Discrimination Laws Will Mean

While the Trump Administration announced that it would keep in place President Obama's Executive Order protecting employees of federal contractors from LGBT discrimination, there have been reports of another proposed executive order that would provide a religious exemption from all discrimination laws.

The four-page draft order, a copy of which is currently circulating among federal staff and advocacy organizations, construes religious organizations so broadly that it covers “any organization, including closely held for-profit corporations,” and protects “religious freedom” in every walk of life: “when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.”

If signed this Executive Order could conceivably be used to argue exemptions to race and sex discrimination laws as well as LGBT discrimination. While I don't think the President (who is not king or dictator, yet) can change existing laws with the stroke of a pen, this could result in years of litigation on these issues.

There are certainly many (if not most) religions that consider women to be second-class citizens. Some religions believe women should be subordinate to men, should not work outside the home, and/or should cover themselves from head to toe. Will the Administration be so intent on allowing LGBT discrimination that they forget about women's rights?

Indeed, the Bible was used for years to argue in favor of race discrimination and slavery. Such a broad exemption could be used to justify race discrimination by certain religious groups.

On the other hand, it would be conceivable that someone (maybe John Oliver, Trevor Noah or Samantha Bee) could form a religion to counter all this nonsense. A religion that says it is sinful to discriminate against LGBT, Muslim and other oppressed communities; that it is sinful to participate in oppressing the poor; that it is sinful to participate in increasing wage disparities; that it is sinful to deny excellent education to the poor and middle class; that it is sinful to employ people who would participate in such activities. Some religions already hold similar beliefs.

What would be the effect of such a religion? State and federal employees who were members could use a religious justification to refuse to enforce or participate in enforcement of any laws or policies that are against their religious beliefs. Closely-held for-profit corporations could refuse to employ anyone who held homophobic views, voted for Trump or walk around with Ayn Rand books. I'm betting that those who want to use their religion to discriminate would be the first to howl at such practices.

What's good for the goose is good for the gander. A broad religious exemption to discrimination laws might not have the effect Mr. Trump and his cronies are looking for. Be careful what you wish for.

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.

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.

Bye Bye Nursing Breaks: Preparing For The Trumpocalypse Part IV

If you are chomping at the bit to see the repeal of the Affordable Care Act, you probably don't know all that you are giving up. For instance, I bet you didn't realize that it was ObamaCare that brought us nursing breaks for moms.

That's right. It's the Fair Labor Standards Act which requires workplaces to give nursing moms reasonable breaks to express breast milk for a year after they give birth. The law also requires employers to provide a place, other than a restroom, shielded from view, free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

However, the amendment to the Fair Labor Standards Act that requires employers to do what basic human decency would provide anyhow was part of the Affordable Care Act.

Will Trump's repeal of the Affordable Care Act result in a repeal of this law? Right now Republicans are talking about wholesale repeal, and then maybe a grace period to find alternatives (although some want a repeal with no grace period).

In all the discussions about this repeal and what needs to be preserved, I have heard zero discussion about protecting nursing moms. Considering that Mr. Trump has called pregnancy an inconvenience to employers (then denied saying it, but he did say it), it seems unlikely that he gives one flying hoot about nursing moms in the workplace.

If you think this is an important part of the Affordable Care Act to preserve, it's time to write and call your members of Congress and Senators to tell them family values includes basic decency for new moms.

Federal Contractors, You Don't Know What You've Got 'Til It's Gone: Preparing for the Trumpocalypse Part III

President-elect Trump has promised to undo all of President Obama's executive orders on day one of his presidency. If you are one of those middle class folks who voted for him, you may not realize what you voted for until he does it. If you work for a federal contractor, you will lose a whole heck of a lot if he keeps this promise.

Here's what you've got that may be gone soon:

• Paid sick leave: You will be entitled to one hour of paid sick leave for every 30 hours worked, starting in 2017. Since this is just a few days before the President leaves office, this order will not have much chance to actually go into effect.
• LGBT discrimination: Gender identity discrimination by contractors is now illegal, along with sexual orientation discrimination. There is no federal law prohibiting this type of discrimination, although EEOC has argued with mixed success that the laws against sex discrimination protect against sexual orientation and sexual identity discrimination. I'm guessing the new president will tell them to stop that as well.
• $10.10 minimum wage: Starting January 1, 2016, contractors have had to pay $10.10/hour as a minimum wage, and $5.85/hour to tipped employees. If you've been counting on this extra pay, you may lose it soon, so start adjusting your budget.
• Right to work for a successor company: For service contracts of $150,000 and up, if a new company displaces an existing company, the employees of the predecessor must be offered first shot at jobs under the new contract. Service employees have to be told of their right of first refusal by either posting a notice or giving individual notice to the predecessor contractor’s employees. The predecessor contractor has to provide its successor an employee list by 30 days before the end of the contract. Now, you may have no right to retain your job when a new company takes over.
• Blacklisting for employment/labor law violations: Anyone applying or bidding for a federal contract of $500,000 or more must currently disclose any employment or labor law violation. They must disclose any administrative merit determination, arbitral award or decision, or civil judgment rendered against them within the preceding three-year period for a violation of any of a list of labor and employment laws, plus they have to update their violation information every six months and, for some contracts, obtain the same violation information from their covered subcontractors. This means that federal contractors need to be very afraid of things like a "cause" finding from EEOC as the law currently stands. Punishment for repeat offenders can be up to cancellation or denial of a contract. But I'm guessing they are fearing much less these days, as this law will go poof soon.
• No mandatory arbitration: The same order that bans blacklisting also bans agreements that require mandatory arbitration for discrimination and sexual harassment claims. Specifically, "for all contracts where the estimated value of the supplies acquired and services required exceeds $1 million, provisions in solicitations and clauses in contracts shall provide that contractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise." This also applies to subcontractors providing services or supplies over $1 million. Starting in January, your employer may be able to require arbitration again.

As with many protections President Obama helped create for employees, you won't know what you've got 'til it's gone. The middle class is up for some rude surprises very soon. Next time, vote better.

Preparing Yourself For The End of ObamaCare (Bracing for the Trumpocalypse Part I)

Well, Donald Trump is our President-elect. He has made a cascade of promises throughout the campaign, and many of them will affect the workplace. First up will be the repeal of the Affordable Care Act. That seems to be Republican priority number one. With control of the House, the Senate, the Presidency and soon the Supreme Court, they will get to do whatever they want for at least two years. So this is happening.

I'm going to write about all the laws/executive orders that will be affected by this so you can start to protect your family and yourself from economic disaster.

If you have a preexisting condition, it was ObamaCare that made it illegal to deny insurance coverage to you. That means when ObamaCare is appealed, you may never get insurance coverage again. If you are one of the 16.64 million Americans who are insured due to ObamaCare, you may lose that coverage. There has been some backpedaling such that maybe the preexisting condition provisions will stay when other provisions are repealed. We have no idea what, if anything, will replace the Affordable Care Act or if any of it will remain, and we have no idea how soon this may happen. I suggest preparing for repeal with zero replacement.

Here are some things you can do to help prepare yourself for the repeal of the Affordable Care Act, which could happen as early as January or February 2017:

1. Ask your insurance company what they plan to do. If ObamaCare is appealed, you may be dropped by your insurance plan. The first thing to do is ask what they plan to do. They may not even know what they plan to do yet if ACA is repealed, so stay vigilant. Read all those inserts they send you. Set a Google alert for your insurance company name and "Affordable Care Act."
2. Start looking for alternative plans. Find an insurance agent you trust who can point you to alternative plans if you lose coverage. Know which plan you will pick before you lose your insurance so you can switch quickly.
3. Encourage your employer to have an insurance plan. I know this seems like a long shot, but many employers have health insurance to keep good employees, to improve morale and also to improve attendance. Healthy employees show up more. 
4. Unionize. If your company won't provide insurance voluntarily, you have the right to discuss working conditions with coworkers and try to organize them. That includes the right to unionize. It may be time to unionize your workplace to protect yourselves against the upcoming war on workers.
5. Look for a job with insurance. Now might be a good time to find alternative employment that does have insurance if your job doesn't cover you.
6. Put money in your health care savings. Many employers offer a health savings account. If you have a preexisting condition and may not be able to keep insurance, this may be your best option for now. It won't stop the catastrophic loss that will occur if you are hospitalized, but it will help with regular doctor bills.
7. Switch to your spouse's insurance. If your spouse's employer has insurance coverage, now is the time to switch from your Affordable Care Act insurance.

The Trump win has already affected the way I advise clients. I used to advise people who lose their jobs to look at their Affordable Care Act options along with COBRA, because ACA is almost always cheaper than COBRA, which is crazy expensive. It was nice while it lasted, but now I'm telling people not to sign up for ACA and to elect COBRA if they can because ACA won't be around much longer.

This is literally a matter of life and death for many people. Next time, vote better.