April 29, 2017 marked the 100th day of Donald Trump as the 45th President of the United States. He has proven he is not a traditional conservative Republican, and many in the business community are still wondering about the Trump Administration’s labor and employment policy positions. Even as significant changes in federal policies are being implemented, uncertainty surrounding important controversial issues such as the future of the Affordable Care Act (ACA), the travel ban executive order, government contractor sick leave, the Department of Labor overtime rule, and EEO-1 filing requirements continues. For more information review the details below and if you missed it, be sure to view our Webcast: President Trump; The First 100 Days and Beyond. Click here to access the on demand version of this webcast.
Coverage: This update applies to all employers.
Effective Date: N/A – ongoing.
Action Required: As events unfold you can count on ADP to deliver on thought leadership and keeping you informed with clear action plans that minimize your administrative burden.
Employee Benefits
- Although the ACA is still the law of the land, employers may be affected by Trump’s Executive Order commanding agencies to lighten the ACA’s burdens.
- Employers with a religious affiliation (including hospitals and universities) may see a reinterpretation of ERISA’s “church plan” exemption from the newly composed U.S. Supreme Court this term.
Immigration
- Employers can expect increased worksite investigations related to I-9 employment verification and unannounced worksite visits related to employees in H and L status.
- Employers should be prepared to develop strategies to deal with travel restrictions, extreme vetting, and strict scrutiny that might slow the pace of business travel.
- Employers may see more border inspections of personal electronic devices
- Employers may see changes in regulations affecting H-1B and L-1 visas, particularly after Trump’s H-1B Visa Executive Order, including:
o Increases in wage requirements for H visas
o Implementation of wage requirements for L visas
o Limitations on outsourcing opportunities
o Loss of H-4 Employment Authorization Documents (EADs)
o Restrictions on Optional Practical Training (OPT) and Science, Technology, Engineering, and Math (STEM) extensions
o Institution of a merit- and wage-based H-1B hierarchy in place of the current random lottery system
Government Contractors
- Government contractors no longer need to disclose alleged National Labor Relations Act (NLRA) violations as part of the bid process after revocation of the Fair Pay and Safe Workplaces Executive Order and regulations.
- Government contractors still must abide by President Obama’s amendment to Executive Order 11246 prohibiting sexual orientation and gender identity discrimination, which President Trump has said he will preserve intact.
- Government contractors likely will be required to comply with President Obama’s executive order regarding pay transparency, including a requirement to disseminate an Office of Federal Contract Compliance Programs (OFCCP)-prescribed Pay Transparency Non-Discrimination Provision.
- Government contractors must wait for the Trump Administration to take a position on Executive Order 13706 requiring paid sick leave for workers on covered federal contracts. Regulations implementing the Order went into effect on January 1, 2017, for “new contracts.”
Wage and Hour
- Employers still face uncertainty about the new overtime rule from the Department of Labor (DOL), although the government’s final brief is due on June 30, 2017 (pushed back from an earlier deadline to allow the new administration to express its view).
- In light of comments by R. Alexander Acosta, the newly confirmed Secretary of Labor, employers may see the DOL recommend a new overtime rule that lowers the salary level threshold set by the Obama Administration.
- Employers may see the DOL re-implement its prior practice of issuing opinion letters in response to employers’ specific questions about wage and hour laws and regulations.
Litigation and Class Actions
- Employers may see more pro-business decisions from a conservative U.S. Supreme Court following the installation of Justice Neil Gorsuch. Issues that may be affected include:
o Arbitration and class action waivers
o Standard for class certification
o Underlying merits questions on wage and hour claims
- Employers can expect Supreme Court guidance on whether class action waivers in employment arbitration agreements violate the NLRA.
- Employers would see drastic reform in class action litigation if the Fairness in Class Action Litigation Act is approved by the Senate. The bill has cleared the House of Representatives.
- Although the Equal Employment Opportunity Commission (EEOC) will remain committed to eliminating the gender wage gap, companies may see a change in the new EEO-1 Pay Collection Rule under EEOC Acting Chair Victoria Lipnic.
- Employers can expect more lawsuits from the EEOC, as Lipnic has stated publicly that the EEOC filed too few lawsuits in the last fiscal year.
The above highlights some of the uncertainty facing employers. As events unfold we will continue to provide you with guidance. In the interim and as always, please feel free to contact your Human Resources Business Partner if you have any questions.