Top 10 Things to Watch in 2017 and Beyond

1. Judicial Appointments: NLRB and DOL likely to become more business-friendly, while the U.S. Supreme Court will swing conservative.

With the new administration taking over on January 20, 2017, late Justice Scalia’s vacant U.S. Supreme Court seat is expected to be filled by a conservative justice, thus returning the U.S. Supreme Court to its conservative roots. There are several pending employment cases that the Court has held off hearing anticipating the appointment of a ninth justice. Additionally, the new administration is expected to fill the two vacant seats on the NLRB board with business-friendly individuals. One issue the business-friendly NLRB is expected to face is the “quickie election” rule for voting in a union. The new administration is expected to either restrict funding for enforcement of that rule or push for the rule to be revised to temper its provisions. As for the DOL, it is expected that the new administration will significantly decrease funding and return it to a business-friendly mindset as well. This return would include cutting funding supporting the increased enforcement and audits that are currently in place. These changes are expected to happen over a lengthy period of time, as changing of policies and actions are a slow process. President-elect Trump is expected to appoint a Secretary of Labor who will rein in the agency’s current extensive rulemaking power. President-elect Trump’s 100-day plan includes a promise that for each new federal regulation passed, two will be eliminated.

2. Labor Law Changes Likely on the Horizon.

President-elect Trump has presented an infrastructure improvement plan, which is based on incentive-based contracting, which encourages on time and within budget work. Along this same vein, President-elect Trump is expected to strongly support right-to-work laws, while ceasing the call for states to issue blanket prohibitions/denials of non-compete agreements. Additionally, the new administration is expected to support the restoration by the NLRB of long-standing labor law positions. President-elect Trump, if not able to do so legislatively, will do as President Obama did, and use executive power to do so. This includes re-issuing the executive order of President George W. Bush, which required federal contractors to post employee rights under the Beck case (which prohibited unions from using member dues for any purposes unrelated to collective bargaining or contract administration without members’ consent). The re-issue and the stance expected under the new administration is expected to be employer-friendly and be far less inclined to expand Section 7 coverage.

3. Equal Employment Opportunity Laws

In light of President-elect Trump’s business background, it is expected that EEO-1 reporting requirements, viewed as burdensome, cumbersome, and expensive, will be halted. Several lawmakers have introduced legislation to prevent implementation of those reporting requirements, and it is expected that they will re-address the issue with President-elect Trump. Republican lawmakers have been criticizing the commission for its pursuit of activity unrelated to its backlog of discrimination claims. It is expected that the commission will be tasked with addressing its existing discrimination backlog rather than pursuing bigger picture endeavors. Another area where the commission is expected to clash with President-elect Trump is its firm stand on LGBTQ claims. Recently, the commission declared that Title VII claims included sex discrimination based on sexual orientation and identity. This declaration led to a flurry of filing by previously exempted institutions to clarify their positions on sexual orientation and identity.

4. OSHA Enforcement to Return to its Roots.

In the new administration, it is expected that OSHA’s regulatory activity, which grew exponentially under the Obama administration, will be severely limited, if not eliminated. President-elect Trump has indicated that he will be speaking with department heads about what he refers to as “wasteful” and “unnecessary” regulations that kill jobs by eliminating them. President-elect Trump is expected to repeal or significantly pare down the existing OSHA rules. President-elect Trump is expected to refocus the agency on its roots: high-hazard enforcement. This enforcement includes repealing the current penalty increases, or at the very least preventing those penalties from increasing every year. The current rule requiring employers to report injury and illness information to OSHA to be posted for the public is likely to be repealed, as the new administration recognizes that this information is already tracked on internal OSHA 300 logs. In scaling back OSHA, President-elect Trump may heighten thresholds for whistleblower claims in an effort to re-focus OSHA on high-hazard industry enforcement, safety outreach, and accident and fatality inspections.

5. Wage and Hour Law

The new overtime rule was to go into effect December 1, 2016, with employers scrambling to adjust to the new classification of their employees. This all changed when a federal judge in Texas, ruling in two cases brought by a number of business groups and 21 states, issued a preliminary injunction that stopped the rule from taking effect on December 1. The DOL has appealed this ruling to the 5^th Circuit Court of Appeals and we should expect to hear something on this case in late spring or early summer. It should be noted that President-elect Trump has been vocal in his support of a small business exemption from the law as well as potentially setting the law aside altogether.

6. ACA Will Be Overhauled or Repealed.

Many benefits-related changes may be in store for employers under the new administration. The repeal of the ACA has been included in President-elect Trump’s 100-day plan. President-elect Trump’s plan promotes tax-free HSAs that may help individuals save for health care costs as well as allowing individuals to deduct their premiums on their income tax returns. Allowing insurers to sell policies across state lines to encourage competition is also included in the new administration’s plan. As the details emerge in President-elect Trump’s 100-day plan, the details on how he plans to gut the ACA will become clearer.

7. New Administration Supports Paid Maternity Leave.

President-elect Trump’s plan to expand paid family leave is expected to go into effect early in his administration. The new administration supports six weeks of paid leave for new mothers, but does exclude fathers, adoptive parents, and those who use a surrogate from coverage under the plan. For now, it is expected that states will present legislation either preventing the municipalities from advancing leave requirements that are more inclusive than Federal Law, or push for more expansive leave requirements. Regardless, employers should expect that paid leave obligations will become more complex and numerous in the coming days.

8. Federal Contractors

With the congressional gridlock of the last four years, President Obama has enacted his labor agenda via executive orders, which are expected to be rescinded when the new administration takes power. Among the executive orders likely to face rescission are those that require paid sick leave for contractors, a higher than federally mandated minimum wage, and those that prohibited employers from discriminating on the basis of sexual orientation or gender identity. Additionally, President-elect Trump is expected to rescind President Obama’s Executive Order 13502, which promoted “pre-hire” collective bargaining in federal contracts. It is expected that Executive Order 13202, originally issued by President Bush, which promoted contract neutrality (meaning that it is unlawful to require or prohibit contract bidders to work with certain labor organizations), will be re-enacted. The most controversial of these executive orders is the Fair Pay and Safe Workplaces Executive Order, which requires reporting civil judgments, arbitral awards, potential violations of numerous laws, along with a penalty for seeking to enforce arbitration agreements covering Title VII and certain other torts. This executive order has been challenged in the courts in several states, but could be rescinded when President-elect Trump takes office in January, making those lawsuits moot.

9. Data Security

The new administration has pledged to improve cyber security in both the government and private sector. President-elect Trump has suggested the creation of a Cyber Review Team to provide recommendations for safeguards and protocols to promote cyber security. His plan also requires all government employees to attend training on cyber security and promotes the use of joint task forces throughout the country to respond to cyber threats. President-elect Trump has also indicated that he wants U.S. Cyber Command to develop offensive cyber capabilities. This plan may lead to an increase of pressure on companies to share information with law enforcement when national security interests are implicated.

10. Immigration Reform.

At the core of President-elect Trump’s campaign was his dedication to immigration reform. In light of President-elect Trump’s hard line on deporting undocumented immigrants, employers can expect Immigration and Customs Enforcement to ramp up enforcement of employment verification documentation. Employers are strongly urged to review their I-9 compliance program and perform self-audits to ensure compliance with all applicable provisions. President-elect Trump is focused on reforming legal immigration as well, including H visas, those used for high skilled foreign labor.