Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law.
President-elect Trump will appoint at least two and possibly three new members to the five-person National Labor Relations Board (NLRB). It is likely that the individuals President-elect Trump selects will be business-friendly. Although his appointees must be submitted to the Senate for confirmation, they likely will be approved by the Republican-controlled Senate. The newly-constituted NLRB will have the opportunity through its case law decisions to reverse or curtail some of the decisions issued by the Board in recent years. As one example, President-elect Trump’s reconstituted board can be expected to retract the scope of employee’s Section 7 rights to engage in protected concerted activity (very generally, the right to complain about and discuss terms and conditions of employment with co-workers).
The president will also have the opportunity in 2017 to appoint s replacement for the outgoing NLRB General Counsel (GC), the top lawyer for the NLRB. The GC position is an important one. With Guidance memos, the GC can influence the way that local offices of the NLRB enforce the law on the ground. As a significant example, in 2015, the NLRB’s GC issued a 30-page memorandum evaluating the legality of handbook policies that it asserted could be construed as dissuading employees from engaging in protected concerted activity. We reported on this memorandum here. A Trump appointed GC could reverse the very expansive view of concerted activity rights taken by the current GC. Also, a reconstituted NLRB could stymy the further expansion of concerted activity rights by the case decisions it writes.
Wage and hour law
Although there has been much clamor to raise the federal minimum wage, it is unlikely that any federal bill to raise the rate beyond the current $7.25-per-hour floor will pass during the Trump presidency. This means that the current trend toward state and local (county and city) minimum wages that are higher than the federal minimum wage is likely to continue for the next four years.
Further, the DOL rule revising the “white collar” salary basis threshold for overtime exemptions under the Fair Labor Standards Act (FLSA) is particularly vulnerable. The rule—which raises the salary threshold for the white collar exemptions for professionals, executives, and administrative employees from $23,660 per year ($455 per week) to $47,476 per year ($913 per week)—with automatic adjustments every three years—is currently scheduled to take effect on Dec. 1, 2016. A federal court in Texas is considering whether to issue a temporary injunction against the change and has promised a decision by November 22. We reported on the case here. But even if the change takes effect, it could be undermined by the new administration and the Republican-controlled Congress in the future through legislation, regulation, and/or litigation.
A Trump administration DOL may also be less focused on enforcement of independent contractor misclassification, meaning that the pendulum may swing back toward a more relaxed view of independent contractor classifications than that taken by the current DOL that views nearly all workers presumptively as employees.
During his 2016 campaign, President-elect Donald Trump advocated for significant changes to U.S. immigration policy, some of which could impact employers. Specifically, Trump’s hardline stance on deporting undocumented immigrants means that, under Trump’s direction, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) may ramp up investigation and enforcement of employment verification documentation requirements—likely through E-Verify and I-9 audits.
According to a speech on immigration he made in August, Trump will focus on individuals who overstay their visas. Trump also stated that he would “ensure that E-verify is used to the fullest extent possible under existing law,” and that he would “work with Congress to strengthen and expand its use across the country.”
Additionally, President-elect Trump has stated that he opposes the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA), two initiatives issued by the Department of Homeland Security that seek to protect certain types of undocumented immigrants from deportation and to permit them to work lawfully in the country. Numerous states challenged DAPA and DACA, and a Texas court has preliminarily enjoined their implementation during the lawsuit. President-elect Trump is not expected to defend the government’s position in the Texas lawsuit.
EEO laws and enforcement
While President-elect Trump did not directly address Equal Employment Opportunity (EEO) laws on the campaign trail, it is likely that many of the EEOC’s recent efforts will come under attack by the new administration. Notably, the President-elect is likely to oppose the EEOC’s revised EEO-1 reporting requirements, which will obligate employers to disclose pay data information with already required annual EEO-1 reporting. This change is scheduled to take effect with the 2017 EEO-1 reports, due in March 2017. Several Republican lawmakers introduced legislation to prevent implementation of the new pay reporting requirements, and it is possible that renewed efforts to pass such legislation will occur after President-elect Trump takes office in January.
The Republican Congress and the Trump administration also are likely to take issue with the EEOC’s Strategic Enforcement Plan for the 2017-2021 fiscal years. The SEP continues to push for equal pay, promising to address disparities that persist on all grounds, including sex, race, ethnicity, and disability. Further, the SEP identifies several additional substantive priorities of the EEOC, such as “issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.”
Republican lawmakers, however, have criticized the Commission for activity unrelated to processing the significant backlog of discrimination claims filed with the EEOC, and advanced legislation to force the EEOC to “prioritize its staffing and resources towards reducing the number of current and outstanding unresolved private sector pending charges and public sector hearings,” and to solicit public input before taking any potential action on proposed guidance. It is possible that the EEOC will re-direct its attention toward processing the backlog of charges and away from policy initiatives.
Further, although the EEOC currently takes the position that discrimination on the basis of sexual orientation and/or gender identity is actionable sex discrimination under Title VII (a position that has been backed by some federal court decisions), there is no federal law codifying that stance. The Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination on the basis of sexual orientation or gender identity, has been introduced over the years and even cleared the Senate in 2013. ENDA is unlikely to gain traction in Congress during its next session. It is likely that the trend toward relying on state and local government to take the lead on protections for sexual orientation and gender identity, including transgender bathroom protections will continue.
The bottom line
Even setting Obamacare to the side for this discussion, labor and employment law could see significant changes during the course of a Trump presidency. These shifts in policy are likely to benefit employers. Speculation about how President-elect Trump will impact labor and employment law will run rampant until his Inauguration and throughout his early presidency. As the legal landscape develops, we will keep you apprised of all of the latest developments, as well as their expected impact on your workplace.