The Trump Administration’s Triple Play

Kollman & Saucier
Kollman & Saucier

October is ordinarily marked by shorter days, cooler weather, vibrant foliage, and the start of the MLB postseason.  Indeed, as the games began last week, the Trump administration made a triple play of its own sort with a series of major labor and employment law-related actions.

Restoring a Stricter Joint Employer Standard

On October 4, a House committee advanced the Save Local Business Act in order to constrict the definition of joint employment.  The bill, which Republicans introduced in July, would amend the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) to provide that a “joint employer” is one that “directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment[.]”

The issue has significant implications for employers, since a finding that an entity is a “joint employer” helps expand statutory coverage under the NLRA and FLSA.  Prior to the bill’s introduction, an Obama-era National Labor Relations Board (which is generally tasked with enforcing the NLRA) relaxed the test for joint employment by holding that indirect control over workers may establish joint employment status.  This decision spurred dozens of business and trade groups to urge Congress to pass legislation repealing the relaxed standard, arguing that it exposed businesses to excessive workplace liability for the actions of non-employees and other employers.

With 95 co-sponsors, the bill has a reasonable likelihood of becoming law.  It echoes the position taken earlier this year by the U.S. Department of Labor, comprising one of several anticipated labor policy changes under the Trump administration.

Reducing Protections for Transgender Workers

In a memorandum dated October 4, Attorney General Jeff Sessions withdrew an Obama-era policy of protecting transgender individuals in the workplace.  According to the memo, the federal government now takes the position that Title VII does not prohibit employment discrimination based on gender identity per se.  This includes discrimination based on a worker’s transgender status.

The federal government previously posited that Title VII’s prohibition of employers’ use of “sex-based considerations” at work encompassed discrimination based on gender identity and against transgender employees.  Attorney General Eric Holder issued the memorandum of December 15, 2014 setting forth this policy amidst a continuing divide among federal courts considering the issue.

While the judicial branch – and likely the Supreme Court – is still left to decide this application of Title VII, the message mirrors the previous position of the Department of Justice that Title VII does not protect sexual orientation.

Removing the Requirement to Provide Contraception to Women

On October 6, Attorney General Sessions issued guidance encouraging agencies to interpret religious freedom protections in federal law liberally.  The Department of Health and Human Services contemporaneously announced that entities with sincerely held religious beliefs will no longer be required to comply with the contraceptive mandate under Obama’s Affordable Care Act (ACA).  Both of these actions follow Trump’s Executive Order Promoting Free Speech and Religious Liberty.

The ACA already provides for exemptions to the contraceptive mandate.  However, as a result of these rules, it is likely that even more employers may be able to deny female employees insurance coverage for birth control.

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