President Trump promised to scale back regulations in almost every industry, and labor laws are no exception. His administration has instituted three changes that employees should be aware of. The changes are not necessarily to the laws themselves, but targeted more toward how the Department of Labor will enforce current regulations under the Trump Administration.
- The Payroll Audit Independent Determination (PAID) program. This new program allows employers to self-audit their payrolls and fix any errors themselves if they violate the Fair Labor Standards Act. The employer can take the audit to the Department of Labor (DOL) for review and questions. The employer cannot be under investigation by the DOL if they want to take part in this program. In addition, employees can still decide whether to accept the amount offered when the employer admits to a mistake. The employer cannot force them to sign a release. In addition, employees may still have a case under state laws, which are fairly robust in California.
- Temporary work visas. Early in his administration, President Trump signed an executive order he called “Buy American, Hire American,” which initiated some reforms to the H-1B visa program for temporary workers in highly skilled fields. The H-1B visa program has faced criticism for quite some time due to employer abuse of the program to hire large numbers of lower skilled workers. The administration claims it will better enforce the rules for H-1B visas and proposes to change the lottery system for the visas to benefit higher skilled workers, though some immigration experts are skeptical that the changes will actually help employees. The important thing to note is that employers are not allowed to threaten workers regarding their immigration status.
- Opinion letters from the DOL. The DOL used to issue opinion letters regarding specific situations when requested by an employer or worker. That practice stopped in 2010 in favor of broader guidance. The DOL has started issuing the opinion letters again, but they are of limited use. Employers may use them as a defense if they can show they relied on an opinion letter before taking a certain action, but the topics are very specific.
Note that these changes are all administrative and do not change legislation in these areas. They are changes to how and when the laws are enforced, which can make a significant difference to the success or failure of claims. As stated above, California state law also provides worker protections. These changes should not deter workers from bringing their wage and hour claims against employers in California.