Seyfarth Synopsis: For a multitude of reasons, the stakes are exceedingly high for employers in the upcoming Presidential election. Legal compliance strategies and effective control of workplace litigation risks inevitably will be impacted by which party controls of the White House and the regulatory and enforcement machinery of agencies such the Department of Labor and the EEOC. This blog post discusses our “take-aways” for employers based on the first debate between Mr. Trump and Mrs. Clinton on September 26, 2016.
+ + + +
So what did the 1st debate teach us about the views of the two major presidential candidates on issues of interest to employers? Aside from their verbal volleys, sparing (and interruptions), and counter-punches, the candidates’ statements during the first debate underscored the stark differences between Mrs. Clinton and Mr. Trump and how their respective policies and programs are apt to differ for employers from 2016 to 2020.
Donald Trump’s Positions
In his opening answer to the question on steps to achieve prosperity, Mr. Trump repeatedly criticized Mrs. Clinton as wanting to “increase regulations on businesses,” while Mr. Trump claimed he would decrease regulations to enable business to expand, create jobs, and invest in workers.
As a result, on employment discrimination issues, we expect Mr. Trump would “roll back” the aggressive agendas of the Department of Labor, OSHA, and the EEOC under the rubric that their regulatory schemes and/or enforcement litigation programs are “anti-business.” But peeling back the onion skin on that overarching philosophy reveals a mixed set of issues. Most will recall that at the Republican Convention in August, Mr. Trump became the first Republican Presidential nominee to openly support LGBT rights. As a result, his Administration may well push for expansion of employment rights where no Republican White House has gone before.
The first debate did not shed light on whether Mr. Trump favors raising the minimum wage or overhauling the exemptions in the Fair Labor Standards Act due to take effect on December 1, 2016. Presumably, he opposes these measures.
Insofar as commentators and voters can tell, Mr. Trump opposes the North American Free Trade Agreement, which was brokered during the first Clinton Administration. In his opening remarks in the debate, he called it the “worse trade deal in the history of the world.” Mr. Trump’s views on immigration are well known (“the Wall”…). He favors making E-Verify a national requirement, raising the prevailing wage for workers under the H-1B visa program (to make American workers more competitive with their H-1B counterparts), and requiring that employers hire (or, at least, try to hire) Americans before seeking to hire foreign nationals. At a basic level, his positions on immigration do not appear to be directly related to employment/labor relations per se, but aimed at preventing foreign workers from competing with Americans for jobs.
Hillary Clinton’s Positions
Mrs. Clinton used the first question of the debate – on steps to achieve prosperity – to outline her vision on some key labor and employment issues. In her first answer of the evening, she advocated “raising the minimum wage,” “securing equal pay for woman,” “instituting paid family leave,” and “expanding child care benefits.”
Hence, on most labor and employment issues, Mrs. Clinton would essentially continue the priorities of the Obama Administration. While her policies would be akin to a “third term of the Obama Administration,” Mrs. Clinton might push them even further.
On equal employment opportunity issues, we expect Mrs. Clinton to continue the current Administration’s expansive interpretation of Title VII to include LGBT individuals, regardless of whether Congress actually amends Title VII.
Achieving equal pay for women has been a central issue in Mrs. Clinton’s campaign all along. She echoed that several times during the first hour of the debate. For this reason, she is expected to champion pay transparency and enactment of a measure like the Paycheck Fairness Act (a bill she co-sponsored as a senator), which would make it easier for plaintiffs to bring equal pay actions, either individually or as class actions, to “close the pay gap” between men and women. One by-product of such a scheme would be increased incentives for bringing class action litigation on pay issues, or agency-initiated enforcement litigation by the EEOC, DOL, and OFCCP.
Further, Mrs. Clinton supports amending the Family & Medical Leave Act to provide paid leave – and not just the present law affording unpaid leave – for workers to care for a new child or a sick family member or to recover from illness or injury. Mrs. Clinton also is expected to lead the fight against “wage theft,” and raising the minimum wage to $12 an hour (and supports state and local governments establishing even higher minimums). And on the labor front, Mrs. Clinton undoubtedly would align herself with keeping unions strong and viable. As her campaign website proclaims, “When unions are strong, America is strong,” and promises to restore collective bargaining rights for unions and “defend against partisan attacks on workers’ rights.”
In sum, both the DOL and the EEOC are expected to be emboldened by an Administration headed by Mrs. Clinton.
“It’s The Supreme Court….”
An important take-away for employers is the difference in the candidates’ views as to who might be appropriate for nomination to the U.S. Supreme Court. The first debate did not touch on this specific issue; while it is expected that later debates will do so, the candidates’ answers in the first debate foreshadowed their differences on the composition of the Supreme Court. As employers know, the ultimate disposition of workplace laws and how employment-related litigation impacts employers is influenced in large part by how the Supreme Court decides employment law issues.
And change is coming to the Supreme Court and likely will pivot on the election results. Mr. Trump has released several lists of judges he has identified as worthy of nomination to the Supreme Court. While Mrs. Clinton has yet to issue any such list, one scenario gaining traction (at least in some quarters – perhaps far-fetched, but who knows …) is that she might be inclined to nominate Barack Obama to fill a seat on the Supreme Court (and he would become the first ex-President to take a seat on the Supreme Court since 1921, when President Harding appointed former President William Howard Taft to the Supreme Court).
In terms of the stakes, and to take one example, in the coming Supreme Court term employers can expect a key battle over the legality of class action waivers in workplace arbitration agreements and whether the NLRB’s attack on those aspects of arbitration agreements “has legs” under the National Labor Relations Act. Petitions for certiorari are currently pending in three different cases on this issue (Ernst & Young LLP v. Morris, No. 16-300, Epic Sys. Corp. v. Lewis, No. 16-285, and NLRB v. Murphy Oil USA, Inc., No. 16-307). The passing of Justice Scalia, Congress’ disinclination to start hearings on Judge Garland’s nomination in the election season, and the ultimate realignment of the Supreme Court after the election – based on which party has control of the White House and can nominate a new Justice – may well “tip the balance” in terms of this issue for employers.
Implications For Employers: Employers should put on their seat belts. Two more Presidential debates are coming down the track, and the ebb and flow of the campaign is apt to twist and turn until election day on November 8, 2016.