By Mark F. Kluger and William H. Healey
Because we all know how wrong pundits can be, we are somewhat reluctant to contribute to the speculation about the impact of the new President on labor and employment law issues. But having seen some of the predictions, we feel compelled to add a few notes of caution.
Overall, we believe that the short term changes will be minimal, if even noticeable, to most employers. Keep in mind that the primary contact points in the federal agencies with whom most employers deal will not change. The career agents in the Department of Labor, EEOC, OSHA and the NLRB will remain in place and will continue to enforce the laws and the policies against employers in the manner that they see fit. The philosophical changes that may come from a more pro-business administration will begin at the very top and will not trickle down any time soon. As a practical matter, this means that employers will still face many of the same regulatory challenges they do today. Although the chances of having adverse decisions at the lower levels overturned on appeal may eventually improve, the considerable time and costs involved in getting there will unfortunately still be an important and sometimes difficult economic and practical business decision.
Our thoughts on the impact of the new administration on some specific areas:
- DOL New Overtime Rules: The change becomes effective 12-1-16 before the new administration and will proceed. Even after the inauguration, there is unlikely to be any roll back.
- Affordable Care Act: There will no doubt be changes, but slowly and not likely anything drastic. Employers will still need to continue to deal with the onerous reporting requirements for the foreseeable future.
- EEOC Enforcement: Some of the priorities may change, but the overall aggressive approach on workplace discrimination claims will not let up (at least not until maybe budget cuts kick in during the next several years). The one area where the agency may slow down is in the recent transgender initiatives.
- NLRB: This agency may be the one where the most roll backs in enforcement initiatives occur. There are two vacant seats on the Board which currently has a 2-1 liberal majority. When the two new appointees are added and the balance shifts, there may be a drastic roll back on the following: the joint employment issues, inclusion of temps in bargaining units, fast track elections, and the overwhelming expansion of the definition of “protected concerted activities,” primarily in the non-union sector (social media and other handbook policies).
- E-Verify: This may be where we see the federal government impose itself even more deeply into private sector employment practices by requiring the use of the E-Verify system for new hires in order to more accurately determine immigration status of applicants and existing employees.
- Federal Contractors: Someone is no doubt already compiling a list of recently imposed Executive Orders that will be rescinded including: (1) 7 days of paid sick leave with carry over; (2) minimum wage of $10.10; (3) wage data collection requirements; (4) prohibition against policies that prevent wage disclosure among employees.
Most importantly, there is one thing that every employer should do in response to these very uncertain times. The recent election should motivate every employer to ban discussions of politics at work. This action is not necessary to comply with any law, but rather is essential in order to maintain a productive and harmonious workplace—and to preserve everyone’s sanity. No excuses, period.
Stay tuned. We are all learning to expect the unexpected.