How Might the New Administration and Congress Impact Employers?
By: John Rossheim
With the 115th Congress sworn in and Donald Trump preparing to move into the Oval Office, employers are keenly interested in how their relations with job candidates and employees might change under this Republican sweep.
“My clients are calling frequently, asking what does this all mean?” says David Lichtenberg, a management attorney and partner at law firm Fisher Phillips.
Legal and regulatory changes are possible on many fronts, but a handful of Federal agencies are prominently in play. “If we take Trump at his word, it will be immigration, labor relations and the makeup of the Supreme Court,” Lichtenberg says.
Changes might be coming for checks of immigration status. A centerpiece of Trump’s election campaign was the nexus of immigration and employment. Employers are waiting to see what policies his administration will bring forth, given a tight labor market and high demand for immigrant labor in jobs ranging from migrant farm worker to software engineer.
“There will be an increase in I-9 audits,” Lichtenberg says. The new administration might consider making eVerify mandatory, which would be a relatively simple undertaking for larger employers familiar with the system but more challenging for companies, mostly smaller ones, that have been doing in-house checks of candidates’ legal status.
The NLRB is likely to narrow its own scope. “If Trump’s nominee for secretary of labor is any indication, there will be a radical shift from Obama’s NLRB,” says Lichtenberg, particularly as Trump phases in new board members. Under President Obama the National Labor Relations Board (NLRB) has broadened its scope to take cases involving issues such as social media policy and co-employment arrangements, he says.
“The number of cases in which the NLRB holds the employer liable for discriminating against union members will go down,” says Joseph Paranac, a partner with law firm LeClairRyan. Trump’s labor board is likely to reverse some prior rulings, Paranac believes. “Currently you can’t punish employees for going on Facebook and saying negative things about their employer, but this will change.”
When Trump has had his chance to appoint board members, the NLRB will return to its narrower historical mandate of overseeing labor relations, Lichtenberg believes. “But it’s not going to happen quickly.” The NLRB and its appointment process are highly political; the GOP will automatically get a 3-to-2 majority of members.
EEOC could go back to basics. The Equal Employment Opportunity Commission (EEOC) is another key Federal agency that is likely to take a more conservative approach as its membership turns right. “The current EEOC is very firm in arguing that when hiring, employers cannot consider arrest records unless honesty and integrity are part of the job,” says Paranac. “But under Trump I can’t imagine that sort of policy.”
Reduced momentum for LGBTQ workplace rights. “The new administration and Congress are going to be very positive for business owners, because there will be less government interference,” says Rena McDonald, an attorney and owner of McDonald Law Group. “But I don’t think it will be positive for individual workers,” says McDonald, who is a member of Executive Pride, an LGBTQ workplace equality organization. “I’m very concerned because in most states, it’s still legal to fire someone for being gay.”
Under Trump, agencies such as the EEOC may be less likely to pursue cases involving sexual orientation and gender identity, McDonald says. On the other hand, companies like Apple may gain a recruiting edge by stating that all of their nondiscriminatory practices will continue regardless of the political environment.
Less stringent enforcement of worker-safety rules? During the Obama administration, the Occupational Health and Safety Administration (OSHA) has been relatively aggressive in pursuing its core mission.
For example, chicken processing companies have had run-ins with Federal agencies such as OSHA, which have cited them for chronic safety violations, says Paranac. “Some employers may feel they’ll be able to get away with more” with the White House in Republican control. But employers should keep in mind that most employees of these Federal departments and agencies are career civil servants, not political appointees, like their leaders, he says.
Federal overtime rule change is likely to die. Controversial changes to the Fair Labor Standards Act, if they are ever implemented, are unlikely to survive under Trump’s Department of Labor. The overtime rule change was enjoined by a Federal court before it was to take effect Dec. 1st, 2016.
Of course, some states have overtime regulations that may prevail. “New York has passed its own state regulations scheduled to take effect Dec. 31st, 2016, to do almost exactly the same thing,” says Lichtenberg.