Trump Unleashes the Power of the Presidency in First Week in Office

By Nancy Hammer Jan 27, 2017
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During his first week in office, President Donald Trump has focused on issuing executive orders to address his priorities, including unwinding the Affordable Care Act (see related article), halting federal regulations and changing the U.S. immigration system.

Regulatory Freeze

In an executive memorandum to all agency heads, the president instructed that federal agencies, barring any emergency or urgent situations, refrain from sending any regulation to the Federal Register until "the President's appointees or designees have the opportunity to review any new or pending regulations."

The directive also asks agencies to postpone for 60 days the effective date of any regulations that have been published in the Federal Register but have not yet taken effect. Where permitted by law, agencies are asked to consider proposing, through notice and comment, a rule to delay regulations beyond the 60-day period and to consider additional notice and comment rulemaking for rules delayed by legal review. The memo applies to all nonfinal regulations and agency guidance and serves to maintain the regulatory status quo, allowing the administration time to fill agency positions and reconsider the impact of specific regulations.

The freeze may result in a pullback of the new Equal Employment Opportunity Commission (EEOC) pay data disclosure rule and the fiduciary rule. It's less clear how it will affect regulations currently on hold as they are challenged in court, including the overtime rule along with federal contractor disclosure and persuader rules. As the courts continue their reviews, the Trump administration still has options for negating these rules, including by revising them through a new notice and comment process or refusing to defend the rules in court.

Immigration-Related Actions

On January 25, Trump issued an executive order focused on building a wall between the U.S. and Mexico and eliminating sanctuary cities. The president is expected to issue several more immigration-related orders soon. According to news sources that received advance copies of the potential orders, at least two will affect employers while the others will focus on immigrant and refugee security screening to prevent terrorist attacks and minimize immigrant impact on the public benefit system.

Through executive action, Trump is expected to end Deferred Action for Childhood Arrivals (DACA), allowing work permits issued under the program to remain valid until their existing expiration date but not allowing them to be renewed. The executive action would also prevent the Department of Homeland Security's parole authority from admitting "entire classes of foreign nationals." A second order is expected to address a wide range of work visa programs and immigration-related work issues, although the details of many are not spelled out in the order. These include:

  • Reforming H-1B visas, L-1 visa compliance, J-1 exchange visitor visa programs and reforming the Optional Practical Training (OPT) program to protect U.S. students.
  • Establishing a commission to analyze existing immigration policies and propose changes to better serve the national interest.
  • Expanding and incentivizing employers' participation in E-Verify.
  • Finally, we anticipate the executive order will also address worksite enforcement of the employment verification requirements.

Key Agency Appointments

Trump has named Commissioner Victoria Lipnic as acting chair of the Equal Employment Opportunity Commission. Originally appointed to the commission in 2010 by President Barack Obama, Lipnic's current term expires in June 2020.

The EEOC issued a press release announcing her appointment. Lipnic has spoken several times at SHRM conferences, both as a member of the EEOC and in her prior position as assistant secretary of labor for employment standards during the George W. Bush administration. She is scheduled to appear, along with Commissioner Chai Feldblum, at SHRM's 2017 Employment Law & Legislative Conference to discuss the EEOC's recent work and its priorities under the new administration.

In addition, Philip Miscimarra has been named as acting chair of the National Labor Relations Board. Miscimarra is currently the only Republican board member, and Trump is able to name two additional new members, who will require Senate confirmation, to round out the board. With a Republican majority, the board is likely to reverse many of the previous board decisions on bargaining-unit size, the definition of joint employer and restrictions on employer handbooks. 

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