Though President Donald Trump has not yet stated in detail his plans with respect to labor and employment issues, it can reasonably be expected that his administration will upend current federal labor and employment law trends. While former President Obama’s administration focused on a middle class economics agenda, it is likely that President Trump will pursue policies more friendly to businesses.
For the past eight years the Obama administration put in place employment regulations mainly through executive orders and administrative rulings. That will provide President Trump and his administration significant opportunities to effect change and alter the workplace landscape at the federal level. We can expect the Trump administration to scale back existing regulations which may influence state and local governments to do the same.
On February 24, 2017, President Trump issued an executive order entitled Enforcing the Regulatory Reform Agenda, which requires each federal agency to develop a regulatory reform task force to identify burdensome regulations for repeal, replacement, or modification. Within 90 days the task forces are to evaluate regulations and issue recommendations. While the executive order contains broad language, this could result in reform to various workplace regulations.
In Part I of this series, we take a look at anticipated changes at the Department of Labor (DOL) under President Trump. We will examine potential changes at other federal agencies in our April newsletter (Part 2).
Nomination of Alex Acosta for Secretary of Labor
President Trump announced that he intends to nominate Alex Acosta as Secretary of Labor after Andrew Puzder withdrew his candidacy (as of this writing, Senate has not yet approved him). Mr. Acosta was appointed to serve as a member of the National Labor Relations Board by President George W. Bush and served on the Board for about eight months. Mr. Acosta has also served as Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice as well as U.S. Attorney for the Southern District of Florida, where he increased the office’s focus on white-collar crime.
At this point it is difficult to predict how Mr. Acosta would steer the DOL if confirmed by the Senate. However, based on his background and brief NLRB stint, Mr. Acosta may advocate for increased agency rulemaking and more management-friendly positions on workplace regulations.
Department of Labor, Wage and Hour Division
The Obama administration issued a final rule toward the end of President Obama’s term that would have significantly altered overtime pay regulations and increased the minimum salary level for exempt employees. However, the final rule was prevented from going into effect by a federal district court judge after various states and business groups challenged the rule. The DOL, under new leadership, may withdraw the appeal or initiate the administrative process to alter the regulation. Likewise, a republican-led Congress may pass legislation to invalidate the final rule.
The Obama DOL has also narrowed the definition of those who can be considered independent contractors while expanding the circumstances when businesses can be held as joint employers. A Trump DOL may modify these interpretations to more business-friendly constructions.
Department of Labor, Office of Federal Contract Compliance Programs (OFCCP)
The OFCCP is the agency that oversees federal contractors and subcontractors, protects workers from discriminatory practices, and promotes diversity. They ensure compliance with certain wage and discrimination laws specific to federal contractors and subcontractors. The Obama administration was very active in OFCCP rulemaking. President Trump may seek to modify or repeal the Fair Pay and Safe Workplaces executive order (a/k/a the “blacklisting” order). The order requires federal contractors (and subcontractors) to disclose past employment law violations and to provide wage statements that detail wages and hours to employees and independent contractors. There is currently litigation pending to enjoin the final rule and Congressional republicans have introduced a joint resolution of disapproval to permanently block the final rule pursuant to the Congressional Review Act.
Among other things, the Trump administration may also seek to modify President Obama’s executive order raising the minimum wage for federal contractors to $10.20 on January 1, 2017, as well as an executive order requiring paid sick leave to employees working for federal contractors.
Department of Labor, Occupational Safety and Health Administration (OSHA)
There could be a number of changes to OSHA standards issued by President Obama’s administration such as modification of the new record-keeping rule requiring certain employers to file injury and illness information with the government by July 1, 2017 and thereafter on an annual basis, as well as the standard of proof for retaliation under many of OSHA’s whistleblower statutes.
Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have affiliated employment lawyers on hand to address any questions you may have regarding compliance. Contact us at 800-921-2195 or 516-921-3400.
This article is intended for general information only and should not be construed as legal advice.
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