On January 20, Donald Trump was inaugurated as the 45th President of the United States. While the new administration’s policies are unclear on a wide range of issues, his comments during the campaign provide some hints on positions he will take with regard to labor and employment law. At the outset, we can assume that they will not be in line with those of the prior administration. With this blog, we turn to our proverbial crystal to make some predictions. Here are three:
As many employers were preparing for new changes in the salary basis test to take effect on December 1, 2016, a Texas District Court issued a preliminary injunction blocking its implementation. On December 1, 2016, the Obama administration appealed the ruling to the Fifth Circuit Court of Appeals. The Fifth Circuit granted an expedited appeal, but the issue will not be fully briefed until January 31, 2017, and oral arguments will occur thereafter. As a result, it will be the new Department of Labor under the Trump Administration who will take responsibility for it and the decisions around the government’s position.
What We Think Will Happen: All indications suggest Trump would likely not support the current appeal initiated by the Obama administration or the new DOL overtime regulations. Trump has talked against eliminating regulations that harm business’s bottom line. Trump has also suggested that these issues should be handled on the local level. Here in Chicago that process has already started. As a result, the Department of Labor may simply abandon the appeal altogether.
Employee Paid Leave
Paid leave became an important campaign issue. Currently there is no Federal Law mandating any paid leave (whether it is sick leave or medical leave). There are a number of cities and states that are making changes to the laws locally, but nothing has yet been put in place on a national level.
Trump campaigned for paid leave. On his website, he lists one of his priorities is to “provide 6 weeks of paid leave to new mothers before returning to work.”
What We Think Will Happen: It is unlikely that a Republican controlled congress will support such a change. The GOP has long opposed any paid leave. Complicating matters — even if the law were passed, it would face significant constitutional challenges because as currently described, it only benefits new mothers and leaves out “non-mothers” that are new parents. As a result it would be subjected to an attack under the Equal Protection Clause.
There was a growing swell of support for a national “No” non-compete regulation. The Obama administration was beginning to implement practices that discouraged restrictive covenants and there was talk of establishing a federally mandated rule.
What We Think Will Happen: It is unlikely the Trump Administration will continue to support these efforts. These changes are likely to continue to be controlled by state-law and will vary widely from state to state.
A Final Note
Although Trump tweet at 2:00 in the morning on the most mundane of issues, he still cannot micro-manage the huge federal government. In fact, his cabinet appointments suggest just the opposite. While many of those appointees have been criticized for lack of experience in the field of the departments they are going to manage, none of them lack substantial independent management experience. In fact, at confirmation hearings many of them have taken positions contrary to Trump’s own stated positions. Not only has Trump not tried to rein in his appointees, he has encouraged them to express their own opinions. Therefore, in the long run, we must look at the individual cabinet members to predict future directions of the administration.
For example, the Secretary of Labor designee is Andrew Puzder, CEO for the fast food companies, Carl’s Jr. and Hardee’s, an industry where a substantial component of their costs is minimum wage employees. This industry could be heavily hit by even a modest increase in the minimum wage. Confirmation hearings for Mr. Puzder are scheduled for February 2nd. How he responds to questions from senators, Democrats as well as Republicans, may give us more accurate insight into where employment law and policies will go under his administration than Mr. Trump’s own statements so far.
Please Stay With Us.
As the legal landscape continues to shift with the incoming administration it is important to be in contact with an experienced Employment Lawyer. Please contact us to discuss how we can help you prepare.