Portside aims to provide varied material of interest to people on the left that will help them to interpret the world, and to change it.
April 29, 2017, marked the 100th day of Donald Trump’s presidency. During his first 100 days in office, President Trump has talked often about improving the lives of people who “work hard and play by the rules.” But looking beyond the president’s rhetoric and examining his actions during this time reveals a different set of priorities. During his first 100 days, President Trump has rolled back worker protections and outlined a fiscal year 2018 budget that would dramatically cut funding for the agencies that safeguard workers’ rights, wages, and safety. He has also advanced nominees to key posts—even to the Supreme Court—who are hostile to policies that boost wages, enhance workers’ bargaining power, and protect worker safety. This report evaluates President Trump’s actions during his first 100 days and analyzes their impact on this nation’s workers and our economy.
In his first few days as president, Trump issued a series of executive orders and memoranda directing agencies to limit and repeal regulations. As a result of these directives, agencies have delayed implementation of numerous regulations that would have provided benefits to workers, and many of these regulations are likely to be rescinded. In addition, Trump has signed a dozen Congressional Review Act (CRA) resolutions blocking specific rules—a third of which provided workers with much-needed protections.1
On February 3, 2017, Trump issued a memorandum directing the Department of Labor (DOL) to review the Fiduciary Duty Rule.2 As a result of this memorandum, DOL delayed implementation of the rule from April 10, 2017, to June 9, 2017.3 The fiduciary rule simply requires financial advisers to provide what most clients likely believe they are already receiving—advice about their retirement plans free from conflicts of interest.4 “Conflicted” advice leads to lower investment returns, causing real losses—an estimated $17 billion a year5—for the clients who are victimized. The rule would prohibit common practices such as steering clients toward investments that pay the adviser a commission but provide the client a lower rate of return. The rule simply requires that investment advisers act in their clients’ best interests.
The delay is a thinly veiled attempt by the Trump administration to weaken or rescind the rule, siding with Wall Street over typical American families. But the delay alone will be enormously expensive to retirement savers—and not just during the period of the delay. As DOL itself notes, the losses that retirement savers experience from being steered toward higher-cost investment products during the delay “would not be recovered, and would continue to compound, as the accumulated losses would have reduced the asset base that is available later for reinvestment or spending.”6 Every seven days the rule’s implementation is delayed will cost retirement savers $431 million over the next 30 years. All told, the proposed 60-day delay will cost workers saving for retirement $3.7 billion over the next 30 years.7
On March 1, 2017, the Trump DOL announced a proposed delay in the effective date of a rule limiting workers’ exposure to beryllium in the workplace.8 On March 21, 2017, the day the rule was previously scheduled to take effect, DOL announced that it would delay the effective date to May 20, 2017.9 OSHA had issued the rule to prevent chronic beryllium disease (a lung disease) and lung cancer in workers by reducing permissible exposure to beryllium and beryllium compounds.10
The Trump administration’s delay in implementation of this rule will lead to more workers being exposed to unsafe levels of beryllium compounds. The rule protected workers in several industries including construction and shipyards. Approximately 62,000 workers are exposed to beryllium in their workplaces.11
On March 24, 2017, the Trump DOL proposed a delay in the effective date of a rule designed to improve miners’ safety and health—the “Rule for Examination of Working Places in Metal and Nonmetal Mines.”12 The delay would postpone the effective date from May 23, 2017, to July 24, 2017. The rule required certain mine operators to conduct workplace inspections to identify hazards before work begins in an area, notify miners of hazardous conditions that are not corrected, and record the work sites examined, the adverse conditions found, and the date of each corrective action taken.13
The Trump administration’s delay of this rule means that miners will continue to work in less safe conditions. Critical workplace examinations will be delayed, exposing miners to potentially hazardous working conditions. From January 2010 through mid-December 2015, 122 miners were killed in 110 accidents at metal and nonmetal mines.14 President Trump’s administration has delayed these critical safety requirements while he continues to talk about bringing back lost jobs in the coal mining industry. Despite Trump’s talk, his actions demonstrate that he is not concerned with ensuring that mining jobs are safe jobs.
On March 27, 2017, Trump signed a resolution blocking the Fair Pay and Safe Workplaces rule.15 The rule required companies applying for federal contracts to disclose violations of federal labor laws and executive orders addressing wage and hour, safety and health, collective bargaining, family medical leave, and civil rights protections.16 Currently, there is no effective system for distinguishing between law-abiding contractors and those that violate labor and employment laws. As a result, billions of taxpayers’ dollars have been awarded to companies that violate minimum wage and overtime laws and safety and health regulations.17 A recent report issued by Senator Elizabeth Warren’s office found that failure to comply with health and safety regulations has led to a wide range of physical harm to workers employed by federal contractors—including the deaths of dozens of workers.18
By blocking this rule, President Trump has ensured that federal contractors with records of violating basic labor and employment laws will continue to be rewarded with taxpayer dollars. He has also made a powerful statement to workers—his administration will not prioritize doing business with contractors who offer good jobs with fair pay and safe working conditions. He has simultaneously signaled to corporations that they can continue to cut corners to boost profits at the expense of workers.
On March 31, 2017, Trump signed a resolution blocking a rule clarifying when jobless workers applying for unemployment insurance (UI) benefits may be subjected to drug testing.19 Congress reached a bipartisan deal in 2012 that provided for an extension of some UI benefits, a payroll tax cut, and certain Medicare provisions. As part of the compromise, states were permitted to drug test UI applicants if they met certain criteria—either they had been discharged from their previous job for drug use or their only suitable work opportunity is in a field that regularly drug tests workers. The secretary of labor was directed to determine which occupations regularly conduct drug testing. DOL issued a rule defining these occupations in 2016. The rule states that such occupations are only those that are required, or may be required in the future, by state or federal law, to be drug tested.20
By blocking this rule, Trump makes it harder for jobless workers to access UI benefits. Workers earn the right to unemployment insurance benefits through prior participation in the workforce. Workers only access their earned benefits when they have lost their jobs. Blocking this rule further hurts jobless workers at the moment they most need to access the UI benefits they have earned. Enabling states to conduct arguably unconstitutional drug testing of UI applicants only benefits employers seeking to reduce their financial responsibility for unemployment insurance benefits.
On April 3, 2017, Trump signed a resolution blocking a DOL rule (the Workplace Injury and Illness recordkeeping rule) clarifying an employer’s obligation under the Occupational Safety and Health Act to maintain accurate records of workplace injuries and illnesses.21 The Occupational Safety and Health Administration (OSHA) has traditionally required many employers to make records of workplace injuries and illnesses and to maintain those records for five years. This information is critical in targeting injury prevention efforts and assessing their effectiveness. OSHA uses these statistics to develop appropriate safety and health standards and to target enforcement at the most dangerous workplaces. The Bureau of Labor Statistics uses this information to determine trends in workplace safety and health. Requiring that employers maintain accurate records for five years ensures that the agency, workers, and employers can evaluate over time whether improvements are working. Unfortunately, some employers cheat these reporting requirements in an effort to avoid increased workers’ compensation costs and more OSHA inspections. The history of OSHA includes many examples of serious failures on the part of employers to maintain accurate records. Throughout many administrations—Democratic and Republican alike—OSHA has issued substantial penalties after identifying patterns of inaccurate recordkeeping.22
In 2012, a court decision overturned OSHA’s longstanding recordkeeping practice, making enforcement of recordkeeping violations nearly impossible.23 In the ruling, one of the judges noted that it was the language in OSHA’s own recordkeeping rules that was problematic. As a result, the agency amended the language to clarify an employer’s obligation to maintain accurate records of worker injuries and illness for a five-year period.24
By blocking the rule, Trump has made it impossible for OSHA to require employers to keep accurate records that could be used to identify unsafe, potentially life-threatening working conditions. As a result, workers will be required to work in less safe workplaces. Additionally, Trump’s actions hurt the many responsible employers who recognize that protecting the safety and health of their employees is a core value and who already maintain accurate injury records. These employers are now at a disadvantage, having to compete with employers who save money by cutting corners on worker safety.
On April 6, 2017, the Trump DOL delayed enforcement of a rule that limited permissible exposure of workers to respirable crystalline silica in the construction industry.25 OSHA had issued the rule to reduce the incidence of lung disease—including lung cancer, silicosis, and chronic obstructive pulmonary disease—among America’s workers by reducing their exposure to respirable crystalline silica.26
The Trump administration’s delay of this rule hurts the roughly 2 million construction workers who are exposed to silica dust in their workplaces, including those workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone. The rule had a built-in one-year grace period to give employers time to adjust their practices. Many employers already provide their workers with safety equipment to control the workers’ exposure to harmful silica dust, but for those workers who aren’t lucky enough to work for one of these responsible employers, delay of this rule needlessly puts their lives at risk.
On April 13, 2017, Trump signed a resolution blocking a DOL rule that assisted local governments that create Individual Retirement Account (IRA) programs for private-sector workers. Many municipalities have sought to establish initiatives requiring employers that do not offer a workplace retirement plan to automatically enroll workers in payroll-deduction IRAs administered by the local government. The DOL rule paved the way for these initiatives by simply clarifying that these plans are not covered by the Employee Retirement Income Security Act (ERISA), the federal law governing private-sector employer-sponsored plans, addressing localities’ concerns that they may be subject to certain liabilities under ERISA.27
By blocking this rule, Trump blocks a path for retirement savings for the roughly 55 million private-sector wage and salary workers age 18–64 who do not have access to a retirement savings plan through their employers.28 Local payroll-deduction savings initiatives encourage workers to contribute to tax-favored IRAs through automatic deduction. These savings initiatives provide important assistance to workers in saving for retirement as few workers contribute to a retirement plan outside of work. Without innovations like these, fewer workers will be able to afford retirement.
Nominations to key administrative and judicial posts are another important indicator of a new president’s priorities. The selection of a labor secretary, in particular, is an opportunity for the president to demonstrate a commitment to advancing policies that are good for workers. Instead, President Trump signaled his hostility toward workers’ rights through his first choice for labor secretary. His nominee to the Supreme Court—now successfully confirmed—also poses a serious threat to workers’ rights.
On January 20, 2017—his very first day in office—Trump failed U.S. workers with his nomination of Andrew Puzder.29 Puzder, then-CEO of CKE Restaurants (the parent company of Carl’s Jr. and Hardee’s), has opposed raising the minimum wage and the overtime threshold, criticized paid sick time proposals and health and safety regulations, and headed a company with a record of violating laws and regulations that protect workers’ wages, safety, and rights.30 While his nomination was ultimately withdrawn,31 Trump’s original selection made a powerful statement—the president was prepared to support a labor nominee who is hostile to policies that would benefit our nation’s workers. Instead of nominating someone who respects and follows the law and who would be committed to enforcing our labor and employment laws, Trump sent a clear message with his first nomination: the Trump administration does not value America’s workers.
On February 16, 2017, Trump nominated Alexander Acosta to serve as secretary of labor.32 At his confirmation hearing before the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), Acosta failed to answer many of the questions regarding how he would run the DOL. Specifically, he refused to answer whether he would enforce the OSHA rule limiting workers’ exposure to silica (which the Trump administration has delayed, as discussed above), saying that President Trump’s directive to agency heads requiring them to examine existing regulations prevented him from committing to enforcing the rule.33 Acosta also refused to answer whether he would defend DOL’s overtime rule, which increases the outdated salary threshold below which most salaried workers are automatically eligible for overtime pay.34 The overtime rule is currently in litigation, which means that the next secretary of labor will be in a position to decide whether to defend this rule that would benefit 12.5 million workers.35 More troubling than Acosta’s evasion of the question was Acosta’s admission that he questions whether DOL even has the authority to set the salary threshold for overtime eligibility. DOL has exercised this authority since 1938. Congress has never objected to the salary threshold test. The law is unambiguous; DOL has the authority to set the threshold. Acosta’s suggestion that DOL may not have this well-established authority indicates an openness to undermining foundational labor standards that protect workers’ time and earnings. This is deeply concerning from the nominee to head the agency responsible for ensuring these standards.
On April 7, 2017, the Senate confirmed Trump’s choice, Neil Gorsuch, to fill the vacant seat on the Supreme Court.36 This confirmation will significantly affect this nation’s workers. Over the next few terms, the Supreme Court is likely to decide several cases that will dramatically impact workers’ rights, and will issue decisions that could undermine the foundational legal principles workers rely on to have a voice in their workplaces. Significant cases involving collective bargaining, forced arbitration, and employment discrimination are all either already on the docket for the next term or likely to be on the docket in the coming years. And Gorsuch has a record of ruling in favor of employers in workers’ rights cases.37
To highlight one example: Gorsuch was questioned extensively at his confirmation hearing about his dissent in the TransAm Trucking, Inc. v. Administrative Review Board case.38 The majority of a three-judge Tenth Circuit panel upheld an Administrative Review Board ruling in favor of a truck driver who refused to follow his supervisor’s orders to either drag his trailer—which had frozen brakes—or remain with the stranded trailer (in subzero temperatures with no heat) until a repairperson arrived. Because he was experiencing symptoms of hypothermia, the driver unhitched the trailer from the truck and drove to a gas station. He was fired for violating company policy by abandoning his trailer while under dispatch. However, under the Surface Transportation Assistance Act, a truck driver may not be fired for refusing to operate a vehicle when he reasonably fears for his or others’ safety. An administrative law judge, the Administrative Review Board, and the Tenth Circuit majority held that the driver had been unlawfully fired. Only Gorsuch dissented.
Gorsuch’s dissent in this case suggests a hostility to fundamental worker protections. In his dissent, he describes health and safety goals as “ephemeral and generic” and views a worker having to wait in subzero temperatures with no access to heat while experiencing symptoms of hypothermia as merely “unpleasant.” This language indicates that Judge Gorsuch does not understand workers’ lives or the laws that protect them. His dissent should raise serious concerns for working men and women about his treatment of protections in other labor and employment laws.
Day 55. On March 15, 2017, the Trump administration released its budget blueprint for fiscal year 2018;39 the blueprint proposes a 20 percent cut ($2.5 billion) to funding for DOL—the department tasked with enforcing the majority of this nation’s worker protection laws and administering our job training and workforce development programs. The budget outline fails to specify how that cut will be allocated across DOL’s worker protection agencies, but the magnitude of the cuts makes it clear that the Trump administration does not value DOL’s enforcement programs. Programs likely to suffer are the Wage and Hour Division (which enforces minimum wage protections and protects workers from wage theft), OSHA (which enforces worker safety protections including inspecting worksites for hazardous working conditions), and the Employee Benefits and Security Administration (which safeguards workers’ retirement savings).
In addition to those actions that have clear and direct negative effects on workers’ wages, health, and safety, Trump’s trade, immigration, and health care actions will also affect workers. It is difficult to measure the impact of President Trump’s actions in these areas. His memoranda and executive orders consist largely of directives to examine issues or develop enforcement strategies. While some of Trump’s actions signal a willingness to pursue potential reforms, others are deeply concerning and threaten U.S. jobs and workers’ access to health care. Below are snapshots of President Trump’s actions in these areas and the potential impacts on workers and our economy.
Despite promising to fundamentally reform trade policy, President Trump has taken three relatively modest actions on trade that offer few clear benefits to U.S. workers.
On January 23, 2017, Trump issued a Presidential Memorandum Regarding Withdrawal from the Trans-Pacific Partnership (TPP).40 The memorandum immediately withdrew the United States as a signatory to TPP and directed that the U.S. permanently withdraw from TPP negotiations. The memorandum also instructed the United States trade representative to pursue bilateral trade agreements rather than multilateral agreements like TPP.
It is critical to a fair economy that trade agreements include meaningful and enforceable worker protections. The TPP failed this test, so President Trump’s withdrawal was wise. It is important to note, however, that the U.S. never ratified the TPP and has never been bound by its provisions, so nothing has changed for workers under President Trump’s withdrawal directive; he has simply preserved the status quo.
President Trump’s instruction to pursue bilateral trade agreements would likely negatively impact U.S. workers. As bilateral trade agreements are more likely to be ratified than multilateral ones, we are likely to see more trade agreements ratified as a result of the president’s directive. But because the memorandum does nothing to reform the flawed template of American trade agreements, these new trade agreements will likely further undercut workers’ bargaining power and put downward pressure on wages.41
On March 31, 2017, President Trump signed two executive orders focused on evaluating trade policy.42 Any reexamination of U.S. trade policies and their effects on workers is welcome and long overdue. But the impact of these executive orders on U.S. workers remains unclear. The first order directs the secretary of commerce and the White House National Trade Council to identify practices that contribute to the U.S. trade deficit with different countries. The second order calls for stepping up collection of anti-dumping and countervailing duties, focusing on small fines for past unfair trade practices.
The first executive order does little beyond delay much-needed reform. The causes of trade imbalances are well known. Chief among these is the inflated value of the U.S. dollar.43 If the president were truly interested in adopting trade policies that would benefit U.S. workers and our economy, he would address currency valuation now instead of requesting additional evaluation of the issue.
The second executive order is similarly off the mark about protecting American workers. While enforcement of fair trade practices is critical to safeguarding U.S. workers and our economy, a focus on past unfair trade practices does nothing to ensure that trade policies are complied with in the future. And while recovering fines for past unfair trade practices will have some economic benefit, that benefit will be small compared with the U.S. goods trade deficit. Consider that the estimated total uncollected fines between 2001 and 2016 of $2.8 billion are the equivalent of a 0.1 percent tariff.44 It is unlikely that focusing on past unfair trade practices and uncollected fines will have any meaningful benefit for our nation’s workers and our economy moving forward.
On April 18, 2017, President Trump signed an executive order calling for a review of government procurement commitments in the World Trade Organization and other trade deals.45 It is important to evaluate American trade policy rules to ensure that they maximize benefits for American workers; however, this executive order fails to outline any remedy for discovered imbalances with foreign countries in government procurement opportunities.
The executive order also instructs agencies to look into new rules that could be proposed or existing rules that could be updated to improve the immigration system and root out fraud and abuse. One section of the executive order focuses on the H-1B program, directing agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”46 This is the first clear signal that Trump may propose a regulation to end the process of issuing H-1B visas via random lottery. The nation’s immigration system is in need of reform. However, this executive order offers no concrete reforms.
Day 75. On April 4, 2017, the Trump DOL announced a recommitment to using its existing enforcement authority on the H-1B visa program—a guestworker program for workers in professional occupations.47 American employers have for too long used temporary guestworker visa programs to carve out an ever-larger zone in labor markets where workers are powerless to assert their rights. DOL announced it will initiate investigations of employers, engage stakeholders on the program, look into abuses of the program by H-1B-dependent employers (those with large shares of their workforces composed of H-1B workers), and also consider changes to the Labor Condition Application to improve transparency in the H-1B process.
Immigration policy should aim to provide fair pay and benefits to American workers and immigrants, not simply to provide employers with cheap labor from workers who are virtually indentured to them. DOL’s announcement did not provide specific information about its plan or about how DOL will conduct this enforcement given the massive cuts to the Labor Department included in President Trump’s proposed fiscal year 2018 budget. So while it is encouraging that the Trump DOL has signaled that it will examine the H-1B program, it remains to be seen whether this announcement will lead to enhanced enforcement that would benefit U.S. workers. Furthermore, the Trump administration’s criminalizing and scapegoating of immigrants has created a political climate in which meaningful immigration reforms are much more difficult to achieve.
President Trump actively supported Speaker Paul Ryan’s health care repeal bill, the American Health Care Act (AHCA), personally contacting members of Congress and encouraging them to vote in favor of the legislation. The AHCA failed to win sufficient support to advance, but had it passed it would have stripped health care coverage from millions.
The Congressional Budget Office (CBO) estimated that under the AHCA, 24 million people would have lost their health insurance coverage.48 Most of these coverage losses would have resulted from a staggering $880 billion cut to Medicaid, but 7 million people would have lost the coverage they had through employer-sponsored plans.49 For those who kept their insurance in the marketplace exchanges set up by the Affordable Care Act (ACA), the AHCA would have boosted their deductibles, co-pays and other nonpremium out-of-pocket costs by $25 billion annually by 2026. When the higher deductibles and co-pays for those losing employer-sponsored insurance and Medicaid are factored in, Americans would have paid $33 billion annually in higher deductibles and co-pays by 2026 under the AHCA.50
Replacement of the Affordable Care Act (ACA) with the AHCA would have had a significant impact on our nation’s overall economy. Large spending cuts to Medicaid and to the subsidies provided for those buying health insurance on the ACA exchanges combined with the AHCA’s tax cuts benefitting the top 1 percent of households would have slowed economic growth, including growth in jobs. Nationally, the job losses would have reached 460,000 by 2020 and 1.8 million by 2022.51
President Trump continues to advance a repeal of the ACA. To date, he has not provided details on his replacement plan. If his support for the AHCA was any indication of his approach to health care policy, millions of workers stand to lose critical health care coverage if he is able to advance “TrumpCare.”
In his first 100 days in office, President Trump has continued to talk about creating “jobs where Americans prosper and grow.” However, his actions during that time tell a different story. He has already instituted policies that make workers less safe in the workplace and threaten their ability to access earned benefits like unemployment insurance. Trump has used his time in office to support legislation that would have stripped health care coverage from millions of Americans—many of them workers. His first choice for labor secretary was CEO of a company with an established record of violating basic labor and employment laws. Trump’s second nominee to that post failed to answer important questions at his confirmation hearing and expressed an openness to undermining long-established labor standards that protect workers’ time and earnings.
This nation’s workers deserve more than talk. They continue to struggle with rising economic inequality and slow wage growth. President Trump has done nothing in his first 100 days to address these issues. In fact, his agenda of deregulation of worker protections clearly undercuts workers and a fair economy. If Trump were serious about improving the lives of working men and women, he would advance policies that boost workers’ wages and quality of life instead of using rhetoric to divide working people. Trump would assemble advisers with experience advocating for workers instead of selecting Wall Street financiers and corporate owners who for decades have used government policy to shift economic leverage and bargaining power away from low- and middle-wage workers, eviscerating labor laws and devaluing the minimum wage. He would advance judicial nominees who would serve as neutral arbiters of the law instead of selecting a Supreme Court justice with a record of hostility to worker safety. If Trump wanted to help working men and women “prosper and grow,” he would have acted very differently during his first 100 days.
Please see original source for End Notes.