The First 100 Days from an HR Policy Perspective

5/5/17

Last weekend, there were numerous takes on the first 100 days of the Trump administration—a benchmark often used since the Roosevelt administration, as if the other 1361 days are not more likely to determine the legacy of a President’s first term.  However fragmentary the exercise may be, here is my take on what those 100 days have produced in the Association’s major areas of focus:

Health Care – Of all our priorities, this is the one that generated the greatest blend of hopes, fears and anxieties.  Early on, even before the inauguration, one could have reasonably assumed that, by the beginning of May, the "repeal and replace" process would be in full bore, with the tax and budgetary features (requiring only a Senate majority) already on their way to a Presidential signature, if not signed already.  After one failed attempt, the House finally passed a measure this week and a detailed explanation of what is in the bill is provided in our May 5 edition of This Week in HR Policy.  Notably, the bill would have little if any impact on the self-insured plans of large employers.  The good news is the tax-preferred status of employer-provided health care and ERISA preemption, both of which our American Health Policy Institute has written extensively about and the Association has fought hard to retain, remain intact.   Even with passage by the House, key Senators are already indicating that the House-passed measure will not have the votes in the Senate, so they will be attempting to forge their own measure that would then have to be sold back to the House.   Thus, there is a looming possibility that no Affordable Care Act legislation will be enacted in the current Congress, despite flaws in the ACA that even its strongest proponents cannot ignore.  The question for large employers is what happens if the exchanges and the individual market generally continue to deteriorate, leading to a de facto diminution of affordable coverage for those who do not get health care through their employer.  This could result in a crisis that eventually could lead to more dramatic (and costly) solutions that will have to be paid for by someone.  Do employers seriously believe it will not be them?

Workplace Regulation – This was supposed to be one area where we would see a quick reversal of many of the Obama era excesses, yet the first 100 days have brought very few changes other than repeal of the so-called Blacklisting Executive Order and a via the Congressional Review Act procedures.  The reality is that these efforts will take time, particularly at the National Labor Relations Board, where the Board members have to wait for cases to come before them to reverse the rulings of the previous Board.  (Still, it would be nice to have those Board slots filled, but we continue to wait for the President to nominate them.)  Meanwhile, the failure of the Puzder nomination delayed any action by the Department of Labor, where numerous leadership positions will still have to be filled now that Alex Acosta has just been confirmed.  (And, while we are on the subject, 84% of 556 key positions throughout the government requiring Senate confirmation have yet to even be nominated, raising a question as to whether this administration will ever be fully staffed.)  The message here is to be patient.  Many if not most of the Obama actions will likely be reversed or modified over the next four years but these reversals will not happen overnight.  And some, like the paid sick leave executive order and the OFCCP disability rules, may be here to stay.  Still, with the issuance of our Workplace 2020 report, our hope is that the administration will look beyond the repeal of the Obama rules to creating a new workplace regulation regime that meets the needs of the workplace of the future.

Pay Ratio/Dodd-Frank – Other than a largely symbolic executive order and nominations, there is very little the President himself could have done here in the first 100 days.  Dodd-Frank is statutory law, whose executive compensation and other governance provisions are enforced by the Securities and Exchange Commission, an independent agency that does not take orders from the White House.  President Trump has taken an initial step toward establishing a Republican majority, nominating Jay Clayton, who was confirmed this week, giving Republicans a two-to-one majority on the five-member Commission.  However, due to Commission procedural rules, until there are three Republicans on the Commission, it is unlikely that any significant initiatives will take place.  Hopefully, now that Mr. Clayton has taken office, the President will nominate the remaining Commissioners.  This will enable the Commission to revisit the pay ratio regulations – which currently require disclosures starting in 2018—as our Center On Executive Compensation has recommended.  Meanwhile, Financial Choice 2.0, which among other things would repeal pay ratio, is moving in the House with possible floor action this summer or before.

Immigration – From an HR perspective, this has probably been the most impactful—and harmful—of Administration actions in the first 100 days.  The sudden issuance in late January of an executive order banning travel from certain Muslim-dominated countries created a logistical nightmare for many of our member companies whose employees travel abroad with frequency, while sending a very negative message to the overseas employees of global companies based in the United States.  Part of this was simply a result of the hasty issuance of the order itself, much of which was corrected in its later reissuance.   Nevertheless, the tone—which originated in the presidential campaign—has been set, and calls for the building of a wall and a crackdown on H-1B and other work-related visas continue, which many perceive as contributing to a deplorably hostile atmosphere for foreign-born workers (and even many who were born here).  From a policy perspective, the hope is that any changes in the rules regarding visas will focus primarily on abuses by companies simply seeking to replace American workers with lower-paid foreigners.  We will press to ensure that any reforms retain the vast majority of visas, which are relied on by our member companies to address legitimate shortages of skilled workers.

One hundred days in, the political atmosphere remains dicey as the new administration continues to work out its relationship with Congress and the various constituencies.   For our part, we look forward to working with the various appointees—most of whom are very good from our perspective so far—as the key positions become populated.  Despite any possible semblance of a return to normalcy, there is no question that this will indeed be an administration unlike any we have ever dealt with.  One hundred days was just an appetizer.   The main course remains with the other 1361.