White HouseThe Office of Management and Budget released President Trump’s “America First” budget blueprint for discretionary spending earlier this morning. Overall, it increases spending on defense, veterans’ health, immigration enforcement and combatting opioid abuse while decreasing civilian discretionary spending. Hardest hit are programs such as the National Endowment for the Arts, the Legal Services Corporation, The Corporation for Public Broadcasting, which were cut completely from the budget. The Environmental Protection Agency and State Department received deep cuts, which will reduce foreign aid. The Department of Labor will have its budget reduced by about one-fifth.

The Budget document provides the following introduction to the DOL appropriation request:

The Department of Labor fosters the welfare of wage earners, job seekers, and retirees by safeguarding their working conditions, benefits, and wages. With the need to rebuild the Nation’s military without increasing the deficit, this Budget focuses the Department of Labor on its highest priority functions and disinvests in activities that are duplicative, unnecessary, unproven, or ineffective.

The President’s 2018 Budget requests $9.6 billion for the Department of Labor, a $2.5 billion or 21 percent decrease from the 2017 annualized CR level.

The President would totally eliminate the Senior Community Service Employment Program (SCSEP), which retrains unemployed older workers for unsubsidized private sector jobs on the basis that it is ineffective. It closes underperforming Job Corps Centers, although it does not specify which ones. The budget would limit the Department’s International activity to ensuring that American Workers are protected under trade arrangements. While reducing federal subsidies for job training and employment service grants to states (in favor of greater reliance on state and local government and employer funding), it increases support for “evidence-based” apprenticeship programs to prepare individuals for jobs. Finally, it eliminates OSHA training grants, so that the agency can focus on its core mission of worker safety.

Overall, the cuts do not appear to drastically reduce the ability of the DOL to conduct its investigation and enforcement activities as much as might have been expected. There is much yet to be determined, however, and the budget process is likely to lead to substantial changes in the budget.  It is clear, however, that the Trump Administration is prepared to make major cuts in civilian discretionary spending in order to increase funding for border security and military capacity.

Government and US FlagRepublican leaders in the U.S. House of Representatives have introduced a bill intended to replace certain key provisions contained within the Affordable Care Act (commonly referred to as “Obamacare”). The Republican-sponsored legislation is named The American Health Care Act (“AHCA”). President Donald J. Trump has placed his support behind the bill.

Republicans revealed the proposed language of the AHCA to the public last week. And, late last week, the bill overcame its first major hurdle by passing through two House committees on party-line votes. The future of the AHCA, as currently written, however, remains uncertain. Most, if not all, Democrats in Congress are expected to oppose the bill. Meanwhile, Republicans are experiencing difficulties in obtaining the support of different factions of their Congressional membership. Some Republicans argue that the AHCA does not go far enough to dismantle the ACA, while other Republicans are concerned about the effects that the AHCA will have on those with lower incomes. Despite Republican control of Congress, the bill will not become law without the support of many of these Republicans.

House Republican leaders created the AHCA under the budget reconciliation process, and, therefore, its scope is limited to amending certain tax provisions in the ACA. Other aspects of the ACA would have to be amended or repealed through alternative legislative measures. Nevertheless, employers should be aware of a couple of the effects that the AHCA would have on them, if enacted:

  • First, the AHCA would effectively eliminate the tax penalties on employers for failing to provide, and on individuals for failing to maintain, minimum essential coverage, as currently required under the ACA. Although the bill would not dispose of the insurance coverage requirements, without the corresponding tax penalties, they would not have their desired effects. Because the employer mandate would technically remain, employers would have to continue to follow the cumbersome ACA reporting requirements, at least for now.
  • Second, the AHCA would leave the 40-percent excise tax on high-cost employer-sponsored health insurance plans in place. This excise tax is commonly referred to as the “Cadillac Tax,” and this aspect of the ACA has been of particular interest to unionized employers whose union employees have negotiated for strong health insurance coverage. Under the AHCA, the Cadillac Tax would now take effect in 2025, instead of 2020. Unlike previous iterations of the bill, however, there are no caps on tax exclusions for such plans.

The AHCA already underwent significant markup at the end of last week and will certainly experience further revisions, as other House Committees review the proposed legislation. The soonest that the AHCA could be placed before the full House is late March. The bill would then proceed to the Senate.

The U.S. Congressional Budget Office just released its report on the AHCA. According to the CBO, the AHCA would result in fewer insured Americans but would reduce the deficit and would eventually reduce insurance premiums, though not initially.

President Donald Trump has nominated Tenth Circuit Court of Appeals Judge Neil Gorsuch to fill the U.S. Supreme Court vacancy caused by the death of Justice Antonin Scalia nearly one year ago. Known for his classical constructionist approach, Gorsuch is expected to restore the ideological balance that existed before Justice Scalia’s passing, with four conservatives, four liberals and Justice Anthony Kennedy (for whom Judge Gorsuch worked as a law clerk) serving as a swing vote.

If confirmed, Judge Gorsuch’s presence on the High Court will invariably impact the judicial landscape of labor and employment law. More than three dozen petitions are currently pending before the Court, seeking interpretation of laws such as the Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act (ERISA), Title VII of the 1964 Civil Rights Act (Title VII), the NLRA, the ADA and others.

Here are a few issues to watch:

Agency Fees

On March 29, 2016, the Supreme Court issued a 4-4 opinion in Friedrichs v. California Teachers Association, in which the Court summarily upheld the Ninth Circuit Court of Appeals’ decision allowing public sector unions to tax employees who decline union membership with “agency” or “fair share” fees similar to the cost of union dues. Justice Scalia, who engaged in lively questioning during oral argument in this case but died before the opinion was issued, was expected to cast the fifth vote in favor of the employees, who argued that the agency fees violated their First Amendment right to freedom of speech and association. But with Scalia’s absence, the Court was deadlocked. 

The Friedrichs case was expected to have critical implications on the continued viability of public sector unions. While the plaintiff’s petition for rehearing has been denied, more cases like this are bubbling up through the courts. Changes also have been made through legislative action, with “right to work” laws having been enacted in 27 states and Guam. Under the right to work laws, employees in union shops may maintain employment without having to pay union dues or other fees.

Arbitration Agreements and Class Wide Waivers of NLRB Claims

After several requests, the Supreme Court has agreed to review the ruling in D.R. Horton, Inc., 357 NLRB No. 184 (2012), in which a 3-2 majority of the National Labor Relations Board (NLRB) found that class action waivers in arbitration agreements violate Section 7 of the National Labor Relations Act. On January 13, 2017, the Supreme Court granted certiorari in three cases involving the validity of the D.R. Horton rule. One case, NLRB v. Murphy Oil USA, Inc., arises out of a Board decision finding that an employer had engaged in an unfair labor practice by entering into arbitration agreements with its employees, and the other two, Epic Systems Corp. v. Lewis and Ernst & Young LLP v. Morris, are private-party disputes in which employees invoked D.R. Horton to challenge their arbitration agreements.

The Supreme Court has historically favored arbitration agreements in other settings, and these concepts have been extended to the employment setting. With certain delineated exceptions, employers are generally able to implement arbitration agreements with class wide waivers to mitigate their litigation risk.

Now that the D.R. Horton issue has been accepted for review, Judge Gorsuch’s confirmation may provide employers with hope that the Court will extend the FAA’s footprint, honoring arbitration agreements in the union setting.

Joint Employers

Another recent NLRB ruling set for review this year is the board’s August 2015 decision in Browning-Ferris Industries of California, Inc., in which the Board found that a California waste management company (Browning-Ferris) jointly employed its staffing agency workers. The decision effectively rewrote the NLRB’s test for deciding whether two affiliated companies are joint employers that share bargaining responsibilities when workers organize and legal liability when they file suit. Before the decision, the joint employer standard rested on a business having “direct and immediate” control over terms and conditions of employment. The Browning-Ferris Board revised the standard to include “indirect control,” or even the “ability to exert” such control. When Browning-Ferris thereafter refused to recognize and bargain with the newly elected union, an unfair labor practice charge was filed, and the Board found another violation of the Act.

The Browning-Ferris cases are part of a growing body of litigation over joint employer liability that is anticipated to take a significant toll on employers in coming years. Employees have sought to apply the new joint employer standard outside of the NLRA, including in cases involving alleged violations of OSHA, the FLSA, the FMLA and other statutes.

The Browning-Ferris, currently on review before the D.C Circuit Court of Appeals, warrants close monitoring. Judge Gorsuch’s confirmation would restore hope that employers will regain some clarity into the now amorphous and overly expansive definition of joint employer liability.

Discrimination Based Upon Sexual Orientation

A final issue poised for review is whether Title VII bars employers from discriminating against employees because of their sexual orientation. Courts have long held that it does not. However, the Seventh Circuit may go against the status quo following a recent en banc rehearing of Hively v. Ivy Tech Community College. In that case, the plaintiff-employee claimed that the employer violated Title VII by failing to award her a full time position because of her sexual orientation. The issue is squarely one of statutory construction, and the en banc court has been tasked with determining whether Title VII can be interpreted as recognizing a discrimination claim based upon sexual orientation as a sub-segment of prohibited gender bias. During the en banc hearing, the Court challenged the notion of strict construction, pointing to other acts, such as the Sherman Act, that are interpreted far differently now than when they first were enacted. If the Seventh Circuit rules in favor of the employee, the resulting split in circuits may signify a need for High Court intervention, provided the legislature doesn’t get there first.

Conclusion

Judge Gorsuch has a reputation as someone who would follow the general judicial philosophy of Justice Scalia, but without some of the more acerbic oral argument commentary for which Justice Scalia was known. For an enlightening insight into Judge Gorsuch’s personal views on Justice Scalia and his legacy, this 2016 Canary Lectureship article by Judge Gorsuch is well worth reading.

Assuming no surprises, it is likely that Judge Gorsuch will be confirmed over strenuous Democratic opposition and will impact the Court for many years.

Before predicting the long-term effects of the 2016 Presidential Election, it is worth spending time on issues to be addressed before the end of President Obama’s term. The next two and a half months will be critical as the 114th Congress addresses important issues before turning over the reins.

In the upcoming weeks, Congress will be faced with a decision regarding the current continuing resolution funding the government, which expires on December 9, 2016. Back on September 26, 2016, President Obama signed the continuing resolution to keep the federal government running through the election. However, at the expiration of this resolution, Congress must decide whether to pass another short‑term resolution or pass legislation to carry the government through fiscal year 2017. While a long-term solution would provide federal employees and businesses with more security, it is likely that the 114th Congress will only be able to pass a short-term resolution and leave a long‑term solution for the 115th Congress. The continuing resolution process does allow for the possibility of riders to block funding for certain programs – such as EPA regulations and overtime changes. In this writer’s view, when push comes to shove, Republicans in Congress likely will not succeed in defunding Obama Administration initiatives.

Internationally, the 114th Congress is in the position to push through the Trans-Pacific Partnership (TPP) trade deal. The TPP is a trade deal between 12 Trans-Pacific countries aiming to strengthen their economic ties, cut tariffs, and encourage trade between the countries. During the election season, all the major party candidates spoke against the TPP and argued that it would harm American workers, despite President Obama’s strong support for the TPP. Based on President-elect Trump’s transition road map, he is likely to drop out of the TPP. Thus, pro-trade Republicans and Democrats in the 114th Congress are incentivized to ratify the TPP prior to the change in administration. We project that Congress will decline to ratify the TPP in this short session.

In recent months, the House and Senate have been working together to pass a comprehensive energy bill. The Senate passed the Energy Policy and Modernization Act of 2015 (S. 2012) while the House passed a similar bill, the North American Energy Security and Infrastructure Act of 2015 (H.R. 8). Specifically, the House bill includes natural resource and energy research and development provisions that are not included in the Senate bill. If the House and Senate can agree on and pass a reconciled bill, this would be the first comprehensive energy bill to pass Congress since 2007. In an effort to be seen as accomplishing something, it is likely that a reconciled bill will pass and be signed by President Obama before the end of the term.

It is unlikely that the 114th Congress will succeed in doing much more. Specifically, it probably won’t finish working on defense bills, approving judicial nominations, or creating financial reform. On January 3, 2017, the 115th Congress will begin, still under the leadership of Paul Ryan and Mitch McConnell. On January 6, 2017, it meets in a Joint Session to count the electoral votes of the 2016 Presidential Election, and a new chapter in American government will begin.