Article Written by Barbara G. Stephenson
In the close to six months since the inauguration of Donald Trump, labor and employment issues have not received top priority. This is not surprising given the time consumed by such things as immigration, health care reform and the nomination and confirmation of Neil Gorsuch for the Supreme Court. In addition, the first nominee to head the U. S. Department of Labor (DOL), Andrew Puzder, dropped out and the second nominee, R. Alexander Acosta, was not confirmed as Secretary of Labor until late April.
One labor law initiative taken by President Trump on his own was the March 27, 2017 executive order which revoked in full Executive Order 13673, as amended. E.O. 13673 and its implementing regulations, known as the “blacklisting rule,” required federal contractors to disclose violations of some 14 federal labor laws, including those covering wage and hour, safety and health, collective bargaining, and civil rights, before receiving a federal contract. Not revoked thus far are Executive Order 13658 which sets a minimum wage, currently at $10.20, for workers on federal construction and service contacts, and Executive Order 13706 which mandates paid sick leave for workers of federal contractors.
Another area closely watched since the inauguration relates to the Department of Labor’s Final Rule issued on May 18, 2016 which raised the salary threshold for exempt employees to $913 per week ($47,476 per year) from $455 per week ($23,660 per year). On November 22, 2016 a Texas federal judge, in a case brought by twenty-one of the attorneys general of the states, issued a preliminary nationwide injunction for all employers blocking the implementation of the Final Rule. On December 1, 2016, the Department of Justice (DOJ), on behalf of the DOL, filed a notice to appeal the preliminary injunction to the Fifth Circuit Court of Appeals. The deadline for opening briefs and responses was extended until June 30, 2017 to allow time for DOL Secretary Acosta to be confirmed and finalize an approach to litigation. In its June 30th brief, the DOL stated it did not endorse the increased salary threshold and is seeking public input on a new threshold. What the Court of Appeals still needs to decide is whether the DOL has authority to set a salary level. For now, the injunction remains in place.
One other area of activity relates to appointments to the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB). The EEOC is comprised of five positions. On June 29, 2017, President Trump nominated Janet Dhillon, a Republican, to a five-year term as the EEOC Chair, subject to Senate approval. There remains one vacancy. There currently are two Democratic commissioners and one Republican but it is anticipated that there ultimately will be a majority of Republicans. It is not known how soon the EEOC will be at full strength. The NLRB also have five members and acts as a quasi-judicial body. The Board now has two vacancies and a 2-1 Democratic majority of current members; however, two nominees, Marvin Kaplan and William J. Emanuel, are awaiting Senate confirmation. Assuming these nominees are confirmed, the NLRB will have a 3-2 Republican majority and it then is expected that the NLRB will rescind many Obama-era pro-labor initiatives.