I’ll open this post with a haiku. Because, I feel like we could all use a haiku.
For HR, what will he do?
Not a stinkin’ clue!
…and any employment-law wonk who tells you otherwise, well, we saw how the pundits fared predicting the outcome of the presidential election. So, what possible tea leaves could any of us possibly read into President-Elect Trump’s impact on the labor and employment law landscape in this country?
That said, in 2017, we will have a Republican president with GOP control on both the House and Senate. That triad may send off some smoke signals.
Let’s start with the easier ones:
- National Labor Relations Board. As inevitable as death and taxes, the Board trends union-friendly with a Democrat in the Oval Office. Conversely, a Republican president generally packs the Board with employer-friendly members. Presently, the Board has 3 members (2 Ds, 1 R). Two forthcoming management-leaning Republican appointments in 2017 seem likely. A rollback of the labor-law advances/regressions (depending on your point of view) from the “Obama” Board should follow.
- Blacklisting Rules. The blacklisting rules would require certain government contractors contractors to publicly disclose their past 3 years of violations under 14 federal workplace laws ranging from the Fair Labor Standards Act to the Family and Medical Leave Act to the Americans with Disabilities Act. A Texas judge has entered an injunction. Presumably, that will remain in place until 2017, when you’d expect a Republican, business-friendly replacement for DOL Secretary Perez. That should mean buh-bye to the Blacklisting Rules.
- Supreme Court. This is one of the areas in which President-Elect Trump has been quite transparent. He wants jurists in the Scalia mold, which isn’t to say that employees are screwed. For example, Scalia was the author of the Supreme Court’s unanimous decision holding that Title VII forbids same-sex sexual harassment. But, a conservative appointment could portend victory for employers on issues such as use of arbitration agreements and class-action waivers.
- Immigration Reform. E-Verify is part of his platform. It’s implied in Number 9 of “Donald J. Trump’s 10 Point Plan to Put America First.” Now, if this is a laundry list, it may take a while to get to Number 9. Otherwise, E-Verify is pretty high on the GOP wish list.
- LGBT Rights. With strong tailwinds and growing bipartisan support, I’d be surprised if anything happened to intentionally blunt the progress of LGBT rights at work. That said, if Congress advances the ball it may be with some Hobby Lobby carve outs for religious express. Otherwise, it’ll be up to the courts (and states) to continue to forge a path. Indeed the Supreme Court will rule on transgender access to bathrooms — albeit in a school setting (as opposed to the workplace).
Here’s where it gets a little harder. In other words…
- The New DOL Overtime Rules. They take effect on 12/1/16. Presumably, most businesses that give a you-know-what have already pivoted and made whatever changes they need to hit the ground running when the overtime rules take effect. Could something happen between now and then to change that? Probably not from President Obama, and Congress would need to act quickly. So, what will happen next year? At least one advisor to President-Elect Trump wasn’t keen on the rules. Does that mean a full rollback and let the states decide? Maybe a partial roll back with some phase-in to bring the salary level back to $47,476. Like I said…
- EEOC. Chair Yang’s term ends in 2017. After that, President-Elect Trump could appoint someone more conservative. (Did you know that, in 1982, President Ronald Reagan appointed Supreme Court Justice Clarence Thomas as Chair of the EEOC?). Budget levels also impact the EEOC’s effectiveness. So, how might Republicans fund the EEOC?
- Paid Leave. Here’s what President-Elect Trump said about it during his campaign.
- New Equal Pay Laws. Whereas President-Elect Trump’s paid-leave/childcare plans had some structure, we only heard vague whispers about equal pay. Unless he charges Congress to address it, the effort will have to occur organically. I don’t see that as a GOP priority.
- OSHA. I defer to the folks who specialize in workplace safety.