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With the new administration, what HR rules are on the chopping block?

January 6, 2017

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

With the election of Donald Trump and the control of both houses of congress by the Republicans, the question has been asked many times – what Obama Administration rules will be on the chopping block?  There have been many new rules initiated, including FLSA Overtime, Fair Pay and Safe Workplaces, OSHA and more.  

With the new administration there will be two primary methods to undo the final rules.  First, the agencies can submit to OMB to rescind the previous rules.  That will take time, and in the meantime the agencies may not enforce or put resources towards the enforcement of those final rules.  Second, Congress can use a tool called the Congressional Review Act (CRA), which was enacted in 1996.

Under the CRA, once Congress has received a final regulation, it only has a limited time period in which to introduce a joint resolution of disapproval for that regulation.  Either house must introduce the joint resolution within 60 days of continuous session.  The Congressional resolution of disapproval must either be signed by the President or must be passed over the President’s veto by two-thirds of both Houses of Congress.

However, Section 801(d) of the CRA provides that if Congress formally recesses before a new term of Congress, the new Congress can use the CRA for regulations promulgated the previous year by a certain date.  Without getting into the technical details of the CRA, the Congressional Research Service estimates that any agency final rules submitted to Congress after May 30, 2016, will likely be subject to renewed review periods in 2017 by a new President and a new Congress.

Since 1996, approximately 72,000 final rules have been submitted to Congress.  However, the CRA has been used to disapprove one rule – the Occupational Safety and Health Administration’s November 2000 final rule on ergonomics, which was overturned using the CRA in March 2001.  For some time Congress and the president have been of different parties, and congress could not muster the 2/3s necessary to overturn the veto.

The regulations impacting HR that would be CRA targets include:

  1. Establishing Paid Sick Leave For Federal Contractors 1235-AA13 Department Of Labor
  2. Federal Acquisition Regulation; Fair Pay And Safe Workplaces 9000-AM81 Department Of Defense, General Services Administration, And National Aeronautics And Space Administration
  3. Department Of Labor Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments 1290-AA31 Department Of Labor

DOL’s Overtime rules would not be subject to the CRA because they were announced before the May 30 deadline.  The EEOC’s updating of the EO Pay Tool may not be subject to the CRA as it was not defined as a regulation, but as a Notice of Proposed Changes to the EEO-1 to Collect Pay Data from certain employers.  The same is true for the DOL’s Guidance on the Fair Pay and Safe Workplaces.

Other rules or changes not subject to the CRA would be subject to the agency that enacted them to submit new regulations to withdraw the old regulations.  This approach would presumably include, but not be limited to:

  1. The Overtime Regulations
  2. The DOL Persuader Rule
  3. The DOL Fiduciary Rule
  4. OFCCP’s Rules on Discrimination on Basis of Sex
  5. OFCCP’s Rules on Pay Transparency
  6. OFCCP’s Rules on LGBT
  7. Various OSHA Rules including the Drug Testing Retaliation Rule
  8. EEOC Wellness Rules

Although the courts have stopped current implementation of some rules, such as the overtime and persuader rules, the new administration would still have to withdraw the rules to take them off the books.

On January 20, 2017, President Trump could also rescind or amend the following Executive Orders, among others:

  1. Executive Order 11246 Equal Employment Opportunity by Federal Contractors, as amended
  2. Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity
  3. Executive Order 13706 Establishing Paid Sick Leave for Federal Contractors 
  4. Executive Order 13673 Fair Pay and Safe Workplaces

Finally, depending on the appointments to the National Labor Relations Board and the EEOC, rulings by the NLRB – from social media to quickie elections to micro-unions to joint responsibility – could be overturned by the Board, and the EEOC’s equal pay tool and guidance on retaliation could be withdrawn. 

January 20, 2017 may prove to be a very active and impactful day for HR.

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