Chris Wilkinson maintains a broad practice in labor and employment, Equal Pay, health and safety, government relations and administrative law.

Chris most recently served as Associate Solicitor for Civil Rights and Labor-Management. In that role, Chris was the senior career civil rights and labor management lawyer for the Department of Labor providing advice on regulatory, policy and enforcement matters for seven DOL agencies including the Department’s Office of Federal Contract Compliance Programs, Civil Rights Center and Office of Labor Management Standards.

Chris counseled the Department on a broad array of equal employment opportunity regulatory and policy initiatives and advised on a wide range of constitutional and statutory matters in federal courts including the Supreme Court of the United States. In addition to EEO matters, Chris led the Solicitor Office’s union election and reporting enforcement work, counseled on transit labor certification matters and advised on appellate matters related to labor union practices.

Chris also has significant litigation experience having served as trial attorney and then Counsel for Civil Rights Programs in the Department’s San Francisco region. In those roles, he litigated a number of complex class wage-and-hour, class discrimination, health and safety citations, and Sarbanes-Oxley and other whistleblower matters.

Chris is an active member of the America Bar Association, having presented on numerous federal contractor compliance, LBGT and compensation discrimination topics at the ABA Conference on Equal Employment Law.

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Posts by: Christopher Wilkinson

President Trump Says “Not So Fast” — The Future of Overtime, Fiduciary, and Pay Reporting Rules Remains Uncertain Under the Trump Administration

On January 20, 2017, shortly after Donald Trump became the 45th President of the United States, his Chief of Staff, Reince Priebus, issued an Executive Memorandum mandating a 60-day freeze on published federal regulations that have yet to take effect to allow Trump’s appointees time to review the regulations. Although such action is fairly standard during a change of administration, the impact could be significant if certain regulations set to take effect in 2017 are delayed or ultimately replaced.  Regulations potentially affected by the 60-day freeze include the Department of Labor’s (“DOL”) overtime and fiduciary rules, and the Equal Employment Opportunity Commission’s (“EEOC”) EEO-1 pay reporting requirements.

DOL Overtime Rule

In May 2016, the DOL announced significant changes to the overtime rules under the Fair Labor Standards Act (“FLSA”). As we’ve previously blogged about here, the overtime rules mandated that, beginning December 1, 2016, the salary requirement for exempt employees would increase by nearly double – from $23,660 to $47,476 per year.  Under these new rules, employees who earn less than $47,476 would no longer meet the overtime exemption from the FLSA, and would be entitled to overtime compensation for all hours worked over 40 in a workweek.

The new overtime rules made headlines late last year when a federal district court in Texas issued a preliminary injunction enjoining its implementation.  The decision was issued on November 22, 2016, just days before the new rules were set to take effect.

Between the ongoing litigation over the legality of the overtime rules and the recent 60-day regulatory freeze, the future of the overtime rules remains uncertain. Other than publicly advocating a small-business exemption, Trump has remained non-committal about the overtime rules and has not signaled whether he will ask the Department of Justice (“DOJ”) to drop its defense of the matter.  Notably, the DOJ has sought a stay in the ligation while the new administration reconsiders its position.  As a practical matter, this places employers in a difficult position.  Many employers already implemented changes to comply with the new overtime rules in anticipation of the December 1, 2016 effective date, by increasing salaries, reducing workforces, cutting benefits, and changing employees’ schedules.  In addition, the language in the Executive Memorandum could also muddy the waters.  The Executive Memorandum provides for postponing, for 60 days, published regulations that “have not taken effect.”  Employee advocates have argued that, as the effective date for the overtime regulations was December 1, 2016, the Executive Memorandum does not apply.  This hyper-technical reading would likely be rejected by a court.  And, the argument has no practical effect as the rule is enjoined.

DOL Fiduciary Rule

The Executive Memorandum, however, will not stop the fiduciary rule train. It became effective on June 7, 2016.  The fiduciary rule, which is scheduled to be phased in starting April 10, 2017 through January 1, 2018, expands the definition of “investment advice fiduciary” under ERISA to include persons who provide investment advice or recommendations for a fee or other compensation with respect to retirement accounts.  Under the new rule, investment advice includes recommendations regarding the advisability of buying or selling securities or other investment property and recommendations as to the management of securities or other investment property.

Being a fiduciary requires financial professionals to put their clients’ best interests above their own. As a result, financial professionals who earn commissions are required, under the new rule, to provide clients with a Best Interest Contract Exemption disclosing potential conflicts of interest, fees or charges to be paid by the investor, and compensation the fiduciary expects to receive in connection with recommended investments.  The impact of the new rule on the financial services industry is significant due to the potential for lost commissions and the additional expense of complying with the heightened fiduciary standard.

Financial professionals are left to hoping that the new administration will roll back the rule. However, barring extraordinary action by Congress, there may be little that Trump can do on his own as the rule was promulgated through notice and comment rulemaking.  Further, rolling back the rule does not appear to be a high priority. Trump has not taken a position publicly on the fiduciary rule.  However, he generally supports broad roll backs of regulations and, Anthony Scaramucci, one of his key advisors, has publicly promised to repeal the fiduciary rule.  Those in the financial services industry who have already taken steps to comply with the new rules in anticipation of the April 10, 2017 implementation date should continue their efforts until they receive a clear signal from the administration or Congress.

EEOC Revised EEO-1 Form

On September 29, 2016, the EEOC announced approval of a revised EEO-1 form to collect pay data from employers with 100 or more employees beginning with the 2017 report to be submitted by March 31, 2018.   It is unclear what effect, if any, the 60-day regulatory freeze will have on the pay reporting requirements because, technically, the information collection procedures for the form did not have an effective date.  However, as Trump has already appointed a new EEOC Chair, Victoria Lipnic, signs point to a rollback.

The revised EEO-1 form requires certain employers to submit summary pay data, including the total number of full and part-time employees employed during the year in each of twelve pay bands listed for each job category on the EEO-1. Pay data is based on employees’ W-2 forms.  The revised EEO-1 form does not require employers to report individual pay or salaries.  Additionally, employers required to submit an EEO-1 form must report the number of hours worked during the year by employees in each pay band.  According to the EEOC, the purpose of collecting pay data from employers is to allow the EEOC to better assess allegations of pay discrimination, but many fear that providing pay data without context will fuel costly, meritless class action lawsuits.

Many predict that the future of the EEOC’s pay reporting rule is vulnerable under the Trump administration, while others believe that Ivanka Trump’s statements in support of equal pay may not indicate a complete pullback of the pay equity focus. Regardless of whether the 60-day freeze affects the pay reporting requirements, the issue of pay equity will be at the forefront of legal issues facing employers in 2017.  This blog will continue to provide updates as new developments occur.

More Questions for Employers As DOL Appeals Preliminary Injunction of Overtime Rules

On December 1, 2016, the date that the Department of Labor regulations were set to become effective, the government filed a notice of appeal [link to http://dciconsult.com/wp-content/uploads/2016/12/DOL-appeal.pdf] of the November 22, 2016 the United States District Court for the Eastern District of Texas’s Order granting a nationwide preliminary injunction “from implementing and enforcing” the DOL’s new overtime regulations. Those regulations would have raised the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). The Court’s ruling was based, in part, on its holding that the DOL exceeded its delegated authority by changing the salary basis test at a level that was contrary to Congress’ intent that executive, administrative and professional employees be exempted from coverage of the FLSA. A full copy of the injunction order can be found here. In the wake of the Court’s ruling and now uncertain future regarding the DOL’s new overtime rules, we thought it would be helpful to provide some interim guidance on frequently asked questions we have received since the Court’s ruling.  READ MORE

Top Ten Employment Regulations or Initiatives Employers Want Trump to Dump or Fix

After the Obama administration’s employee friendly policies, employers will have a wish list of changes they believe a Trump administration would favor.  Here are ten items that should be at the top and why employers want to see action. READ MORE

Blacklist Regs Get a “Preliminary” Black Eye from the District Court in Texas

On October 24, 2016, U.S. District Court Judge Marcia Crone of the Eastern District of Texas granted a nationwide preliminary injunction enjoining implementation of the Fair Pay and Safe Workplaces regulations.  In addition to enjoining implementation of the reporting obligations, the court also enjoined enforcement of the pre-dispute arbitration ban on Title VII claims.

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DOL’s Final Rule on Sick Leave Takes Effect: Contractors Have Until Year’s End to Comply

On September 29, 2016, the DOL released a final rule requiring federal contractors to provide seven days of paid sick leave annually.  The rule implements a 2015 executive order from President Obama that we covered in greater detail here.  More than 35,000 individuals and organizations submitted comments on the DOL’s proposed rule.

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OFCCP Files Discrimination Complaint Targeting Tech Hiring Practices

Earlier this year, we predicted that the Department of Labor’s Office of Federal Contract Compliance (“OFCCP”) would ramp up investigations directed at rooting out alleged discrimination by information technology companies.  Many tech companies have indeed been the focus of increasingly intense and acrimonious investigations in 2016.

OFCCP took its enforcement efforts to the next level this week by filing a formal administrative complaint for violations of Executive Order 11246 (which prohibits discrimination by federal contractors).  The complaint alleges that Palantir Technologies – a private software company headquartered in Palo Alto and recently valued at $20 billion – discriminated against Asian applicants for three positions (QA Engineer, Software Engineer, and QA Engineer Intern).  Specifically, the OFCCP alleges that the company hired largely based on an employee referral system that resulted in statistically significant underrepresentation of Asian hires, given that the vast majority of applicants for these jobs were Asian.  The complaint seeks to debar the company from future federal contracts and require “complete relief” for Asian applicants for these roles, including lost compensation, hiring, and retroactive seniority.

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Pay Raises Across the Nation? Not So Fast Say Several States and Business Groups: 21 States and 55 Business Groups Challenge New Federal Overtime Rule

On Tuesday, September 20, 2016, twenty-one states filed a complaint in federal court in Texas challenging the new overtime rule finalized by the Department of Labor (“DOL”) in May of this year.  The States seek to prevent implementation of the new rule, which is scheduled to become effective on December 1, 2016.  That same day, fifty-five business groups, including several chambers of commerce, filed a similar lawsuit in Texas federal court to block the rule.

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Final Fair Pay Rules Are Here: Contractors Face Complex Requirements and Challenges with New Reporting Obligations

The federal government released the final regulations implementing the Fair Pay and Safe Workplaces Executive Order (“EO” hereafter) this week.  The regulatory package contains two parts: amendments to the Federal Acquisition Regulations and guidance from the Department of Labor for implementing the regulations. The regulatory package is a central part of the Administration’s aggressive regulatory agenda we have previously discussed and reflects continuing burdens on federal contractors.

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Veterans Returning to Work After Military Service May Not Be Discharged Except “For Cause”

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, imposes various obligations on employers with respect to members of the U.S. military returning to their civilian workplace.  USERRA differs from other employment laws (e.g., Title VII) in multiple respects.  For example, USERRA applies to all public and private employers, irrespective of size.  Therefore, “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a).  In addition, USERRA contains an “escalator” requirement that returning service-members are reemployed in the job that they would have attained had they not been absent for military service with the same seniority, status, and pay, as well as other rights and benefits determined by seniority. See 20 C.F.R. § 1002.191.  Also, USERRA has no statute of limitations of any kind for claims that accrued after October 10, 2008 (and claims that accrued after October 10, 2004 probably are timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.

Another distinction is that USERRA modifies at-will employment by creating a “for cause” standard of discharge for veterans who return to work after a month or more of military service.  If a veteran’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be discharged except for cause for six (6) months following their return to work.  Veterans returning from more than one-hundred and eighty (180) days of service are afforded the same protection from discharge for one year. See 38 U.S.C. § 4316(c)(1) and (2); 20 C.F.R. § 1002.247(a) and (b).  To meet the burden—which is the employer’s—of showing “cause,” an employer must produce evidence demonstrating, not only that it was reasonable to discharge the employee for the conduct at issue, but that the employee had notice that the conduct would constitute cause for discharge. See 20 C.F.R. § 1002.248(a).  READ MORE

Labor Laws and Federal Contracting Intersect: How Universal Health Systems Could Subject Federal Contractors to False Claims Act Liability

This post was drafted with contribution from Annie Prasad, law clerk.

The Supreme Court has made federal contracting more treacherous by extending the reach of False Claims Act (“FCA”) liability.  While the decision related to FCA liability for misrepresentations related to staffing levels, the case may provide a roadmap for federal officials looking to trigger FCA claims against contractors who are noncompliant with federal labor laws enforced by the Department of Labor.  Specifically, those at risk of debarment or cancellation of contracts due to noncompliance with Executive Order 11246 or the proposed Fair Pay and Safe Workplaces Executive Order may be at risk of more serious penalties.

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