With 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.
The Obama administration 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.
Salary Exemption
On Nov. 22, a federal judge blocked a US Dept. of Labor rule that would have taken effect on Dec. 1, 2016, and extended mandatory overtime pay to more than 4 million salaried workers. US 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 rule. 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 Dept. 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 Dept. 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 relates to union organizing activities.
Purple Communications Decision
In 2014, the National Labor Relations Board (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 confusion over the ruling, so it could be one that NLRB targets for reconsideration.
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.
Arbitration Agreements
Under Obama, the NLRB has challenged agreements between companies and workers that require employment-related disputes to be settled in arbitration. Appeals courts have been split over the NLRB’s decisions, so the issue could end up being resolved by the US Supreme Court.
While there will be many changes in the regulatory, legislative and enforcement environment under Pres. Trump, employers should be vigilant about the potential for enforcement actions and work carefully with legal and HR experts, until it becomes clear how regulations will be revised.
