Labor and Employment Law Under the Trump Administration: A Brief Overview for Colorado Employers
Authors: Cole A. Wist (Denver), David L. Zwisler (Denver), Michelle B. Muhleisen (Denver), Steven R. Reid (Denver)
Published Date: December 16, 2016
With the election of Donald Trump as U.S. president last month, many are wondering what impact the new Trump administration will have on employers. President-elect Trump has given few details regarding his plans for labor and employment policy, but the following is a summary of how different areas of labor and employment could be affected by the incoming administration.
Wage and Hour
Colorado’s minimum wage will rise to $9.30 per hour in 2017. It is uncertain whether the federal minimum wage, which has remained at $7.25 per hour since 2009, will rise in the next four years.
A top concern of 2017 will be the shakeout following a federal judge’s preliminary injunction suspending implementation of the U.S. Department of Labor’s (DOL) overtime rule, which had proposed revising the Fair Labor Standards Act (FLSA) to raise the minimum salary that an employee must make to be exempt from overtime from $455 per week (which annualizes to $23,660 per year) to $913 per week (which annualizes to $47,476 per year). The overtime rule could still be implemented down the road, but the continuing appeal of this judge’s ruling will fall to the new Trump administration, which may not be as motivated to enforce these Obama administration regulations.
During the presidential campaign, President-elect Trump and his daughter, Ivanka Trump, unveiled policy proposals aimed at providing paid maternity leave. Further details concerning the program have yet to emerge.
During his campaign, President-elect Trump indicated that one of his administration’s highest priorities would be to repeal the Patient Protection and Affordable Care Act of 2010 (the ACA or, popularly, Obamacare) and replace it with an alternative program. Congress has spent much of the past six years unsuccessfully attempting to repeal the ACA, and the prevailing opinion is that with Trump in the White House, these efforts will bear fruit within the opening days of the Trump administration. However, both the President-elect and Congress are now grappling with many of the same complexities that have bedeviled healthcare reform efforts for over 20 years, and it is unclear which of the many competing proposals will actually gain traction in the new Congress or find favor with the White House or the affected constituencies.
In the face of these uncertainties, employers should prepare for changes but expect that their details will be unknown for some time, potentially several years. In the meantime, unless and until the ACA is modified or repealed, it remains the law of the land, and employers should continue to comply with its requirements as applicable.
Several immigration-related issues and reforms will be on the new administration’s agenda:
an increase in workplace immigration compliance enforcement by U.S. Immigration and Customs Enforcement;
potential gaps in free-trade visas (such as the TN visa) during the renegotiation of free trade agreements such as the North American Free Trade Agreement (NAFTA); and
increased scrutiny by the DOL of PERM recruitment efforts and labor condition application abuse.
Workplace Safety and Health
Depending on who is selected to be the assistant secretary for occupational safety and health, employers should expect some bold new direction from the Occupational Safety and Health Administration. Likely new trends include the following:
stepped-up efforts to curtail the impact of recent regulations, including the controversial standard regarding silica exposure;
a retreat from the frequent use of inflammatory press releases accompanying enforcement actions.
The Colorado General Assembly amended C.R.S. § 8-70-115 to permit the Colorado Department of Labor and Employment to develop guidance for employers on various issues related to independent contractors including the proper classification of workers.
While the items discussed above are not guaranteed, there will likely be many changes in the regulatory, legislative, and enforcement environment under the Trump administration. Employers should keep in mind that many changes will take time. Labor and employment attorneys, as well as employers, will be watching closely over the next few months to see how these issues—from workplace safety to the Affordable Care Act to the now-halted FLSA overtime exemption rule change—take shape.
Cole Wist has more than 25 years of litigation experience in state and federal courts across the country. His primary practice areas are workplace safety and health and employment litigation. Mr. Wist represents employers in labor and employment matters, focusing on workplace safety and health and industrial crisis management. He is regularly called upon to defend clients in high-stakes litigation on a wide range of matters following workplace accidents and other emergencies. Over the course of...
David Zwisler is a trusted senior leader, legal advisor, and strategist with a 20+ year history of navigating the complexities of compliance and developing practical solutions. Mr. Zwisler is a passionate employer advocate, with a proven track record in defending against allegations and charges in multiple forums including alternative dispute resolution processes, grievance and arbitration, state and federal administrative investigations and hearings, and traditional litigation and appeals.
Michelle has litigated dozens of state and federal class and collective actions brought against employers in a wide variety of industries, including oil and gas, manufacturing, hospitality, transportation services, engineering, and janitorial services. Michelle also defends clients in claims brought under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and various state laws. Michelle’s litigation experience...
Steve Reid counsels and represents employers in a broad range of labor and employment matters arising under federal and state laws. Steve graduated from the University of Denver Sturm College of Law, where he was inducted into the Order of St. Ives. During law school, he served on the Denver University Law Review and competed in the annual Wagner National Labor & Employment Law Moot Court Competition. As a law student, Steve also interned in the appellate division of a local district...