How a Trump Presidency Will Affect the Employment Law Landscape

1. How a Trump Presidency Will Affect the Employment Law Landscape

2. David B. Weisenfeld, J.D. XpertHR Legal Editor Former US Supreme Ct. Correspondent New Providence, NJ Anthony J. Oncidi, Esq. Proskauer Rose LLP Heads Labor and Employment Group in Los Angeles, CA Andrew H. Friedman, Esq. Helmer Friedman LLP “Litigating Employment Discrimination Cases” afriedman@helmerfriedman.com How a Trump Presidency Will Affect the Employment Law Landscape

3. Election Is Over: Now What? Battle Royale Leads to One-Party Rule • Contentious election to say the least • Republicans control House & Senate • Only 3rd time since 1929 • Senate is close (52-48) • R&D Presidents alike have mostly enjoyed Cong. support from party Will that still be the case now with unconventional pres. who often had lukewarm support at best from party leaders? XpertHR Template

4. Affordable Care Act R.I.P. or does it have any future? • Trump campaigned on full repeal of ACA in his first 100 days • But also said just days after election he’d consider leaving elements of the law in place on 60 Minutes and in WSJ interview: • Forcing insurers to cover people with pre-existing health conditions: and • Allowing parents to cover children under their plan into mid-20s XpertHR Template

5. Affordable Care Act Continued Nominated one of House’s fiercest critics of ACA, Rep. Tom Price, to be Secretary of Health and Human Services—not a guy likely to seek compromise on ACA What should people expect with the ACA? Is full repeal coming or will it exist in some form? • Weird dichotomy where many people in Red States (Kentucky a good example) who voted for Trump support/depend on ACA • Some estimates say 22-million people would be without insurance if the law is repealed • State marketplaces would no longer exist • Govt. has never undone a major benefits program after it’s taken effect XpertHR Template

6. And Still More ACA Old saying of “the devil you know is better than the devil you don’t.” There’ve been some administrative headaches, but what would most employers like to see happen with the ACA? • Women have had access to free birth control through ACA (preventive health benefit) • What happens now? • Will we see mini-Obamacare plans sprout up at state level (akin to what Massachusetts had prior to 2010), esp. in blue states? XpertHR Template

7. Agency Enforcement • No question stepped up enforcement during Obama years • NLRB went after nonunion employers • More apt to find joint employer status XpertHR Template

8. What Now? To what extent will these agencies take more of a hands-off, less activist approach? Will enforcement have much less teeth? XpertHR Template

9. Practical Impact on Employers • EEOC Commissioners, NLRB members terms don’t end on Jan. 20 • Chai Feldblum serves until July 1, 2018 as example • So will status quo continue for awhile? How fast will employers and employees see changes at agency level? • Will this make employees less likely to turn to these agencies to vindicate their rights? XpertHR Template

10. Overtime Rules Kaput? Nov. 22 fed. court in E.D. Texas tosses aside OT hike • Salary basis test won’t be going to $47,476 from the $23,000 range • DOL is appealing to 5th Circuit • Some employers already had increased compensation in order to comply in preparation for Dec. 1 date, what happens now? • Almost everyone agrees $23,000 is antiquated figure—dispute was over the amount of the increase • Will we see Trump DOL call for modest increase or is that not in the cards? XpertHR Template

11. Supreme Court Showdown Who will be next Supreme Court Justice? • Won’t be Merrick Garland • Unprecedented action—8-month holding pattern • Seems like we go back to way things were prior to Scalia’s Feb. 2016 death • Court that brought Citizens United, but also upheld key portions of ACA plus affirmative action • But no question S. Ct. steered clear of some hot-button issues or had 4-4 ties this year • Won‘t be the case with full Court XpertHR Template

12. Supreme Court--What’s Next Key Issues to Watch Tony, what are a couple of big workplace issues to watch that you think will resurface soon at the Supreme Court? Friedrichs v. Calif. Teachers Association (public employee union case) Andrew, what would concern you most from employee perspective now that Scalia’s seat is likely to be filled by someone equally conservative? XpertHR Template

13. Obama Executive Orders LGBT, Paid Sick Leave, etc. • President overcame hostile Congress with series of executive orders that expanded employee protections • Prohibited fed. contractors from discriminating based on sexual orientation or gender identity • Paid sick leave for employees of federal contractors • Exec. Order shielding 5-million undocumented workers from deportation (blocked by 5th Circuit and affirmed by 4-4 Supreme Ct.) LGBT rights took major step forward with that exec. order coupled with Supreme Ct.’s same-sex marriage ruling, will the Trump administration undo the LGBT order? XpertHR Template

14. Undocumented Workers “Good Fences Make Good Neighbors” You may have heard talk about a wall—here’s one architectural example Is this campaign rhetoric or will we see serious stepped up enforcement against undocumented workers? What of those who employ them? And what about “sanctuary cities” like L.A., Minneapolis, others. Could they lose federal funding? XpertHR Template

15. Mandatory E-Verify A Regional Issue No Longer? • 8 states have passed mandatory E-Verify laws that apply to most or all private employers • Require businesses to confirm work eligibility of all new hires using federal electronic verification system • Ariz., Utah and in the South • Elsewhere, E-Verify reqs. generally focused on federal contractors or subcontractors, if at all Are we going to see Congress pass a law requiring mandatory E-Verify in all 50 states? National origin discrimination risks? XpertHR Template

16. Questions Fire Away Inquiring Minds Want to Know: XpertHR Template

17. Trump Administration: What to Expect XpertHR Template