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Trumpdate: Tons of employment-related stuff!

By: Robin Shea

February 28, 2017

The employment law week in Trumpland started out a little slow, but now we’re back in business.

Acosta looking good for confirmation as Secretary of Labor. In contrast to nominee Andrew Puzder, the outlook appears good for his successor nominee Alexander Acosta. Mr. Acosta seems to have bipartisan support in the Senate, and has even been endorsed by the International Union of Operating Engineers and spoken well of by Wilma Liebman, a Democrat who served with him on the National Labor Relations Board.

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Your Trump Tweet for the week.

NLRB “short list” identified. In January, President Trump named “lone dissenter” Republican Philip Miscimarra to be Acting Chairman of the National Labor Relations Board, but there are still two vacant spots on the Board (the other two Board members are Democrats Mark Gaston Pearce and Lauren McFerran). President Trump can fill the two vacancies with Republicans, creating a 3-2 Republican majority on the Board and (we hope) a return to some sanity in this area of the law. According to Bloomberg BNA, the contenders are Marvin Kaplan, who is counsel to the commissioner of the Occupational Safety and Health Review Commission; William Emanuel, a shareholder with the management-side labor and employment firm Littler Mendelson; and Doug Seaton, a management-side labor lawyer and former counsel to the Minnesota House Labor Committee. All three are Republicans, natch.

How has Victoria Lipnic voted on EEOC litigation? Ms. Lipnic, now Acting Chair of the Equal Employment Opportunity Commission, has been in the Republican minority on the Commission — and, most recently, a minority of one. Will Evans of Reveal, the website of The Center for Investigative Reporting, has a helpful post reviewing her votes on whether to move forward with particular EEOC lawsuits. The results may surprise you!

Replacement Executive Order on travel ban has been delayed. We were expecting a replacement EO this week on the Trump “travel ban,” which Will Krasnow and Jeanette Phelan have been covering here and here. But now the Administration reports that it will be next week (at least) before the new EO is issued. Let’s hope that the delay is being caused by some “extreme vetting” on the part of the President’s legal advisors.

Overtime exemption rule? Huh? What’s that? I forgot. Remember that rule that (justifiably) sent employers into a tizzy last year? The one that was supposed to take effect on December 1, 2016? The rule was preliminarily enjoined about a week before its effective date, and then the Obama Department of Labor appealed that decision to the U.S. Court of Appeals for the Fifth Circuit. Then we had a change in administrations. Once President Trump got in, his Administration requested a 60-day extension of time on the briefing schedule while the Trump DOL evaluated whether it wanted to even continue pursuing the appeal. The Fifth Circuit granted the extension yesterday, so the Trump Administration now has until May 1 (and, I’m sure it’s hoping, the installation of Alex Acosta as Secretary of Labor) to — in all likelihood — drop the appeal.

By: Robin Shea

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