Since the moment he announced his candidacy nearly two years ago, nothing about Donald Trump has been predictable. So trying to determine what the Trump Administration might mean for employers is guesswork at best.
Still, we can probably expect his overall policies to be quite a bit different than they’ve been for the past eight years, and if he has any intention of keeping his campaign promises it wouldn’t be surprising to see him reverse certain workplace policies that the Obama Administration put into place.
One big area Trump may target is Obama-era executive orders that affect government contractors, since he may view them as hindering economic growth and job creation and it won’t take an act of Congress to undo them.
For example, Executive Order 13502, which Barack Obama signed in 2009 as one of his first actions upon taking office, strongly encourages government agencies to use “project labor agreements” on federal construction projects costing more than $25 million. These agreements enable construction unions to determine wage rates and benefits for everyone on a project before a single worker is hired. They apply to all contractors and subcontractors and replace any existing collective bargaining agreements.
Opponents say these agreements undermine competition in the construction bidding process and lead to higher costs. As real-estate developer himself, it’s not hard to see Trump revoking this order, along with another executive order that requires contractors to inform employees of their right to unionize or refrain from unionizing.
Executive Order 13672, which forbids federal contractors and subcontractors from discriminating based on sexual orientation or gender identity, could also be vulnerable.
In addition to the foregoing, the new administration could set its sights on certain positions taken by the National Labor Relations Board.
One such area is the use of class-action waivers in employment arbitration agreements. The NLRB views such waivers, under which employees agree to submit all employment disputes to a neutral third party instead of taking them to court, and to do so on an individual basis and not as a class, as violating federal labor law. But Trump will have the opportunity to fill two current vacancies on the board and a third coming up in late 2017 with members he views as more pro-management, which could result in the NLRB taking a different position going forward.
A reconstituted NLRB could reverse last year’s “joint employer” decision under which companies are considered joint employers of workers provided by staffing firms. This also extends to companies that rely on subcontractors or have franchisees and is seen as boosting the ability of workers to organize.
Finally, certain Department of Labor rules imposed by the Obama Administration might not survive a Trump presidency. The most controversial was the new overtime rule that raised the salary level below which workers are entitled to overtime pay and made many white-collar workers eligible for overtime. This rule hasn’t taken effect, because a federal judge in Texas ruled that the DOL didn’t have the power to put it in place. An appeal of his decision was still pending as of January, but many employers oppose the rule and one could easily imagine a new Secretary of Labor pulling it off the table.
Given how much is up in the air with a new administration coming in, consider contacting an employment attorney where you live to discuss how you can best prepare.