Predicting the Unpredictable: Labor and Employment Law in 2017
This post is part one of a two-part series.
Since Santa did not leave the Wicked Witch of the West’s crystal ball under my tree, Emmett Lathrup “Doc” Brown’s DeLorean parked outside my house, or provide me with access to Bill and Ted’s telephone booth, I am unable say with certainty what 2017 will hold for employers. However, I am confident that several labor and employment issues will take, or remain, on center stage, as the President-Elect has indicated that once he takes office, he plans to repeal many of the executive orders and regulations implemented by the Obama administration that businesses have generally criticized as burdensome. Further, two nominations for leadership positions made by the President-Elect that will influence the employment arena are the nominations of Jeff Sessions to lead the Department of Justice and Andrew Puzder to lead the Department of Labor.
Jeff Sessions is known for taking positions contrary to those advocated by civil rights organizations, especially those supporting LGBT rights, and he is on record opposing the legalization of marijuana. This will be interesting because under the Obama administration the DOJ has been actively working to expand LGBT rights (think North Carolina), and has not been actively enforcing federal marijuana prohibitions in states where the drug is legal (think Colorado).
As for Andrew Puzder, he is an executive whose businesses have been investigated for wage and hour violations by the DOL. He is on record stating that American workers are overprotected. He is generally opposed to minimum wage increases, and he finds paid sick leave requirements burdensome. As Secretary of Labor, Puzder will be responsible for the agency that enforces many of the employment laws that businesses deal with on a regular basis, including the FLSA, the FMLA and OSHA.
If these two nominations are confirmed by the Senate and their past statements are indicative of how they will manage their agencies, businesses may see regulations curtailed and less aggressive enforcement of employment laws. As a business owner, such changes may equate to fewer regulations, less time dedicated to dealing with government agency investigations, and possibly lower labor expenses.
If some predictions on how Sessions and Puzder will lead their agencies under a Trump presidency come to pass, worker protections may be greatly diminished. If protections are impacted to the extent that workers feel that neither their employers nor their government has their best interests in mind, they may seek advocates to assist in improving the terms and conditions of employment. Think Sally Field in her Oscar willing performance in Norma Rae. If employees seek to unionize, the result may be more burdensome for employers than the existing regulatory framework.
Only time will tell how the new administration will impact the labor and employment arena. If employee protections do begin to decline, employers that value employees and treat them well are less likely to see the involvement of outside advocates.
Part two of this post will specifically address several of the issues mentioned above, including the DOL’s overtime regulations and Florida’s Medical Marijuana Law. Stay tuned.