A Review of President Trump’s Executive Orders Impacting Labor & Employment Law

By Daveante Jones

Since President Trump has entered office, he has made sure that his agenda is pushed, with or without the help of Congress. In doing so, he has signed more than fifty executive orders in less than a year. With such a large number, it was only a matter of time before the labor and employment world was impacted.

Two-For-One” – Reducing Regulation and Controlling Regulatory Costs

Wasting no time after entering office, President Trump signed an executive order on January 30, 2017, in an attempt to reduce regulation and control regulatory costs. The order directed executive agencies to identify two existing regulations to eliminate for every one new regulation issued, with the goal being a total incremental cost of “zero” for all new regulations. It didn’t take long for negative reactions to surface. One such example is a lawsuit in the United States District Court for the District of Columbia filed by three public interest legal groups, including the Communications Workers of America, alleging that the order is “irrational” and puts public safety at risk by not considering any beneficial effects of new rules.

The groups rely partly on the negative effect the order would have on the Occupational Safety and Health Administration (OSHA) in support of their public safety argument. They argued that the order would cause OSHA to violate its authorizing statute, the OSH Act. Specifically they stated, “In light of the OSH Act’s legal standard directing OSHA to set safety and health standards based on findings of significant risk of material impairment and technological and economic feasibility, OSHA may not use cost-benefit analysis as a basis for setting OSHA health standards.” The federal government moved to dismiss in May, with one of its arguments being that the groups did not have standing. Just a few days later, the groups moved for summary judgment, requesting that the order be overturned. A final decision has yet to be made, however. It will be interesting to see how the court rules.

Agriculture and Apprenticeships – Workplace Impact

Two executive orders that may impact labor and employment more on the practical side are President Trump’s orders promoting agriculture and rural prosperity in America (signed in April) and expanding apprenticeships in America (signed in June). President Trump’s order promoting agriculture and rural prosperity aims to “identify legislative, regulatory, and policy changes to promote in rural America agriculture, economic development, job growth, infrastructure improvements, technological innovation, energy security, and quality of life.” With Secretary of Agriculture Sonny Perdue leading, a Task Force—including the Secretary of Labor—has been directed to do things such as “ensure access to a reliable workforce and increase employment opportunities in agriculture-related and rural-focused businesses.” While there are concerns, farmers and support groups are pleased that this administration is looking at deregulating federal rules related to agriculture.

President Trump’s order expanding apprenticeships in America roughly doubled taxpayer money spent on learn-to-earn programs to $200 million. Planning to make apprenticeships the core of his strategy to fight unemployment, President Trump’s order sets out to allow employers, unions and trade groups more flexibility to create apprenticeship programs outside of the Labor Department’s guidelines. President Trump commented, “[w]e have regulations on top of regulations . . . We’re empowering companies, unions, industry groups and federal agencies to go out and create new opportunities for millions of citizens.” Many critics, however, say this order is inconsistent with President Trump’s budget cuts.

National Council on Federal Labor-Management Relations Disbanded

At the end of September, President Trump signed an executive order disbanding the National Council on Federal Labor-Management Relations, a council that had been created by former President Obama. The federal labor-management council was created to provide forums that allowed agencies to work together with federal employees and unions to improve the delivery of government services to the public. Supporters believed that the council provided a place for employees to discuss specific challenges, review organizational initiatives and solve workplace issues. Critics, however, said it allowed unions to influence federal policy. Ultimately, President Trump disbanded the council because he thought it was a waste of time and tax dollars. Many agencies had decided to continue their own forums regardless of President Trump’s dealings with the national council, but some unions are still disappointed in the order.

ACA Roll Back Attempts

With the changing of administrations, everyone knew the Affordable Care Act (ACA) was on the chopping block. Congress has failed in its attempts to roll back the ACA, however. Despite these failings, President Trump has signed two executive orders in his own attempt. The first one, coming in May, directed the Departments of the Treasury, Labor, and Health and Human Services to look into exempting religious employers from the ACA’s contraceptive mandate. The order promoting free speech and religious liberty urged the Departments to “consider issuing amended regulations . . . to address conscience-based objections to the preventive-care mandate.” The order has already led to three federal agencies announcing rules allowing employers to claim religious or moral objections to the contraception mandate under the ACA. The American Civil Liberties Union is currently challenging the rules in a California federal court, arguing that the rules violate the First Amendment by “advancing a particular set of religious beliefs” and the Fifth Amendment by “allowing employers and schools to deny only preventive health benefits that women need.” The National Women’s Law Center, Americans United for Separation of Church and State, Massachusetts Attorney General and others plan to sue as well. Democratic lawmakers have also introduced bills in the Senate and House of Representatives attempting to roll back the rules.

In October, President Trump signed an executive order directing federal agencies to loosen rules on association health plans and temporary insurance plans, by directing the Departments of the Treasury, Labor, and Health and Human Services to write new rules for association health plans, temporary insurance plans, health reimbursement accounts and other measures. The loosening of the rules would allow more widespread offerings of plans that do not adhere to all of the ACA’s mandates. President Trump believes that “[t]his order is the first step to allowing businesses to help their workers pay for health care with health reimbursement accounts.” While the health association changes drew praise from several business groups, including the National Restaurant Association, the order has received criticisms about the uncertainty of how the regulations will play out and President Trump’s utilization of executive orders to roll back the ACA.

More than fifty executive orders and not even a year into President Trump’s term, it’s clear that President Trump is more than willing to push his agenda with or without help from Congress. Labor and employment seems to be an area that is to be impacted by it as well. So keep an eye out.

Daveante Jones
Associate Attorney
Wright Lindsey Jennings
dljones@wlj.com
www.WLJ.com