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Managing the Modern Workplace
V&E International Labor & Employment Resources

  • 06
  • December
  • 2016

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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 changing them.

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 here for details. Let the discussion begin.

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Authors

Thomas H. Wilson

Thomas H. Wilson Partner

Jeremy C. Marwell

Jeremy C. Marwell Partner