Employment Law Update 2017-1
Posted on Jan. 20, 2017

This is Legal-mail no. 2017-1 prepared for interested HR professionals trying to deal with the complex American employment laws.










INAUGURATION DAY 2017: We have a new President, Republican Donald J. Trump, and a new Congress controlled by Republicans. With the GOP controlling both levers of government, there could be many changes coming in employment law. We do not yet know for certain what these changes might be. A list of things to watch for is listed below.

NEW OVERTIME RULES: The new Department of Labor (DOL) rules on overtime under the Fair Labor Standards Act (FLSA) did not take effect after all, thanks to an injunction issued in late November by a federal court in Texas. DOL has said that it will appeal the decision, but there is no change in status yet. President-elect Donald Trump has added more uncertainty to this mix by nominating a man named Andy Puzder to be the new Secretary of Labor. Puzder is the CEO of a national restaurant chain and has been a strong critic of the new overtime rules. If he is confirmed to run the DOL, he can kill the new rules outright or by withdrawing the appeal.

AFFORDABLE CARE ACT: Republicans have promised to repeal this law, nicknamed Obamacare, and replace it with something else. The nature of the “something else” is not really clear. Certain aspects of the law (allowing parents to keep their children covered through age 26, the elimination of preexisting conditions) are very popular and may be retained. Other provisions (the employer and individual mandates, subsidies) are less popular. Moreover, it could be a lot harder to actually repeal it than to simply say you are going to repeal it. Stay tuned.

PRESIDENTIAL EXECUTIVE ORDERS: President Obama issued a number of Executive Orders that impacted the employment practices of federal contractors and subcontractors. For example, these orders banned discrimination based on sexual orientation or gender identity, imposed a minimum wage of id="mce_marker"0.10, and required reporting of labor and employment law violations. Some Republicans have been critical of some of these changes. President Trump will have the unilateral power to repeal or revise them.  What will he do? Keep reading these updates and we will let you know.

EEOC, NLRB, ETC.: Over the next months and years, as President Trump appoints new commissioners or members of regulatory agencies such as the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB), those agencies and their agendas likely will change. Both the EEOC and the NLRB have taken strong, pro-employee stands over the last eight years on a number of issues, including the nature of protected classes, the requirements of accommodation for pregnant employees, and the scope of protected concerted activity at work. New leaders of those organizations may step back from those initiatives or revise the interpretations that have led to those initiatives. Again, we are going to have to wait and see if this happens and to what extent.

IMMIGRATION REFORM: One of the most hotly-contested issues in the recent presidential campaign was the issue of immigration reform. President Trump took a hardline stance here, and may well stiffen federal government policy that relaxed some rules on undocumented workers and their children born here. These changes may well impact employers and employment requirements. Any sort of comprehensive immigration reform, however, will require the help of Congress, which is controlled by Republicans but still subject to a Democrat filibuster in the Senate. It is not clear where we will go on this issue. Keep watching.

UTAH LEGISLATURE STARTS NEXT WEEK: As if all that was not enough for us all to chew on, next week the Utah Legislature starts its annual session. Watch for the next update for a preview.

AFTER TWENTY YEARS: After twenty years in the role, I have stepped down from my position as Utah State SHRM Legal Director. However, I will not be going away. The state SHRM leaders graciously have encouraged me to continue including Utah SHRM members in these updates, and I will do so happily. I appreciate the many kindnesses given to me during my years of serving SHRM. It is a fine organization, and a “must join” for any HR practitioner interested in remaining informed about HR law issues and best practices in the HR profession. Best wishes to Utah SHRM and its members.

Written by: Employment Attorney Michael Patrick O'Brien

Email: mobrien@joneswaldo.com

Phone: 801-534-7315

Website: www.joneswaldo.com

Follow me on Twitter @mobrienutah


Legal-mail is a legal and legislative update service sent out about twice a month to interested HR professionals. As a courtesy, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012