A Trump administration will quickly act to counter the executive orders that President Barack Obama has used to get around congressional stalemate. It is also likely that we will see an end to excessive regulation by numerous federal agencies. That will certainly include the Department of Labor (DOL) and various related entities, e.g., the Wage and Hour Division, OSHA, and the National Labor Relations Board (NLRB). Although the so called “quickie election rule” is a regulation that will take some time to unwind, other interpretations of policy can be undone much more quickly. For example, the persuader rule, which requires employers to disclose their privileged and confidential contacts with labor attorneys advising them on union matters, will likely wither and die. So too, the DOL’s interpretations of Joint Employers and Independent Contractors. Finally, the positions of DOL and the NLRB on Class Action Waivers will likely be reversed so that employers have a little more certainty in dealing with their workers.
Wage/Work Hours
On the Wage and Hour front, we are likely to see a revision of the new overtime regulation that takes effect on December 1, 2016. President-elect Trump is likely to direct the new Secretary of Labor to reduce the salary minimum for exempt status. It is likely that the salary minimum will be high than at present ($455 per week) but significantly lower than the new threshold ($913 per week). Expect something around $650 per week or about $34,000 a year in salary. This figure is more modest and in line with prior DOL thinking on this issue.
OSHA
OSHA will likely be curbed. Contractors will be pleased to see a rollback of the Electronic Reporting Rule scheduled to take effect on January 1. Also, OSHA’s anti-retaliation rule will probably be trimmed to permit post-accident drug testing.
Immigration
Now for some bad news. Trump is dead set against illegal immigration. This means that the construction industry will be hurt especially hard by anti-immigration efforts. We are likely to see a push to make E-Verify required of all employers nationwide.
In addition, the Deferred Action against Childhood Arrivals, or DACA, will probably be scrapped, along with the Obama Administration’s other executive orders protecting illegal immigrants. We are likely to see workplace enforcement ramped up significantly and a return to the multi-agency SWAT style of worksite raids. Audits of I-9 compliance will likely increase, focusing on the new I-9 form that is required to be used by all employers on January 27, 2017.
Trump will probably pull back the EEOC’s efforts to require large employers (over 100 employees) to include in their EEO-1 reports substantial payroll information.
Paid Sick Leave
For those construction employers that are federal contractors, much will be changing. The paid sick leave provision will likely be repealed, as will the higher minimum wage ($10.20 per hour) and gender identity and sexual orientation discrimination prohibitions. We are likely to see repeal of the Pay Transparency rule providing that an employer may not retaliate against a worker who discusses pay and benefits issues, as well as the Fair Pay and Safe Workplaces rule which requires a federal contractor to disclose any prior legal problems to the contract administrator. Finally, OFCCP’s recent rules regarding employment of veterans and the disabled may be curtailed.
Affordable Care Act
And perhaps the best news of all, Trump is determined to get rid of the Affordable Care Act, also known as Obamacare. While the exact mechanism for doing this remains unclear at this time, we can expect a Republican replacement policy fairly quickly. The Republicans are determined to keep the (relatively few) good parts of the current law, such as coverage of pre-existing conditions and dependents until age 26, while repealing the individual and employer mandates, as well as most of the changes to Medicaid and Medicare. Since the election, Trump has toned down his statements about the ACA, suggesting that he might not favor an outright appeal of the entire ACA. Nonetheless, he intends to do something about the high cost of health care insurance.
The Trump administration faces some difficult tasks in the early days of his presidency, but the prospects for positive labor relations changes are very good indeed. Contractors need to watch carefully what happens and be prepared to react accordingly.
