As a presidential candidate, Donald Trump voiced many opinions about his priorities and goals for the country. Yet as President-elect Trump prepares to take office in January, employers remain uncertain as to what the American workplace will look like under a Trump administration. As a lead-up to the presidential inauguration, we will provide a series of posts looking at five areas critical to employers and prognosticating as to how the new administration will impact these areas.
Employment Regulation and Enforcement: Under President Obama, federal agencies aggressively pursued a variety of employee-friendly positions. For example, the Department of Labor rolled out new overtime rules that made millions of workers eligible for overtime pay. The Equal Employment Opportunity Commission staunchly pursued the application of Title VII to LGBT issues. And government contractors were forced to adopt a number of employee-friendly policies through executive orders.
Under President Trump, the administration promised to revoke President Obama’s executive orders. And government agencies working under a Trump administration may repeal prior employee-friendly regulations and/or adopt more employer-friendly interpretations of the law. With a Republican majority in the House and the Senate, President-elect Trump may also favor legislation over regulatory action for its broader reach and more definitive application.
Labor Law: President-elect Trump was largely silent regarding union issues during his campaign. However, running-mate Mike Pence has a history of favoring pro-employer stances.
A Republican majority on the NLRB will likely impact the labor landscape. Under President Obama, the National Labor Relations Board invalidated employment policies that many employers had previously considered common and non-controversial. The NLRB also revised its joint-employer standard to increase companies’ potential liability for violations committed by affiliates such as contractors and franchisees. Trump appointees on the NLRB may revisit these rules and decisions, as well as, among others, those related to quickie union elections and class action waivers.
Maternity Leave and Child Care: In September, President-elect Trump proposed a plan to provide six weeks of paid maternity leave to new mothers. The benefit would come through an enhancement to unemployment insurance, and would provide an anticipated average benefit of $300 per week. Similarly, Trump has expressed interest in incentivizing employers to provide childcare at work. Currently, licensed onsite childcare centers receive a tax credit of up to 25 percent of facility expenditures, plus 10 percent of resource and referral costs, for a maximum benefit of $150,000 per year. Trump has proposed raising this cap.
E-Verify: Hundreds of thousands of companies currently use E-Verify to determine whether an individual is eligible to work in the United States. In some states, use of E-Verify is required; Trump has advocated for a nationwide E-Verify system. Similarly, Trump is expected to modify the H-1B visa program, which allows foreign nationals to work in the United States.
Judicial Appointments: As a candidate, Trump clearly stated his intention to appoint conservative justices in the vein of the late Justice Scalia. It goes without saying that the decisions of a right-leaning Court will be significant and long-lasting. Arguably as critical, there are a significant number of vacancies in the lower courts. The conservative judges that President Trump will likely appoint will also have a significant role in shaping the nation’s jurisprudence by favoring narrow interpretations of laws such as Title VII of the Civil Rights Act and the Americans with Disabilities Act.
As noted, we will provide a more in-depth look at these areas in the coming weeks. We will continue to update these posts as we learn of President-elect Trump’s nominees for various cabinet and subcabinet posts, and as his presidential agenda becomes more focused.