Employment Laws and a Trump Administration
The election of Republican Donald Trump as the 45th President of the United States was historic in many ways. So what do the election results mean for labor and employment laws, especially with Republicans in control of the White House and Congress? While it's anyone's guess as to which of Obama's executive actions Trump will carry forward, employers will likely see some changes in the form of less aggressive regulatory agencies, a National Labor Relations Board that is more employer-friendly, and some relatively conservative appointments to the federal courts, including the U.S. Supreme Court. These and other possible moves related to labor policy and employment issues indicated by Trump's campaign are highlighted below.
National Labor Relations Board
On his first few days in office, President-elect Trump will need to fill two vacancies on the National Labor Relations Board (NLRB). Given his business background, Trump will undoubtedly fill these spots with two “business friendly” Republicans, thus switching majority control of the agency early in his Administration. With these moves, the NLRB's historic reversals in long-established labor law precedent in areas such as joint-employment, independent contractors, waivers of class and collective actions in arbitration agreements, “ambush” union elections and micro bargaining units may themselves be reversed over time.Administration Appointments for Labor Positions
A change at the top means thousands of appointments to the President's Administration, including key policy positions throughout the federal labor agencies. Most notably, the Secretary of Labor, Solicitor of the U.S. Department of Labor, Assistant Secretary of Labor for Occupational Safety and Health, and Administrator of the Wage and Hour Division. Appointees to these spots will be expected to roll back or recall many of the controversial labor and employment regulations, such as the recently issued Part 541 overtime regulation and the Labor-Management Reporting and Disclosure Act's revised “persuader activity” regulations. It's also fair to assume that Trump will be inclined to repeal a host of executive orders supporting unions at the expense of federal contracts, including the so-called ‘blacklisting' order and other provisions that impose contractual obligations on successor employers doing business with the federal government.
Also as a result of the election, the Chairman of the Senate Health, Education, Labor and Pensions Committee will likely remain with Sen. Alexander (R-TN) rather than Sen. Bernie Sanders (I-VT). The House Education and the Workforce Committee will be chaired by Rep. Virginia Fox (R- NC) with Rep. Bobby Scott (D- VA) likely to remain as Ranking Democrat.
The Department of Labor's (DOL) posture toward employers and enforcement focus is likely to change. Under the Obama administration, the DOL was much more aggressive in pursuing enforcement action against employers and in using administrative action to impose new restrictions. Over the last eight years, the DOL hired more investigators and field staff, and increased audits on employers. It seems likely that the Trump administration will rein in the DOL, but it's unknown exactly how that will occur—whether it's in the form of budget cuts or more liberal “administrative interpretations” of laws.
The focus of the EEOC's strategic plans will now be called into question. In recent years, the EEOC has taken aggressive litigation approaches on sexual orientation and gender identity issues. While Trump signaled support for LGBT rights at the Republican Convention in August, only time will tell what that means in terms of regulatory enforcement actions against employers. Further, pay equity may not be at the top of Trump's agenda but it will remain a key issue in terms of legislation and litigation due to the Obama administration's raising pay equality as a critical workplace issue. Trump did indicate during the campaign that he supports the concept of equal pay for equal work.
Trump has not revealed details on how he plans to address issues of interest to the unionized workforce beyond backing out of international trade treaties, such as the Trans-Pacific Partnership, and enticing businesses to return jobs to the United States via the use of tax incentives. Despite his blue collar support base, President-elect Trump is unlikely to support significant pro-labor legislation or regulation that may be viewed as impeding or hindering businesses. For example, expect no support from the Trump administration for the Employee Free Choice Act, which would expand opportunities for unions to enter previously union-free workplaces and place additional obligations on employers bargaining with already-established unions.
FLSA Overtime Rules
An eventual repeal of the new FLSA overtime rules became more likely with Trump winning the White House. While it would take time for President Trump's labor department to go through the process of issuing new regulations to replace those set to take effect December 1, it is highly likely that Congress will address the issue through legislation now that the likelihood of a veto by a Democratic president has been removed. The real question is whether such legislation would simply roll back to the old minimum salary level or phase in a more gradual increase over the next few years.
Trump has said that he favors a small-business exemption to the Fair Labor Standards Act overtime rule. One of his economic advisers was very critical of the rule but stopped short of saying that Mr. Trump would try to rescind it. To rescind the rule, a Trump Administration would be required to begin the lengthy notice-and-comment administrative rule making process again.
So what happens between now and January? The Obama administration could stay the course and move forward with the rules as if nothing has changed. Employers would have to move forward with reclassifying employees and changing compensation structures by December 1. A second possibility is that the Obama administration might delay any DOL enforcement actions under the new rules in anticipation of legislation under the new administration. Congress could also strike a deal with the Obama administration to enact legislation preserving some increase in the minimum salary but phasing it in over time. If done quickly this might save employers from having to make changes now and reverse course later.
Not lost on the campaign trail or in voter's minds was the notion that President-elect Trump will select the candidate for the current vacancy on the Supreme Court of the United States (SCOTUS). There is also seats on the 12 federal circuit courts, only four of which remain under the control of judges appointed by Republican presidents. With Trump releasing a list of potential SCOTUS nominees early in his campaign, it's safe to say a more conservative leaning bench is in order.
These nominations become monumental considering the innumerable workplace law issues that could come before the Court over the next four years. Arbitration provisions, class action litigation (including class waivers), union agency shop fees, the reach of Title VII, immigration programs, wage and hour law, and administrative agency powers are just some of the issues likely to confront the SCOTUS in the near future.
California Employment Laws
The laws that provide the foundation for labor and employment policy at the national level remain in tact. The ADA, FMLA, and Title VII all share widespread support and are unlikely to change. However, the lawyers at Kingsley & Kingsley will continue to monitor legislation that could impact California's employment laws. If you have any questions about California employment legislation or California's existing employment laws, don't hesitate to call us toll free at (888) 500-8469 or contact us via email.