Synopsis: On May 25, 2017, Seyfarth attorneys Chris DeGroff, Noah Finkel, and Brad Livingston presented their insights on how the Trump administration will affect employers. Specifically, they discussed the effect the Trump administration is having and will have on the EEOC, the DOL’s Wage and Hour Division, and the NLRB. All presenters agreed that, while the Trump administration will have an effect on these agencies, it will take time for the changes to take place.

The Presentation

Chris began the presentation by discussing the EEOC. He observed that the new administration has not yet replaced the high-ranking EEOC officials who set EEOC policy. He pointed out that the majority of the EEOC still consists of Democratic appointees, though observed that this will change around July 2017. He further pointed out that the General Counsel position remains unfilled. When that is filled, Chris thinks we should have a better idea about the direction the EEOC will head in the Trump administration.

Chris discussed the ways in which the Trump administration might affect the EEOC’s strategic enforcement priorities. For example, Chris pointed out that the EEOC’s strategic priority of eliminating systemic barriers to hiring will likely be a focus of a Trump administration focused on job growth, while strategic priorities like eliminating pay disparities might be less of a focus to the administration.

Chris concluded by pointing out that the EEOC has shown itself to be resilient to changes in administrations. In the past, it has been aggressive after changes from a Democratic to a Republican administration. That trend appears to have continued, as the EEOC’s lawsuit filings are up 75% over this time last year. Chris observed that this may be because the EEOC may be trying to justify continued funding from what could be a less friendly administration.

Noah then spoke about how the Trump administration will affect the DOL’s Wage and Hour Division. Like Chris, Noah pointed out that Trump has not been able to fill the key DOL positions. While the administration has put in place a Secretary of Labor, none of the three key policymaking positions in the Wage & Hour Division – the Administrator, Deputy Administrator, and Solicitor of Labor – have been filled by Trump’s administration. In fact, the Administrator and Deputy Administrator positions are vacant, and the current Solicitor of Labor is temporary. Noah observed that, when the administration fills these positions, we will have a better idea about how the Wage and Hour Division will function under the Trump administration.

Noah stated that, though the DOL’s Wage and Hour Division grew under the Obama administration, there are no proposed changes to its funding in the Trump administration’s proposed budget. As a result, like with the EEOC, while there could be a change in the focus of wage and hour investigations, the actual number of investigations will probably remain steady.

Noah pointed out that probably the biggest outstanding question is how the Trump DOL will handle the rule promulgated under the Obama administration raising the wage needed to qualify for the white collar exemption. Currently, the rule is not in effect because a federal judge enjoined the DOL from enforcing it. The injunction is on appeal and, to date, the Trump administration has not filed a brief on the appeal. Noah said we should look for the Trump administration’s position on appeal to see where the law is heading on the wage needed for the white collar exemption. For more information about Noah’s presentation, see link.

Brad then presented on changes to expect from the NLRB. As with the EEOC and the DOL’s Wage & Hour Division, Brad stated that change within the NLRB will take time because the Trump administration has not yet put its appointees into place. At this point, there are two vacancies on the five member NLRB. Its chair is a Republican appointee whose term ends this December, and its other two current members are Democratic appointees whose terms end in late 2018 and 2019. Although Trump can create a Republican-appointed majority by filling the two vacancies, he has not done so.

Brad stated that even after Republican appointees are a majority of the NLRB, change will take time because the NLRB tends to interpret the law in decisions rather than through rulemaking. As a result, it will have to wait for the right case to come before it before it can change its view of the law.

Brad argued that the Obama administration’s NLRB was the most aggressive in limiting the rights of employers and expanding the rights of individual employees and unions in history. He emphasized that, while a Trump NLRB will likely take a different course and even overturn many of the recent decisions of the NLRB, it will take time before these changes are made. For more information about Brad’s presentation, see link.

Implications For Employers

While the Trump administration will result in changes to the way government agencies interact with employers, these changes will occur gradually. Further, employers should not expect a decrease in enforcement actions brought by government agencies against employers. The latest budget proposal out of the Trump administration keeps funding for these agencies steady, which will allow them to continue to operate at the level they operated at in the prior administration.