In our second in a three-part series on what to expect from the Trump administration, we discuss immigration policy and the Affordable Care Act (ACA), as well as what may be in store for parental leave, marriage equality and transgender bathrooms.
During the campaign, Mr. Trump signaled that his administration would take a tough stance on immigration, promising to “build a wall” along the U.S.-Mexican border and to deport millions of undocumented workers. Pinning down the details of the president elect’s immigration policy has proven to be somewhat elusive, however, and it is too early to make many hard and fast predictions.
That said, it is clear that Mr. Trump’s immigration agenda will significantly impact employers. For starters, we should expect a much more aggressive approach to workplace immigration compliance. Employers should anticipate that Form I-9 audits and investigations will be stepped up — so don’t forget to start using the new Form I-9 no later than January 22, 2017. Additionally, ICE may be given the green light to resume the high-profile worksite raids that were prevalent during the Bush era. The president elect has done little to assuage these kinds of concerns, proposing to hire hundreds of new ICE agents to ramp up the government’s immigration enforcement efforts.
Mr. Trump also has pledged to end the Deferred Action for Childhood Arrivals (DACA) initiative, which the Obama Administration rolled out in 2012. Under DACA (administered by USCIS), more than a half million young, undocumented aliens (the so-called “Dreamers”) have been shielded from deportation and provided legal work authorization. The new president could terminate the DACA program with the stroke of a pen, although his precise intentions are not clear. His options range from simply ordering USCIS not to accept or approve any new DACA applications to more drastic measures, such as revoking already approved DACA applications and work permits or (more drastic still) using the information previous DACA applicants provided to institute deportation proceedings against them. Recently, however, Mr. Trump suggested that his stance on DACA may be softening, stating that he may seek to “work something out” regarding the Dreamers. In addition, last week, a bipartisan bill designed to extend DACA’s protections and benefits for three years was introduced in Congress – although it’s certainly not clear that this legislation has the support needed for passage.
Other changes impacting employers may come later, through some form of immigration reform legislation. Mr. Trump has voiced support for mandating E-Verify for all employers, and it’s almost certain that any proposed legislation will include mandatory E-Verify. Additionally, some of the president-elect’s closest advisors have pressed for changes to the existing legal immigration landscape, including the visa programs commonly used to secure foreign talent. Some of those within Mr. Trump’s inner circle have been particularly critical of the H-1B program for temporary “specialty occupation” workers and have floated proposals designed to make the use of that program more difficult, such as increasing the wage requirements and instituting a labor market test. During the campaign, however, the president-elect was more equivocal about these legal immigration programs, sometimes making remarks that seemed contradictory. At this point, it is not possible to predict how these issues will shake out, but employers certainly need to stay tuned.
2. Affordable Care Act
During the campaign, Mr. Trump consistently stated that he would repeal and replace the Affordable Care Act (ACA). In recent interviews following the election, the president elect has indicated that he would consider keeping certain popular provisions of the Act, such as those preventing pre-existing condition limitations and those allowing coverage of adult children to age 26. These provisions are also generally popular among members of Congress and will likely remain in place. Congress likely will eliminate other aspects of the ACA, such as the employer mandate and the penalties for not offering or providing insurance coverage to employees. A guiding principle for designing a replacement plan could involve encouraging insurance industry competition through mechanisms such as Mr. Trump’s proposal to allow insurance companies to compete across state lines. He has also proposed a few means for reducing the costs of health insurance, including allowing the full deduction of health insurance premiums from taxes and expanding the availability of health savings accounts. In sum, developing and maintaining a system that includes certain popular reforms without coverage mandates will be a challenging task, and it is quite possible that the transition out of the ACA will take a few years.
3. Social Issues Such as Parental Leave, Marriage Equality, and Transgender Bathrooms
Mr. Trump has commented about many other issues that could affect employment policies. During his campaign, he proposed a parental leave policy requiring six weeks of paid leave for mothers following childbirth. This policy would not apply to fathers or to parents who welcome children through adoption or surrogacy. As part of the policy, Mr. Trump has suggested a tax deduction to employed individuals for care expenses for up to four children and elderly dependents.
With respect to same-sex marriage, employers should not expect White House efforts to disturb the Supreme Court’s 2015 Obergefell decision legalizing same-sex marriage. While Mr. Trump did not spend much campaign time discussing LGBT rights, in a recent 60 Minutes interview the president-elect said he did not have a problem with same-sex marriage and felt that the Obergefell decision was settled law, rendering it a non-issue.
Mr. Trump has flip-flopped on the issue of transgender bathroom policy. In the Spring of 2016, Mr. Trump said that he thought that transgender individuals should be able to use whatever bathroom they preferred. Later, however, he criticized President Obama’s executive order requiring public schools to allow transgender students to use the opposite sex’s bathroom and said he thought that individual states should make those decisions. Several weeks ago, the Supreme Court granted certiorari to review a lawsuit that would test the validity of the executive order on transgender bathrooms. If the new president rescinds the executive order, this could moot the case or require the Supreme Court to remand it to the Fourth Circuit for reconsideration.
Stay tuned for our next blog post in this series about expected judicial appointments and future rulings on several employment-related cases. If you have specific concerns or questions, please contact one of the attorneys in Bradley’s Labor and Employment Practice.