Since the days of former President Franklin D. Roosevelt, the United States has closely tracked a new president’s first 100 days in office. Here at Gray Plant Mooty, our employment and labor law teams have been monitoring and will continue to track activity by the Trump administration in the employment and benefits law area. This alert is the first in what we intend to be a series of updates to our employer clients on key developments during the first 100 days.
When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting multiple legal battles over rules it had promulgated during President Obama’s term in office. With President Trump’s election, the DOL’s commitment to moving forward with those rules is uncertain. We expect to know more if and when Alexander Acosta, the nominee for Secretary of Labor, is confirmed, but here is where the DOL lawsuits and related rules stand:
The National Labor Relations Board (NLRB), which oversees union-employer relations and non-management labor rights, has been the subject of minimal activity so far. The lone Republican member of the NLRB, Phil Miscamarra, was named acting Chairman of the NLRB by President Trump. Miscamarra currently serves on the NLRB with two Democrat members, both appointees of President Obama. The NLRB General Counsel is also currently a President Obama appointee. The NLRB currently has two vacant seats, which are both Republican-controlled. It is rumored that Trump is considering the following candidates as nominees: William Emanuel, Partner at Littler Mendelson, P.C. (Los Angeles); Doug Seaton, Senior Counsel at Seaton, Peters, and Revnew, P.A. (Minneapolis); Marvin Kaplan, Counsel at the Occupational Safety and Health Review Commission (Washington, D.C.); and Zachary Fasman, Partner at Proskauer Rose L.L.P. (New York).
In January, President Trump named Equal Employment Opportunity Commission (EEOC) commission Victoria Lipnic to be the acting chair of the commission. While President Trump’s plans for the EEOC are not yet clear, predictions have been made that his administration may scale back on the EEOC’s strategic enforcement agenda to extend Title VII protections to LGBTQ applicants and employees. Despite these predictions, President Trump announced in late January that he intended to leave in place an executive order of President Obama that protects LGBTQ employees of federal government contractors from discrimination. The EEOC has asked, however, for an extension in one of its LGBTQ lawsuits to assess the direction of the case. In addition, on February 22, 2017, the Trump administration withdrew an Obama-era guidance issued by the U.S. Department of Education that provided for schools to allow transgender students to use bathrooms corresponding to gender identity. The EEOC has issued similar guidance on workplace bathroom access. GPM will be continuing to track EEOC related developments under the new administration and the impact on potential employer obligations.
The Trump administration has made it clear that it has big plans for employee benefit plans, issuing promises to repeal and replace the Affordable Care Act (ACA), to revisit the DOL’s fiduciary rule, and to undertake tax reforms that could change the landscape for retirement plans. In its first month, the Trump administration issued some benefits-related executive orders, but, as to what employers need to do so far, it’s essentially “Hurry up and Wait!”
If you have questions about your employment or benefits law needs, please contact a member of the firm’s employment law or employee benefits teams.
Gray Plant Mooty is recognized as one of the leading corporate law firms in Minnesota and one of the top franchise firms in the world. Our roots go back to 1866. Today, we are a 180-plus attorney, full-service firm with offices in Minneapolis and St. Cloud, Minnesota; Washington, D.C.; and Fargo, North Dakota.