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Davis Brown Employment and Labor Law Blog

What Will a Trump Presidency Mean for Employers? - November 11, 2016

It's still two months until President-elect Trump takes office so it will be late January before we know whether Mr. Trump will pursue a traditional Republican agenda on employment issues. While Mr. Trump certainly carries a business background, his campaign focused on blue collar and other middle class workers. That may limit what might otherwise be a pro-employer legislative agenda. 

Persuader Rule

At least one pending rule will likely be eliminated. The Department of Labor's ("DOL's") revised Persuader Rule requires employers and their labor relations consultants (including law firms) to file with the DOL detailed reports about activities that have as "an object directly or indirectly to persuade employees concerning their rights to organize and bargain collectively."  A permanent injunction was issued by a Federal Court on November 16 blocking enforcement of the rule.  If the injunction is appealed, there would be no judicial resolution of that litigation until well after Mr. Trump takes office and that appeal and rule may well be dropped by a Trump Department of Labor. 

New Overtime Rules

A nationwide injunction was issued on November 22 blocking the U.S. Department of Labor from implementing its controversial rule that expands the number of employees eligible for overtime. The injunction blocks the DOL from enforcing its regulation set to begin December 1 that raised the salary level for white-collar employees to over $47,000 per year. Given the December 1 implementation date for the rule changes, the DOL could seek an emergency appeal to the Fifth Circuit asking that the Court’s injunction be set aside. If the DOL seeks an emergency appeal, the Fifth Circuit could decide the matter before the end of the year. If an emergency appeal is not granted, the injunction will remain in place through the end of January at which time the new administration will take over. At that point, it is unclear what will happen because President Elect Trump has not specifically said anything about the new overtime rules other than there should be a “small business” exception.


Paid Leave

One item of employment legislation that surfaced during the presidential campaign was paid leave. During the campaign, President-elect Trump expressed a willingness to mandate six weeks of paid maternity leave to be funded through a crackdown on unemployment insurance fraud. Since more and more states are adopting paid leave requirements, only time will tell if the Trump administration will press for federal legislation in this area or defer to state action.  

Minimum Wage

Mr. Trump has expressed a willingness to increase the minimum wage to $10.00 per hour. Again, ultimately, the new administration may defer to the states to on this issue. 

National Labor Relations Board

It is probably safe to assume that a Trump administration will bring a less aggressive National Labor Relations Board, although the change will not be immediate. The Obama Board has been very aggressive with regulations on handbooks and other rules for employers. By statute, the Board consists of five members appointed by the president with the advice and consent of the Senate.

The current Board has three members (two Democrats and one Republican). Thus, there are two vacancies on the Board that Mr. Trump could fill by appointment in the early days of his presidency. If he appoints two Republicans, as would be expected, it would tip the ideological majority in favor of the Republicans. Being that the Senate also has a Republican majority, it is likely that Mr. Trump's appointments would be confirmed fairly quickly. As for the two Democrats on the current Board, the member with the shortest remaining term is member Gaston Pearce, whose term runs until August 2018. The current general counsel's term runs until December 2017.  Replacement of the general counsel will clearly ease the enforcement of the rules. 

Equal Employment Opportunity Commission

President-elect Trump has not announced his vision for the five-member U.S. Equal Employment Opportunity Commission, but changes there are also likely to take time. All five commissioners are currently appointees of President Obama. Although each member serves at the pleasure of the president, the commissioners serve staggered five-year terms. The commissioner, whose term expires soonest, July 2017, is Jenny R. Yang, the current chair. Although the president has the authority to designate the chair, employers should expect no immediate changes at the agency. With a Republican majority in the Senate, Mr. Trump will hope for wide latitude in getting his appointments, but that will take time.

Affirmative Action

Mr. Trump has not made any notable public statements on Executive Order 11246, which governs affirmative action programs for federal contractors. He has made various comments about affirmative action but has not expressed a particular vision for the Office of Federal Contract Compliance Programs. He hasn't communicated his plans for the Occupational Safety and Health Administration ("OSHA"), but budgetary challenges for agencies like OSHA seem likely under a Trump presidency and Republican majorities in Congress.

The Trump presidency is certain to bring a more pro-employer agenda than the current administration. The extent of that agenda is an open question.

For an overview of Iowa election results, visit the Davis Brown Government Relations blog.