Since Election Day, prognosticators and pundits have been speculating about how the Trump Administration’s actions will impact existing laws and regulations. Now that President Trump and his team have hit the ground running, what can we expect from the Department of Labor (including OFCCP), the EEOC and the President’s own executive actions in the areas of workplace disability and leave law? A brief guide appears below.
Department of Labor: The confirmation hearing for Trump’s Secretary of Labor nominee, Andrew Puzder, has been postponed from February 2 to February 7. If Puzder is confirmed, the DOL is expected to take more pro-business positions in both its litigation priorities and regulatory actions. Under Puzder’s leadership, the DOL may rescind existing regulations using the Administrative Procedure Act’s “notice and comment” procedures. Congress also has a variety of tools for invalidating unwanted Obama Administration regulations, including defunding their enforcement and invalidating recent regulations using the Congressional Review Act. Finally, the Obama Administration discontinued the DOL’s longstanding practice of issuing opinion letters interpreting the FLSA and FMLA; that practice may resume under Trump. More background on Puzder can be found in the Jackson Lewis article, Fast-Food Restaurant CEO Tapped to Head Labor Department: What to Expect.
OFCCP: During Republican administrations, the OFCCP tends to adopt more focused, targeted compliance efforts and audits, compared to more wide-ranging and aggressive enforcement efforts by Democratic OFCCPs. Under President Trump and Secretary-to-be Puzder, government contractors are likely to see an OFCCP refocused on more traditional priorities such as hiring and adverse impact; veterans; persons with disabilities; and recruitment of minorities and women.
EEOC: Shortly before the election, the EEOC issued an updated Strategic Enforcement Plan (SEP) for the fiscal years 2017-2021. This SEP reaffirmed and expanded the goals set forth the 2011-2016 SEP. ADA and Pregnancy Discrimination Act (PDA)-related priorities in both SEPs include the accessibility of online recruitment systems; ensuring pre-employment medical questionnaires are lawful; so-called “inflexible” leave policies; and accommodation of pregnant and disabled workers. It remains to be seen how much of the SEP will survive and guide upcoming EEOC actions and priorities. In addition, President Obama’s EEOC used litigation as an aggressive tool to advance EEOC goals. Employers can expect less vigorous enforcement and more compliance initiatives under a Republican-dominated EEOC. As a first step, on January 25, President Trump named the only Republican on the Commission, Victoria A. Lipnic, as Acting Chair (for more information, see the Jackson Lewis article President Appoints Victoria Lipnic EEOC Acting Chair). Changes to the composition of the Commission will not occur immediately, however, as the terms of the three Democratic Commissioners end in a staggered fashion between July 2017 and July 2019. Unless one of the Democratic Commissioners resigns, which is not expected, the EEOC will not have a Republican majority until July 1, 2017 at the earliest, which is the date that Commissioner Jenny Yang’s term ends.
Executive Orders: As a candidate, Trump said he would invalidate all of President Obama’s executive orders. EO’s of interest to employers include the Fair Pay and Safe Workplaces order and an order establishing seven days of paid sick leave for employees who work on or support government contracts. The Fair Pay and Safe Workplaces order and related regulations are expected to be on the chopping block soon. There has been no word yet on the paid sick leave order.
The Supreme Court: President Trump has announced that he will identify a nominee on February 2 to fill the seat vacated by the late Justice Scalia. Top contenders reportedly include Tenth Circuit Judge Neil Gorsuch, Third Circuit Judge Thomas Hardiman and Eleventh Circuit Judge William Pryor. Gorsuch authored Hwang v. Kansas State University, a 2014 decision in which the Tenth Circuit determined that a leave of absence of more than six months was not a reasonable accommodation and upheld the employer’s so-called “inflexible” leave policy. Hardiman wrote an unpublished opinion in 2008 in Lloyd v. Washington & Jefferson College, finding that an employee’s request to be present at the workplace only three days a week was not a reasonable accommodation because it would have excused him from performing essential job functions. In addition, three of the existing Justices are age 78 or older, so a lengthy Trump presidency could impact the Court for years to come.
Wild card: Reportedly influenced by his daughter Ivanka, President Trump has proposed six weeks of paid maternity leave for new mothers, to be structured similar to unemployment and funded with savings achieved through cracking down on unemployment fraud. Stay tuned for further developments in the first 100 days.