Workplace law developments to expect from a Trump presidency

Rich Meneghello

Editor’s Note: The Inside Track is a recurring column written by a local business professional. Authors of these columns aim to provide you with their own perspective on a current trend or development within their industry, getting you on The Inside Track.

It’s official: Donald Trump will soon be our nation’s 45th president. Now the work begins to forecast what the next four years will bring, especially when it comes to workplace law and Pacific Northwest employers.

Candidate Trump made immigration reform the centerpiece of his winning campaign. Expect to see a ramp-up in workplace enforcement actions, including both I-9 audits and raids by the U.S. Immigration and Customs Enforcement agency. Also, don’t be surprised if the federal government soon mandates that all employers use the federal electronic database known as E-Verify to check the employment eligibility of all workers in the country.

Trump also said on the campaign trail that he would alter temporary work visa programs to help Americans retain more jobs in the country. If your business relies on H1-Bs visas, which allow employers to bring on highly-skilled foreign workers, you should be prepared to make alternative arrangements if there is a significant decrease in the number of visas issued.

It is a bit more difficult to predict what the Trump presidency will truly mean in the labor relations arena. While his victory will likely slow down the tide of aggressive pro-union and anti-employer developments at the National Labor Relations Board (NLRB), Trump could feel compelled to throw some bones to organized labor given his historically friendly relationship with unions while in the private business world. This is especially true given the fact that constituents of organized labor may, in hindsight, be credited for handing him the election in key rust belt states.

While Hillary Clinton’s campaign included proposals for expanding the Family and Medical Leave Act (FMLA) to include up to 12 weeks of paid family and medical leave for parental leave purposes or to care for a seriously ill family member, and to implement an earned paid sick day plan for American workers, Trump did not provide specifics regarding any such plans. Therefore it is difficult to predict what the next four years will bring when it comes to employment leave for workers.

However, during the first presidential debate in September, after Clinton provided her plans for these proposals, Trump stated that he was generally in agreement with respect to her position. Specifically, on the topic of childcare and similar initiatives, he said, “I think Hillary and I agree on that. We probably disagree a little bit as to numbers and amounts and what we’re going to do, but perhaps we’ll be talking about that later.” Employers across the country will continue to wait to see what proposals might spring forth from the Trump administration on this subject.

President Trump will soon have the opportunity to fill the open seat on the Supreme Court. It is fair to assume that the conservative and business-friendly status quo will soon be restored to the Court, especially if he nominates one of the individuals he has already touted as the possible replacement. While future vacancies cannot be predicted, it is worth noting that the three oldest justices are liberal or moderate. Statistical models suggest a 40 percent chance that there will be one additional vacancy before 2020 and a 20 percent chance that President Trump will be able to appoint two additional justices besides the current vacancy. Therefore, President Trump should have an opportunity to shape the Court for years to come.

This becomes important when you consider the innumerable workplace law issues that could come before the Court over the next four years. Arbitration provisions, class action litigation (including class waivers), union agency shop fees, the reach of Title VII, immigration programs, wage and hour law, and administrative agency powers are just some of the issues likely to confront the SCOTUS in the near future.

Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm exclusively representing employers in all aspects of workplace law. He can be reached at 503.205.8044 or RMeneghello@fisherphillips.com, or followed on twitter – @pdxLaborLawyer.

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