How the Incoming Administration May Impact Labor and Employment Issues
By Douglas H . Duerr
40
2016 Issue 4 | THE SCORE
By the time you are reading this article , written at the end of 2016 , Donald Trump will be about two months into his presidency . While there is an expectation by almost everyone that he will bring about significant changes , with about half fearing the worst and the other half expecting the best , there is no debate that , other than a general promise to do away with regulations “ bad ” for business and to eliminate two regulations for every new one , there have been virtually no announcements of specific changes to labor and employment law as of this writing . No doubt in the months and years to come , he will champion a number of changes that will eventually be implemented . Until then , what can you , as an employer , expect in terms of labor and employment laws ?
While President Trump and his cabinet can formulate and shape labor and employment policy , before you as an employer can feel their impact , those policies must trickle down from the secretary of labor to the myriad agencies within the Department of Labor or , in some instances , from other cabinet secretaries down to their various agencies . The agencies , in turn , set enforcement policies and promulgate – and amend – regulations implementing the laws passed by Congress . Those agencies are run by a number of appointed and career employees , all of whom take time to change , if at all . Thus , if history is any guide – I have been doing this type of law since 1990 – do not expect big change on the front lines for at least a year … maybe two .
In addition to the agencies directly answerable to the secretary of labor and the president ( e . g ., the Wage and Hour Division , which enforces the federal wage and hour law among others ), there are , within the Department of Labor , some quasi-independent agencies such as the Equal Employment Opportunity Commission ( EEOC ) and the National Labor Relations Board ( NLRB ). The members of the
EEOC and the NLRB are appointed by the president and approved by the Senate . The NLRB has five board members , and there are currently two vacancies . Thus , President Trump could , if he acts promptly , have an impact on reigning in an agency that has been indisputably very active and unabashedly prounion ( think the quick election regulations and NLRB decisions finding unlawful numerous handbook policies ).
How likely is President Trump to fill those vacancies quickly ? While there is little debate that his campaign and election defied the expectations of seasoned observers , if history is any guide , quick action is not a certainty . For example , when President Obama was elected to office , his campaign promises specifically included labor reform , and he inherited a NLRB with three vacancies at a time when Democrats controlled the Senate . Nonetheless , it took several years before he began filling them . Therefore , because the current members have terms that do not expire until 2018 at the earliest and it may be a while before enough pro-management members will be appointed to take control of the NLRB , it will likely be some time before we see a meaningful shift in labor policy from the NLRB .
What about the EEOC ? There , from the perspective of an employer looking for change with the new administration , the news is direr . There are no vacancies on the EEOC , meaning that if the current five commissioners serve their full terms , President Trump will not have an opportunity to appoint a new commissioner until mid-2017 , with one commissioner each year after that . Thus , change is unlikely for some time to come .