Rich Meneghello, BridgeTower Media Newswires
In just a few short weeks, Donald Trump will be our nation's 45th president. Now the work begins to forecast what the next four years will bring for employers when it comes to labor and employment law.
Trump made immigration reform the centerpiece of his winning campaign. Expect to see a ramp-up in workplace enforcement actions, including both I-9 audits and raids by U.S. Immigration and Customs Enforcement. Also anticipate that Trump will move to cancel or counteract any immigration reform measures put in place by the Obama administration, such as work authorization granted under various federal initiatives.
During the campaign, Trump promised that if elected, he would mandate E-Verify to check the employment eligibility of all workers in the country. He also said that he would try to encourage employers to hire more Americans for American jobs, which puts the status of temporary work visa programs such as the popular H1-B visa (allowing employers to bring on highly skilled foreign workers) in jeopardy. While we can expect movement in these areas early on in Trump's term, it is unclear whether he will attempt to accomplish this by significantly decreasing the number of visas issued or some other method.
Another area of great interest is the status of unions and labor relations under the impending Trump administration. That is difficult to predict, but it's probably safe to forecast that his victory will likely slow the tide of aggressive pro-union and anti-employer developments at the National Labor Relations Board, and in time will probably lead to a more employer-friendly panel of NLRB members. Specific examples of NLRB doctrine that could be slowed include the encroachment on employer property rights, the expansion of the concerted protected activity doctrine, and the enlargement of the concept of employee status as it plays out within the context of joint employer and temporary worker cases, supervisory status matters, and for higher education students.
It's also fair to assume that Trump will be inclined to repeal a host of executive orders supporting unions at the expense of federal contracts, including the so-called "blacklisting" order and other provisions that impose contractual obligations on successor employers doing business with the federal government.
However, it is also possible that Trump could feel compelled to throw some bones to organized labor, given his historically friendly relationship with unions while in the private business world. He will probably also remember that constituents of organized labor may, in hindsight, be credited for salvaging his election prospects in key Rust Belt states.
Many employers are also curious about how Trump will handle workplace safety issues. It is likely that his administration will streamline the Occupational Safety and Health Administration (OSHA) in several respects. First, it is likely he will reverse course on OSHA's penalty increases, which in some cases were as much as 80 percent. Even if Trump decides to not repeal the penalty increase rule in its entirety, look for him to at least remove the rule's requirement that OSHA's maximum penalties increase each year to account for inflation.
Second, we will likely see an elimination of the electronic reporting rule slated to take effect on July 1, 2017. This rule will require certain employers to report injury and illness information to OSHA, which will then post this information online for public viewing. Expect, instead, that Trump will refocus the agency on high-hazard enforcement in an effort to use OSHA's resources in a more efficient manner.
When it comes to wage and hour law, the Trump administration might immediately do what it can to reverse or suspend the overtime changes that currently sit in limbo. The Obama administration attempted to revise the Fair Labor Standards Act's "white collar" exemption rules, granting massive pay increases to millions of workers overnight on Dec. 1, but a federal judge blocked them from going into effect with an eleventh-hour ruling right before Thanksgiving. It is uncertain whether an appeals court will resurrect the rules before Trump takes office.
We might see a repeat of what took place with the Reagan administration in 1980 when it reversed similar revisions set in motion during the waning days of Jimmy Carter's presidency. However, this could implicate some knotty administrative procedure matters, and it is difficult to predict how extensive Trump's reversal might be if he is interested in making a change at all.
While it might be relatively easy enough to predict how Trump will act with respect to the overtime regulations, it's more difficult to do so for other wage and hour positions. For example, it appears that the Trump administration will at least be receptive to, or perhaps even enthusiastic about, a federal minimum wage increase.
Finally, it appears that Trump will have an opportunity to fill at least one vacancy on the Supreme Court. It is fair to assume that the conservative status quo will soon be restored to the court, especially if Trump nominates one of the individuals he has already touted as a possible replacement for the late Antonin Scalia.
Statistical models suggest a 40 percent chance that there will be one additional vacancy before 2020 and a 20 percent chance that Trump will be able to appoint two additional justices besides the one to replace Scalia. Therefore, Trump should have an opportunity to shape the court for years to come.
This becomes important when you consider the innumerable workplace law issues that could come before the Supreme Court over the next four years. Arbitration provisions, class action litigation (including class waivers), union agency shop fees, the reach of Title VII, immigration programs, wage and hour law, and administrative agency powers are just some of the issues likely to confront the Supreme Court in the near future.
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Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers' interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter @pdxLaborLawyer.
Published: Thu, Dec 08, 2016
