Employers may be breathing a sigh of relief, thinking that legal compliance will be easier under the Trump administration. Here are some reasons that theory is both true and false.
President Trump isn’t going to shut down the DOL, EEOC, NLRB, OSHA, etc. These agencies will continue to operate. The agency to likely see the greatest impact is the NLRB. It has a five-member board, currently with two vacancies. The current board has two pro-labor members and one pro-management member (of course, all three would claim to be neutral). President Trump will be able to nominate two members and we can be assured they will be pro-management. In addition, the chief lawyer for the NLRB (called the General Counsel) has been a pro-labor activist. His term expires in November of 2017. So, we are very likely to get a much less activist General Counsel.
Another agency likely to see major changes is the Department of Labor. We may well see the proposed regulations concerning the white collar overtime exemptions (which were pressed hard by the Obama administration) either go away or be amended significantly.
In general, it is likely that federal agencies will not be as confrontational towards businesses as they were under the Obama administration.
But that doesn’t mean that employers will see less regulation.
States are still free to adopt their own employment laws and regulations. We have seen this trend already in a number of areas. For example, a majority of states have a higher minimum wage than the federal minimum wage.
Some states have different rules concerning the calculation of overtime and which employees are exempt from overtime.
A number of states have added protections for certain groups beyond those protected by federal law. For example, Michigan prohibits discrimination on the basis of height, weight and marital status, categories not protected by federal law.
Local governments are getting in on the act as well. Some cities have adopted their own ordinances adding additional employment protections. For example, New York City prohibits discrimination against the unemployed. In other words, in NYC an employer cannot take into account an applicant’s current unemployed status when making a hiring decision. A number of local governments have adopted so-called “ban the box” provisions, prohibiting employers from asking about criminal convictions until later in the application/hiring process. Indeed, it is likely that, in so-called Blue States, we may see an acceleration of legislation adding employment protections.
So what is an employer to do? If you are a multi-state employer, you simply must keep track of employment changes in the states in which you do business. Don’t assume you have no out-of-state employees. Think about remote employees, especially sales people, installers or those permitted to work remotely. It is easy to forget about a handful of people spread around the country.
Consider how your human resource information system (HRIS) can get you into — and maybe out of — trouble. As more and more employers move to automated application processes, it is easy to adopt a one-size-fits-all approach to online applications. But some questions may be perfectly lawful in some jurisdictions and unlawful in others. A sophisticated HRIS system can use technology to insure that, depending on where the applicant resides, only lawful questions are asked.
This also brings into issue how hiring managers are trained. A sales manager who interviews around the country needs to know what can and cannot be asked in various jurisdictions.
Bottom line: human resource professionals will need to stay vigilant as increasing employment regulations come from the state and local level.
