More Rollbacks of Federal Employment Laws and Regulations Are On the Way

If you run a business in the United States, you know that the federal employment laws enacted by Congress and implemented through the executive branch provide a number of protections for all workers. Since Donald Trump returned to the White House in January of this year, we have notified you of the executive orders issued by President Trump and other changes instituted by his administration to rollback many of the rules and procedures of the various agencies that administer and enforce the nation’s employment laws. The majority of these actions are intended to deregulate corporate America, and in doing so, have removed a number of the rule and regulations implemented over the last 60 years interpreting and enforcing the federal employment laws.

Federal Employment Laws. Chief among the federal laws legislating the employment relationship are the Fair Labor Standards Act (FLSA), which sets standards for minimum wage, overtime pay, and recordkeeping for both exempt and non-exempt employees; the Family and Medical Leave Act which guarantees certain employees the opportunity to take unpaid but job-protected leave for the employee’s own or a family member’s illness, and the various statutes prohibiting discrimination against employees who fall into certain protected categories: age, sex (including gender identification), race, national origin, or disability and prohibiting retaliation against these protect classifications for engaging in protected activities.

Anticipated Regulatory Changes. This month the Trump administration announced that in its continuing effort to deregulate the workplace, it plans to amend or eliminate a significant number of other regulations currently in place. For example, the U.S. Department of Labor (DOL), the organization that oversees the Fair Labor Standards Act (FLSA), intends to rewrite or repeal more than 60 workplace regulations imposed under previous administrations. The regulatory overhaul includes proposals that would reverse or weaken Obama-era protections for millions of workers. The administration’s stated the goal is to reduce costly and burdensome regulations. Critics say the proposals would put workers at greater risk of harm. The proposed changes have several stages to get through before they can take effect, including a public comment period for each one.

Among the most controversial changes is a plan to reclassify an estimated 3.7 million home health care workers that assist the elderly or ill by preparing meals, administering medications, taking clients to doctor appointments and assisting with toilet use, eliminating minimum wage and overtime protections under federal law. Under this proposal, these workers could be paid below the federal minimum wage of $7.25 per hour and become ineligible for overtime pay unless they are covered by corresponding state laws. The administration says that by lowering labor and compliance costs, its revisions might expand the home care market and help keep older and frail individuals in their homes for longer. Opponents of the measure claim that before the 2013 regulations were put in place by President Obama to provide overtime, it was very common for home care workers to work 50, 60 and maybe even more hours a week, without receiving any overtime pay.

The wide-ranging changes unveiled this month also would affect working conditions at construction sites and in mines, and limit the government’s ability to penalize employers if workers are injured or killed while engaging in inherently risky activities. Here’s a look at some of the rollbacks under consideration:

Migrant Farm Workers. Last year, the DOL finalized rules that provided protections to migrant farm workers who held H-2A work visas, including an anti-retaliation provision. The current administration says most of these rules placed unnecessary and costly requirements on employers. Under the new proposal, the DOL would rescind a requirement for most employer-provided transportation to have seat belts for those agriculture workers. The DOL is also proposing to reverse a rule that protects migrant farmworkers from retaliation for activities such as filing a complaint, testifying or participating in an investigation, hearing or proceeding.

OSHA. The current administration wants the Occupational Safety and Health Administration (OSHA) to rescind a requirement for employers to provide adequate lighting at construction sites, saying the regulation doesn’t substantially reduce a significant risk. Currently, OSHA regulations provide that if employers fail to correct lighting deficiencies at construction worksites, the agency can issue citations under its “general duty clause.” The general duty clause allows OSHA to punish employers for unsafe working conditions when there’s no specific standard in place to cover a situation. Worker advocates oppose this change.

MSHA. Several proposals could impact safety procedures for mines. For example, employers now have to submit plans for ventilation and preventing roof collapses in coal mines for review by the DOL’s Mine Safety and Health Administration (MSHA). District managers at MSHA can require mine operators to take additional steps to improve those plans. The DOL under the Trump administration wants to end that authority, saying the current regulations give the district manager the ability to draft and create laws without soliciting comments or action by Congress.

The DOL is also proposing to eliminate district managers of their ability to require changes to mine health and safety training programs. An OSHA proposal would exclude the agency from applying the general duty clause to prohibit, restrict or penalize employers for “inherently risky professional activities that are intrinsic to professional, athletic, or entertainment occupations.”

With the removal of many of the federal regulations that have set the standards for the operation of the employer-employee relationship, employers will increasingly have to pay attention to state and local laws in place in the locales in which they operate. For those of our clients that are based in or have offices in Georgia, our next article is an overview of the employment statutes and regulations in Georgia.

State Law. Also, be aware that generally, the laws of the state where an employee physically works will govern their employment. This means that if your business is located in Georgia, a state generally favorable to employers, but has employees working remotely from 10 different states, the employment laws of the states in which each employee works will typically apply. That puts the onus on employers to be familiar with the laws of each of the states in which it employs remote workers.

If you have any questions about the impact of these executive orders on you or your company, feel free to contact our attorneys, Jay Rollins or Debra Schwartz by calling  404.844.4130.