The collision of President Trump’s regulatory reform activism undoing President Obama’s “pen and phone” regulatory binge has resulted in a welter of agency actions.
Here are just a handful of federal actions and where the situation stands, taken from mid-year agency reports. Because the complete list is so long and we have limited space, these are a just a few of the highlights. Other actions will need to wait for future reporting.
Department of Labor
The biggest item on the Department of Labor’s agenda clearly is revision of the overtime regulations announced during President Obama’s second term, but which never went into effect because of a federal district court injunction.
The rule would have increased the minimum salary level for exempt employees under federal law from $455 per week or $23,660 annually, to $913 per week or $47,476 annually. This rule spurred energetic opposition from business groups who held that while some upward adjustment was needed, the resulting dollar level was too high.
Although the Obama DOL had appealed the federal court’s stay, the Trump department asked an appeals court to stay the litigation while it developed new rulemaking proceeding. In July of last year DOL sought public input about what the minimum salary level for exempt status should be.
At this point, the new proposed overtime exemption regulations are expected to be proposed no sooner than January 2019.
OSHA Reporting
The Labor Department’s Occupational Safety and Health Administration is working on new injury and health reporting requirements. This too is the result of a tortured procedural history with its origins in the Obama era.
The Trump OSHA is trying to dial back rules which would require businesses with 250 or more employees to electronically report detailed injury information to be made public on the Internet to supply tort lawyers and union organizers with a helpful roadmap to help them direct their efforts.
The new OSHA has sought to pull this back and has proposed a new electronic reporting rule requiring submission of much less detailed annual injury data that is contained in the Form 300A.
In the process, the agency pushed back the usual injury report deadlines, sowing confusion among employers. The deadline for employers to file their 2016 300A was originally July 2017, later delayed until Dec. 15 and then. Dec. 30, 2017.
Although more than 214,000 300A forms were submitted, this fell short of the 350,000 submissions OSHA had anticipated. About a third of workplaces required to file failed to do so and OSHA is now pursuing in enforcement efforts (AA, 4-15-18, P. 2).
NLRB’s Logjam
After National Labor Relations Board Chairman John Ring and another member were sworn in, the new Republican majority quickly ran into trouble.
When the new majority was in place it began to overturn some of the Obama board’s most controversial decisions, including expansion of joint employer status for franchisees and staffing firms.
Then the Obama-appointed Inspector General, a Democrat, announced that new commissioners – all lawyers – must recuse themselves from voting on matters that could distantly involve clients of their law firms, some of which employ more than a thousand attorneys serving a multitude of clients.
However, the same IG was silent about complaints that the former Democrat chairman participated in decisions involving the union he had worked for.
The result was that the joint employer decision was pulled back and the new chairman is talking about reissuing it as a rulemaking. Meanwhile, the legality of the Obama-era joint employer decision is still being reviewed by a federal appeals court.
EEOC Tackles Harassment
The Equal Employment Opportunity Commission is continuing to promote its new sexual harassment advisory programs that had been under development for a year before the Weinstein scandal broke.
The EEOC also is supporting efforts by federal Appeals Courts to add gay and transgender discrimination to its nationwide agenda under the Civil Rights Act.
Acting under the constraint of a reduced budget, the commission also is actively targeting religious, racial and ethnic discrimination in the workforce.
This is just the tip of the regulatory iceberg, with much more going on at the federal level (see ICE story below), and a whole new world of hurt is being visited on employers at the state and local levels, too. We will continue to report on all of it.
