Obama vs. Trump employment law: 'One extreme to the other'

By Brice Wallace

A recent Employers Council briefing was titled “The Rapidly Changing World of Employment Law Under President Trump,” but it could also have been called “The Rapidly Changing World of Employment Law Under President Trump's Appointees.”

Throughout his presentation, council attorney Bob Coursey gave examples of how Trump’s selections to lead federal government agencies will likely be the conduits to implement his policies, with most of them expected to be an abrupt change from those of the Obama administration and lean toward being pro-employer.{mprestriction ids="1,3"}

For example, the new secretary of the Department of Labor (DoL), Alexander Acosta, appears to be more business-friendly than the previous secretary under Obama. Coursey said “we are really going from one extreme under the Obama administration to the Trump administration.”

Acosta’s approach seems to want to help employers comply with labor laws rather than punish companies for violations, he said. A recent email from the department explained the resources available to companies to help them better understand employment law. There are also “cute, little, happy videos” that are “so cheery and happy and showing employers trying to do the right thing,” Coursey said. “It’s a vast departure from the feel from the Department of Labor we’ve had for the last eight years.”

An Acosta email said the videos are for employers “who simply want and need to understand what the law requires. … We believe that most employers want to do the right thing. They value their employees and want to operate in compliance. We’re modernizing the tools we offer to help them along that path.”

Coursey said he believes that change in attitude is genuine. “Our prior Department ofLabor did not really have that philosophy,” he said.

While the Obama administration “was just giddy” about its new ideas when Obama took office, most of them went nowhere, and Acosta has said that the department’s authority to issue rules should be severely curtailed and limited, Coursey said.

Similar changes can be expected with the department’s Wage and Hour Division, which, under a new administrator, likely will be more employer-friendly. One example is a return of the issuance of opinion letters issued in response to questions about real-world situations faced by employers. Under Obama, the division instead issued administrator interpretations that were “not at all useful.” Not only have opinion letters returned, but the division re-issued 17 letters that the Obama administration had withdrawn.

“There’s nothing hugely impactful from any of those opinion letters, but the fact that 17 of them were re-issued after being withdrawn by the Obama administration, that fact in itself, I think, is very telling,” Coursey said. “[It’s] just one more example about how our new sheriff is going to be a more pro-employer sheriff.”

The focus on compliance rather than punishment is reflected in a pilot program designed to resolve potential minimum-wage and overtime violations. Companies that self-audit and discover problems can fix them without the Department of Labor seeking liquidated damages or civil penalties.

Most companies do not want to inform the government when they have discovered they are doing something wrong, “but this may change that equation,” Coursey said. “We may be interested in doing this. … It’s really interesting that the department of labor is even doing this. Nothing like this has ever been done with the department of labor before.”

The department’s Office of Federal Contract Compliance Program (OFCCP) also could veer toward a pro-company stance, he said. “Just based on everything else we’re seeing coming from their parent agency, the DoL, we can expect that OFCCP will be a little kinder and gentler to employers. But probably we won’t see a whole lot of dramatic changes there.”

Several independent agencies will be influenced by Trump appointments, he said. The Equal Employment Opportunity Commission, after nominations are confirmed, will have a Republican majority and a new general counsel. “Sometime this year, the EEOC will look vastly different than it did a year ago,” Coursey said. “It’s going to be Republican-controlled with what we can assume is a more employer-friendly general counsel.”

The National Labor Relations Board, which has had an active, pro-employee general counsel, likely will get a pro-employer one and a Republican-controlled board would “radically change” what was seen during the Obama years.

“We are seeing an incredible swing from the previous board to the current board,” Coursey said. “The general counsel is one reason. The board itself is another reason.”

During the past eight years, the board had head-scratching problems with many policies, including those related to company handbooks, but many likely will disappear.

“It may be too early to totally redo your handbooks now based on this,” Coursey said. “But we’re going to see a little bit more leniency from the board, and when we work with you on handbooks, we’re going to be able to take a little bit more aggressive position on some of these rules that we want to have in place that we were afraid to under the previous board.”

Trump also can exert influence on employment law through judicial appointments. He’s had 14 circuit judges confirmed, as well as 14 district judges, with many more awaiting confirmation.

“This has huge effects for the employer community. It’s not usually felt immediately. It doesn’t get all the press that a new law getting passed by Congress or the EEOC coming out with some announcement gets,” Coursey said. “But these are the people who decide, when you get sued, how that law is going to be interpreted. So, Trump has a lot of power to shape the federal judiciary and that means shape employment laws.”

Still, not all changes under Trump will be pro-employer, he cautioned. A $15 million increase in the EEOC’s budget is due to an increased workload handling sexual harassment claims, and Acting Chair Victoria Lipnic has said the agency will take a more-active role in harassment prevention in the workplace. Likewise,  U.S. Immigration and Customs Enforcement (ICE) probably will step up enforcement activities to reduce illegal immigration. Coursey encouraged all companies to respond by ensuring that their sexual harassment and hiring policies are in order.{/mprestriction}