As we approach the first anniversary of President Trump’s inauguration, there are some emerging takeaways as to his administration’s priorities with regards to labor and employment law. Here’s a quick rundown of what we can glean, one year later:
- Show me your budget, and I’ll tell you what you value. The administration’s proposed budget for fiscal year 2018, released in late May, suggested a more limited role for federal regulators in the labor and employment space. For example, under the proposed Trump budget for FY18, the Department of Labor’s budget was slashed by about 20 percent. The National Labor Relations Board’s proposed budget was cut by six percent. The administration’s proposed FY18 budget also uniformly envisioned headcount cuts across agencies principally responsible for labor and employment law enforcement, including consolidation of certain functions. Put simply, less money and smaller staffs suggest a preference for more limited (or at least less activist) regulation. Many of these cuts have been rejected by Congress, but a president’s proposed budget reflects administration priorities. When Congress does get around to funding the government for FY18, enforcement funds will almost certainly be more limited.
- Personnel is policy. The Trump administration has been, as a general matter, a bit sluggish in staffing the executive branch – and those appointments that have been made have faced stiff headwinds in the confirmation process. The result – agencies that are still largely being run by temporary holdover leadership (such as at the Equal Employment Opportunity Commission) or being run with key vacancies (such as at the Department of Labor). Or, take the National Labor Relations Board, for example. That’s an agency with leadership that was only recently installed. Overall, the administration’s choices of temporary leadership and nominations that have been confirmed suggest a reversion to a regulatory approach largely in sync with prior Republican administrations (again, auguring a more proscribed enforcement agenda).
- A roll back of Obama administration prerogatives is in progress. Not surprisingly, a more limited regulatory vision means, as an initial matter, serial withdrawal from more aggressive Obama administration enforcement priorities. The Department of Labor, in particular, has withdrawn guidance on joint employment and independent contractor status and launched processes to re-evaluate Obama administration rules on the wage floor for white collar exemptions under the Fair Labor Standards Act. It’s also launched workplace injury reporting under the Occupational Safety and Health Administration, proposed a new rule on tip pooling, and generally abandoned the practice of issuing broad administrative guidance. The EEOC, for its part, paused reporting requirements on wage practices.
- Congress mulls its own changes. While Congress has largely focused on attempts to pass large pieces of the Trump administration’s agenda in other related policy areas (such as health care and tax reform), there are some limited labor and employment stirrings on Capitol Hill. Senator John Thune’s NEW GIG Act, which would clarify the test for independent contractor classification for tax purposes and provide limited safe harbor to employers who misclassify workers, was included in the initial version of the Senate tax bill. Senator Thune was named to the conference committee that will attempt to pass the final tax bill – so this proposal is worth following. The Save Local Business Act, which would clarify and limit the definition of joint employment under the Fair Labor Standards Act and the National Labor Relations Act, has passed the House and awaits consideration in the Senate. Also passed in the House and now awaiting Senate consideration is the Working Families Flexibility Act, which would allow comp time arrangements under the FLSA for private sector workers.
- EEOC issues guidance on preventing workplace harassment. In late November, the Equal Employment Opportunity Commission published new informal guidance regarding workplace harassment, entitled “Promising Practices for Preventing Harassment.” A product of the EEOC’s Select Task Force on the Study of Harassment in the Workplace (which was initiated during the Obama administration), this guidance outlines a comprehensive set of suggestions on harassment prevention. That includes the suggestion that employers re-consider training methods to include civility and bystander training. With workplace harassment now part of the national zeitgeist, a review of this informal guidance is warranted.