[Webinar Recap] Year One & Beyond: The Trump Administration and Its Effects on Labor and Employment Law

GovDocs hosted our quarterly webinar March 7, featuring special guest Dan Prokott, partner at Faegre Baker Daniels LLP, who discussed how the Trump Administration’s first year – as well as the term’s next three years – impacts labor employment law.

During the webinar, Dan covered several key areas in employment law, highlights of which include:

Wage and Hour / DOL Enforcement Activity

The Obama Administration’s New Minimum Salary Rule

Issued May 18, 2016, and effective Dec. 1, 2016, the Obama Administration’s New Minimum Wage Salary Rule would have increased the minimum salary from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). However, after a bit of back and forth from the Department of Labor (DOL) and federal court judges, the DOL appealed the ruling, seeking to defend the belief it has the authority to “define and delimit” the regulations and issue rules that set a salary threshold for overtime.

Now, the DOL Secretary Alexander Acosta stated he plans to increase the current salary threshold but has yet to offer a clear picture of how much higher it will be. Therefore, the DOL could seek to establish the threshold anywhere between $23,660 and $47,476.

Legislative Activity

First, the Working Families Flexibility Act was reintroduced in the Senate. The new bill included:

• An amendment to the Fair Labor Standards Act (FLSA) to permit employers to offer compensatory time off instead of time-and-a-half wages for all hours worked more than 40 per week
• The voluntary program would allow an employee to earn up to 160 hours of compensatory time that can be used at the discretion of the worker

Next, Congress introduced a version of a national right-to-work law in February 2017 with the support of President Trump. Currently, state right-to-work laws prohibit union security clauses, which require employees to pay union dues.

Tip Pooling

In 2011, the DOL implemented restrictions on “tip pooling” under the FLSA. This was put in place to allow restaurants to pool the tips servers receive. The DOL specified that employers may only share pooled tips with other workers who customarily receive tips, such as bartenders and bussers.

However, in December 2017, the DOL proposed changing the tip pooling rule to eliminate the requirement that employers are required to distribute pooled tips to other workers. Instead, employers would be able to collect the tips and determine how to redistribute them.

DOL Enforcement Activity

On Feb. 12, 2018, the White House proposed cutting the DOL’s funding by 21%,  to $9.4 billion. To absorb the cuts, the White House wants to reduce unemployment benefits costs, eliminate the Bureau of International Labor Affairs’ grant funding, and close poor-performing Job Corps centers.

The White House then proposed increased funding for Operational Safety and Health (OSHA) funding for compliance assistance programs, apprenticeship and other workforce development and training programs.

National Labor Relations Board

President Trump nominated several new officials to the NLRB, including:

• Marvin Kaplan – Aug. 2, 2017
• William Emanuel – Sept. 25, 2017
• Peter B. Robb –Nov. 8, 2017

Equal Employment Opportunity (EEO) Laws

Gender Identity and Sexual Orientation

The 2^nd Circuit and the 7^th Circuit Courts adopted the position of the Equal Employment Opportunity Commission (EEOC) ruling from 2013, stating Title VII should be interpreted as protecting against sexual orientation bias. So far, the 11^th Circuit is the only court to reject this position.

The EEOC’s ruling occurred in Baldwin vs. Foxx, where they detailed sexual orientation and gender identity are already protected under Title VII. The decision was made because the EEOC stated you cannot have sexual orientation discrimination without reference to sex, and discrimination based on one’s sexual orientation punishes employees because of their association with members of a particular sex.

Overall, in 2017 there were 2,000 EEOC charges alleging LGBTQ sex discrimination. Employers paid a total of $5.3 million for LGBTQ individuals who filed sex discrimination charges.

Federal Contractors and Subcontractors

On Dec. 11, 2017, the Trump Administration announced Ondray Harris as the new Office of Federal Contract Compliance Programs (OFCCP) Director. Previously, he was a senior advisor at the DOL in Employment Training Administration.

On Mar. 27, 2017, President Trump signed legislation and issued an executive order nullifying the Fair Pay and Safe Workplaces executive order. He also implemented new rules and guidance, reversing requirements that federal contractors of more than $500,000 disclose civil judgments, arbitration awards and administrative determinations involving labor law violations.

Immigration

On Oct. 8, 2017, the Trump Administration released its immigration policy priorities. These include:

• Increased border security
  • Building a wall at the southern border
  • Authorizing the Department of Homeland Security (DHS) to increase fees for visa services and border crossings to fund security
• Interior enforcement
  • Proposal for E-Verify to be required for all employers nationwide
• Merit-based immigration system
  • Establish a points-based system for permanent residence

Webinar Recording

Interested in watching the full webinar? You can see the recorded version here.