With the swearing in of our new President, much speculation exists as to what changes we should expect, particularly regarding labor and employment law. A look at recent appointments may provide some insight into the direction of the new administration, and its approach to workplace issues.
Trump’s recent selection for the Secretary of Labor is Andrew Puzder. Mr. Puzder is the CEO of a national restaurant chain and a vocal critic of workplace regulations. Mr. Puzder has made statements critical of the Obama Administration’s attempt to increase the requisite salary for exempt employees, as well as a law raising the minimum wage in his home state of California. In response to that California law passed last year Puzder quipped, “How do you pay somebody $15 an hour to scoop ice cream? How good could you be at scooping ice cream?” With this selection, additional questions are raised about the future of the increase salary basis regulations, as well as the potential for reduced enforcement actions from the Department of Labor.
With regard to the Equal Employment Opportunity Commission (EEOC), last week Trump selected a previous two-time EEOC appointee, Victoria Lipnic, as acting chair of the EEOC. While a Republican, her previous two appointments were made by President Obama, and she worked closely with the Democratic commissioners. Last year, the EEOC announced that in March 2018 it would begin collecting employee pay data for some employers, for the first time, by way of a revised EEO-1 report. This brought forth concerns by employers related to confidentiality and the potential use of the information in civil litigation. Ms. Lipnic’s appointment has raised questions as to whether this new data tool of the EEOC will actually go into effect. This appointment also raises questions about the EEOC’s enforcement approach during the Trump administration.
The National Labor Relations Board (NLRB) may also see changes. As expected, last week Trump appointed the sole Republican on the Board, Philip Miscimarra, as acting chairman of the NLRB. Mr. Miscimarra is known for his disputes with the Board’s Democratic members, even issuing dissents to opinions he sees as more expansive than the National Labor Relations Act permits. This choice indicates a resolve to steer the Board toward more employer friendly initiatives, perhaps even undoing some of the works the Board set forth operating as a Democratic majority.
This week, President Trump nominated Judge Neil M. Gorsuch, a federal appeals court judge in Denver, to fill the Supreme Court vacancy. Judge Gorsuch is considered a reliable conservative figure, well-known for well-written and measured opinions. As the youngest nominee to the Supreme Court in 25 years, his appointment has the potential to shape major decisions for decades to come. Judge Gorsuch has made notable decisions in favor of employers. In 2014, he found that a provision of the Affordable Care Act violated the rights of a national retailer-employer that objected to providing employees contraceptives on religious grounds. He wrote, "The ACA's mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong." With Judge Gorsuch’s appointment, we would see the split between liberals and conservatives on the court restored, and the potential for a pro-employer vote.
Early this year, President Trump’s transition website set out a clear initiative to eliminate “unnecessary regulations that kill jobs and bloat government.” While we will learn more from the confirmation process and future appointments, these recent appointments seem poised to do just that.