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Employers got some ‘conflicting messages’ during the opening months of his presidency
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President Donald Trump is just starting to make his mark on employment law, as he reaches his first 100 days in office on April 29. Failures aside—and there have been several, from the inability so far to repeal and replace the Affordable Care Act (ACA), courts blocking his travel ban executive orders and the withdrawal of Andrew Puzder's nomination as secretary of labor—Trump has accomplished much and can be expected to make more changes to employment and immigration law, management attorneys say.
But Brett Coburn, an attorney with Alston & Bird in Atlanta, criticized the administration for sending "conflicting messages" regarding employment issues.
"On the one hand, Trump's history and actions to date—including his initial choice for secretary of labor and his nomination of now Justice [Neil] Gorsuch—demonstrate an overall pro-business bent, as would be expected from any Republican administration," Coburn said. "On the other hand, much of the populist campaign-trail rhetoric that got Trump elected involved promises to support American workers. There is a significant and fundamental tension here that, at this point in the Trump presidency, leaves a great deal of uncertainty about the employment-related priorities of the Trump administration."
What's Been Accomplished
The appointment and confirmation of Gorsuch to the Supreme Court—achieved after the Senate employed the so-called nuclear option—may be Trump's most lasting accomplishment from his first 100 days.
However, Regina Faul, an attorney with Phillips Nizer in New York City, noted that he also has:
However, James Plunkett, senior government relations counsel with Ogletree Deakins in Washington, D.C., said, "There are two vacant seats at the [NLRB] and President Trump had the opportunity to fill these seats and turn the board around as soon as he came into office. Many employers are disappointed in this delay but are hopeful that nominees can be advanced soon."
Despite the court rulings that halted Trump's travel bans, the administration has made headway in immigration law, particularly by changing enforcement priorities.
"Under the Obama administration, enforcement was focused on individuals presenting national security concerns, individuals with serious criminal convictions and recent immigration law violators," noted Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla. "Under the new enforcement priorities established by the Trump administration, enforcement would apply essentially to all individuals who have violated immigration laws, including visa overstays, whether or not they have criminal convictions or removal orders in their background."
Trump also has expressed an intention to narrow the H-1B visa program but will need Congress to pass tougher requirements for the popular visa.
What's to Come at Labor Department
Other priorities for the Trump administration are, according to Faul:
Patrick Muldowney, an attorney with BakerHostetler in Orlando, said, "Trump has not yet been able to make the deeper personnel changes at the Department of Labor, the National Labor Relations Board and other federal agencies that will allow for better implementation of his initiatives." However, he expects that those changes will be made.
Steven Suflas, an attorney with Ballard Spahr in Denver and Cherry Hill, N.J., expects a scaling back of Occupational Safety and Health Administration (OSHA) initiatives, including lower penalties and less union access to OSHA inspections at nonunion workplaces.
As for the Obama administration's overtime rule, while litigation over it has been in a holding pattern since Trump took office, Suflas expects that the salary level for the white-collar exemptions will rise from $23,660 to $33,000 per year through future DOL rule-making, assuming the overtime rule is not reinstated by the courts.
But the department has not yet decided what to do about overtime regulation, and this will be a top priority for incoming Secretary of Labor Alexander Acosta, Muldowney noted.
Other changes at the DOL might be afoot. The DOL might withdraw internal agency guidance that has resulted in litigation in the hospitality industry, particularly as it relates to tipped employees, and clarify regulations governing the fluctuating workweek method of pay, said Jeffrey Brecher, an attorney with Jackson Lewis in Melville, N.Y.
"Many of the DOL regulations are also dated and have been discredited by the courts—such as the regulations governing commissioned employees of retail or service establishments and the overly complicated regulations regarding travel time," he said. "Hopefully, DOL will clarify and simplify some of these rules."
[SHRM members-only HR Q&A: Under the Fair Labor Standards Act, how do I pay nonexempt employees for travel time when they are required to stay overnight?]
Taxes and Health Care Reform
Employers are concerned that the federal government may be interested in taxing employer-provided health care benefits, said Mark Holloway, J.D., senior vice president and director, compliance services, with Lockton Companies in Kansas City, Mo. "More than 177 million Americans receive health insurance through an employer, and employers pay more than $668 billion annually to insure their employees, more than the federal government spends on Medicare," he said. Employers overwhelmingly oppose taxing employer-provided health care benefits. While no bills have been proposed this Congress that would tax benefits in this way, there are concerns that it might spring up in tax reform proposals, he added. Some proposals along these lines were introduced last Congress, said Chatrane Birbal, a senior advisor on the Society for Human Resource Management's government relations team.
Meanwhile, after repeal and replacement of the ACA through the proposed American Health Care Act (AHCA) failed, the White House currently is trying to reach a deal on components of the AHCA, according to Amy Gordon, an attorney with McDermott Will & Emery.
"One of the ideas that has been floating around is that the states will be given the opportunity to ask the federal government for a waiver so they don't have to abide by the conditions of the ACA," she said. "To achieve this waiver, the states will need to prove that getting rid of the insurance regulations, such as essential health benefits and the community health rating, will lower the cost of premiums. However, elements of the ACA, such as coverage for dependents up to the age of 26, prohibition against pre-existing conditions and lifetime spending caps will not be eligible for a waiver."
But the repeal effort may be stymied again. Nicole Elliott, an attorney with Holland & Knight in Washington, D.C., said, "Given the unsuccessful attempt to move legislation, it is likely that the administration will explore what changes can be made by executive actions and through regulatory changes."
Immigration and Other Priorities
Immigration law is likely to continue to change under the Trump administration. Borovska noted that the Trump administration may try to dismantle:
Such changes would require rule-making, and it would likely take months before they could be achieved, she noted, cautioning that the Trump administration has not taken any concrete steps to cease any of the above programs.
As for Trump's other priorities, Lotito said, that the president seems "intent on creating more jobs. Tax reform should encourage job creation. Infrastructure spending will do the same. While the intent seems strong, execution on taxes and infrastructure are as hard as ACA reform. How the administration will execute on promises made is the open question."
For more on the Trump administration, see the SHRM Online Donald Trump Administration Coverage webpage.
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