What President Trump Will Do To Employment Law Will Make You Dizzy

Employment law may undergo its biggest upheaval since the New Deal, according to new columnist Richard B. Cohen.

trump-magaEd. note: Please welcome Richard B. Cohen, one of Above the Law’s new labor and employment law columnists.

The world of employment law may undergo its biggest upheaval since the New Deal. Everything settled may very well be turned on its head, and initiatives long fought for by various groups may meet a wall.

A yuge wall!

The workplace is a microcosm of society, and the current environment of political polarization and uncertainty is, and will continue to be, reflected in employment law. Lawyers like certainty, and while it’s a lawyer’s job to use good judgment to try to predict future events, few lawyers are able to do that now because the only certainty is uncertainty – which is just the way the President-elect says he likes it and will likely govern.

Oy!

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Nonetheless, there are at least some things that we can expect.

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1. Blue states getting behind states’ rights: lawyers be ready!

There will assuredly be less federal oversight of the workplace and a considerable weakening of enforcement of workplace regulations – if not outright repeal. However, since workers in this country have had more than 50 years to grow accustomed to their rights and claims, look for the states (or at least some blue states) to pick up the slack. Already there is a movement in some blue states to coopt the “states’ rights” politics and tactics that red states have been employing for decades.

And perhaps look for an increase in private suits and the growth of the plaintiffs’ bar. As always – a boon for lawyers!

2. The Department of Anti-Labor?

What will happen to overtime and sick leave issues?

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E.J. Dionne, Jr. wrote in the Washington Post that although Trump campaigned as a working class hero, “This could be the most anti-worker, anti-union crowd to run our government since the Gilded Age.”

For example, look at the nominee for Labor Secretary, Andrew Puzder. The New York Times called him “a scathing critic of efforts by the Obama administration to update the rules for overtime-pay eligibility … [notwithstanding that] it would be his task as labor secretary to defend the rules, which have been challenged in court.”

He has also criticized mandatory sick leave.

But surprise! It seems that his nomination is not universally approved by Trump supporters: it is being resisted by growing numbers of anti-immigration groups and now-influential outlets such as Breitbart because of his support for foreign workers.

Where this will go is anyone’s guess, but it is not likely to be favorable to employees.

3. Will Trump Dismantle The EEOC? The NLRB? OSHA?

Be very afraid for the future of the EEOC and its Strategic Enforcement Plan. And also for the possibility that sexual orientation discrimination will be included in Title VII. The EEOC argued this just two weeks ago before the Seventh Circuit en banc, and most observers think that the Court will uphold the EEOC’s position – which will inevitably set up a Supreme Court showdown.

But – and here comes the 900-pound gorilla that is behind virtually every employment law issue: who will be on the Supreme Court when the case is argued? Will there be eight justices, or nine? And who will be the ninth?

This will likely be dispositive of many of the most important employment issues of the day.

Recall that Clarence Thomas, with very little relevant background, was placed in charge of the EEOC by Ronald Reagan with, essentially, an explicit or at least implicit mandate to dismantle or at least restrict the agency. A typical Reagan tactic, and if the current Trump appointments at Labor, Education, and the EPA are any indication, we might look forward to another Clarence Thomas to be appointed at the EEOC.

Oh, and don’t forget Rick Perry, the nominee for Energy, a department he vowed to abolish, before he forgot its name in a presidential debate in 2011.

Oops!

Also fear for the NLRB, and its various controversial initiatives such as the persuader rule, “quick” elections, expanded collective bargaining and concerted action rights, etc. Say goodbye (or at least good luck!).

And OSHA? Do you think that the many federal workplace safety and health regulations that big business has long called burdensome will not be rolled back? Think again.

Then there’s the nominee for Attorney General, Jeff Sessions, who in 1986 the Senate refused to confirm as a federal judge for his racism. What then does this portend for African Americans and other racial minorities in the American workplace and employers who hire (or don’t) hire them? Will Title VII be repealed, amended, or ignored?

And then there are Muslim employees.…

4. The “Non-compete Reform Movement” Will Likely Die.

Also in jeopardy is President Obama’s “Call to Action” to states to reform laws on employee restrictive covenants, the so-called “non-compete reform movement.” Any federal intervention in state laws on non-compete agreements is likely a non-starter in an anti-labor Trump Administration.

5. Gun Owners May Become A “Protected Class.”

Finally, I come to my favorite issue: The legislative push in Ohio to create a protected class of employees with a concealed-carry permit who keep guns in their vehicles that are parked on an employer’s property. They would be protected as much as the protected classes of race, gender, age, etc.

Sounds extreme? Get used to it, and wonder what will happen as each red state falls like a domino and Title VII is (maybe) left standing.

Anyway, buckle up … it’s gonna be one helluva ride!

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richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.