Expect Big Changes in Labor and Employment From the Trump Administration

by Hirschfeld Kraemer LLP
Contact

Since at least the 1920s, Republicans have been viewed as the party of commerce, small government and less regulation. And, to be sure, most Republicans still are. But Donald Trump challenged all of those assumptions by running a populist campaign directed to the working class in which he has often touted “yuge” government. Indeed, Trump garnered more votes from union households than any Republican candidate in decades.

Those shifting electoral dynamics, coupled with Trump’s battles against his own party and his relative silence on issues involving the American workplace, make it challenging to predict what stances his administration will take on labor and employment law issues. And so, the ordinary crystal ball simply does not work here. Nevertheless, there are some small tea leaves that provide signs of how a Trump administration might proceed.

Organized Labor

This is the diciest issue facing the Trump administration by far. The National Labor Relations Board under President Barack Obama took a very active role in support of organized labor. The four biggest changes promoted by the Obama board were:

(1) regulations expediting labor union elections (the “quickie election” rule);

(2) regulations requiring law firms offering advice to employers on union organizing to report such activity (the “persuader rule”);

(3) decisions invalidating employers’ social media policies and other rules which, in its view, chilled organizing activity; and

(4) decisions expanding its jurisdiction in untraditional environments, like franchises or graduate teaching assistants.

Republicans railed against each of those changes and in some cases challenged them successfully in court. With any other Republican, it would be a no-brainer; there would be an about-face. But Trump is not an ordinary Republican, and considering his populist message and broad appeal to working class voters, the question remains whether he will take positions in office that serve the interest of management over labor.

Most experts expect him to make a pivot on those controversial issues. The persuader rule, which at least one court has already found to be invalid, will likely be revoked shortly after he gets into office, and the quickie election rule is probably not far behind. One would also expect Trump board appointees to reverse course on the controversial decisions, but the question remains: Will the same Trump who told workers “I will be your voice” really appoint employee-friendly board members? The safe money is on a reversal in course, but that is decidedly up in the air.

Paid Family Leave

Perhaps the most surprising statement of policy during Trump’s campaign was his expressed support for paid family leave—one of the few areas where he and Democratic party nominee Hillary Clinton agreed. Trump himself floated a plan to offer six weeks of paid maternity leave to employees if their employer did not already offer it.

As with many of Trump’s policies, the finer details of this proposal were left unstated, and, again, his expressed comments departed dramatically from Republican dogma. Indeed, the Family and Medical Insurance Leave Act, which would have provided for paid family leave, was introduced in the U.S. Senate last session but garnered the support of no Republican senators and died in committee without even a hearing.

This of course raises a major question. Will Trump be able to get such a bill through a Congress controlled in both chambers by members of his own party, albeit a party which provided him with less support than any other major party nominee in the recent past?

Expect movement on this issue. Republicans will feel intense pressure to return some favor to working class voters and to hold true on some of the more achievable promises Trump made, and this is one. But do not expect it to be funded through a payroll tax, like Social Security or unemployment. Rather, expect a tax break to employers who provide paid leave.

Arbitration Agreements

It is not exactly a sexy campaign issue, but many expect the trend favoring private arbitration to pick up pace with Trump U.S. Supreme Court nominees, most importantly with regard to class action waivers. In 2011, the Supreme Court decided AT&T Mobility v. Concepcion, a landmark decision in which it agreed to enforce arbitration agreements with class action waivers. Private employers have since seized on that ruling to stem the growing cost of class action litigation.

Employee advocates fought back on two fronts. On the state level, some states enacted laws—California’s Private Attorneys General Act principal among them—allowing groups of employees to litigate collectively, although not technically through a class action. Secondly, federal agencies, most prominently the NLRB, pushed back against the enforcement of class action waivers in arbitration agreements, and they have met with some success.

Expect Trump to appoint a Supreme Court justice who favors the trend toward private arbitration and away from class action litigation. In particular, look for the court to close any remaining avenues for class or class-like litigation and to stem the tide of NLRB action in opposition to arbitration agreements.

Gig Economy Issues

The most talked about issue by employment lawyers—but one which received no mention on the campaign trail—is the changing face of the American workplace and whether existing employment laws are flexible enough to deal with the new “gig economy” workers. The NLRB and other agencies see no problem in applying New Deal-era laws to such workers, steadfast in the belief that they can easily be classified as employees or independent contractors, or so they believe. But a federal judge in a wage-hour class action involving Lyft drivers recently lamented that the task was like trying to fit a square peg into two round holes, imploring Congress to come up with new classifications to deal with emerging technology employers.

Some gig economy companies have proposed a new classification for such workers, frequently referred to as “dependent contractors.” This third classification, they propose, would be nimbler and, among other things, would allow portable benefits to follow a worker between jobs.

While many experts agree that change is needed, neither Trump nor congressional Republicans appear to have much sympathy for the industry. Indeed, Silicon Valley businesses contributed overwhelmingly to Clinton and other Democrats. Even with Republicans controlling Congress, it does not seem a priority for Republicans, no matter how needed a change is. For one thing, it would challenge fundamental assumptions about the nature of the American workplace, and, again, Trump’s populist campaign was focused on getting jobs back from overseas, not on reinventing how employees work.

The Bottom Line

Workers were critical to Donald Trump’s successful campaign, and he has many debts to repay them. Trump pledged in bombastic fashion to be “the greatest jobs producing president that God ever created,” but no one—not even members of his own party—expect factory jobs to return from overseas. Like it or not, he has large shoes to fill, as Obama was one of the most successful job-creators in recent history. To be sure, he will do what he can to assuage the business world; but, at the same time, to keep those voters in the Republican tent, Trump will need to do more, so expect changes you would not otherwise see in a Republican president.

(Reprinted with permission from the November 18, 2016 edition of Corporate Counsel Magazine  2016 ALM Media Properties, LLC. All rights reserved.)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hirschfeld Kraemer LLP | Attorney Advertising

Written by:

Hirschfeld Kraemer LLP
Contact
more
less

Hirschfeld Kraemer LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.