What the Trump Election Means for the Future of Labor and Workplace Regulation

ELECTION 2016 ANALYSIS

Now that we have a President-Elect Trump who will take office on January 20, 2017, the warning from my pre-election analysis stands: Don’t expect too many big changes right away.

The major area impacting employers likely to be targeted right away is immigration. A major component of Trump’s campaign was a 10-point immigration reform program, which includes the new President Trump immediately terminating President Obama’s two executive amnesties and a promise to enforce all immigration laws “from Day One.”

Trump also said he will, “Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.” Without being specific, he also says his administration will create new immigration controls designed to boost wages and “to ensure that open jobs are offered to American workers first.”

When it comes to other federal regulations, Trump plans to issue a temporary moratorium on new agency rules that are not compelled by laws shaped by Congress or to protect public safety. This includes requiring that for every new federal regulation, two existing regulations must be eliminated.

In his Sept. 15 address to the New York Economic Club, Trump pointed out that in 2015 alone federal agencies issued more than 3,300 final rules and regulations, up from 2,400 the previous year. “Every year, overregulation costs our economy $2 trillion,” he declared.

He says his agenda will “give our American companies the certainty they need to reinvest in our community, get cash off of the sidelines, start hiring again, and expanding businesses. We will no longer regulate our companies and our jobs out of existence.”

Trump promises to eliminate the most intrusive federal regulations, but during the campaign he named only the Waters of the U.S. Rule and the Environmental Protection Agency’s Clean Power Plan, which he estimates will cost the U.S. $7.2 billion a year. However, he promised to cancel every “unconstitutional executive action, memorandum and order” issued by President Obama, without listing what those are.

He also promises to completely overhaul Obamacare and in September he offered a program to enhance unemployment insurance to include six weeks of paid maternity leave. Trump also said he would like to see increased incentives for employers to provide child care at their workplaces.

Some of these things can be implemented immediately, but others will take time for the new President to nominate and get approved a raft of federal appointees, and not just the agency secretaries who will be members of his cabinet. Other initiatives will require congressional action as well.

Obstacles Looming Ahead

In regard to organized labor Trump drew on his own experience to offer a conciliatory approach. “I have had great relationships over the years with unions,” he said in a television interview during the campaign. “We've had collective bargaining. I have dealt with unions because New York is largely unions; you are dealing with them. I have great friends that are in unions and heads of unions, so I haven’t had the same difficulty and problem.”

When it comes to national policy and the unions’ agenda items like their nationwide attack on the “gig” economy and independent contractors, for example, he is less likely to find national union leaders will be as accommodating as the ones he dealt with across a table in Manhattan to hammer out a contract.

Perhaps the biggest immediate impact in the near term will be the nomination of someone to succeed the late Antonin Scalia as a member of the U.S. Supreme Court. Scalia’s death created a 4-4 impasse on several workplace regulation cases that have made it to the halls of the High Court. This has meant that the lower court decisions appealed to the Supreme Court are automatically upheld. In some cases this result has favored employers, in others it hasn’t.

Although a simple majority vote in the Senate is enough to confirm the President’s Supreme Court nominee, current rules for that body can end a filibuster only when 60 Senators vote to do so. Although Republicans hold a majority in the Senate, a President Trump would need to pick up at least a handful of Democrat lawmakers to put his nominee on the court.

However, another possibility involves the Republican majority changing the rules of the Senate, which Sen. Harry Reid (D-Nevada) did in 2013 when he was majority leader. At that time Democrats decided that a simple majority vote could lift a filibuster of presidential nominations to federal appeals courts and commissions like the National Labor Relations Board.

Regardless of how efforts to streamline the process go, we will have to wait quite a while to see changes in the NLRB, Equal Employment Opportunity Commission and Surface Transportation Board. Because they are independent agencies created by Congress, their members are appointed to set multiyear terms.

In the case of the NLRB, the general counsel in addition to the board members are nominated to staggered four-year terms by the President. The counsel is independent of the board and his role is to set the agenda for NLRB regional directors in the handling of complaints. Only when those complaints reach the full board on appeal can they rewrite labor law by rendering decisions.

The current general counsel, Robert Griffin (who was a former commissioner), started his term at the end of October 2013 and it ends in October 2017. In the meantime, President Trump will be able to nominate the replacement for board member Kent Y. Hirozawa, a Democrat, whose term ended in August, and nominate someone else to fill another, currently empty seat.

EEOC is organized in a similar fashion, including a Senate-approved general counsel. The term of Chair Jenny R. Yang ends in July 2017. Long-serving Republican Commissioner Constance Smith Barker’s most recent term ended this July but she was renominated by President Obama. Of the remaining commissioners Democrat Chai Feldblum, an open Lesbian who includes her promotion of a Gay and Transgender rights agenda in her bio, will see her term end in July 2018. Republican Victoria A. Lipnic’s term will end in July 2020 and Democrat Charlotte Burrows’ term will be up in July 2019.

In sum, you can expect to see major changes take place quickly in some areas of regulation under the President’s direct control and that were part of his campaign agenda, like immigration enforcement, but it will take much longer for issues requiring new legislation or the replacement of sitting commissioners at independent agencies.