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President-elect Donald Trump's concern over an over-regulated economy and way of live has been widely reported. Which specific regulations the incoming administration might target, however, remains an open question. Commentators have identified regulations affecting the financial industry, energy industry, and health care and the environment as likely targets.
Many workplace regulations are also likely to be on the target list, particularly those enacted through executive order, which can be reversed by a new president using the same process. Most notably, the executive orders affecting federal contractors, such as minimum wage and the paid sick leave mandate, are under scrutiny. Another major executive action under the Obama administration is the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents (DAPA) policy. While a target of the incoming administration, it is not clear at this time, whether those granted work authorization (over 75,000 individuals) would be grandfathered in or whether rescinding this order would make all DACA and DAPA recipients subject to deportation.
Some of the final regulations to watch include those that have been enjoined by the court such as the overtime rule expanding eligibility for overtime pay, "persuader" rules requiring employers to report to the government any outside consultant they hire to respond to union organizing efforts, and the Fair Pay and Safe Workplaces rule requiring employers seeking federal contracts to report labor violations.
These legal delays mean that a Trump administration may be likely to refuse to defend the rules in court and could provide time to repeal the rules or could craft new ones through the regular rule-making process, which can take months or even years. Similarly, rules with later effective dates, such as the revised EEO-1 form mandating the reporting of compensation data, provide more time for a shift in focus from a new administration.
Another likely shift in regulatory impact will be how the incoming administration handles guidance and interpretations issued by the agencies over the past several years. Although these documents do not carry the full force of law, they address important workplace issues such as expanded definitions of "joint employment" and misclassification of workers, and guide the focus of the agencies and enforcement. Agencies under a Trump administration may reject these new interpretations and reshape their enforcement priorities.
Similarly, the focus of the National Labor Relations Board (NLRB) is largely driven by the views of the administration appointing the majority of its members. Early in 2017, President Trump will appoint two new Republican members of the Board and a new general counsel, with Senate confirmation. Over the past several years, the NLRB has adopted an aggressive and active stance on many issues, including reaching into nonunion workplaces to review employee handbooks and social media policies to broadly protect employee rights to "concerted activity." With confirmation by a Republican-controlled Senate assured, the newly constituted board will, as cases reach it, revisit and likely reverse some of the more controversial board decisions made over the past several years.
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