While President's Day conjures memories of leaders past, employers today are facing a spate of executive orders by the present administration and a barrage of legal challenges to executive authority. Businesses in every sector are grappling with how to adapt their strategic plans and manage their workforce while the legal landscape remains in flux.

The travel entry ban imposed by Executive Order (EO) 13769 is the most talked (and tweeted) about action (see Legal Update, Presidential Executive Orders on Immigration). This ban impacts not only employers' abilities to hire and recruit overseas employees from seven countries, but their decisions about which employees are eligible for overseas travel for short-term assignments, training, and expatriate posts. In addition, this EO and others on immigration have led to increased enforcement activity and greater uncertainty for immigration matters generally, with secondhand reports about processing slowdowns for foreigners of all nationalities.

On the heels of criticism by many business leaders, the States of Washington and Minnesota challenged the ban in court. On February 3, 2017, a US district court judge in the Western District of Washington issued a decision granting the States' emergency motion for a temporary restraining order (TRO) halting enforcement nationwide of key aspects of this ban (Washington v. Trump, (W.D. Wash. Feb. 3, 2017); see Legal Update, Temporary Restraining Order Halts President's Travel Ban and Refugee Program Limits, Appeal Initiated by Administration). The Administration filed an emergency motion for a stay of the TRO pending the government's appeal with the US Court of Appeals for the Ninth Circuit.

On February 9, 2017, the Ninth Circuit denied the Administration's emergency stay request, leaving the district court's TRO against enforcing aspects of the EO in place (Washington v. Trump, (9th Cir. Feb. 9, 2017); see Legal Update, Temporary Restraining Order on Travel Ban Executive Order Upheld: Ninth Circuit). The Administration is weighing its legal options in response to the ruling.

Employers must remain vigilant about any future legal developments or possible new EOs overriding the challenged one. Furthermore, leaked draft EOs on other aspects of immigration, including legal immigration like work visas and green cards, suggest that more executive actions are possible. For continually updated developments on the immigration executive orders, see Practice Note, Trump Administration on Immigration: Immigration-Related Executive Order Tracker.

The travel ban lawsuit is only one of several pending legal challenges to EOs and administrative agency actions, including actions initiated under the prior administration. For example, the DOL's final rule implementing the Fair Pay and Safe Workplaces Executive Order (EO 13673), created under President Obama, was set to go into effect in October 2016 (see Legal Update, The FAR Council and the DOL Issue Final Rule and Guidance Implementing the Fair Pay and Safe Workplaces Executive Order). A builders association has filed suit challenging key portions of the rule, including the reporting provisions, and a federal district court has issued an order staying their implementation (see Legal Update, Nationwide Preliminary Injunction Blocks Enforcement of Key Portions of Fair Pay and Safe Workplaces Rules). Although it remains unclear whether the DOL under new leadership will continue to defend the lawsuit's challenge, the issue may be moot, as the US House of Representatives recently passed a joint resolution disapproving of the final rule (H.J. Res. 37).

The fate of the long-anticipated DOL final overtime rule also hangs in the balance. Last May, the DOL announced the final rule, which more than doubled the minimum salary threshold for the white-collar exemptions from the FLSA's overtime requirements (see Legal Update, DOL's Final Rule Doubles Minimum Salary Required for White Collar Exemptions Under the FLSA). Since then, employers have been scrambling to ensure employees are paid and classified in compliance with the final rule. In November, a federal district court issued a nationwide injunction halting implementation of the DOL's final rule (see Legal Update, DOL's Final Rule Increasing Minimum Salary for FLSA Exemption Enjoined Nationwide: E.D. Texas).

The DOL appealed the court's ruling during the last administration. As with the other challenges, it remains unclear whether the DOL under the current administration will continue to argue against the stay, or reverse course and modify or repeal the final rule. For the latest developments on the DOL's rule, see Practice Note, Latest Developments: DOL's Final Rule Increasing Minimum Salary for EAP Exemptions Under FLSA.

The DOL's "persuader rule" announced during the last administration is similarly under attack. This rule expands the reporting requirements about advice designed to persuade employees about union organization or collective bargaining, whether through direct or indirect means (see Legal Update, Persuader Regulations Finalized, Increase Employers' and Attorneys' Reporting Obligations). Like the DOL's final overtime rule, the persuader rule is also subject to a nationwide permanent injunction issued in November 2016 preventing the DOL from implementing the rule (see Legal Update, Texas District Court Issues Nationwide Injunction Blocking DOL's Persuader Rule). It is similarly unclear whether the DOL will continue to defend this legal challenge.

Other recent EOs and presidential memoranda have challenged, directed review of, or delayed enforcement of existing legislation and rules, such as:

With many cabinet members yet to be confirmed, and a currently divided Supreme Court awaiting confirmation and appointment of its ninth justice, employers and their counsel must keep abreast of the latest developments and understand the impact on their businesses. Practical Law will continue to report on these and other legal developments that change how employers manage their businesses and workforce.