Jobs law under Harris and Trump: what will change?

Americans in all corners of the country are eagerly awaiting the results of the upcoming presidential elections, including in the HR field.

Whether Vice President Kamala Harris or former President Donald Trump wins next week, there will be changes in the administration in January. Probably, many heads of HR departments are concerned about how the situation in labor legislation will change.

At a recent virtual roundtable, leaders from employment law firm Littler shared their views on the biggest changes likely to happen in HR after Election Day and why the people’s leaders should be looking beyond the presidential race this election. .

Labor activity

It’s no surprise that if Harris is elected, we’ll likely see “a continuation of a very pro-union administration” or “a slowdown in those efforts” under Trump, says Michael Lotito, co-chair of the Littler Institute for Workplace Policy, a division of the company. Government Relations and Public Policy Division. Lotito predicts that while the vice president will likely “broadly follow in (President Biden’s) footsteps” when it comes to unions, it will be important to monitor her approach to government contractors.

“We saw that some of the legislation under Biden allocated huge amounts of money to certain segments of businesses that were associated with unions,” Lotito says.

A key development in this regard will be changes in the leadership of the National Labor Relations Board. If Harris wins, the board will remain under Democratic control, allowing it to move forward with ongoing initiatives, although it remains to be seen whether General Counsel Jennifer Abruzzo and Chairwoman Lauren McFerran will remain in those positions.

Abruzzo, Lotito said, will likely be fired on Trump’s first day in office.

“This will slow down some of the dramatic changes that Abruzzo and the board have initiated,” he says.

Immigration

A key campaign issue for both candidates, changes to federal immigration policy will have a direct impact on compliance, hiring and more, says Jorge Lopez, a Littler shareholder and chairman of the firm’s immigration and global mobility practice.

Take workplace law enforcement, for example. Raids to detain undocumented workers are virtually “non-existent” under Democratic administrations: there was one under former President Obama and none under Biden, Lopez says. He expects the trend to continue under Harris, but the raids “will very much become part of the Trump administration.”

These actions would be consistent with a fundamental difference in enforcement: Republicans would focus on “supply-side” enforcement, focusing on removing illegal immigrants from the workforce, while Democrats would invest in the “demand-side”, concerned with employers who – intentionally or unintentionally — hire undocumented workers.

An I-9 audit may be another aspect to consider, Lopez said. The Biden administration conducted fewer than 400 checks last year, compared with 12,000 in Trump’s final year and nearly 4,000 in Obama’s. Given the heightened focus on immigration this election cycle, Lopez predicts Harris will ” stricter” than Biden on I-9 checks.

If Trump wins, Lopez says, his administration, which will draw on the procedural lessons of his first term, will likely move quickly to “close the border almost immediately” and increase screening. He notes that there is concern that it could stifle hiring in industries such as agriculture, hospitality, manufacturing and construction, with the latter potentially hampering recovery efforts from recent weather disasters.

Likewise, the Trump administration will attempt to “hire American” talent instead of foreign talent, which will significantly slow down the process of legal immigration. Meanwhile, the Harris administration will focus on “procedural improvements” to make it easier to process legal immigration, which could particularly impact the hiring of foreign talent for high-tech industries.

Staff

Typically, political appointees resign when an administration of the opposite party takes office, and Trump would “certainly” immediately hire them en masse, said James A. Paretti Jr., a Littler shareholder and former senior EEOC counsel.

“Anyone who doesn’t do this will resign,” he says.

The situation might have changed a little if Harris had won—there hasn’t been a transition to a new administration of the same party since 1988, when George H. W. Bush replaced Ronald Reagan.

Cabinet secretaries are likely to be replaced, but Paretti says some subcabinet roles, such as those who oversee time and wage allocation at the Labor Department, are less clear.

Along with “some shifts,” there could be “significant changes,” he says.

Current legal issues

At least a half-dozen major challenges to the Biden administration’s labor law proposals are currently making their way to court, including cases involving white-collar exceptions to overtime, individual contractor status, OSHA workarounds and the Federal Trade Commission’s much-publicized non-compete ban.

The Trump administration will end appeals started by the Biden administration, and the Harris administration will “significantly adjust” to Biden’s positions.

It is important to note that some of these cases may be decided by the district court before the new president takes office.

“Between Inauguration Day,” Paretti says, “a lot can change.”

Government Initiatives to Watch

While all eyes will be on the presidential race, there are ballot initiatives, legislative proposals and legal challenges across the country that HR should also keep an eye on, says Shannon Meade, executive director of the Littler Institute for Workplace Policy.

This could become especially critical if, as many political experts predict, the presidential administration diverges along party lines from at least one chamber of the US Congress. According to her, “all actions will take place in the states.”

“If the 119th Congress does not support a new administration, we will find ourselves in divided government and federal legislative gridlock for the next four years, leading to increased activity at the state and local level,” Mead says. “No doubt, states and local governments will determine employer and labor laws.”

Areas to keep an eye on include:

Salary and hour

Although Harris has said she strongly supports raising the federal minimum wage to $15, the legislation has repeatedly failed, prompting many states to take action.

This election will feature initiatives to raise the minimum wage to $18 in California—which would be the highest in the country—and gradually increase it to $15 in Alaska and Missouri.

Elsewhere, Mead says, the FLSA tip credit has come under fire in places like Massachusetts, where a ballot initiative has been proposed to raise the minimum wage for tipped employees and phase out the use of the credit, while the opposite proposal is essentially ” enshrining the tip credit in the state constitution is on the ballot in Arizona.

Paid leave

Voters in Nebraska, Alaska and Missouri will consider ballot initiatives to mandate paid sick leave, Meade notes.

It’s important to note that vice presidential candidate Gov. Tim Walz has expressed his support for a national paid leave program and signed legislation as governor that will give most Minnesota employees 20 weeks of annual paid family and medical leave.

“This could potentially be an area in the next Congress where we see some bipartisan support,” Mead says.

AI regulation

Despite the growing popularity of AI in the workplace, few federal proposals to regulate AI have gained traction, prompting “growing interest in states to set some simple legal restrictions on the use of AI,” Meade says.

More than 700 different proposals have been filed in 45 states this year, with Colorado passing the most comprehensive AI regulation bill, she said. She predicts more states will follow suit after the election.

Labor relations

Meetings with audiences, designed, in essence, to dissuade workers from joining unions, have long been the norm in American labor law; however, according to Mead, in the last few years there has been a movement towards recognizing such mandatory meetings as coercive and unacceptable. Just recently, California passed a law that will subject most employers who engage in such practices to fines starting in January.

Similar proposals are also being promoted in Illinois and Massachusetts, Mead said.