Columbus attorneys address 2017 expectations in four business areas.
For all his promises to increase employment opportunities for Americans, there is one professional class for which President Donald Trump's administration will definitely bring work: lawyers.
Columbus CEO talked with a sampling of Columbus business lawyers, who all say much uncertainty naturally occurs when a new administration comes to Washington, DC. From changes to or scrapping of the Affordable Care Act to globalism to national standardization of some employment laws, the attorneys are developing perspectives on what their clients might encounter.
“There are too many things that we just don't know about (President) Trump's policies at this time, “says Martijn Steger, chief innovation officer and head of the global business practice for Kegler Brown Hill + Ritter.
Even so, attorneys in various business law specialties share thoughts on how the new administration is likely to impact their practices.
Employment and Labor
Jill Kirila, Squire Patton Boggs
From her perch at Squire Patton Boggs' Huntington Center office, Jill Kirila has bad news and good news and more bad news and then more good news for employers as it pertains to potential discrimination litigation cases.
She anticipates an increase in religious discrimination (4.2 percent of all cases filed in fiscal 2016 with the Equal Employment Opportunity Commission) and retaliation claims (45.9 percent), which are trending upward. That's the bad news. But if federal cutbacks materialize under President Trump, it might affect EEOC staffing levels and lead to fewer people to investigate claims. That's good news in some employers' eyes.
But fewer EEOC investigations could cause an uptick in private attorneys taking cases, which can be more costly for employers, and that's more bad news. “That means a bigger headache for employers than it usually is when dealing with the government because the attorney fees become an issue in the private lawsuit.”
When the EEOC receives a workplace violation claim, the agency can find probable cause or no probable cause. If the commission becomes less aggressive under the Trump administration, there could be an increase in the number of no-probable outcomes. Kirila says anecdotal evidence reveals that people in those case are unlikely to pursue their claims further. That would be good news for employers.
But Kirila also says it would behoove employers to get an I-9 audit that verifies a worker's identity and employment eligibility because businesses should expect an increase in government audits. Proactive compliance is appropriate, because wage-and-hour issues are among the most expensive an employer can face.
Out of Court
James Colner, Shumaker, Loop & Kendrick
Mediation continues as a popular mechanism for employers to settle disputes and avoid the time and expense of full-blown litigation. This year should be no different, says Jamie Colner, a partner at Shumaker, Loop & Kendrick.
“No employer or business likes litigation. This is not a new trend to talk about alternative dispute resolution,” Colner says.
There generally are three routes an employer can take if facing legal action: mediate, arbitrate or litigate. The first two involve a neutral third-party who helps the sides settle disputes without going into court, although Colner says there is one big difference.
“The idea behind [mediation] is to have a less expensive way to resolve something and stay out of the courtroom,” he says. “The problem with arbitration is that you, with a few exceptions, give up your right to an appeal, and that's dangerous to the loser.”
Once a claim is made against an employer, Colner recommends quickly and objectively evaluating at an early stage whether the value of mediating the dispute outweighs the potential risk of litigation, even when the facts are totally on the employer's side.
“Take, for instance, an employer who has an employee discrimination claim against him that has little merit but is the kind you can't get really dismissed without a lot of legal work,” he says.
Pam Krivda, Taft Stettinius & Hollister
On Pam Krivda's watch list for 2017 are the unknowns. She is concerned about what comes next with the Affordable Care Act, for instance, and the unknowns of what will become of the slew of regulations from the past eight years that confounded even some lawyers.
Many of those regulations—new overtime rules or rules affecting union elections, for instance—came from executive orders or administrative agencies that have rulemaking power, such as the Department of Labor. Some came from legislation, court cases and actions of the National Labor Relations Board. They were developing so often and there were so many that “sometimes you just never saw them coming down the track.”
“The Obama administration made so many changes to so many employment laws and they did it in so many ways, and there are so many things you don't think of as employment law that deeply impact employers like the Affordable Care Act,” she says. “Now with Trump (in office), I'm guessing, I'm imagining…that some of this stuff is going to be walked back. But the question for every employment lawyer is: Which of the things is going to be walked back and what is it going to look like for our employers?”
She says the particulars of ACA changed so often that she never felt fully comfortable answering questions about it without rereading the law.
Her advice to employers and employment lawyers like herself is to stay vigilant and not fall asleep at the wheel, and “I mean that in a day-to-day employee management sense.”
The ACA was seen as burdensome for employers, but not for the reason some might expect. Krivda says it wasn't the benefits cost but the recordkeeping and compliance paperwork that drove employers nuts. The rules changed so often that she kept a running tally of them posted in her office.
Martijn Steger, Kegler Brown Hill + Ritter
Thirty years ago, Martijn Steger started the global business practice at Kegler Brown Hill + Ritter because of investments that foreign companies were making in Ohio, and he sought to divert some of the legal work that was going to firms in Los Angeles and New York.
“There's a market for it, but most Ohio firms hadn't captured it,” he says.
Since those days, the firm's global practice has expanded and Steger has watched as each innovation affected culture and business alike. This is a watershed year, he says, where technology surpasses trade as the world's top employment disruptor and raises broad legal questions for employers.
By disruption, Steger means loss of jobs as robotics, artificial intelligence and 3-D printer technology get woven further into the world's economies. And it will be more complicated for businesses with locations around the world, each with its own lawyers and each with its own sets of national rules.
These thoughts are all about avoiding litigation in the future.
“There are a huge number of really important issues embedded in these technologies,” he says. “We're certainly helping our clients understand the technologies and how they could impact them, but we're also advising them on how they will deal with the changes in the laws that are being necessitated by the technologies.”
He uses autonomous vehicles as an example and the hypothetical ramifications if a driverless vehicle runs into a group of people at an intersection. Who is responsible?
“When we are advising clients in the automotive or commercial vehicle sector, are we going to move from a negligence standard to a strict liability standard? Is it going to be the liability of the acquirer of the software, the salesman who sold the vehicle?”
Craig Lovelace is a freelance writer.