Trumpdate: Proposed budget shows "yuuuge" changes afoot in labor and employment arena

Donald Trump caricature.flickrCC.DonkeyHotey
"Yuuuge, I tell ya, yuuuge!"

Yesterday, the Trump Administration released its proposed budget for Fiscal Year 2018, which runs from October 1, 2017, through September 30, 2018. Here are the highlights related to labor and employment law, and there are a BUNCH. The following is a compilation of a number of articles published in yesterday's edition of Bloomberg BNA's Daily Labor Report (paid subscription required to access articles):

Anti-discrimination enforcement (EEOC and OFCCP): As I've noted here and here, the President was expected to propose merging the Office of Federal Contract Compliance Programs with the Equal Employment Opportunity Commission, and he has. More specifically, the proposal was that the OFCCP would be "absorbed" by the EEOC. The OFCCP enforces various anti-discrimination laws that apply to federal contractors. The EEOC enforces various anti-discrimination laws that apply to all employers with certain minimum numbers of employees. The proposed budget says that the two agencies are expected to "work collaboratively" on carrying out the merger, which would take effect at the end of FY 2018. Almost nobody likes the idea. (Well, with a few exceptions, including me -- it makes some sense to me since their functions are so similar.) Although the President might be able to carry out the merger of the two agencies' Title VII functions by simply issuing a new Executive Order to amend the famous EO 11246 (issued by President Lyndon B. Johnson), Congressional action may be required to allow the EEOC to absorb the OFCCP's functions as they relate to the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act. Bloomberg BNA reports that there is some precedent for such a step: In 1978, President Jimmy Carter moved enforcement of the Age Discrimination in Employment Act and the Equal Pay Act from the U.S. Department of Labor Wage and Hour Division to the EEOC. Before he did so, however, Congress had passed legislation authorizing him to reorganize government agency functions.

While this proposed merger is being worked on, the OFCCP intends to focus its efforts on systemic pay discrimination. (So, contractors, don't slack off on your comp audits!)

Victoria Lipnic
EEOC's Lipnic: "I'm cool."

Despite the fact that it is charged with "absorbing" the OFCCP, the proposed budget actually reduces funding for the EEOC for FY 2018. Nonetheless, Acting EEOC Chair Victoria Lipnic does not seem to be concerned. "Should the proposal to move the OFCCP to the EEOC be approved, we are committed to a smooth transfer and transition," she was quoted as saying. She reportedly said that increased charge resolutions and a reduction in new charges, plus adoption of technology, will allow the agency to operate more or less as normal.

Labor law (DOL and NLRB): The DOL has begun new rulemaking that is expected to kill off the awful "Persuader Rule" issued by the Obama Administration. The rule -- which, among other things, arguably infringed on the privileged relationship between employers and their labor attorneys -- was enjoined last year by a federal judge in Texas before it ever took effect, and the Obama DOL appealed that decision to the U.S. Court of Appeals for the Fifth Circuit. After President Trump took office, the DOL asked to delay the briefing schedule while it reassessed its position. The new briefing deadline is June 21, but the DOL will probably withdraw the appeal. Meanwhile, the Administration's proposal to rescind the rule is at the Office of Management and Budget.

The FY 2018 budget would make a 6 percent cut in funding to the National Labor Relations Board, and calls for a reduction of 275 full-time equivalent employees. Interestingly, the administration has indicated that it expects the NLRB's workload to increase in FY 2018, with more unfair labor practice and representation cases. Lean and mean, I guess.

The budget also proposes an overall 20 percent reduction in funding for the DOL, but much of that would come from cuts to federal job-training programs.

Workplace safety (OSHA and MSHA): The budget proposes only minor reductions in funding to the Occupational Safety and Health Administration and the Mine Safety and Health Administration.

Immigration: Not surprisingly, given the Administration's position on immigration issues, the FY 2018 budget proposes an increase in funding for the Department of Homeland Security, including funds to hire more Border Patrol and Immigration and Customs Enforcement agents, build The Wall, and pay for border security technology. The budget proposes that E-verify will become mandatory in three years, although that would require Congressional action. According to Bloomberg BNA, Sen. Charles Grassley (R-IA), has introduced legislation to that effect, but it doesn't seem to be going anywhere.

Border Patrol Hiring.flickrCC.QuinnDombrowski
Opportunity awaits!

The Administration has also indicated its intent to emphasize "merit-based" immigration (as opposed to immigration to fill low-skill, low-wage jobs). Finally, the Administration proposes charging fees to employers who seek labor certifications to hire foreign workers. According to the Administration, this would "give [the Employment and Training Administration of the DOL] a more reliable, workload-based source of funding that would ultimately eliminate the need for congressional appropriations" and "will discourage employers from abusing the system, ensuring that American workers are not disadvantaged."

Paid family leave: As I've noted before, Ivanka Trump has been a strong advocate of paid family leave. Her original proposal was to offer six weeks of paid leave to new mothers. The leave proposed in the budget -- which would start in 2020 -- is still six weeks, but fathers are eligible for it as well as mothers. The paid leave would be funded for 10 years through the unemployment insurance program, which is still recovering from the 2008 recession and its aftermath. According to one critic quoted in Bloomberg BNA, "[T]he Trump budget seeks to pay for paid family leave by taxing a UI program that still can't pay its own bills." The Bloomberg BNA article also says that Republicans in Congress are expected to introduce legislation that would excuse employers from complying with state and local paid leave laws as long as they are providing some minimum level of "paid time off for family and medical reasons."

Should be interesting! We will continue to keep you posted.

Image Credits: Donald Trump caricature (Donkey Hotey) and Border Patrol road sign (Quinn Dombrowski) from flickr, Creative Commons license. Official government photo of Victoria Lipnic.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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