6 Months on Capitol Hill in 2017

During the sixth month of the calendar year, we like to reflect on adjustments the Federal Government may have already made, or intends to make, to Human Resources related areas for the rest of 2017 and beyond. With a Republican Administration in place for the next four years, we anticipate possible rollbacks on previous decisions. In addition, certain hot topics such as equal pay, healthcare, and the Family and Medical Leave Act (FMLA) will remain in the spotlight.

Affordable Care Act (ACA), American Health Care Act (AHCA), & Better Care Reconciliation Act (BCRA)
After much discussion, the American Health Care Act of 2017 passed the House of Representatives with a margin of 217 to 213 this past March. On June 22nd, the Senate released an amendment instead of accepting the House version. Highlights from this amended bill, the Better Care Reconciliation Act (BCRA), include:

• Delaying the “Cadillac tax,”
• Removing individual & employer mandate penalties and alleviating employee tracking/reporting requirements,
• Increasing health savings account (HSA) contributions, and
• Withdrawing the limit on contributions to health flexible spending accounts (FSA)

As of this writing, it remains to be seen what will happen with the state of healthcare in the US.

U.S. Department of Labor
In April, the Senate confirmed Alexander Acosta for Labor Secretary. He shared with Senators that he wishes to put the interests of workers first: “As a former prosecutor, I will always be on the side of the law and not any particular constituency.” Senator Lamar Alexander (R-Tenn.), the Senate’s Health, Education, Labor and Pension Committee Chairman, noted of the new Labor Secretary that “[he] understands how a good-paying job is critical to helping workers realize the American dream for themselves and for their families.” With time and action we will be able to assess future decisions and actions from the U.S. Department of Labor.

One pressing matter is the Final Rule injunction made in November 2016. According to the United States Department of Labor’s website, “On April 19, 2017, the U.S. Court of Appeals for the Fifth Circuit granted a request by the Department of Justice for an extension of time of sixty days, until June 30, 2017, in which to file its reply brief. The additional time was requested on behalf of the Department of Labor ‘to allow incoming leadership personnel adequate time to consider the issues’.”

National Labor Relations Board (NLRB) & Equal Employment Opportunity Commission (EEOC)
The General Counsel seat is vacant for both the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). It is expected that the Trump administration will elect Republican members to these positions. With many seats in the EEOC expiring later in 2017, we also should anticipate a Republican majority EEOC board by the end of 2017.

Some anticipate that the current Republican administration will result in more in-house or contracted mediators instead of investigators when charges are filed with the EEOC. The same pattern was seen in a previous Republican administration (Bush I) and, in a later Republican administration, included reconciliation (Bush II).

Equal Pay and LGBT Worker Protections
Equal pay continues to be a hot topic for human resources and Capitol Hill. In March of 2017, President Trump signed an executive order that would revoke the Fair Pay and Safe Workplaces order of 2014. The 2014 order safeguards workers by requiring businesses that receive federal contracts to stay close to labor and civil right laws. It also removed wage transparency rules and barred forced arbitration clauses for sexual harassment cases.

LGBT advocates believe this order rolls back their rights and breaks a previous commitment to the community to not change such existing policies. The executive order President Trump signed revokes the requirement that federal contract seeking companies prove federal compliance with laws banning discrimination based on sexual identity or orientation. It is believed this order will make it difficult for victims to make substantial claims of worker mistreatment.

Occupational Safety & Health Administration (OSHA) and Family & Medical Leave Act (FMLA)
The Senate moved to repeal an Occupational Safety & Health Administration (OSHA) rule that sanctioned employers for “failing to make and maintain injury and illness records beyond the 6 month statute of limitations set by OSHA.” President Trump signed the repeal on a rule stemming from a case involving Volks Constructors.

We look to learn more about the current Republican administration’s plans surrounding the Family & Medical Leave Act (FMLA). Anticipated adjustments include extended time off for new parents and other child care policies.

Your Perspective
Are there other topics or decisions made on Capitol Hill that you think will affect HR policies and practices in 2017 and beyond? Feel free to share your thoughts in the comment section below!

Profit vs. Non-Profit Infographic

We are sharing with you a new infographic that explores the differences between non profit and for profit compensation:

The Challenge of Misclassification in the Gig Economy

According to a 2016 Pew Research survey, some 24% of American adults have used some sort of digital commerce platform to earn money. This approach to earning a living is considered part of the gig employment phenomenon. In a 2016 study conducted by Harvard’s Lawrence Katz and Princeton’s Alan Krueger, 16% of American workers work for a temporary help agency, contract as independent contractors, or hold an on-call position. Current trends anticipate the gig economy to comprise more of the workforce in the future. In this issue of Astronology®, we look into the recent trend of gig employment and a critical challenge surrounding it.

In 2015, the Economic Policy Institute (EPI) reported that workers misclassified as independent contractors had grown considerably. Also stated in the report was that “New ‘sharing economy’ [also known as gig economy] businesses create cause for concern about misclassification because it is unclear how ‘autonomous’ these workers really are.” The report further expresses, “Employers who misclassify avoid paying payroll taxes and workers’ compensation insurance, are not responsible for providing health insurance, and are able to bypass requirements of the Fair Labor Standards Act, as well as the 1986 Immigration Reform and Control Act.”

A direct result of this misclassification is gig workers being forced to pay the full ACA tax or purchase their own health insurance. However, these costs may not be within their gig incomes. These conditions have given rise to lawsuits alongside the rise of gig-like jobs. For instance, Lyft recently settled a $27 million class-action lawsuit brought by drivers seeking to be classified as employees. Currently, Uber is in court for a similar class-action lawsuit. In light of this, the next question to consider is if labor laws will ever catch up to the rise of the gig industry.

Some employers have lobbied state legislatures to assist in legal coverage. In response, 28 states have legalized ride-hailing services, such as Uber and Lyft, labeling their workers as independent contractors. In Arizona, all workers using online labor platforms for work are considered independent contractors. This means that, while workers will find it hard to file successful claims for state-run benefit programs, gig workers still retain the right to sue over benefits and protections owed to employees under federal law. In New York and Washington, portable benefits, an encompassing benefit program designed for independent workers, are being considered.

As the workforce continues to change and more independent workers comprise our labor force, it will be important to see how legislatures continue to react. Do you work for an organization that supports or has some form of independent workers? How large a part of your organization are gig workers? How does your organization support gig workers? Please share your thoughts in our comments section below!