How Could Trump's Executive Orders Affect Your Business?

How Trump Executive Orders May Impact Your Business

President Donald Trump has signed a flurry of executive orders and presidential memoranda since taking office last month. Many of the policy changes contemplated by these orders and memoranda, if and to the extent implemented, will impact New York and New Jersey businesses.Below is a brief summary:

Affordable Care Act 

As President Trump seeks to dismantle (or reform) the Affordable Care Act (ACA), he has instructed the executive agencies tasked with its enforcement to exercise their discretion in order to ease its economic burdens to the maximum extent permitted by law. The ACA executive order specifically directs the agencies to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” Given that the heads of the various agencies that oversee the ACA have not yet been installed, the order does not have any immediate effect. It does, however, signal the Administration’s commitment to easing the ACA’s compliance burdens.

DOL Fiduciary Rule

President Trump issued a presidential memorandum directing the Department of Labor to reexamine the Fiduciary Duty Rule to “determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice.” This Rule expands the definition of “fiduciary” under ERISA to encompass most financial professionals who work with retirement plans or provide retirement planning advice and, as a condition to a new exemption from otherwise applicable restrictions on fiduciary fees and commissions, requires that fiduciaries must act in the best interests of their clients and disclose potential conflicts of interest and their fees and commissions.

As part of this examination, the DOL must prepare an updated economic and legal analysis that considers, among other issues, whether the Rule: “has harmed or is likely to harm investors due to a reduction of Americans’ access to certain retirement savings offerings, retirement product structures, retirement savings information, or related financial advice”; “resulted in dislocations or disruptions within the retirement services industry that may adversely affect investors or retirees”; and is likely to cause an increase in litigation, and an increase in the prices that investors and retirees must pay to gain access to retirement services”. If the DOL finds that the Fiduciary Rule is inconsistent with the Administration’s priorities, it must issue a proposed rule rescinding or revising the Rule.

Protections for LGBTQ Workers

The White House recently confirmed that President Trump will leave a 2014 executive order signed by Barak Obama in place. The order prohibits federal contractors from discriminating against gay, lesbian, bisexual and transgender employees. “President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community,” the White House said in a statement. “The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact.”

Dodd-Frank Rollback

President Trump issued an executive order outlining the “core principles” for regulating the country’s financial systems. They are to: empower Americans to make independent financial decisions and informed choices in the marketplace, save for retirement, and build individual wealth; prevent taxpayer-funded bailouts; foster economic growth and vibrant financial markets through more rigorous regulatory impact analysis that addresses systemic risk and market failures, such as moral hazard and information asymmetry; enable American companies to be competitive with foreign firms in domestic and foreign markets; advance American interests in international financial regulatory negotiations and meetings; restore public accountability within Federal financial regulatory agencies and rationalize the Federal financial regulatory framework.

The President also directed the Secretary of the Treasury to consult with the heads of the member agencies of the Financial Stability Oversight Council (FSOC) and to report to the President within 120 days of the date of the order (and periodically thereafter) on “the extent to which existing laws, treaties, regulations, guidance, reporting and recordkeeping requirements, and other Government policies promote the Core Principles and what actions have been taken, and are currently being taken, to promote and support the Core Principles”. The report must also identify any laws, treaties, regulations, guidance, reporting and recordkeeping requirements, and other Government policies that inhibit Federal regulation of the United States financial system in a manner consistent with the Core Principles. Given President Trump’s previous criticism, the executive order is likely the first step in amending the Dodd-Frank Act.

H-1B Visas

While President Trump has not yet taken any official action, the White House Press Secretary indicated that the Administration is considering significant changes to the H-1B visa program. Many companies rely on H-1B visas to hire highly-educated, skilled, and specialized workers from outside of the United States. Last year, approximately 236,000 workers applied for 85,000 available H-1B visas, according to the U.S. Citizenship and Immigration Services (USCIS). According to a White House memo obtained by several media outlets, the Trump Administration wants to evaluate the impact of the program on U.S. workers and determine how it can be improved to ensure that only the “best and the brightest” receive visas.

Do you have any questions about these executive orders and how they may affect your business? Would you like to discuss the matter further? If so, please contact me, Charles Friedrich, at 201-806-3364.