Presented by Denis Kenny of Scherer Smith and Kenny LLP at the 2017 PG Customer Summit in Nashville, TN

1. 2017: Legal, Compliance & Co-
Employment – Keeping Up with
Industry Regulations
Denis Kenny
Scherer Smith & Kenny LLP

2. #PGCustomerSummit
Agenda
• Joint Employment / Co-Employment
• Affordable Care Act / Healthcare
• Pack Sick Leave
• Salary History and Pay Equity
• Status of 2016 FLSA Overtime Rules
• Marijuana Use

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Joint Employment / Co-Employment
• NLRB’s case of Browning-Ferris and its broad
definition of “joint employment”
• State laws addressing joint employment / co-
employment
• Example: California

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Affordable Care Act / Healthcare
• Still the law of the land
• Status
• House of Representatives narrowly passed (217 to 213) its bill,
the American Health Care Act (AHCA), to repeal and replace the
ACA
• AHCA still needs to pass the Senate
• While repeal-and-replace is taking place, Trump
Administration has issued final regulatory rule.

5. #PGCustomerSummit
Affordable Care Act / Healthcare
Trump Administration’s Final Rule: four key changes
1. If consumers owe past-due premiums, then must repay before
being granted new coverage.
2. Open enrollment for 2018 shortened to six weeks: November 1,
2017, to December 15, 2017.
3. Enrolling outside enrollment period: 100% of applicants need to
undergo preapproval verification, beginning June 2017
4. Insurers given greater flexibility to create “metal” plans with larger
variations in coverage.

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Paid Sick Leave
• National Trend: 7 states, 29 cities, 2 counties, and Washington D.C.
• Federal?
• House passed controversial proposal known as Working Families
Flexibility Act of 2017
• Allows employers to offer paid leave as compensation for overtime work
• Other proposals?
• Trump Administration?
• Obama Executive Order re sick leave for federal contractors remain in place
• Paid Family Leave?

7. #PGCustomerSummit
Paid Sick Leave
California trends - virtually all
employees
• State law and 7 local
ordinances
• Shared feature is 1 sick hour /
30 hours worked
New York City
• Eligibility: Employee must work
80+ hours a year
• Accrual rate: 1 sick hour / 30
hours worked
• Paid? 5 or more employees then
paid sick leave; less than 5, then
unpaid sick leave

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Salary History / Pay Equity
• No federal law prohibiting an employer requesting
W-2 to verify past employment or salary history.
• Caution! State and local approaches:
a) New York (effective Oct. 31, 2017) and Massachusetts
(effective July 1, 2018) prohibit salary history inquiry.
b) California prohibits salary history as justification for
compensation disparity
c) Salary-history prohibition on hold in Philadelphia.

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Status of 2016 FLSA Overtime Rules
• Current nationwide injunction still in place
• Appeal pending before U.S. Court of Appeals for the Fifth Circuit.
• Department of Labor requested extension to file reply brief. New
deadline: June 30, 2017.
• BUT! New Labor Secretary may change the litigation.
• Rolling back the salary basis increase?
• Impact in states with more protective wage and hour laws, for
example, California

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Marijuana
• Medical Use: 29 states
• Recreational Use: Legal in 9 states: Alaska, California, Colorado, Maine,
Massachusetts, Nevada, Oregon, Washington state, Vermont (as of
May 10), and Washington, DC
• Legal issues
• Still illegal under federal law
• State law: can still drug test, but how treat a failed drug test is convoluted
and varied

11. #PGCustomerSummit
Marijuana
• California – Case Example
• California employers can still have drug and alcohol
free workplace policies. Also, these employers are not
required to permit or accommodate marijuana use in
workplace.
• Medical marijuana use is not a shield.
• HIPAA concerns
• “status” as medicinal marijuana card holder v. “status” as
marijuana user

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Questions?
Denis Sullivan Kenny
415.433.1099
denis@sfcounsel.com
www.sfcounsel.com