Are we moving into an era of less aggressive enforcement by the federal agencies tasked with responsibility over our nation's labor and employment laws? It certainly seems so given several signals from the current administration and the federal agencies themselves.
Last week, the Trump administration announced a proposed $2.5 billion (21%) cut to the U.S. Department of Labor's annual budget. The cut to the Department's budget represents one of the largest budget reductions proposed by the administration within the entire federal government, coming in only behind the Environmental Protection Agency and the State Department for the largest percentage drops in funding.
The administration's budget proposal, however, does not make entirely clear what specific cuts will be made if it is enacted by Congress. It could mean staffing cuts and layoffs, which would likely curtail the Department's enforcement capabilities, possibly in a profound way. With limited resources, the Department will have to make some very hard choices as to what its enforcement priorities will be, and how best to carry them out. Such cuts could also significantly hinder the Department's rulemaking ability as well.
The Trump administration also appointed Nicholas Geale to the post of acting Solicitor for the Labor Department. Mr. Geale recently remarked during a speech that the Department would be acting with more "humility" with respect to its enforcement and regulatory activities. He went on to explain that the Department planned to listen more closely to employers, and to allow more opportunities for companies (especially small employers) to come into regulatory compliance prior to the Department bringing enforcement actions.
The Labor Department's ultimate agenda, however, will be directed by the eventual Secretary of Labor. Following Andrew Puzder's withdrawal from consideration as Secretary, Trump's current nominee, Alexander Acosta, is still waiting confirmation by the Senate. Acosta previously served on the National Labor Relations Board, led the Civil Rights Division at the Justice Department, and served as a U.S. Attorney in Florida during the George W. Bush administration. Many speculate that, if confirmed as Secretary, Acosta's agenda will include scaling back the enforcement activities of the Labor Department in line with the comments of Mr. Geale.
While no major budget cuts have been proposed by the Trump administration (or at least not yet) regarding the Equal Employment Opportunity Commission or the National Labor Relations Board, other signs suggest those agencies' enforcement agendas may see a similar realignment. For example, in a memorandum made public last week, NLRB General Counsel Richard Griffin commented that chronic underfunding of the agency has left it unable to adequately staff its offices and has also prevented the agency from upgrading its technology and services to make its processes more efficient and workable. Nonetheless, a budget increase for the NLRB seems unlikely from the Trump administration.
With respect to the EEOC, acting Chair Victoria Lipnic commented recently that while the EEOC would continue to pursue the issues outlined in its 2017–2020 strategic enforcement plan, the agency would be focusing more on helping "foster employment opportunity and economic growth." These comments may mean less emphasis on litigation and enforcement activities, and more focus on assisting employers with voluntary compliance.
At the end of the day, employers should still expect these agencies to continue their core functions (e.g., processing charges, handling complaints, conducting investigations and audits). However, it does seem likely that at least looking at the big picture on a national level we are moving into an era of decreased enforcement and less regulatory activity from these agencies.
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