The unexpected election of Donald Trump to the Presidency on Tuesday raises many questions for employers and employment lawyers. At the federal level, Mr. Trump has indicated in one form or another that he intends to change the American workplace. What follows is by no means an all-inclusive list, it merely reflects some of the areas on which Mr. Trump has commented. Time will tell what he will accomplish with Congress or by executive order.
- Mr. Trump has said that he intends to decrease federal employment through a hiring freeze.
- Although complicated, Mr. Trump is also likely to take aim at the new overtime rule which is set to take effect on December 1. Many employers have already taken steps to prepare for the new law, including reducing workforces and increasing salaries so that employees can retain their exempt status. Trump will not take office until January, weeks after the new rule takes effect. If the rule is scrapped, are employers actually going to say, “sorry, I was just kidding about that raise”?
- In 2017 Mr. Trump will appoint a new general counsel for the Equal Employment Opportunity Commission and a new general counsel for the National Labor Relations Board. He will also have the chance to fill two vacant seats on the five member National Labor Relations Board, as well as subsequent appointments as current member terms expire. With only three members on the Board, if new members are not appointed as terms expire, there will be fewer members than required for the Board’s decisions to be effective, as required by the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). With complete control of the federal government in Republican hands, we can expect to avoid the Noel Canning
- While the character of a Trump NLRB is unknown, it is likely that we’ve seen the end of the DOL’s controversial “persuader rule” for the foreseeable future.
- Mr. Trump has also said he would significantly curtail the growth of federal regulations and even shrink the number of regulations currently on the books.
- As for taxes, Mr. Trump campaigned on the idea of lowering the corporate tax rate by more than 50% and renegotiating trade deals.
- Then there is the Affordable Care Act. Trump has endorsed a repeal of Obamacare, permitting the sale of health insurance across state lines, permitting full deduction of health insurance premium payments from individual tax returns, and price transparency requirements.
- Mr. Trump has said that he wants to provide six weeks of paid maternity leave via a temporary unemployment insurance benefit and expand the use of E-Verify.
There are certainly other areas of federal law that will be affected, such as workplace safety laws and priorities, federal contractor requirements, and changes to the nation’s immigration laws.
Tuesday’s elections also decided the fates of several state employment law initiatives. Voters in Alabama approved a right-to-work constitutional amendment. In South Dakota, voters rejected a constitutional amendment that would have removed the state from the growing list of right-to-work states. Voters in Virginia voted down a right-to-work constitutional amendment, however, the Commonwealth remains a right-to-work state because of an existing state statute.