After pulling off a victory more surprising than Truman’s, Donald Trump will have the opportunity over the next four years to–among other things–change the landscape of employment law in the United States. With Republicans now controlling the House, Senate, and White House, there will undoubtedly be significant changes that will last well beyond Trump’s term. And regardless of your political, philosophical, or moral takes on the issue, Trump’s victory will largely be viewed as favorable by employers. Here are some of the initial, significant items that employers can expect to happen:
- Repeal of Obamacare. Small and midsize businesses largely despised the increased overhead burden that the Affordable Care Act imposed on them. There is no doubt that repeal or significant reform of the ACA will happen, and that it will be one of the primary initiatives to be addressed early on in Trump’s presidency.
- No increase in minimum wage. Had the Democrats maintained control of the White House, there would have likely been a continued emphasis and effort to raise the federal minimum wage. President Obama was successful in raising the salary threshold for a majority of the overtime exemptions, and it was anticipated that Democrats would next push for a minimum wage of around $10 per hour. That is unlikely to happen under a Republican administration, although many states have already raised their own state-mandated minimum wage. The new overtime regulations are still set to go into effect on December 1 (while Obama is still in office), and it remains to be seen whether there will be any effort to repeal those changes (unlikely in this author’s opinion, but not out of the question).
- Tightening of the definition of “joint employer” and continued enforcement of class action waivers. The President gets to appoint the heads of important agencies that affect employers…the NLRB, DOL, and EEOC among the primary ones. Under Obama’s administration, these agencies–not surprisingly–took a more liberal, employee-friendly slant. A primary example of that was the NLRB’s expansive view of “joint employers,” including franchisors. Those NLRB opinions will go out the window, and these employment agencies will take on more conservative approaches in implementing their policies. And as discussed below, maintaining a conservative majority on the Supreme Court will likely mean that the decisions to uphold and enforce arbitration agreements and class action waivers will continue to be the law.
- Appointment of conservative Supreme Court Justices. There is already one vacant spot to be filled with Justice Scalia’s passing. And there is the possibility that 2-3 additional spots could open up over the next several years, although Trump’s victory may persuade some of the left-leaning justices to hang on a little longer. The justice(s) appointed by Trump and approved by Congress will no doubt have a more a conservative background and philosophy than those that would have been appointed by Hillary Clinton. And a more conservative philosophy usually translates into more employer/business friendly decisions. Thus, Trump’s appointments will mean a continued conservative majority on the Supreme Court, which has repercussions beyond employment issues and effects that will last beyond the term of a Trump presidency.