Below is a forecast as to how President Donald Trump will influence a variety of labor and employment initiatives, ranging from the Affordable Care Act (ACA) to National Labor Relations Board (NLRB).
Of note: In case of regulations the new administration does not approve, options include issuing new regulations that take one to two years, passing legislation, or blocking new regulations via the Congressional Review Act, which gives Congress 60 days to pass a resolution to block any new regulations.
IMMIGRATION – Allow DACA (Deferred Action for Childhood Arrivals) to slowly expire by allowing current work permits to continue but not issuing new ones. Durbin/Graham are proposing new bipartisan legislation for provisions protecting presence for three years to all immigrants in DACA program. Direct the Labor Department to investigate visa (such as H-1B) abuse without dismantling programs. Expand E-Verify. Possible reinstitution of workplace raids of illegal immigrants. Current focus is on those who have committed criminal offenses since entering the country illegally.
AFFORDABLE CARE ACT – Maintain 26 years for dependents and barring exclusions for pre-existing conditions. Move to find eventual replacement moving slowly. Delete Cadillac Plan penalty and eventually other penalties as well. Already issued Executive Order delaying aspects of ACA pending repeal and replace.
SALARY OVERTIME RULE – It’s already subject to a federal injunction and may be dead. The rule may be killed by failing to defend it or using Congressional Review Act, but pro forma congressional sessions in December may cause problems to the latter and AFL-CIO attempting to intervene in the court litigation to defend the salary overtime rule.
NLRB – Two of the five seats are vacant, and so the president may fill those two seats and create a 3-2 Republican majority, subject to Senate confirmation, during 2017. But NLRB general counsel position may not become vacant until Nov. 4.
EEOC – Democrats may retain a majority on the five-member commission for the first half of 2017, but Republicans could bring about a new majority as early as July. There’s currently one vacancy, and the position of general counsel remains vacant. New acting chair is Victoria Lipnic, a Republican. Comment period recently expired on new enforcement guidance related to harassment claims, but any new regulations are subject to delay pending further review pursuant to presidential memorandum issued Jan. 20.
NEW EEO-1 FORM REQUIRING A SUMMARY OF PAY DATA – Obligations start March 31, 2018; plenty of time for a Republican majority to rescind/modify.
LGBT ISSUES – The Obama administration said that a ban on sex discrimination extended to sexual orientation and gender identify, but whether they constitute sex discrimination under Title VII is unclear. Several U.S. Court of Appeals are reviewing this issue, most notably the Seventh Circuit. Trump has indicated he will leave Obama’s Executive Order on this issue with regard to federal contractors in place. The same with “bathroom” issue, which for schools is pending on the current Supreme Court docket. The new administration may await court rulings, but can nominate new EEOC general counsel right away. This issue has arisen in regulations issued by other federal agencies as well, including OSHA, HUD, the Department of Education, and the Department of Justice.
GIG ECONOMY ISSUES, INCLUDING INDEPENDENT CONTRACTOR AND JOINT EMPLOYMENT – The new administration can issue new “guidance” on these, negating expansive interpretations made by the Obama administration. NLRB issues will take more time, as current NLRB general counsel remains in office until November and cases must arise dealing with these issues.
OFCCP (GOVERNMENT CONTRACTOR) RULES – Possible review of 2014 changes regarding disabled individuals and military veterans, but new rule making procedures take one-two years. Most likely candidate for rescission is the Obama Fair Pay and Safe Workplaces Executive Order requiring disclosures of past labor and employment law violations, which are already the subject of a preliminary injunction from a federal court. Note one portion of this rule requires businesses with contracts worth at least $500,000 to provide wage statements to certain workers, detailing their total and overtime hours, pay rates, gross wage and any itemized deductions, and also to inform independent contractors of their status as non-employees. This portion of the rule went into effect Jan. 1 and is not part of the court injunction. The new administration could simply discontinue defending various rules in court. OFCCP under the new administration will likely go back to more desk audits rather than lengthy on-site investigatory audits. Also, the government is likely to discontinue publishing violations and settlements with intent of “public shaming.”
NEW DOL PERSUADER RULE REQUIRING PUBLIC REPORTING OF PAYMENTS TO CONSULTANTS AND ATTORNEYS FOR LABOR ADVICE – Is already subject to federal injunction and likely dead.
PRESIDENTIAL EXECUTIVE ORDERS – Prior Executive Orders can be overturned by the new administration quickly. The Jan. 20 presidential memorandum put all pending regulations on hold pending further review and requested a delay in the effective day of any published regulations yet to take effect.
