Well, the results are in. The people — or rather the Electoral College– has spoken. Donald Trump will be our new President in January 2017. Many are writing and speculating about the impact a Trump presidency can be expected to have on businesses and employers. Mr. Trump will have the ability to impact several key government entities, such as the Department of Labor, the EEOC, the U.S. Supreme Court, that in turn stand to impact many issues of great concern to employers. Since the NLRB seems to have been the most outspoken and aggressive agency however, I thought we would start with them. (I reserve the right to cover the others in upcoming posts). So what might happen to the NLRB — and at least some of its decisions, that have been the bane of many an employer’s existence? Let’s take a look-see after the jump…
We all know that many of those who serve high up in federal government agencies are appointed by the President. Ergo, sometime after a new president takes office, so do new government appointees. Ergo, the composition and the overall tone of certain key government agencies changes. With that in mind, let’s see how Mr. Trump’s presidency might shake up the NLRB. You may remember from Noel Canning v NLRB that the President of the United States (POTUS) appoints NLRB members, who must then be confirmed by the Senate for staggered 5-year terms. Since the terms of two members expired and their positions not filled, there are currently two vacancies. President-elect Trump therefore starts his term with the opportunity to appoint fill two out of five positions immediately– or as soon as he can come up with appointees and get the Senate to confirm them. Theoretically, the Senate could refuse to confirm his choices. Given that the Republican party will be in control of the Senate, that is not likely. Generally, Republican presidential appointees are more sympathetic to businesses/employers. We have no reason to expect anything different here. Since the current Board already has one Republican member, the likelihood is that the NLRB will soon have a Republican majority. The terms for the three remaining positions will expire within the next three years. So, even if you are mathematically challenged, as I am, you can see that even if Mr. Trump were only to serve one term, he will, within three years, shape the composition of the entire Board.
OK, you may be thinking, that’s all well and good, going forward, but what about all those seemingly wacky decisions that the current Board has issued up until now? Are employers still subject to those decisions? Do they just go away? What are employers supposed to do now? No, decisions currently in effect are not automatically nullified upon Mr. Trump’s inauguration. They don’t even automatically go away once the two vacancies are filled, or, just because the other positions, when those terms expire, get filled. Will the new Board be bound by previous decisions? Well, sort, but maybe not. You may remember a few instances in which the Board during the Obama presidency issued some rulings that sharply departed from precedent. A new Board could do the same. The difference, would be that a new Board could say it is not so much departing from precedent as restoring it, but let’s not argue semantics. What are some key issues that may change (again)? Here are a few:
- Mandatory arbitration: Remember D.R. Horton? Click here and here if you need a review. The NLRB said that employment agreements that required employees to submit disputes to binding arbitration, particularly if they included class action waivers, violated Section 7 of the NLRA, i.e. the right of employees to engage in protected concerted activity designed to discuss and improve work conditions and/or organize a union;
- Joint Employment: Recently the NLRB ruled that franchisors may be joint employers of franchisees’ employees, even if they do not actually control the work conditions of those employees. Click here for review. Similarly, the NLRB held that a company may be a joint employer of temporary employees supplied by a staffing agency and that those “temps” may be counted along with direct employees to form a bargaining unit for unionization purposes. Click here for review of that case. The key, according to the NLRB is not whether those companies actually control those employees, but whether they have a right to control them. The NLRB also specifically found that “indirect” control is sufficient. These rulings departed with established precedent.
- Social media policies: Going back at least to 2011 you have probably been inundated with posts or other articles regarding NLRB rulings on employer’s social media policies, specifically those limiting an employee’s right, through social media to make statements about their employer. Click here for more on that.
- College/Graduate students’ right to unionize: In August, student teaching and research assistants at private colleges and universities across the country, under the current Board won the right to organize for better pay and benefits.
These are just a few key issues and rulings where the current Board has turned established precedent or cornerstone employment practices on their ear. What will happen? Time will tell — and, if or when any changes happen, so will I, so keep your eyes open for new posts! Bye for now!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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