2014 – What’s on tap?

1. 2014 – What’s on tap? FOOD INDUSTRY ASSOCIATION EXECUTIVES 86TH ANNUAL CONVENTION November 8, 2013 Mark M. Trapp Epstein Becker & Green, P.C. mtrapp@ebglaw.com Attorney-Client Privileged Privileged and Confidential

2. Topics Covered

3. Employee Misclassification • Many states have proposed or passed laws addressing the practice of labeling workers as independent contractors, rather than employees. • It allows employers to avoid: • payroll taxes • workers compensation, and • unemployment insurance. • Also labeled “wage theft” • Very “trendy” right now (states are broke!) States are looking for money – so expect more proposals to stop “wage theft”

4. Employee Misclassification • In the last six years, more than half the states have passed legislation seeking to curtail misclassification • Many have signed MOUs with WHD • WHD actively pursuing others • Among the “funding highlights” listed in President Obama’s 2013 budget: • “Maintain support for agencies that protect workers’ wages, benefits, health and safety, and invest in preventing and detecting the misclassification of employees as independent contractors.”  Numerous states have signed MOUs partnering with WHD; agree to share information and coordinate enforcement efforts.

5. Minimum Wage • The perennial favorite – the minimum wage! • At least 13 states set to increase • Arizona • California • Connecticut • Florida • Montana • New York • Ohio • Oregon • Rhode Island • Washington • Also MO, VT and CO have undetermined increases Federal minimum wage = $7.25 Many states mandate higher

6. Minimum Wage • On November 5, New Jersey voters approved a constitutional amendment • Boosts the $7.25 hourly minimum wage to $8.25 • Effective January 1, 2014 • Provides for annual cost-of-living • tied to inflation • Seattle vote initiative – SEATAC • $15.00/hr for airport employees Many localities try to mandate higher wages as well

7. Mandatory Paid Sick Leave • Could come up in numerous states • Three cities have recently enacted • New York, NY (40 hours annually) • Portland, OR (accrue 1 for every 30) • Jersey City, NJ (accrue 1 for every 30) • Common themes • Recordkeeping provisions • Must inform employees of sick leave • Anti-retaliation provisions • Sets relatively low thresholds for paid leave, then mandates unpaid leave below that Push for paid sick leave is becoming increasingly prevalent

8. Working parents and caregiver leave • Rhode Island recently passed • Temporary Caregiver Insurance Law • Two main components: • Employers required to provide • At least 4 weeks job-protected leave per year • To employees to care for seriously ill: • Child, spouse, domestic partner, parent, grandparent • Or to bond with newborn, adopted or foster child • Employees eligible to receive payments • Benefits apparently payable by state (through employer sponsored insurance) • Vermont enacted similar legislation in 2013 • California and New Jersey also allow state-sponsored short-term disability benefits even if employee not personally disabled Caregiver leave is percolating in many places

9. Working parents and caregiver leave • San Francisco recently passed • Friendly Workplace Ordinance • Provides: • Request flexible work arrangement • For caregiving responsibilities for SHC • Twice a year • Or after birth, adoption, increase in caregiving • Accommodations • Alternative work schedules • Telecommuting • Job sharing • Part-time work schedule • Employer must meet with employee within 21 days, and may deny for bona fide reasons Flexible work arrangements are on way to being mandated

10. Accommodations for Pregnant Employees • Seven states have expressly required accommodations of pregnant employees • Alaska • California • Connecticut • Hawaii • Louisiana • Maryland • Texas • Other laws pending before NY and Congress • Maryland’s requires employers to explore “all possible means of providing the reasonable accommodation” Pregnancy accommodations can also be protected under the ADA and the Pregnancy Discrimination Act, and many states human rights laws

11. Accommodations for Pregnant Employees • New York City enacted last month • Amended the NYC human rights law • Effective January 30, 2014 • Prohibits employers from refusing to accommodate employee • Due to pregnancy, childbirth or related medical condition • Reasonable accommodations include • Bathroom breaks • Breaks to facilitate increases water intake • Periodic rest for those who stand long time • Assistance with manual labor • Flexible schedules • Time off for medical appointments • Leave for period of disability arising from childbirth • Employer not required if can prove “undue hardship”

12. Discrimination Based on Unemployment Status • Many states have sought to address • New Jersey • Oregon • District of Columbia • Nine other states introduced in 2013 • NYC enacted law in June 2013 • Bars hiring decisions based on employment status • Bars advertising for jobs that list current employment as qualification • First to create private right of action • Punitive damages, injunctive relief, attorneys fees As economy continues to struggle, look for these kinds of items to keep coming up.

13. Legalization of Medical Marijuana • In past 3 years, eight states have passed • Illinois becomes effective Jan 1 • Compassionate Use of Medical Cannabis Pilot Program Act • Can’t discriminate or penalize individuals for status as “patient” • May prohibit use on property • Enforce policies regarding drug testing (??) Don’t worry, if you can’t find a job, you can always smoke dope…

14. Criminal Background Checks and Credit Reports • In past 3 years, EEOC has made push against employers for using background checks to exclude applicants • Wisconsin has similar law • Many states (such as Illinois) have also enacted legislation prohibiting use of credit checks in employment • Must have legitimate business reasons You mean to tell me you didn’t hire me, just because I’m a criminal?!? Or a deadbeat?!?

15. NLRB “quickie election” rule The NLRB – never met a union it didn’t like… • NLRB now has 5 Senate-confirmed members for first time in 10 years • Will likely try to resurrect rule • Quickie elections, stayed last year • 95 percent of elections are held within 56 days of the filing of a petition. • Under the rule, this could drop to as little as 10-21 days. • The rule would also restrict an employer's ability to assess the appropriate unit and effectively litigate the issues

16. Wait, it’s not the ENDA… • Senate yesterday passed (for first time) • Employment Non-Discrimination Act (ENDA) • Bans workplace discrimination against persons because of sexual orientation • Senate approved 64-32 • Ten Republicans joined Democrats • Little chance of passing House • Boehner – would cost small businesses and increase “frivolous litigation” First time such legislation ever passed the senate was yesterday.

17. Obamacare – what’s the deal? Obamacare – demonstrating the competence of the federal government. Are you kidding me – 6 people?? • Rollout is a fiasco • Who knows how bad it will get • At least 10-14 democrats have voiced support for delaying the ACA • President apologized last night • Four pending lawsuits might be major shake-up to law

18. Obamacare – what’s the deal? “What we said was you can keep it, if it hasn’t changed since the law was passed.” • Section 1311 of the law establishes state insurance exchanges. • It provides, in part, that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” • Congress can’t force states to do so • So set up incentives, one of which is subsidies • Subsidies are available only to people whose plans “were enrolled in through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act.” • Trigger for employer mandate is that an employee get a subsidy • So if no subsidies in a state, no employer mandate • 36 of 50 states have exchanges established by federal governmentNOTE -- this could be a very BIG DEAL….

19. QUESTIONS?