Thursday, November 10, 2016

What Now, Mr. Trump?


A new sheriff is in town…..

I could almost hear crowds of HR pros jumping up and down on Tuesday night into Wednesday morning at the news of a Trump win. I can imagine many thinking a Trump presidency and a Republican controlled Congress will dismantle some of the more stifling laws and regulations that make HR folks crazy and make managing a successful business very difficult.

But, hold on! Not much is likely to happen in the near term. Remember, the new overtime regs take effect Dec. 1 – long before he takes office. And even if his administration takes aim at those new regs, they will have to go through the same process of proposed rule-making and comment period, before any changes take hold. So, unless either the bills before Congress move before the end of the year (unlikely) or the two pending lawsuits are successful in obtaining an injunction (probably also unlikely) before Dec. 1, we need to continue on course with plans and actions to implement the changes.

As for the future, it’s hard to know what he will be able to accomplish. We know some of what his plans are on issues that will affect the practice of HR, although even that information is a bit sketchy just now. In a continuous review of numerous sources and "experts" that began long before Tuesday’s vote, here’s some of what we might expect (and what we might hope):

Affordable Care Act: President-Elect Trump has often stated his intent to "repeal and replace" the ACA. His plan for replacement provisions include modifying existing laws to allow the sale of health insurance across state lines, and the ability to deduct health insurance premium payments from individuals' tax returns. He has also spoken about making Health Savings Account more available. 

Beyond that, it’s just not known what will happen. Businesses would certainly welcome relief from the onerous data collection and reporting requirements imposed on them by the ACA. And like it or not, or agree with or not, the premium increases and other costs that have been either caused by, or contributed to by the ACA are a burden on both businesses and individuals. It remains to be seen what can or will be done with a Trump-Republican controlled Congress world.

E-Verify: Trump has also stated that he is in favor of nationally required use of the E-verify system. Currently only federal contractors are required to use the system. Some state and local governments have required its use for businesses that contract with those entities. I think this is quite likely to occur, despite the continued deficiencies of the system. Maybe we can hope for more work to actually address those deficiencies if we’re going to be required to use it.

Paid Leave: Trump has proposed ensuring six weeks of paid maternity leave to mothers who do not already receive leave from their employer. His plan is to create a nation-wide plan similar to what is in place in California and administered through the Unemployment system. His proposal has already garnered criticism since it would apply only to mothers and would not be transferable to fathers.

Child Care: Currently, businesses with licensed onsite child care centers can receive a tax credit of up to 25 percent of facility expenditures, plus 10 percent of resource and referral costs, up to a limit of $150,000 per calendar year. Trump has called for increasing this cap. I think this is a great option for those businesses willing and able to offer this service to their employees.

"Blacklisting" rule and other Executive Orders: Another oft-repeated vow has been to cancel every "unconstitutional executive action" enacted by President Obama. This would presumably include this rule as well as others that mostly affect government contractors, but create a slippery slope for the rest of us. As we know, the Blacklisting rule has been at least temporarily stopped by an injunction.

NLRB: One of my more fervent hopes (as many of you know!) will be a reining-in of this activist board. Since there will be at least 2 new management-leaning appointments to the board in 2017, we can be fairly certain they will work toward reversing the many anti-business, anti-employer rulings. Maybe employers can go back to being able to control what happens in their businesses and not have to worry that their employee handbook being rule illegal.

EEOC and other regulatory bodies: The current EEOC chair’s term ends in 2017. It is presumed that President Trump would appoint someone more conservative. A hope would be that all the regulatory agencies would return to enforcing the law rather than attempting to make law and influence public policy.

Supreme Court: Again, it would be expected that a replacement for Justice Scalia will be appointed, and that will affect employment law cases brought before the Supreme Court. We can hope that an appointment will not be an "activist’ but will adhere more to the interpreter of the constitution role.

All in all, I really don’t think we know a whole lot more right now than we did before the election. Time will tell. I do know that if Hillary Clinton had won, we’d need to be gearing up for far more workplace law and regulation. In that regard at least, I guess we can be optimistic.

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