The past year has included many expected moves by the Trump administration, such as the reversal of some of the National Labor Relations Board’s (NLRB) controversial decisions under the Obama administration, as well as several unexpected developments among several agencies.
In part one of this article series, we’ll take a look at the reversals of some Obama-era Executive Orders, as well as other surprising actions the Trump Administration has taken in regard to employment law.
Significant, Controversial, and Surprising Moves
The most important actions in 2017 by the Trump administration with regard to labor and employment law and enforcement included:
- The suspension of Component 2 of the EEO-1 report on August 29;
- The U.S. Department of Justice’s (DOJ) memorandum reversing its position under the Obama administration that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation;
- The NLRB’s reversal of four major decisions days before acting chair Philip Miscimarra’s term ended; and
- The rescission of the Fair Pay and Safe Workplaces Executive Order (known as the blacklisting Executive Order) through the Congressional Review Act.
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The most controversial proposal by the Trump administration—the merger of the Office of Federal Contract Compliance Program (OFCCP) into the Equal Employment Opportunity Commission (EEOC) with no increase in the EEOC’s budget for fiscal year (FY) 2018—was rejected by the Republican-controlled Congress after both contractors and civil rights activists strenuously objected.
Appointments … or Lack Thereof
The most surprising development was the administration’s inability to get its people into key positions at the U.S. Department of Labor (DOL) and the EEOC. Until recently, Secretary Alexander Acosta was the only senior official at the DOL. David Zatezalo joined Acosta as head of the Mine Safety and Health Administration (MSHA) on November 15.
Just before the Senate recessed for the holidays, lawmakers confirmed Kate O’Scannlain as solicitor of labor, Katherine McGuire as assistant secretary for congressional and intergovernmental affairs, and Preston Rutledge as head of the Employee Benefits Security Administration (EBSA).
President Donald Trump will have to renominate Cheryl Stanton, his choice for administrator of the Wage and Hour Division (WHD), and Scott Mugno, his pick for administrator of the Occupational Safety and Health Administration (OSHA), when Congress reconvenes this month. Janet Dhillon (Trump’s pick for EEOC chair) and Daniel Gade are also awaiting Senate confirmation to the EEOC. However, the Democrats agreed to carry them over to the next session after the White House renominated Chai Feldblum for a second term on the commission.
With some agencies still lacking leadership, employers are left wondering what other Obama-era regulations are next on the chopping block. However, the year was not all “inaction,” a few agencies were able to accomplish something in 2017. In part two of this article series, we’ll take a look at a few aggressive actions by the OFCCP and EEOC.
Juanita M. Beecher and David Fortney—attorneys with Fortney & Scott, LLC, in its Washington, D.C., office—are editors of Federal Employment Law Insider, they can be reached firstname.lastname@example.org email@example.com.