Employers (and everyone else) are guessing what it means for them after the Trump Administration takes office in January. It is safe to predict that there will be many changes coming in new legislation (with Republicans maintaining control of both the Senate and House), regulations and Executive Orders in the near future. As always, we will keep you apprised of further developments. For now, here are the top six issues that employers will likely see President Trump address early in his administration.
Top 6 Issues Likely to be Addressed Early by Trump Administration
- Immigration. Candidate Trump's primary issue throughout the election campaign was immigration, which should be addressed early in his Administration. Trump has spoken of changing the H1–B visa program to make it more expensive for employers to employ highly skilled foreign workers. Trump has also made statements that he would favor making the voluntary E-Verify employment eligibility system mandatory. Finally, Trump has spoken about deporting up to three million immigrants in his first Term, although subsequent comments have focused on deporting those who engage in criminal conduct first.
- Supreme Court. Because the Senate did not hold hearings concerning President Obama's nominee to succeed Antonin Scalia, President Trump will have at least one vacancy to fill immediately. Whether President Trump will choose one of the approximately two dozen potential Supreme Court nominees he identified during the campaign or someone else, his nominee is likely to continue the conservative-leaning nature of the Court for another generation. Issues possibly coming before the Court include petitions seeking review of appeals court rulings that interpret the Fair Labor Standards Act, ERISA, Title VII of the 1964 Civil Rights Act, the National Labor Relations Act, ADA and other labor and employment laws.
- Fair Labor Standards Act. New overtime regulations were scheduled to take effect on Dec. 1, 2016 but on Nov. 22, 2016, a federal judge in Texas granted a nationwide injunction, temporarily blocking the Department of Labor overtime rules from going into effect while he considers a challenge to the rules. Regardless of how this case is resolved, it is possible that the Republican–controlled Congress may address this issue next year as one of many changes expected to be proposed in the first 100 days of the Trump Administration. In fact, a little known federal law – the Congressional Review Act – could be invoked to invalidate recently promulgated regulations. Finally, although Trump expressed general support for increasing the minimum-wage during the campaign, it is unclear how this might be addressed in a Republican-controlled Congress even if he chose to propose it.
- Executive Order Changes. Executive orders that are currently in effect are not subject to any notice and comment before they are reversed. Consequently, it is possible that President Trump could reverse many of President Obama’s executive orders beginning on first day as President.
- NLRB Changes. The current National Labor Relations Board has only three members, comprised of two Democrats and one Republican. Congress should approve Trump’s nominees to the remaining seats on the Board fairly quickly. Once the Board has a full complement of five members, changes will take time, especially as the current Board General Counsel’s term does not expire until Nov. 4, 2017. Over time, however, Board policies and doctrines will likely be revisited, such as the joint employer doctrine. Under the current interpretation, merely having the right to establish terms and conditions of employment, even if not exercised, qualifies an individual or entity as a joint employer subject to labor law liability. Presumably, this doctrine will be reevaluated and changed back to the previous position, which required the actual exercise of control before joint employer status was established. In addition, the new Board could revisit other rulings and actions concerning “quickie” union elections and class action waivers.
- Federal Contractors and Paid Sick Leave. The Department of Labor requires federal contractors to provide fifty-six hours of paid sick leave to employees working on certain federal contracts. Even though many contractors already provide some form of paid sick leave and paid time off, the rule does not allow contractors to take full credit for all the leave they currently provide. In addition, the rule adds to the significant interplay among existing state law paid sick leave requirements. Current speculation is that Trump might allow contractors who already comply with the state law requirements to receive an exemption from the federal requirements.