What will a Trump administration do to the labor and employment law landscape? While we can’t predict for certain, we figure we can at least provide better insight than the pollsters who have spent the last year following the campaigns—so here is the first in a three-part blog series. First, here are some Executive Orders that could be rescinded or amended and administrative action that could affect the employer-employee relationship.
1. Executive Orders
Several of President Obama’s Executive Orders likely will be reviewed by President Trump during his first year in office. They could be rescinded or amended by new Executive Orders.
Executive Order 13502 promoted pre-hire collective bargaining agreements. Opponents of these “project labor agreements” argue that they negatively impact competition for project bids and can lead to higher costs. If one of President Trump’s top priorities is job creation and stimulation of the economy, a return by Executive Order to contract neutrality with regard to union involvement can be anticipated.
President Obama’s Executive Order 13496 required contractors to inform employees of their rights to unionize or refrain from unionizing. This order rescinded a prior Executive Order issued by President George W. Bush informing employees that unions could not use member dues for purposes unrelated to union contract administration without the members’ consent. President Trump could rescind EO 13496.
Executive Order 13672 and its Final Rule, which became effective on April 8, 2015, provided that covered federal contracting agencies must include gender identity and sexual orientation in their list of protected classifications under EEO law. Likewise, the EEOC has taken the position that Title VII’s prohibition of sex discrimination includes discrimination based on gender identity, gender transition, and sexual orientation. This issue is now before several courts and will continue to be litigated. While it is not anticipated that a Republican-controlled Congress will pass legislation prohibiting discrimination based on gender identity and sexual orientation, it is also clear that any scaling back of the EEOC’s strategic enforcement plan that promotes LGBT employee rights would not occur immediately. President Trump could rescind EO 13672, but the likelihood of that is not clear at this time.
Two orders with January 1, 2017 triggers (EO 13706 and EO 13658) may not be a top priority for rescission. Executive Order 13706 requires employers with certain types of federal contracts to provide employees working on those contracts of one hour of paid sick leave for every 30 hours worked on the contract (up to 56 hours per year). It applies to contracts stemming from solicitations on or after January 1, 2017 and existing contracts replaced or amended after that date. Executive Order 13658 requires federal contractors to pay covered workers at least $10.20 per hour starting on January 1, 2017. The new administration may think federal contractors have already made adjustments to comply with these Eos and not expend much effort on them in the short run.
Executive Order 13673, the Fair Pay and Safe Workplaces Order, requires federal contractors and subcontractors to report any “administrative merits determination arbitral award or decision, or civil judgment” against them in the preceding three years. This so-called “blacklisting” order requires disclosure of potential violations under the FLSA, NLRA, OSHA, FMLA and other anti-discrimination laws and requires the contracting officer to consider such violations when awarding or extending contracts. Litigation to enjoin the rule is pending and will not be decided quickly, but President Trump could rescind the EO, making the issue moot.
Executive Order 13495 creates hiring rights of first refusal for current employees of federal contractors when the contract changes hands. The new administration will review this in light of whether it promotes or hinders growth and job creation.
Executive Order 13494 prevents the government from reimbursing contractor employers for costs associated with union campaign activities. This is one the employer community would like to see rescinded and rescission will not cause a lot of disruption.
2. NLRB and DOL Actions
In the last several years, initiatives driven by Obama Administration agencies significantly changed the nature of the employer-employee relationship. While President Obama was issuing Executive Orders, the National Labor Relations Board and the Department of Labor handed down rules and decisions which the new administration may seek to change.
The NLRB’s quickie election rule shortened the time for an election following a union’s filing of a representation petition and is widely seen as pro-union. While President Trump’s position on specific rules may not yet be clear, the Republican Party is expected to push back against this perceived overreaching, perhaps by restricting funding to the NLRB for enforcement or reintroducing legislation to protect employees’ rights to secret ballot union elections.
While class action waivers in arbitration agreements are viewed askance by the current NLRB (which has announced they violate the NLRA), this could change with the new administration. The Trump Administration will change the composition of the Board, which could result in a new direction on this issue.
We may see the winds of change on the joint employer front. In last year’s Browning-Ferris Industries case, the NLRB presented a new standard for determining whether two or more entities are joint employers of a single workforce. Indirect control and “unexercised potential control” could establish joint employer status, which has potentially wide-ranging implications for franchisee and independent contractor relationships. To the extent that the new administration views this as detrimental to economic growth, it will seek to appoint board members who hold a more employer-friendly view.
The DOL’s persuader rule requires employers to file public reports with the DOL when they obtain advice from consultants and lawyers regarding labor activities, even if such advice involves no direct employee contact. This was a change from the prior disclosure rules. A court has enjoined the rule for now. President Trump also will have an opportunity to reshape the NLRB to address this issue.
And let’s not forget the DOL’s currently enjoined Final Rule on the Salary Basis for the White Collar Exemptions.
Look for installments 2 and 3 in this series covering possible changes to immigration policy, the Affordable Care Act (ACA), social issues and expected judicial appointments.