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One year later: Trump administration continues regulation cuts

Posted On: Jan. 30, 2018 6:57 AM CST

One year later: Trump administration continues regulation cuts

The Trump administration will continue to cut back on employment-related regulation while establishing a less adversarial relationship with businesses, say experts, examining the past year’s developments and current outlook on the administration’s one-year anniversary.

“Certainly, there have been steps taken not only by the president, but also federal agencies,” that have created a “more business-friendly environment in the employment context,” said Jeffrey M. Beemer, a member of Dickinson Wright L.L.P. in Nashville, Tennessee.

That trend will continue, observers say.

“I think what you’re going to see is more guidance and advice tailored towards employers rather than employees,” said Eric B. Meyer, a partner with Dilworth Paxson L.L.P. in Philadelphia.

“I expect more proactivity on the part” of federal agencies to help employers “steer clear of the landmines that tripped them up,” as opposed to policies “that come in and round up the bad actors and prosecute them,” he said.

At the U.S. Equal Employment Opportunity Commission, in particular, there will be a “claw back from the field” with respect to the decision-making on which lawsuits to be filed “especially on the systemic front,” said Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago.

Experts say they also anticipate the states taking a more proactive role in employment-related issues, as the federal government cuts back on regulation.

“I think you’ll see the federal government try to cut back” on the rights of lesbian, gay, bisexual and transgendered individuals in the workplace, said Richard B. Cohen, a partner with FisherBroyles L.L.P. in New York.

“There’ll be further restrictions, if you will, stemming from actions by the EEOC with regard to certainly pursuing the rights” of these individuals “and certainly no expansion of employees’ rights,” he said.

“And on the other hand, I think you’ll see a large number of states countering that with their own legislation expanding the rights” of LGBT people, and victims of sexual harassment, as well as the enactment of more expansive paid leave programs, Mr. Cohen said.

He pointed to the Maryland Healthy Working Families Act, which the Maryland General Assembly passed earlier this month, overriding Republican Gov. Larry Hogan’s veto. The legislation requires employers with at least 15 workers to pay workers leave at the same rate they normally earn.

Richard R. Meneghello, a partner with Fisher Phillips L.L.P. in Portland, Oregon, also pointed to state equal pay legislation. “I don’t think many people are counting on the federal government to do much in the pay equity realm. I think that they’re looking for the states to do that.”

A survey by San Francisco-based Littler Mendelson P.C. published in November found that new equal pay legislation took effect in January in California, and will take effect in Massachusetts in July, while in Puerto Rico, two bills in this area become effective in March and August.

Michael Lotito, co-chair of Littler Mendelson P.C.’s Workplace Policy Institute in San Francisco, noted Mr. Trump has nominated John F. Ring, a partner at Morgan Lewis & Bockius L.L.P. in Washington, D.C., to succeed former National Labor Relations Board Chairman Philip A. Miscimarra, a Republican, whose term ended in December.

Mr. Lotito said when Democrat Mark Gaston Pearce’s term ends in August, Mr. Trump could decide to fill the spot with another Republican, giving the board a 4-1 Republican majority.

Pointing to a Dec. 1 memo sent by NLRB general counsel and Trump appointee Peter B. Robb shortly after he took office, Mr. Lotito said he expected the NLRB to reverse Obama-era decisions and return to past precedent over a period of time.

Mr. Lotito also referred to a report last week that Mr. Robb will accelerate a plan to demote the senior civil servants who resolve many labor cases. The board “has to make fundamental changes in the way it does business” to make its 2019 budget, he said.

Meanwhile, the U.S. Justice Department has issued a memo advising its attorneys to consider seeking the dismissal of “meritless” or “parasitic” whistleblower lawsuits that the government decides not to back.

Experts say significant developments that have occurred during the Trump Administration include:

• The U.S. Department of Labor withdrew the Obama administration’s joint employment and independent contractors guidances that expanded the definition of employees.

• The Department of Labor said it will reconsider the issue of when workers should be paid overtime. The Obama Administration had proposed increasing the threshold for overtime-exempt employees to $913 a week from $455 a week, which was struck down by a Texas judge.

• The Department of Labor introduced a less stringent test to determine whether employers must pay their interns at least a minimum wage and overtime.

• Mr. Trump appointed new members to the EEOC, which will change the board majority from Democrat to Republican.

• The White House Office of Management and Budget indefinitely stayed the deadline for employers to comply with the new EEO-1 form, to be submitted to the EEOC, that would have required the collection of annual pay and hours worked data.

• In July, the Justice Department filed an amicus brief in Zarda et al. v. Altitude Express, arguing that Title VII of the Civil Rights Act of 1964 does not protect against sexual orientation. Mr. Zarda was a gay skydiver who sued his former employer alleging he was fired from his job because of his sexual orientation.

• Mr. Trump made new Republican appointments to the NLRB to create a Republican majority, which overturned rulings on joint employment and handbooks.