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What Small Business Owners Can Expect from the New Labor Secretary Nominee


Earlier this month, President Trump’s initial Labor Secretary nominee, Andrew Pudzer, withdrew from consideration. Assuming the second time’s the charm, Alexander Acosta will be confirmed by the Senate for this Cabinet-level position which heads the U.S. Department of Labor (USDOL), one of the federal agencies that has the widest and deepest impact on employers across the country. What should small business owners know about Acosta in order to predict what life will be like under his tenure as part of the Trump administration?

The departments of the USDOL most affecting employers are the Wage and Hours Division (WHD), the Office of Safety and Health Administration (OSHA), and the Office of Federal Contract Compliance (OFCCP). Given that Acosta is a Republican appointee, employers should see a decrease in the number and enforcement of the new regulations issued under the Obama era. Foremost among those is the WHD’s overtime wage rule, now on appeal to the Fifth Circuit Court of Appeals. Just this week, a new due date for filing the DOJ’s brief is May 1, so maybe by then it is possible Acosta will be confirmed and can exercise his authority over this case.

With regards to OSHA, Acosta’s approach should resemble Trump’s agenda: He prefers the free markets and the free enterprise approaches, not the highly regulated ones. Acosta will likely review the recent rules issued under Obama and change those that impose too much burden over employers. For example, Acosta may reverse the whistleblower program which the Obama administration tried to change to make it easier to show discrimination and retaliation. He should also urge more compliance assistance for employers than federal litigation by OSHA. Additionally, he may review the newly revised Respiratory Silica Standard and OSHA’s Recordkeeping Standard, which greatly imposed new reporting issues on employers. Some think he will also reduce the use of the “joint employer” doctrine, which the Obama administration expanded vastly throughout the USDOL.

Under OFCCP, which controls federal contractors, Acosta is expected to rollback many executive orders (E.O.) signed by Obama that were not passed as laws by Congress. These include E.O. 13496 that requires employers to post a notice of employees’ right to organize unions; E.O. 13495 which requires successors to service contracts to offer jobs to the predecessor’s employees; and E.O. 13673 which is known as the “blacklisting” E.O. and requires disclosure of the prior three years’ of workplace law violations, and prohibits arbitration agreements relating to Title VII or sexual harassments.

While it is difficult to know exactly how Acosta might steer the USDOL if confirmed by the Senate, his wide-ranging experience with the National Labor Relations Board and as the Assistant Attorney General for the Civil Rights Division of the Department of Justice, will prove to be valuable in his new role.

Martin Thompson is an attorney at Fisher Phillips. Have questions about a legal or labor and employment matter and how it may affect your business? Contact Fisher Phillips at info@fisherphillips.com

Posted: 3/1/2017 2:43:00 PM | with 0 comments
Filed under: FisherPhillips, SmallBusiness




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SMALL BUSINESS
Your business may be small, but that doesn't mean that your impact can't be huge! The Greater Memphis Chamber's Small Business Council serves to encourage, support, recognize and be a resource to small- and medium-sized businesses in the Memphis area. Here, our talented panel of contributors will present big ideas that could make a huge difference to your small business. And don't be afraid to ask questions ... no matter how small.

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JOEL MYERS
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