Americans in all corners of the country are anxiously awaiting the results of the upcoming presidential election—including those in HR.
Regardless of whether Vice President Kamala Harris or former President Donald Trump wins next week, there will be a change in administration come January. Likely weighing on many HR leaders’ minds is just how much will the employment law landscape change.
On a recent virtual roundtable, leaders of employment law firm Littler shared their outlooks on the biggest changes that could be coming down the pike for HR after Election Day—and why it’s not just the presidential race that people leaders should pay attention to in this election.
Labor activity
Unsurprisingly, if Harris is elected, we’re likely to see a “continuation of a very pro-union administration” or a “slowdown of these efforts” under Trump, says Michael Lotito, co-chair of Littler’s Workplace Policy Institute, the firm’s government relations and public policy arm. Lotito predicts that while the vice president would likely “follow in [President Biden’s] footsteps, generally,” when it comes to unions, it will be important to watch her approach to government contractors.
“We saw under some of the statutes under Biden, huge amounts of money given to certain business segments that came with union strings,” Lotito says.
A key related development will be changes to the leadership of the National Labor Relations Board. If Harris wins, the board will stay under Democratic control, allowing it to push forward initiatives in progress—though whether General Counsel Jennifer Abruzzo and Chairman Lauren McFerran would stay in the roles would remain to be seen.
Abruzzo, Lotito says, would likely be fired on Trump’s first day in office.
“That will slow down some of the dramatic changes initiated by Abruzzo and the board,” he says.
Immigration
A key campaign issue for both candidates, changes to federal immigration policies will have a direct impact on compliance, hiring and more, says Jorge Lopez, Littler shareholder and chair of the firm’s Immigration and Global Mobility practice.
Take, for instance, worksite enforcement. Raids to apprehend undocumented workers are virtually “non-existent” under Democratic administrations—there was one under former President Obama and none under Biden, Lopez says. He expects that trend would continue under Harris, but raids would “very much so become a part of the Trump administration.”
Those actions will align with a fundamental difference in the application of enforcement: Republicans will concentrate on “supply side” enforcement, focused on removing undocumented immigrants from the workforce, while Democrats will invest in “demand side,” concerned with employers that—intentionally or unintentionally—hire undocumented workers.
I-9 audits could be another angle to watch, Lopez says. The Biden administration conducted fewer than 400 audits last year, while there were 12,000 in Trump’s last year in office and nearly 4,000 in Obama’s. Given the heightened focus on immigration in this election cycle, Lopez predicts Harris would be “stricter” than Biden on I-9 audits.
If Trump wins, Lopez says, his administration—which would lean into procedural lessons from his first term in office—would likely move quickly with a “basic closing of the border almost immediately” and a ramp-up of audits. There is concern, he notes, about how that could chokehold hiring in industries like agriculture, hospitality, manufacturing and construction—the latter of which could hinder rebuilding efforts from recent weather disasters.
Similarly, Trump’s administration would move to “hire American” over foreign talent, slowing down the legal immigration process considerably. Meanwhile, Harris’ administration would focus on “procedural improvements” to facilitate the processing of legal immigration, which could particularly impact the hiring of foreign talent for high-tech industries.
Personnel
Typically, political appointees tender their resignations when an administration from the opposite party takes over—and Trump would “certainly” accept those en masse immediately, says James A. Paretti, Jr., Littler shareholder and former EEOC senior counsel.
“Anybody that does not will have their resignation tendered for them,” he says.
The situation could be slightly different if Harris wins—there hasn’t been a transition to a new administration of the same party since 1988, when George H.W. Bush succeeded Ronald Reagan.
Cabinet secretaries will likely all be replaced, but Paretti says some sub-Cabinet roles—such as those overseeing the Division of Hours and Wages at the Department of Labor—are less clear.
There could be “significant changes” alongside “some carryovers,” he says.
Current legal challenges
At least a half-dozen significant challenges to employment law proposals from the Biden administration are currently tangled up in court—including cases relating to white-collar overtime exceptions, individual contractor status, OSHA walkarounds and the highly publicized FTC noncompete ban.
Trump’s administration would halt appeals the Biden administration had begun, while Harris’ administration would “significantly align” with the positions of Biden’s.
Importantly, some of these cases could see district court rulings before the new president takes office.
“Between now and Inauguration Day,” Paretti says, “a lot of things can change.”
State initiatives to watch
While all eyes will be on the presidential race, there are ballot initiatives, legislative proposals and legal challenges throughout the country that HR should also keep on their radar, says Shannon Meade, executive director of Littler’s Workplace Policy Institute.
This could become particularly critical if, as many political pundits predict, the presidential administration differs in party from at least one chamber of the U.S. Congress. The states are “where all the action is going to be,” she says.
“Unless the 119th Congress is aligned with the new administration, we are in a divided government and there’s going to be federal legislative gridlock for the next four years, which will give rise to increased state and local activity,” Meade says. “No doubt, state and local will be drivers on employer and labor legislation.”
Areas to keep an eye on include:
Wage and hour
While Harris has indicated she strongly supports raising the federal minimum wage to $15, legislation has consistently failed—prompting many states to step up.
This election will feature ballot initiatives to raise the minimum wage to $18 in California—which would be the highest in the nation—and gradual increases to $15 in Alaska and Missouri.
Elsewhere, Meade says, the FLSA tip credit is under fire in places like Massachusetts, which has a proposed ballot initiative to raise the minimum wage for tipped employees and phase out use of the credit, while a reverse proposal to essentially “enshrine 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.
Importantly, Vice President candidate Gov. Tim Walz has voiced his support for a national paid leave program—and signed a bill into law as governor to give most employees in Minnesota 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,” Meade says.
AI regulation
Despite the growing prominence of AI in the workplace, few federal proposals to regulate artificial intelligence have gained traction—driving “growing interest in the states to set some simple legal guardrails on the use of AI,” Meade says.
There have been more than 700 different proposals across 45 states this year, she says, with Colorado having passed the most comprehensive AI regulation bill. Post-election, she predicts, more states will follow suit.
Labor management relations
Captive audience meetings—essentially designed to dissuade workers from unionizing—have long been the norm in American employment law; however, there has been movement in the last few years, Meade says, to recognize such mandatory meetings as coercive and impermissible. Most recently, California adopted a law subjecting most employers deploying such techniques to penalties starting in January.
Similar proposals are also moving forward, Meade says, in Illinois and Massachusetts.
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