The Trump Presidency To-Date: Effects on Employers

On January 20, 2017, Donald J. Trump was sworn in as the 45th president of the United States. Less than a month into the new administration as of this writing, President Trump has already taken several actions of interest to employers. Highlights follow.

Moments after being sworn in, President Trump signed an Executive Order directing federal agencies that oversee the Affordable Care Act (ACA) to “waive, defer, grant exemptions from, or delay” any taxes or penalties imposed by the statute and its implementing regulations that pose “unwarranted economic and regulatory burdens” on health-care providers, purchasers, patients and insurers. While this is a clear first step to repeal and replace the ACA, full repeal—if it happens at all—could take years. Changes to the ACA will primarily affect employees, but employers will, of course, be impacted by new procedures, reporting requirements, and other administrative burdens. While employers are already regulation-fatigued, they are also battle-hardened and capable of taking anything new in stride.

On January 27, President Trump signed an Executive Order (EO) suspending the Refugee Admissions Program for 120 days and denying entry to the U.S. to citizens of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. The EO would have affected foreign nationals with employment-based visas and foreign temporary guest workers who were outside the U.S. when the order became effective (for example, workers returning from travel abroad or on their way to the U.S. to begin work). However, on February 9, a Ninth Circuit Court of Appeals panel upheld a nationwide temporary restraining order blocking President Trump’s EO. As of this writing, nationals from the above-listed countries remain free to enter the U.S.

On January 31, President Trump nominated Colorado’s own Neil Gorsuch, currently sitting on the Tenth Circuit Court of Appeals, to the U.S. Supreme Court to fill the vacancy left by Justice Antonin Scalia, who died last February. Judge Gorsuch shares his Republican affiliation with Chief Justice Roberts and Associate Justices Thomas, Alito, and Kennedy. With Justice Kennedy acting as the Court’s moderate “swing vote,” a rough state of equilibrium would be restored with Gorsuch’s confirmation, at least until the next vacancy.

A Trump administration move among the most impactful to employers involves the now almost-certainly-dead overtime rule. On November 22, 2016, Judge Amos Mazzant of the federal U.S. District Court for the Eastern District of Texas, an Obama appointee, enjoined the U.S. Department of Labor’s long-awaited overtime rule from taking effect December 1, 2016. The rule would have increased the minimum salary for employees exempt from overtime under the Executive, Administrative, and Professional exemptions from $23,660 per year to $47,476, potentially affecting as many as 4 million workers.

On December 1, 2016, the Department of Labor (DOL), under the leadership of then-Secretary of Labor Thomas Perez, filed a notice to appeal the preliminary injunction to the U.S. Circuit Court of Appeals for the Fifth Circuit. While the DOL moved to expedite the appeal, the appeal will likely be withdrawn under the Trump administration, effectively leading to a permanent injunction.