Predicting the Unpredictable: Labor and Employment Law in 2017 (Part Two)

This post is part two of a two-part series. Catch up on part one here.

Several of the biggest employment law matters in 2016 were the Department of Labor’s overtime regulations, Florida’s medical marijuana law, LGBT rights, and changes to the joint employer relationship. It is expected that each of these issues will continue to hold the limelight in 2017.

DOL’s Overtime Regulations – Since March 2014, when President Obama issued a Memorandum to the Secretary of Labor directing the Secretary to “modernize and streamline existing overtime regulations,” this has been a hot topic. The discussion has moved from what the regulations will be, to what will happen with the Department of Labor’s appeal of the temporary injunction prohibiting the implementation of the rule. Oral argument has not yet been set. Thus, the new administration could withdraw its appeal of the temporary injunction, leaving the lower court’s decision intact. If Puzder does take the reins of the DOL, it is likely that this will occur, as he is on record stating that the 2016 overtime regulations diminish opportunities for workers.

Florida’s Medical Marijuana Law – This past election Florida’s voters approved medical marijuana for treatment of certain health conditions. Although the state has already issued seven licenses for growing marijuana and some of the businesses with licenses are already starting to plant crops, it will not be until summer 2017 that regulations implementing the voters’ directive will be released. Many counties and cities in the state, including Sarasota County, Manatee County, Hillsborough County, Pasco County, and the City of Bradenton, have or are considering instituting temporary bans of the drug until the state’s regulations are issued and/or local zoning and building regulations are implemented.

Even though it is clear from the text of the constitutional amendment that employers will not be required to allow employees to use marijuana at the workplace, there will still be questions regarding zero-tolerance policies, Florida specific drug testing, and reasonable accommodation under the Florida Civil Rights Act (arguably the ADA, a federal law, would not require an accommodation that involves a federally prohibited substance). Further, although marijuana (and CBD/hemp oil) may be approved for limited use in Florida, what the voters approved this past election is in direct conflict with the federal Controlled Substances Act. In addition, on January 13, 2017, the Florida’s legislature’s 2014 approval of limited use of CBD will be in direct conflict with the Drug Enforcement Administration’s new rulemaking CBD a schedule one controlled substance.

State laws will not protect businesses, including those licensed by the state to grow marijuana, from federal prosecution. If Sessions takes over the DOJ, he could overrule the 2009 directive to U.S. Attorneys not to prosecute violations of the federal drug laws when the acts being prosecuted are legal under state law. If this occurs, the federal government could thwart business opportunities in the marijuana industry and put many people in jail.

LGBT Rights in the Workplace and in Places of Public Accommodation – In the last few years, both the Equal Employment Opportunity Commission and the DOJ have taken serious efforts to expand protections afforded to members of the LGBT community. The EEOC’s 2017 Strategic Enforcement Plan indicates that providing this group protections under Title VII will remain a priority. However, depending on who is chosen to lead the EEOC, this focus could change and this aspect of the strategic plan could be ignored. Similarly, with Sessions in charge of the DOJ, a rollback in efforts to use public accommodation laws to provide greater protections to transgender persons is likely to occur.

Joint Employer Status – Recently both the EEOC and the National Labor Relations Board have broken with their own long-standing standards of what constitutes a joint employer, with both agencies expanding their standards to cover a greater number of relationships. The NLRB went as far as to redefine the joint employment test in place for over 30 years. In the past, a joint employer relationship existed when two entities shared or codetermined the essential terms and conditions of the workforce. Thus, for two entities to be considered joint employers, both had to exercise some control over employees’ terms and conditions of employment. However, with the 2015 Browning-Ferris decision, the NLRB removed the actual exercise of control as a requirement and instead focused on whether each entity has a “right to control” regardless of whether that right is ever used. Because of the five-year staggered terms of board members and the fact that a change at the Board level is made through interpretations of the NLRA, the impact of the new administration on this standard will most likely not be immediate. Instead, the NLRB’s new joint employer standard is already being challenged by Congress, and if a bill is passed overriding the NLRB’s new standard, it is likely that the new President will sign the bill.

Aside from the foregoing issues, there are also several other matters that will probably be of interest in 2017: Will Obama’s executive orders for federal contractors regarding minimum wage and paid sick leave stand? Will the new administration continue to push for fair pay? Will we see an increase in INS investigations of undocumented workers? Will the new administration attempt to undo the NLRB’s quickie election rules?

If only we had Dr. Who’s Tardis so we could travel to the future and see for ourselves. Whether the changes will ultimately be positive or negative for employers in 2017 is yet to be seen. Regardless, we are guaranteed a year full of activity in the employment law arena.

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