Trump Labor Policy Reforms Begin To Take Shape

  • June 9, 2017

Trump Labor Policy Reforms Begin To Take Shape

This past week was the one where the expected Trump labor reforms finally started to become tangible. On June 7, the Department of Labor announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors.  Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.  While this pullback on joint employer guidance is good news, it does not reverse the NLRB’s ruling in the Browning-Ferris case.

Secretary of Labor Acosta also announced that fter a thorough review of the U.S. Department of Labor’s foreign worker visa programs, DOL would undertake actions to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse.

“Entities who engage in visa program fraud and abuse are breaking our laws and are harming American workers, negatively affecting Americans’ ability to provide for themselves and their families. We will enforce vigorously those laws, including heightened use of criminal referrals,” said Secretary Acosta. “The U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.”

Congress also got into the act Representatives Phil Roe (R-Tenn.) and Peter Roskam (R-Ill.) introduced legislation today to repeal the Obama administration’s fiduciary rule.

The rule requires broker dealers to consider only their client’s best interest — and not fees or commissions — when providing retirement advice. Although part of the regulation will take effect Friday, the Labor Department sent a request for information about the rule earlier this week.

Acosta also looked to be preparing to begin the process of changing the policy on Overtime issued by the Obama administration, and is currently injuncted.

At a hearing,  Acosta stated that the Department plans to file a request for information (RFI) “probably in the next two to three weeks” in which it will seek information in connection with the overtime rule and its salary level. Secretary Acosta noted that it is a “problem” when the dollar amount of the salary level is not updated “because life gets a lot more expensive.” He also testified that the manner in which the final salary level of $47,476 per year “was done created a shock to the system.”

In a note from the Chamber of Commerce provided by LLAC member Clyde Jacobs, In other Wage and Hour Division news, we learned that Cheryl Stanton is the leading candidate to be nominated for the position of Wage and Hour Administrator.  Stanton is currently executive director of the South Carolina Department of Employment and Workforce, and previously served in the George W. Bush White House, the National Labor Relations Board, and the Equal Employment Opportunity Commission.  She has also been a shareholder for Ogletree Deakins.

There also news on many other fronts, including a decision from the 6th Circuit Court over whether the NLRA allows employers to require employees give up their rights to litigate or arbitrate class action suits, more labor law reform initiatives from the Republicans, concerns from both business and labor regarding the proposed EEOC/OFCCP merger, and proposals from Presiedent Trump to boost infrastructure spending in some unexpected ways  and increase job training efforts for workers despite reducing the funding for such efforts in the 2018 proposed budget.

This trend of providing both a carrot and a stick to labor unions and the American worker continued in Cincinnati when President Donald Trump reiterated his commitment to the American worker during an infrastructure speech in Cincinnati, Ohio Wednesday, as reported by the Daily Caller.

“As long as I am president, America’s labor leaders will always find an open door at the White House,” the president said to chorus of applause during his speech along the banks of the Ohio River.

“It’s time to recapture our legacy as a nation of builders and to create new lanes of travel and discovery and we’re going to see all the way into the future,” Trump said. “And the future is going to be bright.”

The president acknowledged three labor leaders present at his speech in Cincinnati, including Sean McGarvey, president of North America’s Building Trades Unions (NABTU), Eric Dean, president of the United Iron Workers and Terry O’Sullivan, president of the Laborers’ International Union of North America.

RESCINDING PERSUADER: The Labor Department is proposing to rescind the persuader rule, according to an unpublished notice in the Federal Register. The rule, which increased disclosure requirements for the hiring of union-busting consultants and attorneys, never took effect because a court issued a permanent injunction against it in November. The proposal will be published in the Federal Register June 12 and will be open to public comment for 60 days, according to Politico.

Today’s labor policy feels a little bit like the old “flying wedge” play from the early days of football when players played with no helmets and very little protective padding.

Interesting times ahead, and plenty of interesting topics for the Fall 2017 Conference at the JW Marriott in Indianapolis. Registration for Indianapolis will open on Monday, June 19.