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What does a Trump presidency mean for employers?

November 22, 2016

By Michael Burns, courtesy of SBAM Approved Partner ASE

As Gomer Pyle used to say (10 points if you remember that 60’s TV character) – Surprise! Surprise! Surprise!!! With businessman Donald Trump’s election as our 45th President right behind President Obama (Democrat and liberal), employers can anticipate some challenges and changes to the long list of laws, regulations and executive orders the Obama administration has implemented. Unlike President Obama, Donald Trump has both Houses of Congress on his side.  Having Congress under Republican control gives him potentially little legislative opposition on pro-business bills and the possibility of overturning certain laws such as the ironically named Affordable Care Act.

The most direct and quick changes that could be implemented when Trump officially takes office are to President Obama’s executive orders. Executive Orders are unilateral executive branch policy actions that have been primarily directed at government contractors and sub-contractors but can, in some cases, impact a broader group of employers. One particularly onerous Obama executive order is the Fair Pay and Safe Workplaces or “blacklisting” Executive Order that permitted the federal government to bar employers that had allegedly broken employee rights laws or even failed to file forms properly. A Texas federal court has already imposed a temporary restraining order on its implementation.  Another executive order that may fall is Executive Order 13496, Notification of Employee Rights under the NLRA, which requires all federal contractors to exhibit posters telling employees that they can organize.

In the regulatory sphere, the Republican Trump administration has a lot of anti-employer regulations to take aim at. However, walking back regulations already implemented is a bit more politically challenging than rescinding executive orders. First Trump will have to appoint federal agency leadership that will challenge the rules already implemented. And don’t forget, Trump has had the American worker in the forefront of his campaign. Many of these workers are also union workers. Some of the more controversial regulations a Trump lead administration may try to rescind are the impending Wage and Hour “White Collar” exemption changes, OSHA’s penalty increases and electronic reporting rules, the EEOC’s highly questionable EEO-1 pay reporting requirements, and a number of Office of Federal Contract Compliance Program (OFCCP) regulations.  

Some other regulatory changes that could be reviewed for reversal is the NLRB’s “Quickie” Election and the Department of Labor’s Persuader rules. However, as stated above, Trump is sympathetic to the working man and in turn owes some of his support to organized labor.  He may repeal a number of Obamacare requirements if the legislation is not repealed directly such as the Cadillac tax, which highly impacts union healthcare plans.  Republicans can fill two vacant NLRB seats to achieve a majority on the Board and overturn a number of questionable decisions, including the Browning-Ferris joint responsibility case or allowing insubordination to be considered concerted action, even when it is a single employee doing the action.

Regardless of initiatives to reverse the above regulations and cases, a Trump administration can be expected to slow down the march of new “anti-business/anti-employer” regulations that have come from eight years of Democratic administration. 

One major area both the Trump Presidency and the Republican Legislation can make a fundamental change within is the misuse of agency regulatory power.  They can correct the recent partisan political strategy whereby the Executive Branch goes around the Legislative Branch though its Agency’s regulatory power in order to “re-interpret” law through implementation of new regulation. If one believes that our Constitution calls on the US Legislative Branch to make Law through regulatory fiat (not unelected bureaucrats to change law), this situation calls on to be corrected. This may require amendment of laws one by one so that the broad discretionary interpretation authority is away from federal agencies within the Executive Branch. On the other hand, the Republican Executive Branch may consider turnabout fair play and set the now Republican lead federal agencies on a course to do the same but toward their interpretation of existing laws.

Time will tell how many of President-elect Trump’s campaign promises will come to fruition, but we can definitely expect significant policy and enforcement changes.

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