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The day after President-elect Donald Trump won the election, Rep. Virginia Foxx had her list ready of Obama administration labor policies she would like to see repealed – including expanding overtime pay to 4.2 million Americans.

The North Carolina congresswoman, who is widely expected to be the next chair of the House Education and the Workforce committee, said her top priority is overturning eight labor policies from the Obama administration and the National Labor Relations Board.

Foxx said she has spoken with the House Republican leadership and her Senate counterpart, Health, Education, Labor and Pensions Committee Chairman Lamar Alexander, R-Tenn., on how to move forward.

“All of these rules impact every single district in the United States, so every member has an interest in these rules,” she said in an interview with CQ Roll Call.

Foxx said she and Alexander are committed to ensuring the congressional intent behind their legislation is clear enough to withstand challenges in court and administrative rules whether from Trump or a future president.

“We’re going to have to write legislation to make sure that no administration can write the kinds of rules the Obama administration has done,” Foxx said.

Alexander added in a statement, "the new Congress and President-elect Trump will have an opportunity to roll back many of the Obama administration's biased labor rules that have benefited labor unions at the expense of workers and small businesses, and restore balance and fairness to the National Labor Relations Board.''

It is not clear how Republicans will overturn or block Obama administration labor policies, given the threats of a Senate Democrat filibuster, pending court cases and uncertainty about who Trump will chose as his labor secretary.

Procedurally, the easiest rule to overturn will be an executive order Trump could revoke on the first day requiring companies bidding on federal contracts to disclose past labor law violations. Known to supporters as the Fair Pay and Safe Workplaces and to opponents as the blacklist rule, the executive order was halted last month when a Texas federal judge issued a preliminary injunction.

Harder to change would be rules from the Labor Department. A new labor secretary under Trump could propose a new rule to counter the one from the Obama administration, but it would have to go through a comments period before being finalized, a process that can take years. But Congress could also pass legislation stopping the rules from being implemented through various means, including withholding funding.

Overtime Rule

There are Republican legislative efforts underway to block nearly all the rules on Foxx’s list, but none are as urgent for Republicans as a rule that would extend overtime pay to an estimated 4.2 million Americans starting Dec. 1. The provision would allow overtime eligibility to those making up to $47,476, double the previous amount of $23,660. 

While the House passed a bill (HR 6094) in September to halt the rule, none of the five Senate bills have gained needed bipartisan support. Even if they did, Foxx said she believes any legislation passed this Congress would only be met with a veto.

Yet all of that might not matter if a federal court in Texas makes a decision on the overtime rule, or decides to delay it after a Nov. 16 scheduled hearing.

Even if legislation does pass and the overtime pay rule is rolled back, it still will impact workers as employers have already done much of the leg work to comply with the regulations, said Michael Lotito, a lawyer for Littler Mendelson, a firm that is representing the U.S .Chamber of Commerce in their suit against the rule.

“If you increase someone’s pay to $47,000 to comply with the new standard, what are you going to do? Reduce their compensation?” he said. “Employers are at an enormous disadvantage with respect to this rule.”

NLRB Actions

If Senate Democrats exercise the filibuster, the most difficult policies for Republicans to overturn likely will be rulings from the five-member National Labor Relations Board which now leans Democratic.

Further, Trump would need to appoint new members to the board that were approved by the Senate. Then, a pertinent labor case would need to arise to override a previous ruling.

The so-called joint employer rule can hold business accountable if their subcontractor violates labor laws. The board’s general counsel, an Obama appointee whose term will last until next November, is currently in court with fast food company McDonald's Corp. and individuals franchisees for retaliating against employees who spoke out about the company’s practices.

The other rule is known by opponents as ambush elections, which consists of several smaller provisions that would change private sector union elections. The measures would modernize procedure, such as allowing petitions to be filed online, streamline the elections and require employers to provide union organizers with employees' phone numbers and emails.

Other GOP Targets

Other rules on Foxx’s list include:

• The so-called fiduciary rule to expand criteria for when brokers are required to act in the best interests of their clients. There is a provision blocking the rule in the House Labor-HHS-Education bill for fiscal 2017 (HR 5926).
• A so-called persuader rule to require increased reporting from employers when they hire an attorney or counsel to help with union activity from workers. Two bills to block the persuader rule were also introduced (H J Res 87, S J Res 35) but have not yet been voted on by either chamber.
• Reporting of injuries and illness by high-hazard companies to the Occupational Safety and Health Administration OSHA. Under the rule, companies would need to submit the information they already collect in online forms. The data will then be posted on the agency’s website.
• Reducing how much crystalline silica workers can come into contact with while working, and requiring employers to limit the dust through measures like water and ventilation and provide medical exams and training sessions. There are several pending court cases challenging the rule.

http://www.cq.com/doc/news-4986357?7