By: Melanie M. Dunajeski, Drewry Simmons Vornhem, LLP
There is little argument that the Employment Law landscape under the incoming presidential administration will differ from that of the Obama Administration—the bigger questions are “how” and “when”? Although the change at the federal level is the headliner, all employers must also keep in mind that many states and localities have employment related laws and regulatory schemes that stand along side or in addition to the federal laws—these all remain unaffected unless and until such a time as the specific state or locality enacts a change. Indeed, some jurisdictions have already indicated a willingness to amp up local protections to make up for protections that may be subtracted from the federal equation by the new administration.
Changes in the federal context will depend on what type of control the federal government is exercising. Employment is one of those areas that spans statutory, agency, regulatory and executive order action. To change or repeal a statute requires legislative action- in other words, an Act of Congress. Some Congressional action may be swift, but it would be foolish to assume that the full legislative agenda of the incoming administration will be embraced—even by a Congressional majority. Agency Regulations that have been published in the Federal Register and have gone into effect require the more lengthy process of publishing proposed changes and providing a notice and comment period in advance of repeal or change. Thus, barring Court action such as last week’s injunction placing the DOL’s new overtime rules on hold, changes to existing regulations will require notice and comment periods prior to change by the new administration. Executive Orders do not require a notice and comment period to revise or repeal, so some or all of the employment related Executive Orders issued by the Obama administration may be reversed by the new administration as soon as it assumes office, as well as executive orders left in place from prior administrations. Of particular impact to employment issues are the Obama administration executive orders with respect to immigration, government contracting, and protection of LGBT workers.
The new administration will also be in the position to bring change in employment related matters through appointments, such as to the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”). Changes through agency appointments will come more slowly, however, since the terms of the board and commission members are staggered. Agency enforcement activities may be more immediately curtailed through the Congressional budgeting process—decreased budgets leave fewer resources for traditional enforcement activities. Consider, for example, whether the Occupational Safety and Health Administration’s (“OSHA”) current program of aggressive enforcement will continue to receive the funds necessary to continue. Likewise, although the new administration will not be able to quickly change the enforcement agenda of the EEOC, as set forth in the agency’s recently published Strategic Enforcement Plan, probable reductions in the EEOC’s current budget will curtail the agency’s ability to pursue that agenda.
It seems clear that at the federal level there will be an immediate round of action post-inauguration to set a tone—rescinding Executive Orders, lodging legislation to repeal or revise key pieces of legislation from the Obama Administration, and beginning the process of curtailing agency action through appointments, budget pressure, and repeals of administrative rules and regulations. These federal level actions are likely to be followed by significant action at the state and local levels. Employers will need to be ready for changes to many of the laws and programs that affect their relationships with their workforce, and to react appropriately.