Labor / Employment, On The Job

Will President Trump Actually Do Something To Benefit Employers Already?!

This Republican administration has a real opportunity to set policy regarding key issues impacting employers moving forward -- but will that ever happen?

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(Photo by Mark Wilson/Getty)

I’ve been a litigator and employment lawyer for long enough to appreciate the distinctions in policy that benefit my clients. I have always worked on the side of the company (or government), and so I have a unique perspective regarding what types of policies are good that often appears at odds with my personal feelings. And I had high hopes for this administration. But what I’ve seen discussed in the past 12 months is more than cause for concern, because this administration appears poised to do nothing to make policy less complex for employers.

With the Obama administration, employer-side employment lawyers had certain expectations. We knew the policies would not benefit our clients, and would likely present additional hurdles for doing business. Enter the ACA. It was clear from day one that the Obama administration was going to change the landscape for employers in significant ways. The only good thing for employers that came out of the prior administration, in my opinion, was the Defend Trade Secrets Act.

Thankfully for employers, gridlock hit Washington. But unfortunately for employers, states started to think they should do something about things. We went from “oh, that is just California” to “what, Arizona?!” Basically, the Obama administration, gridlocked or not, inspired actions by states and local governments that mean an employer that wants to operate in many different states will have to consider hundreds of local and state regulations, from minimum wage concerns to sick leave. It’s no longer just California.

Despite how it started, the Trump administration is a conservative administration. I tried to be optimistic regarding the landscape that employers may benefit from. I now think I might be wrong.

Here is a list, from the first year since the election, of three ways that this current administration has NOT benefitted employers, and things that aren’t likely to change:

  1. Understaffed government agencies. For an employment lawyer, the EEOC and the DOL are critical components of representing your client. Failure to properly staff these agencies doesn’t actually mean better outcomes for employers. It means things take longer, and that is actually more expensive. And it means that state agencies will step up to fill in the void, agencies that are likely not on board with the current federal administration’s priorities. And it isn’t just these two critical agencies. Other agencies make policies that impact employers, and if they don’t have anyone in key positions, policy isn’t getting made. Presidents make policy not just from the Oval Office, but also through staffing agencies with competent leadership that articulates a coherent vision. This administration needs to move swiftly to make that happen, or it risks no legacy in policy. Given what we have seen this first year, I am not sure this administration is capable of doing that.
  2. Soundbite policy rather than discussing the real issues that employers face. Right now, there is a massive tax overhaul in Congress. That’s great and all, but it is ultimately unlikely to pass. They are trying to change too much too soon, in my opinion. In the meantime, attorneys are worried regarding what advice to give for corporate pay issues and benefits. This might seem like a minor thing to the average person, but taxes are a huge concern for companies, and a small, poorly thought out change in the Code can have massive implications. Companies with staying power plan for the future, and this uncertainty isn’t good for plans. And much of the proposed policy seems aimed at punishing areas of the country that didn’t vote for this current administration, which will in turn punish huge sectors of the economy. However you feel about Silicon Valley, they pull their financial weight, and are a driver for the national economy.  Whatever your political leanings, you can’t (or shouldn’t) think this is a good way to make policy.
  3. Lack of a coherent vision. Sure, “build that wall” is a catchy chant, but at the end of the day, you can’t have xenophobia as a coherent policy strategy, not if an administration is to be remembered for anything other than xenophobia. Believe it or not, xenophobia doesn’t help businesses. Coherent policies regarding immigration of foreign workers help businesses because they allow them to adequately plan their workforce size and deal with attrition of key and hard-to-find US-born workers. This administration is immigration reform without actually talking about immigration reform. If we want to meaningfully move the needle on this issue, we need to do something other than denigrating refugees. We need an actual national conversation about legal immigration levels, the use of visas, and whether the US is graduating and training enough of its own workers, or if this is a story that is told to get cheap labor from abroad. Regardless of what we decide, we need immigration policy employers can rely on, so that companies can make the best decisions regarding their workforce.

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I don’t know what this current administration is trying to do, and looking at the reported actions of this administration, I am unclear what the policy goals are for President Trump. But I think this Republican administration has a real opportunity to set policy regarding key issues impacting employers moving forward. As this economy continues to transition, there are a lot of hurdles that employers will face. Skilled labor remains valuable, regardless of where in the world it is found. Protection of trade secrets and confidential information remains key, and while states figure out whether or not they allow noncompetes or other limitations on future employment, employers need some certainty on this front. The federal government needs to take the lead, rather than have states drive trends that disadvantage national employers and make the United States a less attractive place to be an employer. The Trump administration has a unique opportunity with all three branches of government leaning the same way, and I hope this opportunity isn’t squandered.

beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

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