April 29, 2017, marks the 100th day of Donald Trump as the 45th President of the United States. He has proven he is not a traditional conservative Republican, and many in the business community are still wondering about the Trump Administration’s labor and employment policy positions. Even as significant changes in federal policies are being implemented, uncertainty surrounding important controversial issues such as the future of the Affordable Care Act (ACA) and the travel ban executive order continues.
Here are 45 ways in which the priorities and actions of President Trump and his administration are affecting employers.
- Although the ACA is still the law of the land, employers may be affected by Trump’s Executive Order commanding agencies to lighten the ACA’s burdens.
- Employers have more time to comply with the Department of Labor’s controversial fiduciary rule following the agency’s decision to extend the rule’s applicability date 60 days, with a transition period that runs through January 1, 2018.
- Employers with a religious affiliation (including hospitals and universities) may see a reinterpretation of ERISA’s “church plan” exemption from the newly composed U.S. Supreme Court this term.
- Employers can expect worksite investigations related to I-9 employment verification and unannounced worksite visits related to employees in H and L status.
- Employers should be prepared to develop strategies to deal with travel restrictions, extreme vetting, and strict scrutiny that might slow the pace of business travel.
- Employers may see changes in regulations affecting H-1B and L-1 visas, particularly after Trump’s H-1B Visa Executive Order, including:
- Increases in wage requirements for H visas
- Implementation of wage requirements for L visas
- Limitations on outsourcing opportunities
- Loss of H-4 Employment Authorization Documents (EADs)
- Restrictions on Optional Practical Training (OPT) and Science, Technology, Engineering, and Math (STEM) extensions
- Institution of a merit- and wage-based H-1B hierarchy in place of the current random lottery system
- Government contractors no longer need to disclose alleged National Labor Relations Act (NLRA) violations as part of the bid process after revocation of the Fair Pay and Safe Workplaces Executive Order and regulations.
- Government contractors still must abide by President Barack Obama’s amendment to Executive Order 11246 prohibiting sexual orientation and gender identity discrimination, which Trump has said he will preserve intact.
- Government contractors likely will be required to comply with Obama’s executive order regarding pay transparency, including a requirement to disseminate an Office of Federal Contract Compliance Programs (OFCCP)-prescribed Pay Transparency Non-Discrimination Provision.
- Government contractors must wait for the Trump Administration to take a position on Executive Order 13706 requiring paid sick leave for workers on covered federal contracts. Regulations implementing the Order went into effect on January 1, 2017, for “new contracts.”
Wage and Hour
- Employers still face uncertainty about the new overtime rule from the Department of Labor (DOL), although the government’s final brief is due on June 30, 2017 (pushed back from an earlier deadline to allow the new administration to express its view).
- In light of comments by R. Alexander Acosta, President Trump’s pick for Secretary of Labor, employers may see the DOL recommend a new overtime rule that lowers the salary level threshold set by the Obama Administration.
- Employers may see the DOL re-implement its prior practice of issuing opinion letters in response to employers’ specific questions about wage and hour laws and regulations.
- Although the National Labor Relations Board (NLRB) currently has a 2-1 Democratic majority, if the Senate confirms two of the individuals on Trump’s short list of possible NLRB nominees, employers can expect more pro-business rulings from the Board (which now, as a result of a switch in chairmen, is headed by the sole Republican member). A Republican-majority Board may affect policy on:
- Class action waivers
- Joint employer status
- Temporary workers
- Quickie elections
- Definition of protected concerted activity
- Definition of appropriate bargaining units
- Status of college/university faculty and student-athletes
- Employers may see a decrease in union organizing if the Service Employees International Union (SEIU) follows through on its plan to cut the organization’s budget by 30 percent in anticipation of opposition to organized labor from all three branches of government.
Litigation and Class Actions
- Employers may see more pro-business decisions from a conservative U.S. Supreme Court following the installation of Justice Neil Gorsuch. Issues that may be affected include:
- Arbitration and class action waivers
- Standard for class certification
- Underlying merits questions on wage and hour claims
- Employers can expect Supreme Court guidance on whether class action waivers in employment arbitration agreements violate the NLRA.
- Employers would see drastic reform in class action litigation if the Fairness in Class Action Litigation Act is approved by the Senate. The bill has cleared the House of Representatives.
- Although the Equal Employment Opportunity Commission (EEOC) will remain committed to eliminating the gender wage gap, companies may see a change in the new EEO-1 Pay Collection Rule under EEOC Acting Chair Victoria Lipnic.
- Employers can expect more lawsuits from the EEOC, as Lipnic has stated publicly that the EEOC filed too few lawsuits in the last fiscal year.
- Employers can expect a reduced federal interest in privacy and data security measures, including a recent resolution signed by President Trump to abandon the implementation of a Federal Communications Commission (FCC) rule that would have prohibited internet service providers from selling their customers’ data, such as internet search and browsing histories.
- Employers still face uncertainty about how vigorously the EEOC will push the cybersecurity recommendations in its 2016 regulations on wellness programs pertaining to employee medical record confidentiality.
- Employers may see more activity at the state level to proactively pursue consumer protection and data privacy and security laws, to require covered entities to treat the personal data they maintain in a certain way, or expand enforcement under current consumer protection laws.
White Collar and Government Enforcement
- Employers can expect the Department of Justice to prioritize individual accountability and indictments in white collar cases in areas such as health care, securities and financial fraud, defense contractor fraud, and environmental crimes. This means greater focus on charges against responsible officers, managers, and employees and not permitting companies to simply pay a fine and allow individuals to avoid culpability.
- Government contractors and employers can expect a de-emphasis on civil rights prosecutions, particularly those focused on the alleged actions of law enforcement.
Workplace Safety and Health
- Employers no longer need to worry about the “Volks” rule, which would have permitted the Occupational Safety and Health Administration (OSHA) to cite employers for certain recordkeeping violations committed up to five years prior (rather than the preceding six months).
- Although there is still no new Trump nominee to head OSHA (or the Mine Safety and Health Administration [MSHA]), or a significant change in OSHA enforcement, public “shaming” through negative press and media by the agency is less likely.
- Employers in the construction industry have until September 23, 2017, to comply with OSHA’s new silica standard.
- Academic institutions can expect continued challenges with respect to travel restrictions that could interfere with recruitment of students and faculty and with collaborative academic research.
- Although the Deferred Action for Childhood Arrivals (DACA) program remains in effect, schools can expect to struggle with the impact on their students of the Trump Administration’s focus on undocumented aliens.
- With the Department of Education and the Department of Justice’s prior guidance on transgender students rescinded by the Administration, institutions must be cognizant of their state and local laws on gender identity and expression to ensure compliance.