What’s Cooking in the Workplace Under the Trump Administration?August 24, 2017 – Alerts Labor & Employment Alert
As Labor Day approaches and the Trump administration enters its eighth month, it’s time to evaluate the president’s impact on the world of labor and employment law. Perhaps more than any of his predecessors, President Trump vowed to “stir the pot” when he arrived in Washington. But, at least in the labor and employment sector, change is occurring slowly.
First up, the alphabet soup of federal agencies:
National Labor Relations Board (NLRB): The five-member NLRB typically seesaws from one party’s majority to the other party’s after a change in administration, and the Board is currently poised for just such a change – its first Republican majority in nearly a decade. One new Board member has been confirmed and another awaits Senate confirmation. Along with a change in the NLRB’s general counsel in November, a wide range of activist decisions favoring labor unions could be reversed. This includes the expansion of joint employer liability, shortening the time period for union elections, the recognition of “micro units” of workers for organizing purposes, and the limitation on employers’ use of contracts to block class actions by their employees. It also seems likely that Congress will follow the administration’s lead and cut the NLRB’s budget. Grade: Simmering.
Equal Employment Opportunity Commission (EEOC): The five-member EEOC also is poised for change. Two Republicans have been nominated to serve on the Commission and, if confirmed by the Senate, would create a Republican majority. Pending action by the Office of Management and Budget, employers may learn this month whether they still have to submit pay data to the EEOC next year in a beefed up EEO-1 report. The revised report would require private employers with 100 or more employees to annually report to the EEOC summary pay data categorized by sex, race, and ethnicity. (UPDATE: See our August 30 alert noting that OMB initiated a review and immediate stay of the pay data collection aspects of the EEO-1 form.)
The EEOC has since 2015 interpreted Title VII of the 1964 Civil Rights Act’s prohibition against sex discrimination as encompassing sexual orientation bias. While the EEOC continues to interpret federal civil rights law as prohibiting workplace sexual orientation discrimination, in contrast, the U.S. Department of Justice now has taken the diametrically opposite position that gay, lesbian, and bisexual workers aren’t covered by Title VII. Grade: Poaching.
Department of Labor (DOL): The Trump administration has proposed cutting hundreds of millions of dollars from DOL’s budget. When Congress returns from its summer recess, it is expected to consider these proposals before the close of the fiscal year on Sept. 30. Meanwhile, the legality of the Obama administration’s blocked overtime pay rule is pending before a federal appeals court. Ultimately, DOL plans to issue a new overtime rule proposal that would lift the current salary threshold for overtime exemption above the current level of $24,000, but below the Obama rulemaking threshold of $47,000. The DOL has sought public input on the planned new rule. Grade: Simmering.
Turning to the judiciary, a separate, independent branch of government:
The Supreme Court (SCOTUS): President Trump’s lifetime appointment of Justice Neil Gorsuch, who turns 50 on August 29, promises to be a profound and lasting legacy. Gorsuch already has established himself as one of the most conservative justices on the Court. Although his record in the employment area is sparse, many labor unions actively opposed his confirmation. Gorsuch undoubtedly will impact the role of religion in the workplace and his vote could significantly impact the ability of public sector unions to force all public sector workers to join a union or support one financially as a condition of employment. SCOTUS also will decide whether the National Labor Relations Act bars businesses from forcing workers to sign contracts with mandatory arbitration clauses preventing them from participating in class and collective litigation. Actuarial tables suggest that the odds favor a vacancy occurring on the Court in the next three years, which would tip the balance in favor of a decidedly more conservative court. Grade: Boiling.
The Federal Courts: The frequency and quantity of judicial nominations has intensified since May. The Senate has confirmed five Article III judges nominated by Trump (including Justice Gorsuch). There are currently 140 vacancies and 31 nominations to Article III courts awaiting Senate action, with an additional 21 announced federal judicial vacancies that will occur before the end of Trump’s four-year term. Once these judges are nominated and confirmed, the judiciary will tip in favor of judges nominated by Republican presidents. Grade: Simmering.
No review would be complete without at least a reference to the Patient Protection and Affordable Care Act a/k/a Obamacare. It’s still the law of the land with open enrollment starting in 10 weeks. The Cadillac tax still looms to go into effect in 2020. Congressional Republicans proposed to kick that can down the road until 2026, but that effort failed. To paraphrase David Axelrod, “Politics ain’t horseshoes. A loss is a loss.” Grade: Freezing.
So, as a long, hot summer nears its end, the overall grade for labor and employment law in the Trump era is: Simmering.