The election of Donald Trump as the 45th President of the United States carries with it the possibility of major changes in the field of labor law. The most significant changes likely will come at the National Labor Relations Board.  Currently, the five-member NLRB has a 2 to 1  Democratic (and pro-labor) majority, with two vacant seats.  Since, by custom, the President has the opportunity to appoint a majority (but no more than three members) of the Board, it is likely that the two vacancies will remain open until President Trump is inaugurated and will be filled by President Trump appointees.

No doubt, this will result in a more business-friendly NLRB majority.  The new Board, once appointed and confirmed, is likely to revisit several pro-labor NLRB rules promulgated and decisions issued during the past few years, including, among others, those (1) making most class action waivers illegal, (2) broadening the “test” for finding two unrelated employers to be “joint employers”, (3) allowing inclusion of temporary workers in bargaining units with an employer’s regular workers, (4) expanding the National Labor Relations Act’s coverage of protected concerted activity (its impact on workplace rules and policies, as well as employee conduct), (6) making it difficult for an employer to alter a bargaining units requested by a union, (7) dealing with the status of college/university adjunct faculty, graduate assistants and student athletes, (8) permitting employees to picket and protest on employer property, and (9) dealing with the conduct of representation elections – the so-called “quickie election rules”.

The new Board also likely will stay the course in areas where the current Board is primed to make additional pro-labor changes, such as extending Weingarten rights to non-union workplaces and making misclassification of employees as independent contractors a separate violation of the NLRA.

We also likely will see a more business-oriented Department of Labor. A new Secretary of Labor is likely to revisit recent DOL proposed/implemented regulations, including those which are the subject of court injunctions (such as the Labor Management Reporting and Disclosure Act “persuader” regulations).  (There are other DOL regulations such as the overtime rule, fiduciary rule, etc. – to be written about by other Jackson Lewis practice groups — that are likely to be revisited as well.)

Finally, the Trump administration likely will repeal various labor-related Executive Orders published under the Obama administration, such as Executive Order 13673 the “Fair Pay and Safe Workplaces” Executive Order, requiring government contractors and subcontractors to report at the pre-award phase of the contracting process and regularly thereafter on a variety of workplace law violations found by administrative agencies, the courts, and arbitrators, and Executive Order 13201 entitled, “Notification of Employee Rights under Federal Labor Laws,” imposing an obligation on certain federal contractors to inform employees of their rights under the NLRA.

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.