The First 100 Days: How Soon Will Workplace Regulations Change Under President Trump?
Under President Obama, a number of government agencies that regulate the workplace were particularly active. OSHA, the EEOC, the DOL, the NLRB and the OFCCP all reached out and touched a number of issues in the workplace. And in areas where the agency could not act, and Congress would not act, the President used executive orders to supplement formal regulation, particularly as to the workplaces of government contractors. The question we are asked, almost daily now, is what among all of those agency actions and executive orders will change in the Trump presidency and how quickly such change will occur.
With respect to labor law, President Trump will have the ability to
change some aspects of the playing field fairly quickly. For federal government contractors, he will
be able to undo with the stroke of a pen the restrictions President Obama put
into place by executive order—for example, raising the minimum wage for
contractors and requiring mandatory paid sick leave. As we have noted
previously, some employers may feel constrained to continue with those practices
to preserve good employee relations, but they will at least have the option of
Substantive regulations such as the “blacklisting rule” (which requires
federal contractors to disclose labor law violations in submitting contracting proposals
and prohibits them from requiring pre-dispute arbitration agreements), and the
overtime rule (which nearly doubles the current FLSA threshold for white-collar
exemptions to overtime rules) will both likely require notice-and-comment rulemaking
before the new administration can put new substantive requirements into
place. However, both regulations are already blocked by nationwide preliminary
injunctions (as we reported here
and here). Even if the Obama Administration files
notices of appeal before leaving office (which it has done in the overtime rule
case), the incoming Trump Administration could simply withdraw the appeals
before briefing is even complete, leaving the PI in place to give it breathing
room to undertake revisions.
As for the NLRB, President Trump will enter office with two vacancies on
the five-member board, giving him the opportunity (assuming the Senate acts on
confirmations) to transform a 2-1 Democratic majority into a 3-2 Republican
majority. He will also be able to
replace the NLRB’s general counsel, whose term expires in late 2017; indeed,
the general counsel, unlike the Board members, is subject to no removal
restrictions, so President Trump could replace him even earlier.
Some of these changes may not happen in the first 100 days, but many
will. Appointments to each of the
agencies listed above will have a lasting effect. So will the new appointment to the open
position on the Supreme Court of the United States. A number of important employment issues are
on their way to the Court, not the least of which is the NLRB’s attack on
arbitration waivers of collective actions. The outcomes of these cases may be quite different from what would have
occurred under either an Obama or Hillary Clinton administration. We will have much to report and discuss.
To get the discussion going, we are presenting a CLE covering these
issues and other regulatory reform questions, including environmental and
finance regulations, on December 8th. See
for details. Let the discussion begin.