Season 3, Episode 4: Navigating Labor Law in a Trump 2.0 Era

Gabe Jiran: Yeah, absolutely. And this is not just related to Trump's presidency, either part one or part two, traditionally the NLRB and their stance on a variety of issues has changed with the administration. And so, and this is pretty much confirmed, it's not an opinion, which is if you have a democratic president the NLRB tends to be more labor-oriented, and if you have a Republican president, it tends to swing back the other way. And so, so I'm expecting that we're going to see many things happen at the NLRB that are going to swing away from the Biden era NLRB decisions and stances to a more pro-management stance. And let me just highlight a few that are on the radar. One is the election rules - this has been the pendulum swinging back and forth, depending on who's the president, about how quickly an election takes place. The school thought is that the faster the election, the less amount of time that there is for the employer to do an anti-union election campaign.

And so under democratic presidencies, such as Biden and Obama, they tried to shorten the amount of time between the filing of the petition for election and the actual election. I'm assuming we're going to see some reversal of that and going back to a little bit more time than there currently is.

I think you're also going to see perhaps some changes to the NLRB's stance on various employer policies. This has been a real moving target over the past two or three presidencies where the NLRB has either been very restrictive on employer policies or less restrictive depending on who the prevailing party is in the presidency. So, one great example is social media, media policies. During the Obama era, there was a real attack on social media policies because any restrictions on employees using social media was deemed to be a violation of their what they call Section 7 rights to engage in concerted protected activity. Under Trump Part 1, you saw a swing back where the review of those policies was not quite as stringent. And then Biden hasn't gone as far back as Obama, but it did reverse some of the decisions during the first Trump presidency. So, I'm assuming we're going to see a bit of a swing back on things like that.

Dan Schwartz: Yeah, you know, it's interesting because the NLRB was designed in part to be a little bit removed from the political process, right the appointments of NLRB Board members is not you know as sweeping, so a president can only replace them every few years, but in December Congress didn't fill one of the NLRB spots, so I think it's pretty apparent that we're going to start to see some changes at the NLRB with Trump's appointments a lot more quickly than we might otherwise, right?

Gabe Jiran: Yeah, absolutely. Yeah, and I think you could see that. So the issue with the NLRB process is that in order to get actual decisions, it takes a while. And so that necessarily creates a lag. But what you often see is the general counsel, the NLRB will do advice memos and guidance, and then that can sway things also before you even get a formal decision. So, as practitioners, we look at general counsel memos to see what the stance of the board's going to be so that we can avoid issues. And so, for example, I was just talking about social media policies you know, in the past the general counsel put out a memo that said, here are a bunch of examples of policies, and here's what we think the answer is on all of these. And we use that to give advice to our clients, because the last thing you want to do is end up in what is basically an administrative trial over one of your policies. So that, I think, will speed up the process. I have no doubt that we're going to see decisions out of the board as a whole, but I think what you're going to see more quickly is these guidance memos coming out or positions that the NLRB is taking that are really going to guide what we do.

Dan Schwartz: Yeah, and is this something that employers that have unions should be exclusively worried about or are employers that may not have a union should they be thinking about this too?

Gabe Jiran: Yeah both. It's funny since the beginning of the National Labor Relations Act, it has protected employees who engage in concerted protected activity, not limited to union membership. We saw over the past decade or so, kind of a reinvigorated view of the scope of the act to apply to employees who are not in unions still banding together and engaging in protected activity. Social media was a was a big part of this because with Facebook and some of the other outlets, employees very easily could communicate with each other. And then if, you know, two or three employees got together and one even liked the post of another that was on the topic of some sort of, you know, work condition or something like that, that was deemed to be protected activity. So, as we go forward, you know, both unionized and non-unionized employers are going to have to pay attention to what's going on.

Dan Schwartz: Yeah, you know, it's interesting, you also said we do anticipate a little bit more of a pro-management side but you know the person that Trump picked as the appointee of the Department of Labor, Lori Chavez-DeRemer has actually been seen as one of the lone republican supporters of various pro-union bills. She recently represented Oregon in Congress, so it remains to be seen whether that takes place and then what sort of shades we'll see as well.

Gabe Jiran: Well, yeah, I think that's an important observation in that Trump part two is a little bit different. It's also a little more unique for Republican president in that Trump was really trying to garner support from the labor unions and JD Vance also did the same thing and so if you listen to the rhetoric that was occurring during the campaign, we might see a little bit more friendly of a stance towards union issues than we might otherwise have seen. It remains to be seen if that's going to play out or whether that was just, you know, electioneering or what, but you're right, the choice to be the head of the labor department is, it could be interesting to watch.

Dan Schwartz: Yeah, so that's probably a good segue. As we talk about the Department of Labor, one of the big things that came out of the Biden administration was the change to the salary basis test and the overtime rule, which has been put on hold with an injunction in which my colleague Sarah Westby talked about last month at a podcast. So, where do we see things like overtime or even minimum wage in this new administration?

Gabe Jiran: This would be a little bit of a complicated response because as you mentioned, using the salary basis test for the Fair Labor Standard Act, there was a rule that was promulgated that increased the amount of salary that you have to make in order to qualify as overtime exempt, and it took it up to around $59,000. So that was a big difference and actually affected a lot of managers who were otherwise considered to be salaried that they wouldn't be because they didn't meet the, the higher salary. Well, so why is that so interesting? This is not a situation where Trump or, or somebody that he appoints could just flip the switch and say, we don't like that anymore. As you alluded to, this is in the court system and there's been an injunction that's been issued, so it's on hold for now, but it's not, it's not that easy that they could issue a new rule or overturn the, the rule that was already promulgated.

There's a rulemaking process which requires public comment, and so that could take a while. If I were looking at my crystal ball, I'd say what's going to happen is that injunction's going to stay in place, and this is going to be a priority of the Trump administration, is to change the rule, but it's going to take a while to get there.

On the minimum wage, I mean, I just looked this up. I don't know if you knew this, but the federal minimum wage has not changed since 2009. I mean, it's insane. It's only $7.25. You know, in Connecticut and in other states we've far exceeded that, but if you look back at the, again, the rhetoric from the campaign, you had Kamala Harris saying that she wanted to increase that to $15 an hour. Trump didn't say that but there was some discussion or questions posed to him about raising the federal minimum wage, and he didn't debunk it. I mean, what he said is that there's some concern that raising the minimum wage is going to be harmful for small businesses because it's going to increase their cost of business. But I don't think I heard or saw Trump saying, no way are we going to touch it. So again, looking at my crystal ball, I think you might see a small adjustment to the minimum wage. But I don't think it's going to be anything dramatic, and I don't think it's going to be $15 an hour. I mean, again, if you, if you think about the political rhetoric and everything that Trump was saying on the campaign trail about inflation, and it's making it harder to buy groceries and all that you would think that that would lead to maybe addressing minimum wage issues, but we shall see.

Dan Schwartz: Yes, we shall. Following up on the overtime rules, I think one of the interesting dynamics in play is when the Supreme Court overturned Chevron Deference over the summer, there were a number of people who were bemoaning the sort of restriction on the executive branch.

Well, now that the new Trump administration is coming in, it's going to be interesting to see if the courts still rein in the executive branch, because again, under the Looper Bright Rule, the agency's rules are not going to be subject to deference to them. That there has to be laws that will pass to back it up.

And so, it'll be interesting, you know, to be a fly on the wall in 2025 to see where this comes out as well, and overtime rule is one of them, but certainly they're going to be other rules that are going to be subject to further attacks as well.

Why don't we switch gears for a second and talk about some other changes, or at least priorities that we might see in the upcoming administration. One of them, which we haven't seen so much, obviously, in Connecticut is these right to work laws. First of all, can you explain what a right to work law is, but then what is this leading to for the next administration?

Gabe Jiran: Yeah, sure. So, the right to work laws have traditionally been passed on a state by state basis. And what it says in some is that you can't be forced to join a union or pay union dues. You know, it's I can't remember how many states, but there's quite a number of states many in the South that have these right to work laws. And in fact, the U. S. Supreme Court has ruled in the Janus decision along similar arguments that public sector employees cannot be forced to pay union dues, and it's a First Amendment issue. So there's been a little bit of chatter in the field about whether that would be taken to a federal level, that there would be you know, a federal right to work law that says that employees in the private sector do not have to pay union dues. It, what it would be is, it would be an extension of the ruling from the Supreme Court. I don't know how likely that is. I mean, if I, if I were putting my list of predictions up, I'd put this closer to the bottom. But like I said, because of the, the rhetoric about being pro-business and all of that on the campaign trail, there might be some attempts to pass federal legislation that would be a right to work law, but I just flagged it because I was getting ready for this I was kind of just poking around and see what some of the commentary was out there and what people were thinking about, and this would be a big deal if it happened, and it would be a situation where it would weaken the labor movement.

Now, I think that what I just talked about before is that it's a little bit different this time around with the Trump presidency and him catering more toward the unions. I think that makes it even more remote that something like this would happen, but I just flagged it because I think a lot of business leaders are going to be in the ears of their legislators and saying, ‘hey, we have an opportunity here - we should go for it’.

Dan Schwartz: Yeah. One of the other rules that came out from the federal government from the Federal Trade Commission of all things was a pretty broad ban on non-competes. Now that ban been put on hold with a nationwide injunction. But where do we think non competes are going on a federal basis?

Gabe Jiran: Yeah, I think it's similar to what I was talking about with salary basis test. I think what I see is that that case is going to be held up for a while. So, I think you can see the injunction continuing. And then I think there will be an attempt by the Trump administration to address it one way or the other, whether that's through the FTC itself, whether it's through other legislation. But I think that that's definitely going to be something. And so why would that be? Well, non-competes are traditionally used by companies to protect against an employee leaving and going out and then competing against them. So naturally if you're taking a pro-business stance you would want non-competes because that way you can restrict what employees do after they leave your employ.

So, I think there's going to be some attempts to get something more definitive out there that non-competes are allowable. But I'm not sure exactly, you know, how we're going to see that, whether it's going to come through court decisions, whether it's going to come through agency action or otherwise. I could foresee some limitation, like for example, lawyers can't have non-competes.You have some restrictions on doctors, for example, being able to be subject to non-competes in certain states. So, you know, I think I could see some sort of compromise there rather than just open season, any non-compete of any duration and length and, and scope is going to be fine. But I think that's going to be slow to come around as well.

Dan Schwartz: We could spend a whole hour, or two, on all the topics, but I want to just briefly touch on two more before we wrap up. One of them is immigration. It's been a big topic on the campaign, and obviously, employers all have to have I9’s on their employees. So where are we thinking are some of the trends that might happen on the immigration side?

Gabe Jiran: I don't think I have to look too far into my crystal ball to say it's going to be a lot harder for companies or institutions to hire foreign workers. It's just you know, and that can take a lot of different forms, and I'm not an immigration lawyer, but it can be restricted based on the nature of the visas and what the requirements are, the number of visas, and different types of work authorizations that are permitted, and that's a whole different topic in and of itself, but that is going to happen.

I mean, like, I do not see that being something that Trump backs down from during the administration. That was something he really ran on in the campaign and I think that's going to continue. I think the question's going to be how far does it go? And, and this is again where I see Trump part two being slightly different in that, you know, you look at it two ways:

One is all this stuff about like, we want things done in America, we want to bring manufacturing back to America, but on the other hand, you have a lot of companies that rely on foreign nationals to be hired to work in the United States to do their business. And so, I think you're going to feel that push a bit that it can't be just, you know, a complete ban or, or, or completely eviscerating the current system. There'll definitely be more restrictions. It's probably going to be more burdensome and maybe more expensive to get a foreign national here working, but it's not going to go away. I mean, there's just too many interests on the other side to get foreign nationals here to work. I mean, if you look at some of the industries where it's really important to come to mind in academics and in health care, that's where you see a lot of foreign nationals come into the U.S. And if you just took away the ability or restricted the ability of those types of companies and institutions from getting employees, I think that would be harmful to them. And so, I think there's going to be a bit of a balance, but I think things are getting tightened up.

Dan Schwartz: Yeah, you know, it's interesting because I was speaking with someone about this, and I also think probably going to be some more enforcement on some audits of I9’s and E-Verify. So I think employers would be wise to get their paperwork in order. Make sure that they're crossing all the T's, particularly in certain industries that have sometimes looked the other way, like restaurants or outdoor work as well. That that is probably coming back on the table for the next administration.

Gabe Jiran: Yeah, I think you're right. And you, you actually, let me jump in because you raised a really interesting topic. That's also a bit of a buzz out there, which is the amount of funding that goes to some of these governmental agencies and how that funding is going to be moved around, diminished or what have you. And if you look at it from Trump part one, he caught the number of OSHA inspectors to its all-time lowest level. And the reason for that was, he viewed that as over regulating industry. So now, here we are in part two some of the buzz has been, is there going to be, again, a cutting of budgets in some of these regulatory agencies along the same lines?

But to your point, does that mean, just use OSHA, that they're going to cut the budget for OSHA inspectors, but then fund for immigration inspectors, for ICE? I don't know. We'll have to see. I could see that moving around of resources to what the priorities are. And so, if you take the deregulation side of things, so yeah, yeah - well, you know, things like OSHA, we're going to kind of steer our funding or our priorities away from that. But we're going to go to the things that are important to this administration, immigration, I think, is a fair one.

Dan Schwartz: Yeah, I that's a great, great point. And the impact on the budget cutting process and so-called government efficiency work. It'll be interesting to see the way that that plays out.

The last quick topic, because we're running out of time, is, I, I think, a lot of employers are wondering, can they still engage in Diversity, Equity and Inclusion practices? And certainly, we've seen some of the backlash to that. But I think for now, can employers expect to continue to do that or is it still up in the air?

Gabe Jiran: Oh, no, they certainly can, and they should. It's, you know, I've thought about this a bit as to what we might see. I think this is going to be more of an evolution versus a dramatic instantaneous change. I think that there's a lot of speculation about, you know, Trump and how he views DEI initiatives, mainly saying that, you know, that's not something of great interest, but I, you know, I would not expect that we're going to see some sort of seismic change there coming straight from his administration.

What I, what I'm more likely thinking is that. We're going to see case law in different types of cases that get decided from either state or federal courts commenting on this. I mean, you may see stuff get all the way to the Supreme Court, but I think it's going to go through the court system. I'd be really surprised if you saw any sort of blanket statements of either policy or regulation that addresses the topic, but I just may be way off base on that. And I have no like data to rely upon. This is just my gut. I don't see that as being a huge priority.

Dan Schwartz: Yeah, I think we'll certainly still see it from Robbie Starbuck and initiatives, the shareholder initiatives, that are being pushed by his his group. Certainly, we saw Walmart last month pull back on some of their DEI initiatives. But you may be right that might be more coming from a private sector side rather than from the administration, which has a lot of priorities that they're going to want to be focused on. So, with that, I'll give you the last word. Gabe. Anything else employers need to be thinking of?

Gabe Jiran: Yeah, I think the moral of this whole podcast is stay tuned and stay alert because changes are coming and you just need to keep your eyes out. This podcast is a great source of information as things change also obviously on the Shipman website we post alerts and things but wherever you get your news from employers should be aware because they need to react when things change because you may not always get advance notice that you know in six months or a year this is going to change. I mean it could be fairly quick on certain things and you're going to have to do it just accordingly. I'll just give a great example going back to the NLRB where we started, if we get different stances from the NLRB, either from the general counsel's office or otherwise, you may have to look at your policies and, and revise them accordingly. We saw that a lot during Obama, we saw it during Trump part one, where we were constantly revising policies. So, stay awake and stay alert.

Dan Schwartz: Yep, and that's a good shout-out also to our blogs the Employment Law Letter and the Connecticut Employment Law Blog as well. Feel free to sign up. They are free and you can find them on our website at shipmangoodwin.com.

So Gabe, thanks very much for joining us and with that, I will wrap up another episode of From Lawyer to Employer. Again, feel free to subscribe wherever you get your podcasts, whether it's Spotify or Apple podcasts. And if you have a comment or a suggestion for a topic that you'd like to see, feel free to email me at dschwartz@goodwin.com. With that. Thanks again, and we'll see you again soon.

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