Other than the need for more jobs, the "fine details" of labor and employee relations was not a centerpiece of debate between nominees Donald Trump and Hillary Clinton.
With the nomination of Secretary Clinton, most expected she would maintain, with some tweaking, the direction set by President Obama regarding labor and employment issues.
Not so with the election of Donald Trump. His election means that employers will see changes, but what kind of changes? Here are just a few that employers are likely to see (and not see) in 2017:
The Affordable Care Act
President-elect Trump campaigned on "repeal and replace" the ACA. What he replaces (or changes) is unclear, although most believe he will follow or borrow from existing Republican plans.
Advocates of the ACA argue that the law has provided insurance to many Americans who could not otherwise afford coverage, and that it has lowered some costs. Opponents claim it stifles job growth and depresses wages.
There are certain features of the ACA that President-elect Trump has stated that he would like to keep, including pre-existing conditions protection and allowing young adults to stay on the health insurance plans of their parents.
The other option President-elect Trump has expressed favor for is permitting health savings accounts ("HSA"). Most HSAs are attached to high deductible individual plans. An HSA allows an individual to deposit pre-tax funds in an account for medical care expenses. HSAs also roll over year-to-year if not spent.
It is not clear if HSAs would be available for employees on an employer-provided plan. For now, the discussion is focused on addressing concerns related to the individual high deductible plans.
What employers may see are more options regarding flexible spending accounts and/or health reimbursement arrangements.
Immigration was the centerpiece of the President-elect's campaign. Most of the discussion was on securing the border, but employers should expect changes as to undocumented workers.
In the 2012 campaign, Republican nominee Mitt Romney proposed the concept of self-deportation versus forced deportation. The concept centered on the enforcement of existing immigration laws and imposing a requirement that all employers, public and private, use E-Verify or face fines or even jail time for employing undocumented workers.
E-Verify is an online system of the federal government that compares an applicants or employee's Form I-9, Employment Eligibility Verification, to data from the U.S. Department of Homeland Security and Social Security Administration records. https://www.uscis.gov/e-verify/what-e-verify
The system allows an employer to know if the applicant or employee is legally permitted to work in the United States.
Proponents of self-deportation argue that undocumented workers will go back to their home countries if unable to find work because employers will be unwilling to risk the costs and penalties of hiring undocumented workers. As a result, employers will be forced to hire legal workers and that will decrease the number of unemployed or underemployed U.S. citizens, especially as it relates to low skill jobs.
Opponents argue that it will flood social services agencies with unemployed migrants and their families and create a black market for jobs that could lead to poor treatment and working conditions of undocumented employees by some bad employers.
Some business advocates argue that mandating E-Verify will increase costs and maybe spur on inflation, hurting the economy.
President-elect Trump has not openly campaigned for E-Verify, but many lawmakers support it. Presently, over 600,000 employers use E-Verify, and 1,400 employers sign up for it every week. Although many business advocate groups would oppose the use of E-Verify as another federal regulation on employers, it would not be a stretch to see in the first 100 days of a Trump Administration that E-Verify be required as a condition of employment for all employees by late 2017 or 2018.
Wage and Hour
An issue of debate in the campaign was raising the federal minimum wage. Not debated (but on the minds of employers) is the Department of Labor's new overtime regulations that go into effect in the next few days. https://www.dol.gov/WHD/overtime/final2016/overtime-factsheet.htm
The regulations raise the weekly threshold for overtime exemption from $455 to $913 and become effective on December 1, 2016. See "New Overtime Rules Are Here: Their Impact And What Employers Need To Consider"
President-elect Trump has discussed turning back regulations that keep employers from hiring. However, he has sent mixed signals about raising the federal minimum wage, stating it is hard to live on $7.25 an hour while also declaring that he plans to eliminate any federal regulation that is a "job killer".
Many business advocates claim that raising the federal minimum wage keeps employers from hiring and leads to unemployment. They and some states have sued the Department of Labor, claiming the raising of the overtime threshold will also kill jobs and is illegal. "Exploding Wage And Hour Litigation Expected To Get Worse In 2017"
Although pure speculation, I don't see a Trump Administration doing anything, at least in the short term, to increase the federal minimum wage or to roll back the regulation that raises the overtime threshold. Instead, I see the new Administration focusing on immigration with the idea that contracting the number of workers will naturally raise wages, while allowing states and municipalities to decide minimum wage thresholds and allowing the courts decide the debate on the overtime.
I suspect employers will see little change in the number of charges or cases brought under Title VII or other equal employment laws. Equal employment charges for discrimination have steadily dropped over the last three years. Nevertheless, employers will continue to see retaliation charges increasing, however. There is little a President-elect Trump could or would do regarding these charges or employment practices litigation, absent legislation eliminating federal law whistleblower protections or defunding of federal agencies that oversee labor and employment regulations. None of these options were mentioned during the campaign, however.