The Trump Triumph: A Fearless Forecast for the Workplace
Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
In the July Workplace Advisor article, I took a shot at broadly analyzing what a Clinton or Trump administration would mean for workplaces. Much of what I said then continues to hold true, particularly in respect to the Supreme Court, but in the aftermath of the election, and despite the fact that Trump has put forth few specifics respecting workplace policies or programs, some of the key issues and indicators are now coming into sharper focus.
Surprises and uncertainties are the bane of any business, and I offer the below, a kind of workplace prognosis, in the spirit of helping businesses, particularly closely held businesses, prepare for future. Hopefully, I will do better than the pollsters…
Trump will be reluctant to bite the hands that fed him.
The demographics of the Trump victory turned party politics inside out. Trump, the Republican, was elected by what has been a bastion of Democratic support – middle class working people seeking to get their fair share of the pie. Union leaders may have supported Clinton, but union members supported Trump. While Trump most certainly seeks to favor businesses, he will remember how he got where he is, and that will influence his policies.
Expect some inconsistencies as Trump attempts to serve two masters. A wildcard: will he support the existing enforcement push on ADA and FMLA violations, improperly classifying independent contractors, and payment of overtime for “off the clock” hours? These are all policies favored by working people and despised by businesses. It will be interesting to see how a President Trump walks this tightrope but, for now, my guess is that there will not be a dramatic decrease in these governmental enforcement efforts (and even if there were, employees continue to have the option of taking their employers to court). My advice: employers should focus very hard on compliance efforts in these areas – the draconian penalties for violations are not worth the risk.
The new overtime rule.
As you know (I hope), the Department of Labor promulgated a new rule – effective December 1, 2016 — mandating (by way of simplified summary) that any employee (supervisory, management or otherwise) who does not make at least $913/week must be paid overtime for that week. The cost and logistics of implementation will be nightmarish for many businesses.
Recognizing who elected him, Trump has not objected to the new rule, other than to state that he favors a “small” (undefined) business exemption. The upshot is that, unless and until they hear otherwise, businesses have no realistic choice but to get the advice they need to comply with the rule before the deadline. The courts or Congress may ultimately intervene, and Trump may well impose the small business exemption when he takes office, but this does not appear to be a high priority item for the new administration.
Discrimination and harassment claims will spike.
Without getting into the how’s or why’s, the extreme campaign dialogue about Muslims, Mexicans and other immigrant communities has, for some, given cover to overt, defiant discrimination and harassment based on race, nationality and religion. As I write this, the news is filled with race-based demonstrations in schools, race-baiting activities in workplaces, white-supremacist graffiti, and so on. A safe prediction: workplace discrimination and harassment claims will rise, and the EEOC and the courts will do all they can to stop this conduct as soon as feasible.
The message for businesses is to amplify training, be vigilantly watchful, and act quickly and decisively should you see any nascent indications of this conduct in your workplace. Do not take the position that it will all work out; once discriminatory conduct begins, it almost always gets worse, at an accelerating pace, if management does not react quickly, properly and within legal boundaries. Be careful. Get advice.
The unionization party is over.
The NLRB, all union adherents, issued regulations that made it much easier for unions to organize workplaces – the so-called “ambush election” rules. I expect that the system will return to where it was before the advent of these new rules: influential Republicans in both the House and the Senate have made clear that this will be a top priority.
The EEOC and the NLRB will be reshaped … eventually.
Even apart from Trump, Republicans in the House and Senate have railed against many of the EEOC’s and NLRB’s rulings, which have tilted substantially toward the expansion of employee rights. The EEOC and the NLRB are comprised of “commissioners” who serve staggered five-year terms, and there is little doubt that as soon as he is able, Trump will appoint replacements more favorable to business interests — these kinds of appointments do not generally garner the kind of publicity that would damage the new Republican base.
Executive Orders will be reversed.
Facing a deadlocked Congress, President Obama (as did many of his predecessors) turned to his executive powers in the effort to implement his policies. This led to, for instance, paid leave for federal workers and contractors, and protections for undocumented workers. But what one president can giveth, another can taketh away. Expect a Trump administration to substantially alter, if not dismantle, much of what President Obama’s executive orders erected.
The Affordable Care Act.
Before it can be repealed, Congress first needs to reach a consensus on what will replace it, and there is no one plan that has garnered anything close to majority support. In addition, it is likely that the Democrats in Congress will invoke a variety of procedural rules, including a filibuster, in an effort to salvage as much of the Affordable Care Act as possible. Repealing the ACA will be a political nightmare, and the courts may become involved as well. Trump is already signaling that he understands these difficulties. The ultimate result could involve major changes, such as the abrogation of the employer mandate, to changes not all that different from what the Democrats themselves would have done if given the opportunity. It is too soon to tell.
Immigration and the workplace.
Immigration and the effect it has on jobs has been a centerpiece of the Trump campaign. Expect much tighter enforcement on immigration status verification, restrictions on visas, and more. It is likely that this will happen quickly, through a series of executive orders and agency actions.
The message: there will be no Trump revolution in respect to most thorny (and risky) workplace compliance issues, at least for now. ADA, FMLA, overtime, discrimination, harassment, retaliation – those concerns will very likely stay substantially as they are for the foreseeable future, and workplace policy revisions and training efforts should remain a top priority. The Affordable Care Act … no one (not even Trump) knows where that will end up. Immigration changes and, possibly, changes in trade policies that could affect the business climate in general could make an impact much sooner.
More to come as events continue to unfold… In the meantime, let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at email@example.com. See www.powelltrachtman.com for more information.