Employers across the country will be watching to see how and if President-Elect Trump’s positions on labor and employment issues materialize after his inauguration. He hasn’t been as vocal on labor and employment issues as on other issues, but he has campaigned or otherwise discussed several issues that could affect employers in 2017.
Here’s a look at Trump’s positions on labor and employment issues; Saul Ewing attorneys weigh in on the impact of some of these changes:
-
Favors six weeks of paid maternity leave for women who do not receive paid leave from their employers. But that would not apply to fathers or adoptive parents. Trump has suggested that the initiative would be paid for by cracking down on fraud in unemployment insurance programs, suggesting that employers would not be left funding his paid maternity leave proposal.
Danielle Petaja, in Saul Ewing’s Wilmington office, notes that many workers would benefit from paid parental leave, but questions whether that kind of law would withstand judicial scrutiny, “It will be interesting to see if a gender discrimination claim would succeed that challenges paid maternity leave that is available only to women without regard to the woman’s health or disability status as a result of the child birth.”
-
Favors increase in minimum wage to $10 an hour. Trump has also said that states should “call the shots” on minimum wages.
Dena Calo, who works out of Saul Ewing’s Philadelphia and Princeton offices, points out that at least five jurisdictions (California, Connecticut, Washington D.C., Massachusetts, and Vermont) already have minimum wages at or above $10 per hour. Gary Eidelman, in Saul Ewing’s Baltimore office, adds that “Some cities have higher minimum wage laws too, like Chicago, New York City and Seattle.” Many states, especially those in the south, have no state-mandated minimum wage.
-
Supports right-to-work laws. Trump has said that he favors right-to-work laws so that workers will not have to pay fees to unions. He favors restrictions on “security clauses” in labor contracts because he believes that workers should determine for themselves whether they want to support unions. There has also been suggestion that the NLRB’s “quickie election” rule, implemented in 2015, will be more vulnerable to attack under the Trump administration. The rule shortened the time between a union’s filing of a representation petition and the election, which makes it more difficult for employers to oppose representation.
Edward Levin, in Saul Ewing’s Washington D.C. office, explains that “The real action at the NLRB will come with appointment of new Board members and General Counsel as new cases reverse the recent decisions that rapidly set new rules on what actions by employers regulating employee conduct and speaking against union representation. Revocation by the Board of the election rules requires a lengthy rule making process. New appointments will surely ignite confirmation fireworks.”
-
Immigration Related Issues. Trump has stated that he favors requiring businesses to try to hire Americans before seeking foreign nationals and will push for nationwide use of E-Verify, a system used by certain employers to electronically check a new hire’s identity information against government databases. He has also supported increasing the prevailing wage for H-1B visas (visas that require specialized knowledge).
Catherine Walters, in Saul Ewing’s Harrisburg office, comments that “It will be important for Mr. Trump to avoid putting the cart before the horse: unless we are able to fill available jobs with qualified people, including providing necessary training and access to higher education, then at some point the concepts he has proposed will have the effect of further tightening what is already becoming a tight labor market, especially in the STEM disciplines, and this scarcity will naturally drive wages up; similarly, agricultural employers may suffer from a lack of available workers, leaving crops in the field and driving consumer prices higher. The key will be to ensure that Mr. Trump achieves his goal of full employment for American workers while at the same time ensuring that a sufficient pool of workers who are legally eligible to work in the US is also available.”
-
Favors small-business exemption to Fair Labor Standards Act overtime rule. Trump has said that he supports the exemption due to over-taxation and over-regulation of small businesses.
-
Has indicated he will unwind various Executive Orders and other rules impacting federal contractors. The prime candidate for elimination is President Obama’s Fair Pay and Safe Workplaces Executive Order, a/k/a the “Blacklisting Rule,” most of which has been enjoined already (except for the paycheck transparency provisions). Another strong candidate for revision or elimination is the new EEO-1 Report (applicable to federal contractors with 50 or more employees and private employers with 100 or more employees), which will increase the current burden on employers by requiring reporting of summary compensation data and aggregate hours worked by race, sex and ethnicity in 10 job categories broken into 12 pay bands per category. Contractors are also hoping that the new Paid Sick Leave Rule is either rescinded or revised to make interpretation and administration of the rules more realistic.
Ms. Walters adds, “If Mr. Trump and his administration believe that employers are already over-regulated, the Fair Pay and Safe Workplaces rule and the new EEO-1 Report would be good starting places for reform; similarly, transformation of the DOL from a pit bull to a more conciliatory and educational entity, especially the NLRB, would provide welcome relief.
