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.