In his first 2 ½ weeks in office, President Trump and his administration are no strangers to controversy. As he’s gone to work making good on campaign promises and building his policies, the President’s vision of a business-friendly government is beginning to take shape – but not without a few bumps in the road.
On Tuesday evening, in what could arguably be called “prime-time fashion,” President Trump announced the nomination of Judge Neil Gorsuch, whom the Washington Post rated as “the most Scalia like,” as his selection for the vacant Supreme Court seat. Following his nomination, the buzz quickly spread of Gorsuch’s similarities and admiration of his predecessor who he referred to as “a lion of the law.” Like Scalia, Gorsuch is known to be critical of what he perceives as an abuse of administrative authority.
In a recent Legal Alert, labor lawyers Fisher Philips expressed that “from the big-picture perspective, employers should be pleased with the president’s selection.” Citing his rulings in favor of employers in high profile cases regarding religious and racial discrimination claims, Fisher Philips anticipates that employers may feel a sense comfort “as workplace law conflicts are brought before the Supreme Court in the future.”
That comfort, however, is dependent on Gorsuch actually getting to sit on the bench. Partisan lines have been drawn with Senate Democrats calling Gorsuch’s nomination invalid and stating that the Republicans stole the nomination from one President (Obama) to give to another. Without enough Republican votes to avoid a Senate filibuster, experts anticipate Senate Democrats to use this opportunity to express their resistance to President Trump.
To Ban or Not To Ban
Last week’s executive order by President Trump barring immigration from 7 countries left many employers concerned about their workers around the globe. Amid continued confusion and controversy, on Friday, Feb. 3 a federal judge in Seattle issued a Temporary Restraining Order (TRO) against the government and effectively put the brakes on the President’s “immigration ban.” The move allows those holding valid immigrant or nonimmigrant visas to begin lawfully entering the U.S. again.
The judge’s decision did not escape the ire of the Commander-in-Chief with the President tweeting on Saturday evening, “The judge opens up our country to potential terrorists and others that do not have our best interests at heart. Bad people are very happy!”
In the coming weeks, the battle over the executive order and the TRO will be widely watched by those around the world. Rebecca Peters, Director of Government Affairs at the Council for Global Immigration, a nonprofit trade association committed to advancing high-skilled employment-based immigration and an affiliate of the Society for Human Resource Management(SHRM) cautions, “Employers should make sure employees from countries affected by the executive order know that this is a volatile situation that could change again quickly.” Employers are encouraged to join their local SHRM chapter for access to their immigration committees for further help.
Laboring the Department of Labor
The fate of millions of employees potentially impacted by the DOL’s revisions to the Fair Labor Standards Act (FLSA) many companies have found themselves in limbo and anxiously awaiting a decision from the appellate courts. But, it seems they must remain in limbo a bit longer.
On Jan. 26, the DOL requested and was granted a 30-day extension from the Fifth Circuit Court of Appeals in the case against the regulation. The extension gives the Trump administration more time to decide how to handle the FLSA regulation as they prepare to transition leadership within the department – assuming they can get their leadership in place.
As of Jan. 31, the confirmation hearing of Andrew Puzder has been delayed a 4th time. This time with no definitive rescheduling date in place. Citing his missing paperwork as the reason for the delay, an aide for the Health, Education, Labor and Pensions Committee stated, “The committee will not officially notice a confirmation hearing with Mr. Puzder until the committee has received his paperwork from the Office of Government Ethics.” It is unclear what course of action the President will pursue should Andrew Puzder not supply the necessary documentation.
The LGBTQ Olive Branch
In a surprise move on Tuesday, Jan. 31, President Trump upheld federal LGBT protections former President Obama established under Executive Order 13672. Prior to the announcement political experts speculated that the President would amend the order to provide an exemption for religious organizations. However, as the Press Secretary Sean Spicer’s office has stated, “President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election.”
The strength of those words were quickly called into question by Thursday, Feb. 2 when Sean Spicer expressed that people should be able to express their religion without reprisal. This has led many in the LGBT community to fear a return to the religious exemption stance. Despite the confusion, White House Deputy Press Secretary Sarah Huckabee Sanders has told the Washington Post, “There is nothing planned on this right now.”