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“It’s going to be beautiful, believe me”: Trump on labor & employment law issues

By: Robin Shea

November 09, 2016

Congratulations to President-Elect Donald J. Trump, and to everyone who was elected or reelected to office yesterday. With a President Trump and Republican majorities in both houses of Congress, employers may see some changes in the form of less aggressive regulatory agencies, a National Labor Relations Board that is more employer-friendly, and some relatively conservative appointments to the federal courts, including the U.S. Supreme Court.

Here, with a few updates, is what I wrote in September about Mr. Trump’s positions on labor and employment issues:

Mr. Trump opposes the Trans-Pacific Partnership and the North American Free Trade Agreement, entered into during the Administration of Bill Clinton. Mr. Trump’s views on immigration are well known: In addition to “the Wall,” he favors making E-Verify a national requirement, raising the prevailing wage for workers under the H-1B visa program (to make American workers more competitive with their H-1B counterparts), and requiring that employers hire (or, at least, try to hire) Americans before seeking to hire foreign nationals.

Mr. Trump has expressed support of right-to-work laws. Otherwise, his positions do not appear to be directly related to labor relations but aimed at preventing foreign workers from competing with Americans for jobs. I would expect his appointments to the National Labor Relations Board to be more employer-friendly than what we’ve seen from the Obama Administration.

Mr. Trump said in July that he would favor an increase of the minimum wage to $10 an hour but thinks states should be able to vary from that. (I’m not sure whether he thinks they should be allowed to establish wages below the minimum.)

Mr. Trump has said that he favors a small-business exemption to the Fair Labor Standards Act overtime rule. One of his economic advisers was very critical of the rule this fall but stopped short of saying that Mr. Trump would try to rescind it. (I’ll find the link and add it as soon as I can.) It should be noted that the current administration is not expected to stop the rule from taking effect on December 1, while President Obama is still in office. To rescind the rule, a Trump Administration would be required to begin the notice-and-comment administrative rulemaking process again, which takes time. In other words, if that federal court in Texas doesn’t enjoin the rule, we expect the overtime rule to take effect as scheduled. (Oral argument is scheduled for November 16.)

As far as I can tell, Mr. Trump favors LGBT rights. At the Republican Convention in August, Mr. Trump and his kids signalled support for LGBT rights, and one of the featured speakers was Peter Thiel, co-founder of PayPal, who is openly gay. I would not expect Mr. Trump to push hard for “traditional values,” but I would expect him to be more incremental in expanding LGBT rights than the Obama Administration has been.

Mr. Trump favors paid maternity leave (women only, for recovery from childbirth) for six weeks.He also wants to make child care tax deductible, and favors an Earned Income Tax Credit for lower-income families who need child care. As I noted in September, I do not think Mr. Trump’s maternity leave proposal would unlawfully discriminate against men because the paid leave would apply to the period of actual physical disability resulting from childbirth, a medical condition that is unique to women.

“Midnight regulation” by the outgoing Obama Administration? Finally, there is the possibility of last-minute, “midnight regulation” that will be promulgated by the Obama Administration between now and Inauguration Day. I’m not aware of anything directly related to labor and employment, but we’ll be monitoring and will keep you up to date.

I’ll continue to update this blog post as more information comes available.

By: Robin Shea

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