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 discussed the various agency appointments, and lack thereof, as well as a few Obama-era Executive Orders that were put on the chopping block. In part two, we focused on the aggressive actions by the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Program (OFCCP).
In this article, we’ll take a look at the issues surrounding immigration, from the travel ban to the border wall and everything in between, this topic was a hot button issue in 2017 and doesn’t seem to be going away anytime soon. We’ll also look at what the Wage and Hour Division (WHD) plans on doing with the now-defunct Obama-era overtime regulations.
Immigration
The Trump administration has been extremely active in making legal immigration more difficult. After President Trump issued his Buy American, Hire American Executive Order, U.S. Citizenship and Immigration Services (USCIS) began restricting the ability of non-U.S. citizens to enter and remain in the country through its administrative processes, from requiring additional documentation for H-1B visas to reinstating interview requirements for green card holders.
Meanwhile, the DOJ is suing employers that use H-1B workers instead of American workers rather than protecting immigrant workers who are being mistreated by U.S. employers. And one of the most widely debated issues in Congress is what to do with the nearly one million individuals covered by President Obama’s Executive Order on Deferred Action for Childhood Arrivals (DACA).
It is expected that USCIS, the DOJ, and U.S. Immigration and Customs Enforcement (ICE) will continue to strictly enforce the immigration laws. As a result, employers should expect less flexibility in hiring or bringing in employees who are not already U.S. citizens or green card holders.
Wage and Hour Enforcement
U.S. Department of Labor (DOL) Secretary Alexander Acosta has already issued notices that the Obama administration’s overtime and tip-sharing rules will be revised. Although the Trump administration is planning to revise the overtime rule, the DOL has appealed a Texas court’s decision that the agency doesn’t have the authority to use salary to determine overtime eligibility.
The agency will ask the court of appeals to stay (delay) the decision pending its revision of the proposed overtime rule. The DOL has also withdrawn the Obama-era guidance on joint employers and independent contractors, and reinstated the use of wage and hour opinion letters for employers.
Bottom Line
Next year will be the first year the Trump administration will have all of its nominees to head federal agencies in place, so much of what was expected during 2017 may occur in 2018, including the elimination of most of the Obama-era Executive Orders. But while the federal government may be loosening regulations on employers, many states are ramping up their employment regulations, especially with regard to paid leave and fair pay.
As always, we’ll keep you posted on all the latest developments from the Trump administration, as they unfold.
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 atnbeecher@fortneyscott.comand dfortney@fortneyscott.com.