The White House is systematically dismantling former President Barack Obama's legacy on labor and employment regulations, reversing course on changes Obama made to overtime law, business liability, federal contract bidding and worker exposure to harmful circumstances, among other policies.
The latest move came late Thursday when the Labor Department announced it would start the process of rescinding the "persuader rule," which forced labor lawyers to publicly divulge whenever they were hired by businesses. Previously the contracts only had to be divulged when lawyers spoke directly with workers. The rule, which unions applauded, was widely expected to cause many lawyers to stop the consulting altogether. A Texas court in April declared the rule unconstitutional.
Such efforts have been made easier by the Obama era changes being reinterpretations of existing rules or other uses of executive authority. That allowed the White House to adopt the changes without congressional legislation. It also has allowed its successor administration to undo those efforts with relative ease.
"Things of that nature are just a lot easier to rescind," Trey Kovacs, labor policy analyst with free market Competitive Enterprise Institute, wrote in an email. "Some of it easier than other parts. You still have to (in most cases) follow the Administrative Procedures Act and give notice that you're making a new rule. That can take up to a year. But a lot of the Obama rules were taken to court."
In the latter cases, the administration can simply not fight the court if the rules are struck down. That's the apparent tactic the Trump administration is taking in regards to the Obama administration's rule expanding the number of workers covered by overtime. Under Obama, the annual salary a worker had to make before being exempted was raised to $47,000, more than double the previous level. A Texas court struck it down late last year, a ruling the Obama administration swiftly appealed. The Trump administration has requested two extensions from the court in filing a reply in the case.
On Wednesday, Labor Secretary Alexander Acosta told the House Appropriations Committee he would likely reopen the overtime rule to public comment in the next few weeks. That move also would be necessary to officially undo the rule. Acosta has previously said doesn't believe the department had the authority to make the extensive change that it did.
"The litigation holding up the rules has given the Trump administration a perfect opportunity to pull back," noted Mark Neuberger, a labor attorney with Foley and Lardner.
Also on Wednesday, the department announced that it was rolling back an Obama rule that expanded the "joint employer" doctrine, the conditions for when one business can be held liable for employment and civil rights law violations at another company.
The announcement angered Democrats. "President Trump campaigned on his promise to defend America's forgotten workers, but his presidency has been defined by a shockingly anti-worker agenda. By rolling back workplace safety reporting standards ... and now denying millions of workers the overtime pay or time with their families they have earned, the president is betraying the same American workers he pledged to protect," said Rep. Mark Takano, D-Calif.
The Occupational Health and Safety Administration quietly withdrew a rule last month that allowed union representatives to accompany agency officials during inspections of non-union workplaces. Federal law allows OSHA inspectors to have worker representatives accompany them during inspections. Dubbed the "walk around" rule, it was originally restricted to employees at the workplace being inspected, but starting in 2013, that was expanded to allow union representatives.
In April, the Trump administration announced it was delaying enforcement of the new regulation for the construction industry regarding exposure to crystalline silica, tiny glass-like particles that can be harmful if inhaled. Originally scheduled to begin June 23, enforcement will now begin Sept. 23. The administration said that it needed "to conduct additional outreach and provide educational materials and guidance for employers."
Trump also has made extensive use of the Congressional Review Act to nullify actions by the Obama administration, including a March bill that rolled back a 2015 rule that forced bidders on federal contracts to disclose if they had ever been charged with labor violations. Business groups labeled it a "blacklisting" rule, since it could allow a union to undermine a company's chances at winning a bid just by filing a complaint.
The moves have cheered by Republicans. "This is another positive step toward undoing the damage of the Obama administration's extreme and partisan agenda. The regulatory guidance that is now reversed only served to empower union leaders while hurting small businesses, undermining economic growth, and limiting opportunities for hardworking men and women," said Rep. Virginia Foxx, R-N.C., chairwoman of the House Education and the Workforce Committee, and Rep. Bradley Byrne, R-Ala., chairman of the workforce protection subcommittee, in a joint statement.
However, the Trump administration is limited in what it can do to undo Obama-era rules, Neuberger says. Labor law enforcement, for example, is mainly conducted by the National Labor Relations Board, an independent agency. "They have to wait for the proper cases to bubble up before they overturn previous rulings," he said. Trump has yet to nominate candidates to fill the five-member board's two open seats.
A Labor Department spokesman could not be reached for comment.