Employment Law Issues in 2017 and Beyond: Let’s Talk About Trump

Employment Law Issues in 2017 and Beyond: Let’s Talk About Trump

Changes Made by the Incoming Regime Could Make Life Easier for Employers

A lot of ink has been spilled about the 2016 Presidential Election and its potential impact on American society, corporate America, and international relations. Pundits on both sides of the political spectrum have professed a variety of opinions on the subject, but nearly every article attempting to forecast the Trump Presidency's impact ends with some form of "we'll have to wait and see . . ." or "we just don't know."

When it comes to upcoming changes to employment law and policy after President Trump is inaugurated in two weeks we have history to guide us as to likely shifts in law and public policy. Indeed, while we don't know exactly what Mr. Trump has on his mind with respect to specific employment legislation, we do have a very good idea as to whom those policies will favor. Fortunately for companies and management, President Trump's policies are very likely to make life easier than it has been at any time in the past eight years with respect to discipline and wage payment, two key areas employers have terrified about since early 2009.

Pace of Wage & Hour Law Changes Likely to Slow

With respect to wage and hour law, we have seen a federal district judge in Texas issue an injunction halting the Department of Labor's rule that was set to increase the minimum salary threshold for overtime exemptions. Since the turn of the new year, that same judge denied a motion to stay proceedings in that matter and may at any time grant summary judgment in favor of the plaintiff businesses challenging the rule.

While President-elect Trump has yet to comment on DOL policy, it is safe to assume that he will be in favor of GOP-led legislation to repeal the DOL's overtime rule, making the litigation in Texas moot and allowing employers to continue classifying mid-level and other lower-salaried managers as exempt, thereby easing scheduling and other staffing concerns that would have been created had the new rule gone into effect.

Title VII Enforcement Aggression to Slow

Shifting gears to employment discrimination, the past eight years have seen a significant broadening of EEOC Title VII prosecution. During this time we have seen the EEOC prosecute cases on behalf of LGBT plaintiffs under sex discrimination theories, as well as a broadening of gender identity enforcement criteria and opinion, all under the guidance of President Obama. While the United States Supreme Court has yet to rule specifically on whether gender identity (potentially impactful case to be heard this term) or sexual orientation fall within Title VII's protection against sex discrimination, it is safe to assume that President-elect Trump's Supreme Court picks may stall any such rulings in the short-term (although this issue is well settled under many state fair employment laws).

NLRB to Become More Business Friendly

Despite one's views on public policy in employment law, it is fair to assert that the last eight years have seen federal agencies grow aggressive and controversial in their methods of enforcement. Take for example the NLRB, which currently has a 2-1 Democratic majority (with two vacant seats). A Trump administration is very likely to reign in the Board, and make it much more business-friendly. Once a GOP majority is in place, it is likely that several employee-friendly decisions handed down over the past eight years will be rolled back, which will make it much easier for businesses to operate without the fear of things like joint employer issues and temporary employees being included in collective bargaining units. Furthermore, it is likely that a new Board will hold off on making further employee-friendly changes that the current Board may have made were a democratic candidate to assume office in two weeks.

Conservative Judges and Administrative Officials Good for Employers

Finally, in addition to the appointment of conservative justices to the United States Supreme Court, it is likely that President Trump will appoint conservative-leaning judges to federal district courts and federal agency positions (some of which we have already seen by analyzing Trump's cabinet choices). These judges and administrative officials are highly likely to be business-minded (and therefore business friendly) given the President-elect's background. With that in mind it is safe to predict that decisions handed down in the employment arena will be far less controversial to employers than they have been in the recent past, and employers may be able to breathe just a bit easier than they have under the Obama administration.

There are many more issues that could be discussed, but employers and managers should generally be breathing a sight of relief on January 20, 2017 when President Trump assumes office. Despite what you may think about the man himself, or media speculation as to his potentially radical foreign policy views or use of Twitter, history tells us that GOP-led administrations are good times for employers and downtimes for management-side employment attorneys such as myself. Overall, the likely impact of the issues discussed above should make management hopeful for the next 4-8 years as it develops its own business plans and policies going forward.

Syntrio is a leader in both the ethics and compliance field, as well as human resources and employment law. Syntrio takes an innovative philosophy towards compliance program design and strives to engineer engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our ethics and code of conduct online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on employment law and compliance that impact your company!

 

Written by Jonathan Gonzalez, Esq., Chief Counsel for Syntrio.

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