IEC’s Outlook Under the Trump Administration
The new Republican congress took office on January 3rd and the President was sworn in on January 20th, officially giving the Republicans control of both the executive and legislative branches. The Republican majority shrank between the 114th and 115th Congress and currently stands at 241 - 194 in the House and 52 – 48 in the Senate, with two of the 48 being Independents caucusing with the Democrats. Republicans will continue to control Congress’ agenda; however, they still do not possess a 60 vote majority in the Senate, making it difficult to pass the vast majority of meaningful legislation. Most bills in the Senate requires 60 votes to reach what is called “cloture,” which ends debate on a bill so the chamber can proceed to an up or down vote on a given piece of legislation. Otherwise, debate can continue indefinitely and the minority party – in this case the Democrats – can obstruct and thwart attempts to pass bills they oppose. Below is some perspective on what to possibly expect with Donald Trump in the White House and Republicans running the legislative branch.
President Trump is currently in the process of appointing department heads and other political positions, all of which will take time. With regards to the Department of Labor, he’s nominated CKE CEO Andrew Puzder. CKE owns fast food chains Hardee’s and Carl’s Jr. Puzder has also served on the board of the International Franchise Association, a close coalition and political ally of IEC’s on many labor issues. His nomination hearing has been delayed a number of times and has been rescheduled for February 16. Unions have adamantly opposed his nomination and have done everything they can to stir up controversy around him. IEC joined a coalition letter to the Hill and the administration in support of Puzder, who has been an outspoken critic of many of the labor policies put forth by the Obama administration, having published op/eds in the Wall Street Journal opposing proposals such as the overtime rule.
In addition, the President has hundreds of other appointments to make for positions within each department. Most of his appointments thus far fit the mold of traditional conservatives. This would mean less of an enforcement and punishment style and more of a cooperative approach to government, to include reducing the size of government in general. President Trump also recently signed an Executive Order (EO) stating that for one new regulation enacted by an agency, two must be removed. This EO was proposed primarily as a way to help small businesses deal with the regulatory burden.
The President will also have a great deal of influence over the Judiciary branch. Recently, the President nominated federal appellate court Judge Neil Gorsuch to fill the current vacancy on the Supreme Court. It’s also possible that Trump could have a say in the shape of the Court with additional appointments given that three of the more liberal justices are around 80 years old or older. His influence on the judicial system will also be felt in the lower courts, where nearly 100 positions will need to be filled.
National Labor Relations Board (NLRB)
Of particular concern to IEC is that National Labor Relations Board (NLRB), which has no doubt handed out some extreme rulings and interpretations in recent years. Currently, an Obama appointee is the General Counsel. His term expires in November 2017, at which time Trump will be able to appoint someone to this position. The current political breakdown of the Board is two Democrats to one Republican, with two vacancies that Trump will be able to fill. The lone Republican, Phil Miscamarra, was recently named Chair; however, he is still in the minority, meaning rulings and cases that come before the Board will still largely be determined and ruled in favor of a Democratic view point.
As far as the Ambush election rule goes, IEC continues to work with the Coalition for a Democratic Workplace (CDW) to amend this rule. The current Median Days from petition to election is 23 days. CDW is currently exploring the different options for fixing the rule, which include a legislative strategy, a rule making, guidance from the general counsel, guidance from the Board itself, or rulings in cases that are brought before the Board. Guidance from the general counsel is the quickest way to possibly invoke change; however, guidance does not hold the same weight as a rule or a law and could be ignored or interpreted differently by those in the regions. IEC will continue to work with CDW on the best way to go about beating back this rule.
The approach OSHA could take with the change in administration could likely be a hands off approach, with less enforcement of OSHA rules and more of a cooperative approach with employers. Some of the issues put into place by the Obama administration that could be altered include the Silica rule and electronic report requirements. But like with everything else, it really remains to be seen if anything changes with either one of these.
One of the biggest issues of the campaign and for Congressional Republicans is the repeal of Obamacare. This will likely happen – eventually. However, what it will be replaced with is anyone’s guess at this point. You may have heard Republicans try to walk back a little bit from the rhetoric on the issue, trying to temper expectations for the timetable of a replacement plan and the possibility that certain elements of Obamacare will remain. To get around the filibuster issue, Republicans can likely get a new plan through the Senate by invoking a rule known as Reconciliation, which permits a majority vote only on legislation that has a budgetary impact.
The President has already moved on the issue of immigration; the issue that launched his campaign into the spotlight. His Executive Order temporarily suspending the entry of refugees from certain countries and announcements about the wall between the US and Mexico demonstrates he’s going to be aggressive on this issue, as promised. It’s really unclear at this point what other immigration policies may come from Congress or the administration that may provide the private sector some relief where permanent or even temporary workers are needed. The campaign’s overall protectionist rhetoric doesn’t necessarily bode well for expanding other forms of immigration, such as the H1B visa program, which may benefit sectors of the economy looking to add to its workforce.
The Obama administration’s proposal to drastically increase the threshold for overtime pay is still pending in the court system after a preliminary injunction was issued prior to its December 1 effective date. IEC believes that the almost doubling of overtime pay will likely go away under the Trump administration. However, with many in Congress having stated an update is needed, look for a much more reasonable proposal to return at some point. While the doubling of the threshold was too much, too soon, the auto increases every three years in perpetuity was equally alarming, if not more so. IEC expects the automatic increase proposal will not resurface under the current political climate.
Other issues of concern to IEC include issues such as the Persuader Rule. This is an issue where a judge issued a permanent injunction in the fall. The ability of IEC contractors to consult with attorneys and experts on how to deal with labor law and possible organizing campaigns remains in place without onerous reporting requirements. IEC expects this issue will likely to remain dead under a Trump administration.
Project Labor Agreements
The Executive Order signed by President Obama that encourages the use of Project Labor Agreements for government contracts remains in effect. IEC expects President Trump to ultimately sign an Executive Order that would reverse this PLA preference. IEC believes it’s just a matter of time and, naturally, it can’t come soon enough. IEC recently joined a coalition letter urging the President to do this as soon as possible.
Davis-Bacon is likely not going anywhere, even with the current political dynamics in place. This is an issue where Democrats, for one reason or another, will make a stand against any attempt to repeal or amend. President Trump has a history of working with unions given where many of his properties are located, and he recently met to discuss issues with a group of union leaders. However, it remains to be seen if this translates into any meaningful labor policy that benefit labor unions.
It’s unclear how policies expanding apprenticeship will be handled by the new administration or if Congress will do anything specific. Last Congress, the Perkins Act, which funds Career Technical Education (CTE) programs in high schools, was passed almost unanimously by the House but fell short in the Senate. It’s likely that it could be a priority for the new Chairwoman of the Education and the Workforce Committee, Virginia Foxx (R-NC).
The Obama executive order and subsequent regulations implementing the so-call ‘blacklisting’ rules on federal contractors were halted by a preliminary injunction last year. The order requires federal contractors to submit their compliance record with regards to 14 different federal labor laws and their state equivalents before they can be determined responsible enough to do business with the federal government. One of the main problems is that it includes submitting issues that have yet to be adjudicated and are simply accusations, such as perceived OSHA violations. Last week, the House passed a Congressional Review Act joint resolution which, if passed by the Senate and signed by the President, would make this rule null and void and prevent a substantially similar rule from ever being proposed by a regulatory agency again. IEC has actively opposed this rule and is currently engaged in this CRA effort. It’s important to note that a resolution invoking the CRA only requires a simple majority vote in the Senate, negating the concerns posed by the need for 60 votes to avoid a filibuster.
Paid Sick Leave
At the end of the Obama administration, rules went into effect that require government contractors to provide at least 7 days of sick leave to its employees. The rules are fairly detailed for such a simple-sounding requirement and are much more generous than what the government provides its own employees, to include allowing employees to take time off to tend to people with which they have a close, personal relationship that’s “like” family. It’s yet another policy left over from the previous administration for which it’s unclear how the Trump administration may act, if at all, to amend or revoke.
Many in Congress are pushing for tax reform to get completed this year. The discussion about tax reform has been ongoing for a while now with Congressional Republicans focusing on lowering rates. This will not be an easy task and it’s difficult to speculate what tax reform might look like moving forward. If it’s not completed this year, it becomes even more difficult to move next year, when mid-term elections take place.