Legal Ease
What President Trump Means for Labor and Employment
By Richard D. Alaniz W
ith the election of Donald Trump as the 45th president of the United States, the business community can almost certainly look forward to a new era. Although many of Trump’s policies on labor and employment-related laws and regulations have yet to be fully developed, there are many Obama-era initiatives that could face significant changes under the new Republican administration. In
some instances, the courts
may become involved—and several judges have already weighed in with injunctions against some recent Obama regulations. Other changes could take effect soon after Trump assumes office in January. But some changes may take longer, as Congress looks at a slew of issues, cases work their way through the court system, and Trump considers his priorities.
Regulations that May be Rolled Back Over the course of the last eight years, the Obama administration has made a series of changes that have led to more economic and regulatory burdens for businesses, while often strengthening unions. Many of those changes could be undone, rolled back, or at least revised.
Those might include: • White Collar Salary Exemption On Nov. 22, a federal judge blocked a U.S. Department of Labor rule that would have taken effect on Dec. 1 and extended mandatory overtime pay to more than 4 million salaried workers. U.S. District Judge Amos Mazzant of the Eastern District of Texas agreed with 21 states and an assortment of business groups that the rule was unlawful. Many organizations had already
changed employee salaries and job classifications to comply with the new
30 ❘ January 2017 ®
rule. On a practical level, it could be difficult for employers who proactively instituted changes to cut salaries or rearrange work schedules for employees. However, if competitors did not adjust salary levels, some employers may find it necessary to roll back any salary changes. The Labor Department has appealed the ruling to the Fifth Circuit Court of Appeals.
• The Persuader Rule On Nov. 16, another federal judge
in Texas issued a permanent nationwide injunction blocking the so-called “persuader rule.” The rule, which the Labor Department put forward as part of the Labor Management Reporting and Disclosure Act of 1959, would have required “indirect service providers” such as consultants and law firms to publicly disclose any work they do for employers that relate to union organizing activities. The permanent injunction by U.S.
District Judge Sam Cummings of the Northern District of Texas followed a preliminary injunction that he issued in June. The injunction has already been appealed to the Fifth Circuit.
• Changes by the National Labor Relations Board Over the last eight years, the National Labor Relations Board (NLRB) has made many significant rulings that have been often pro-union. Among the rulings that could be targeted for change:
“Quickie” Election Rules The NLRB’s so-called “quickie” union election rules, which took effect in April 2015, accelerated the time between the filing of a petition to unionize and a union election. Despite concerns that the new election rules would lead to more
union wins, it appears those concerns have not yet been realized, which may mean that the rule will not be among the administration’s top priorities.
Purple Communications Decision In 2014, the NLRB ruled that employers could open their corporate email to union organizing by employees, except in very limited situations. The decision involving
Purple Communications
overturned a 2007 NLRB decision that found that corporate email systems are the employer’s property, so employers could ban all non-business email communications.
There is still some
confusion over the ruling, so it could be one that the NLRB targets for reconsideration sooner rather than later.
Specialty Healthcare Decision In August 2011, the NLRB adopted a new standard for determining appropriate union bargaining units that found that the NLRB would presume a union bargaining unit was appropriate. If an employer sought to argue that a unit should include more employees, the employer needed to show that employees in a larger unit share an “overwhelming” community of interest with those in the petitioned-for unit. This is likely to be rolled back.
Joint Employer Rulings Some of the most far-reaching actions by the NLRB recently have been around joint-employer standards. In August 2015, in a ruling involving
Browning-Ferris Industries, the NLRB found that in a relationship between two companies, an “indirect relationship” was enough to make both companies joint employers.
between joint employers
The relationship extends
to
temporary employees and franchisors and franchisees.
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