• 5 Reasons Why Employers CANNOT Rest Easy Under a Trump Administration
  • February 10, 2017 | Author: Joseph R. Hugg
  • Law Firm: Breazeale, Sachse & Wilson, L.L.P. - New Orleans Office
  • The conventional wisdom is that Donald Trump’s Presidency will bring brighter days for employers since the President-Elect has vowed to decrease regulatory burden and to roll-back many Obama Administration rules favoring employees and labor unions. While this may be true generally, there are 5 reasons why employers need to curb their enthusiasm for now:

    1) It will take months or years to change many administrative opinions and regulations.

    Before any controversial NLRB decisions can be reversed, such as those protecting employees’ degrading social media posts or dramatically expanding the joint-employment doctrine, two new NLRB members must be nominated by President Trump and confirmed by the Senate. Republicans hold a majority in the Senate, and Democrats will be unable to filibuster nominations under current rules (which were established by Democrats ironically). However, the Republican majority is very narrow, meaning that Mr. Trump’s nominees would need almost unanimous support from Republicans to guarantee confirmation, and Democrats still may use parliamentary measures to delay their appointment for many months or longer. Even then, the NLRB can only reverse decisions one-by-one as genuine disputes arise. Further, changes to regulations, such as the Department of Labor’s new white-collar exemptions or the NLRB’s “Ambush Election” Rule, also will take considerable time to alter because the Administrative Procedures Act requires a lengthy process of publishing proposed rule changes and accepting comments before amendments can take effect. The bottom line is that many Obama Administration rules and interpretations will remain in effect for the near future, so employers need to be patient and stay tuned for the inevitable developments that should ease their burden.

    2) Immigration enforcement will increase.

    We all know about The Wall. But the President-Elect has a lot of ideas when it comes to immigration, some of which directly impact employers. For example, Mr. Trump has vowed to increase immigration enforcement efforts and to hire more Immigration & Customs Enforcement (ICE) agents, meaning that employers are now more likely to be subjected to an audit for I-9 compliance, and organizations employing foreign workers are more likely to be investigated for compliance with visa-related obligations. Prosecution of employers who rely on unauthorized foreign workers is expected to increase as well. Mr. Trump also supports the expansion of E-Verify to virtually all employers, although he may need Congressional action to impose such a mandate. Finally, the President-Elect wants increased scrutiny of the H-1B visa program, which would make it more difficult for employers to obtain visas for foreign skilled workers.

    3) Employers may be required to offer 6 weeks of paid maternity leave.

    One of the most specific policy proposals made by Mr. Trump during his campaign was to offer six weeks of paid maternity leave to new mothers. As proposed, this benefit would be sponsored by the federal government and administered through existing state unemployment insurance systems. Despite the popularity of paid parental leave generally, many believe it will be impossible to convince a Republican Congress and all 50 states to go along with this proposal. This means that if President Trump wants to keep his promise to female voters, including his daughter Ivanka who campaigned on this proposal, he may require employers to provide paid maternity leave without federal financial assistance. In fact, taking a page from President Obama’s playbook, Mr. Trump could sign an Executive Order requiring federal contractors to offer paid maternity leave without Congressional approval as soon as he is innaugurated.

    4) The Minimum Wage may increase.

    Mr. Trump was ambivalent about this issue during the campaign. At times, he vowed to leave minimum wage increases to each state. However, he also told Bill O’Reilly that he supports a modest increase in the federal minimum wage. Considering that many of Mr. Trump’s working-class supporters would benefit from an increased minimum wage, which has been $7.25 per hour since 2009, do not be surprised if the hourly minimum is increased 2-3 dollars as part of compromise legislation at some point during the next 4 years.

    5) If implemented, protectionist trade policies will impact employers.

    Like them or not, Mr. Trump’s proposals to abandon trade deals like NAFTA and the Trans-Pacific Partnership (TPP), as well as his threats to raise import taxes on goods from major trading partners like China and Mexico, will impact the business of many American employers. This is especially true for employers in the shipping, transportation, and manufacturing industries, which could face major business challenges ultimately resulting in workforce reorganizations or reductions.