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Top Ten Expected Labor and Employment Law Changes by the New Trump Administration

February 15, 2017

With the inauguration behind us, what changes do we expect the Trump Administration to make to labor and employment laws?  The following is a top ten list of those expected changes, as recently discussed during a webinar that was part of Nexsen Pruet’s HR Certificate Series for 2017.

1) Re-shape the composition and leadership of the National Labor Relations Board and the Equal Employment Opportunity Commission

President Trump has already chosen a new Chairperson for the NLRB (Philip Miscimarra) and the EEOC (Victoria Lipnic).  Both are generally viewed as more conservative and expected to lead their agencies towards more employer-friendly rulings.  For example, the NLRB might re-visit what constitutes “joint employment” and re-calibrate the “quickie” union elections rules.  Also, expect the new EEOC Chairperson to scrutinize the agency’s changes over the past several years.

2) Re-boot the “persuader” regulations

During the prior administration, the government proposed expanding the regulations governing “persuader” activity related to an employee’s choosing or rejecting union representation.  A federal court stopped the enforcement of those new regulations, and the court decision is now on appeal.  Expect the new administration to pull the plug on the proposed expansion of the persuader rules by dropping the government’s appeal of the injunction.

3) More right-to-work laws

Despite opposition by the prior administration, the number of right-to-work states has grown over the past eight years.  That trend is likely to continue under the new administration.  Moreover, Congressman Joe Wilson of South Carolina recently filed a bill to create a national right-to-work law. 

4) FLSA exemptions likely to remain status quo

The prior administration tried to narrow the category of workers who are exempt from overtime pay by more than doubling the required salary amount for most white-collar exemptions.  A federal court stopped the new overtime regulations late last year.  Expect the new administration to reject the proposed overtime regulations and return to the prior standard and salary amount of $23,660.

5) Immigration issues will remain in the news

The new administration has prioritized border control and immigration restrictions.  Those efforts will continue for the foreseeable future.  Contact Nexsen Pruet immigration attorneys, such as David Garrett or David Robinson, for more information.

6) The Supreme Court will become more balanced

If confirmed by the Senate, Supreme Court nominee Neil Gorsuch will likely become a reliable conservative voice on the Court.  Judge Gorsuch currently serves on the Tenth Circuit Court of Appeals and tends to take a strict, text-focused view of the Constitution.  He could influence the outcome in upcoming labor or employment cases.

7) Regulatory and Executive Order roll back

The new administration has ordered a 60-day freeze on most new regulations.  Also, expect the new administration to reverse some existing executive orders, such as Executive Orders 13673 and 13495.

8) Affordable Care Act – Repeal and . . . replace? repair?

The new administration has made repeal of the ACA a high priority.  In addition to plans for repeal, President Trump issued an executive order on his first day in office urging enforcement agencies to “exercise all authority and discretion to waive, defer, grant exemptions from, or delay implementation of” any piece of the ACA that would place any fee, tax, penalty, or regulatory burden on families, individuals, or healthcare providers.  While we don’t know exactly what that pronouncement will mean, expect repealing and replacing the ACA to be a significant issue in the coming months.

9) Department of Labor Fiduciary Rules

The prior administration had worked for years to develop and implement new rules intended to create a heightened fiduciary relationship between employers and retirement plan service providers.  These rules were set to roll out this April.  However, on February 3, President Trump called for a wholesale review of the regulations, in an effort to ascertain the extent to which the rules are likely to harm investors due to a reduction of access to certain retirement savings offerings and advice.  In the meantime, the administration may postpone the April 2017 effective date.

10) Tax Reform

Significant changes to the tax laws likely will have a profound effect on employers in the coming years.  For example, the new administration has indicated it plans to cut tax rates both for corporations and pass-through entities whose owners and members traditionally have been taxed at individual rates.  With the lower tax rates, the new administration has indicated it will reduce or eliminate many corporate deductions, except for asset acquisition and production costs, which under one proposal would be eligible for immediate 100% deduction instead of the current limited annual depreciation system.

There have been some significant labor and employment law changes in the short amount of time since the inauguration.  Many more changes are likely to happen in the coming months, so employers should carefully monitor these developments.

Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation