Get Ready: the Major Changes to Employment Law we are Likely to See Under the Trump Administration

After President-Elect Donald Trump’s inauguration on January 20, 2017, the world of human resources and employment law may see a major upheaval.  While it is impossible to predict exactly what may happen in the coming years, we anticipate that the following major changes may be on the horizon:

  • DOL’s Final Rule

As everyone in HR is aware, enforcement the DOL’s final rule regarding the white collar exemption was enjoined by a federal Court in Texas in November.  The injunction is being appealed.  However, due to the complicated and time-consuming process involved in litigation and agency rulemaking, the Obama administration did not resuscitate the final rule or win on appeal during President Obama’s term.  Under Andrew Puzder’s presumed leadership of the DOL, it is highly unlikely that we will see the agency make an effort to save the final rule.   Rather, we expect that the final rule will either (a) never be heard of again; or (b) come back (in a year or so) as a watered down version with – at the very least – a lower salary threshold.

  • Non-Compete Reform

President Obama’s “Call to Action” to states to reform their laws regarding non-compete, non-solicitation and other restrictive covenants will likely not continue under the President-elect.  While states are free to reform their own laws, we are probably not going to see any further encouragement from the Trump administration on this front.

  • EVERYTHING from the NLRB

The Trump administration will quickly have a majority at the NLRB, as it currently has two seats open and one existing Republican member.  All of the NLRB’s actions and initiatives over the past eight years will be in play – including graduate assistants’ ability to unionize, the persuader rule, and the quickie-election rules.  Changes in this area will likely be quite employer-friendly.  In addition, we can expect the NLRB to be much less activist in its rulings related to protected and concerted activity related to social media.

  • Litigation

The President holds the power to appoint judges to all of the federal Courts – ranging from District Courts to, obviously, the Supreme Court.  Accordingly, we are likely to see employer-friendly judges appointed to the benches at all levels and across the country.  These judges will likely have very different interpretations of the gamut of federal statutes touching upon the employment relationship, including the Age Discrimination in Employment Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, etc.  We can expect to see a rollback of some of the more fact-intensive aspects of the statutes – such as, probably, a lower threshold for whether an accommodation is reasonable and a higher threshold to prove causation in discrimination/retaliation cases.  However, the judges will be constrained by established, controlling precedent set by Obama appointees.

  • Family Leave

Not all of the changes will mean doom and gloom for employees.  In September, the President-elect called for six weeks of paid maternity leave.  Under the FMLA and the Massachusetts Parental Leave Act, workers are only entitled to unpaid leave for the birth and care of a newborn child or the placement of an adopted or foster child.  Although it is unclear as to whether President-elect Trump will follow through on this “campaign promise,” the fact that his daughter, Ivanka, is a strong supporter of the proposal should mean that it has a strong chance of becoming a Trump administration priority within his first year in office.

  • Obamacare

The President-elect talked a big game about repealing (and perhaps replacing) Obamacare.  If the Trump administration and Congress ultimately do so, employers will be significantly impacted, as the requirements regarding the healthcare coverage they must offer to employees will likely be reduced/eliminated.

About Amanda Marie Baer

Amanda Marie Baer is an associate in the firm's Labor, Employment and Employee Benefits Group and Litigation Group.  Amanda focuses her practice on representing employers in federal and state courts and before the Massachusetts Commission Against Discrimination, defending against claims concerning discrimination, harassment, retaliation, wrongful termination, accommodations, and wage and hour laws.  Amanda also has experience in conducting workplace investigations into allegations of discrimination or harassment, enforcing and defending employment, noncompetition/nonsolicitation, and severance agreements and representing businesses in contractual, fraud, and general business litigation matters.
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