Employment Limbo-a Labor and Employment Law Perspective on the Transition from Obama to Trump

• Publication year: 2017

Employment Limbo-A Labor and Employment Law Perspective on the Transition from Obama to Trump

Patricia Griffith

EMPLOYMENT LIMBO—A LABOR AND EMPLOYMENT LAW PERSPECTIVE ON THE TRANSITION FROM OBAMA TO TRUMP

Patricia Griffith^*

Introduction

When Donald Trump takes office as the 45th President of the United States, he will have the advantage of a Republican majority in both the U.S. House of Representatives and the Senate. Due to congressional deadlock during most of the obama administration, many of the changes that impacted employers were implemented through Executive orders and federal agency rulemaking. This means that Trump may be able to reverse many of the obama administration's actions even without the assistance of a Republican controlled Congress. In other words, change is coming.

Where and when the change will come is difficult to predict. The most obvious areas to watch are the Affordable Care Act ("ACA") and immigration reform, which Trump addressed repeatedly throughout his campaign. However, other areas also appear just as ripe for change. For instance, the current National Labor Relations Board ("NLRB") has been one of the most activist entities in history. Significantly, two of its five seats are vacant and Trump is expected to fill those with Republican appointees, resulting in a Republican majority and a shift in the balance of power, policies, and enforcement coming from that agency. The Department of Labor ("DOL") has also issued several controversial regulations that Trump's administration will likely reverse or modify.

During the obama administration, employers felt besieged due to increasing regulations and zealous agency enforcement. The Trump administration has the opportunity to assist employers by changing course and creating a more pro-business environment. However, until he and Congress begin to address specific issues like those discussed in this article, employers will continue to deal with the effects of the obama administration's policies.

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I. Analysis

A. Healthcare Reform

Donald Trump vowed to repeal the ACA (or "Obamacare") repeatedly during his campaign.¹ Since his election he has maintained that the plan is to "repeal and replace" the ACA.² Whether Congress can actually repeal the ACA is not entirely settled given that the Republicans lack the supermajority necessary to defeat a Democratic filibuster in the Senate.³ Even assuming that the ACA is repealed, how a repeal would affect employers remains unclear.

Recently, Trump has suggested that his "repeal and replace" mantra may not apply wholesale and that he is open to keeping parts of the ACA intact.⁴ He has indicated that he is open to continuing the ACA's coverage for preexisting conditions and its provision allowing children up to age 26 to stay on their parents' coverage.⁵ But he has not yet addressed the major issues employers face under the ACA. For example, will the employer mandate stay intact? What about the prohibition on employer reimbursement arrangements? These are just a few of the outstanding questions making employers anxious.

Given the historic Republican rhetoric towards the ACA, the healthcare arena of employment law will most likely undergo significant changes during the Trump administration. The expectation is that a Trump-GOP healthcare reform plan will be more employer friendly regardless of whether it comes by an amendment, repeal, or replacement to the ACA. However, for the time being the ACA is still the law and employers and their employees simply have little information to help them prepare for the coming changes. Thus, they must continue to ensure compliance with the ACA, but do so knowing that the current ACA may not be the law in the near future. Indeed, Trump has tapped Representative Tom Price of Georgia, an orthopedic surgeon, to become secretary of health and human services. Price has been a leading critic of the ACA and introduced bills offering a replacement plan.

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B. Immigration Reform

During his campaign, Trump was also vocal about his intent to reform the country's immigration policies.⁶ Unfortunately, this is another area where it is difficult to predict what specific changes are looming, especially with regard to employment law. Unlike with healthcare, though, employers should not expect Trump's immigrations plans to ease restrictions on businesses.

For example, Trump has proposed establishing a nationwide E-Verify system to electronically screen all new hires for their eligibility to work in the United States.⁷ Such a requirement would add another administrative burden for employers. For small businesses, this could delay getting crucial positions filled in a timely manner.

Trump has also been critical of the H category of visas. During a Republican presidential debate in March 2016, he stated: "I know the H-1B very well . . . it's very bad for our workers and it's unfair for our workers. And we should end it."⁸ This strongly suggests that H-1B reform is likely on the way, and Trump's pick of Alabama Senator Jeffrey Sessions for Attorney General, a vocal opponent of visa programs in general, seems to support that prediction. Notably, though, Trump has also expressed that it is important to maintain a mechanism for highly skilled immigrants to stay in the country.⁹

Trump's policies may also affect the H-2A temporary agricultural visa program. Unlike the H-1B program, Trump has not specifically targeted this area for reform, but his vow of mass deportations of illegal immigrants will undoubtedly affect the agricultural industry. In states such as Idaho more than a quarter of all agricultural workers are undocumented.¹⁰ Demand for H-2A workers has already grown in recent years, which has caused delays in the processing of applications and visa petitions.¹¹ Large-scale deportations would

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likely add even more stress to the administration of this visa program. Trump's administration could ease the burden on the agricultural industry by revamping the H-2A program to remove red tape and expedite the review process, but Trump has not yet expressed any specific intention to do so.¹²

Although Trump's official campaign position on immigration did not discuss specific reforms to the H category visas, he did state, "[W]e are going to suspend the issuance of visas to any place where adequate screening cannot occur."¹³ The campaign placed a particular emphasis on limiting Muslim immigration.¹⁴ In 2015, the United States issued over 6,000 H classification visas to citizens of Muslim-majority nations.¹⁵ This is a small percentage of total H visas, but potential regulations could reach beyond those nations to countries such as India, which has a Muslim population of over 170 million and internal issues with Islamic extremism.¹⁶

Depending on how vigorously a Trump administration acts to fulfill his promise to suspend visas, the number of available work visas could be significantly lower than in prior years. Employers that depend on the H visas to obtain laborers are on notice that a Trump administration could dramatically impact their ability to staff their needed workforce. But for now, they simply do not have enough information to effectively prepare for the potential changes.

C. National Labor Relations Board

The current NLRB has been active and decidedly pro-labor, issuing numerous decisions expanding union and worker protections and overruling decades of precedent.¹⁷ As a result, the NLRB has created an atmosphere of

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uncertainty, and employers are frequently left a step behind in attempts to comply with the creative interpretations of the National Labor Relations Act ("NLRA") propounded by the agency. For example, the NLRB has taken extreme positions with regard to employer handbook policies.¹⁸ In Chipotle Services, the NLRB found that Chipotle's social media policy violated the NLRA.¹⁹ Specifically, the NLRB found unlawful the policy's language prohibiting employees from making "disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors."²⁰ The agency affirmed the administrative law judge's conclusion that an employee would reasonably read the policy as a prohibition of lawful activity protected by the NLRA (i.e. discussing terms and conditions of employment).²¹ The NLRB also affirmed the administrative law judge's decision that employers cannot prohibit mere false or misleading posts, but must show that the employee had a malicious motive.²² Importantly, the NLRB found insufficient the policy's disclaimer stating, "This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights."²³

Another example of the NLRB's recent controversial positions are the rules it adopted in 2014 that substantially expedite the union election process.²⁴ Under the previous rules, the standard election period was around forty days, but the new rules allow an election to occur in under twenty days.²⁵ The rules were criticized for allowing "ambush elections," giving employers little time to respond. The rules survived various court challenges and a Congressional

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resolution,²⁶ and the GOP would have already overturned the rules if not for a presidential veto.

While Trump cannot immediately reverse the decisions of the current NLRB, as mentioned above, he is expected to fill two vacant seats with more...