United States: 7 Workplace Changes To Expect From A Trump Presidency

Last Updated: November 22 2016
Article by D. Albert Brannen

Donald Trump will soon be our nation's 45th president. While many are still reveling in the historic significance of this election, this article contains some quick predictions on what a Trump administration could mean for workplace law and the nation's employers.

1. Supreme Court and judicial appointments

It appears that Trump will have an opportunity to fill at least one vacancy on the Supreme Court (SCOTUS), the seat previously held by Justice Antonin Scalia. If Trump has the opportunity to nominate a replacement, it is fair to assume that the conservative status quo will be restored, especially if he nominates one of the individuals he named during his campaign.

Future vacancies in the SCOTUS cannot be predicted, but it is worth noting that the three oldest justices — Ruth Bader Ginsburg (83), Anthony Kennedy (80) and Stephen Breyer (78) —are liberal or moderate. It is highly likely that there could be at least one additional vacancy before 2020 and a real chance that Trump will be able to appoint two additional justices besides the current vacancy.

The make-up of the SCOTUS becomes important when you consider the workplace law issues that could come before the court. Arbitration provisions, class action litigation (including class waivers), union agency shop fees, the scope and coverage of Title VII, immigration programs, wage and hour law, healthcare and administrative agency powers are just some of the issues likely to confront the SCOTUS.

Moreover, currently more than 100 federal judgeships are vacant. Some pundits are already challenging Trump to fill these seats in the first 100 days. With a Republican Senate, this ambitious goal could be achieved. Given that federal judges are appointed for life, this influx of conservative judges could affect judicial interpretations for decades.

2. Executive orders and affirmative action

In the face of a resistant Congress, President Barack Obama made liberal use of the presidential power to issue executive orders. While it is difficult to know exactly what is in store, it is possible that Trump could unilaterally undo some of the more burdensome or objectionable executive orders, such as the one on Fair Pay and Safe Workplaces.

In the area of affirmative action, Trump's background as a businessman might lead employers to believe he will resist efforts to increase data collection. However, Trump may want to reach across the aisle and support female-supportive programs in an effort to repair some of the issues raised during the campaign.

3. Immigration

Trump made immigration reform the centerpiece of his campaign. While he may moderate his views, expect to see an increase in workplace enforcement actions, including both I-9 audits and raids by the U.S. Immigration and Customs Enforcement agency. Trump may also move to cancel the work authorization granted under Deferred Action for Childhood Arrivals (DACA) and counteract any immigration reform measures put in place by the Obama administration.

During the campaign, Trump promised he would mandate E-Verify to check the employment eligibility of all workers in the country if elected. He also said he would alter temporary work visa programs (such as H1-Bs), which allow employers to bring on highly skilled foreign workers.

Exactly how he will alter these programs is unclear. He could do it by either decreasing the number of visas issued or by increasing prevailing wages for such workers. In any case, he will vigorously support the hiring of American workers first.

4. Employment leaves and child care

Hillary Clinton's campaign included proposals for expanding the Family and Medical Leave Act to include up to 12 weeks of paid family and medical leave and to implement an earned paid sick day plan for American workers. While Trump did not provide specifics regarding his plans for such leaves, he did express his general agreement with Clinton's position during the first presidential debate in September.

Specifically, on the topic of child care and similar initiatives, Trump said, "I think Hillary and I agree on that. We probably disagree a little bit as to numbers and amounts and what we're going to do, but perhaps we'll be talking about that later." Employers across the country will continue to wait to see what proposals might spring forth from the Trump administration on these subjects.

5. Wage and hour

The Trump administration will at least be receptive to a federal minimum wage increase. During the campaign, he expressed support for such a hike, and many states have already adopted laws providing for minimum wages in excess of the federal minimum.

The Trump administration may attempt to reverse or suspend the coming changes to white collar exemptions currently scheduled to take effect on Dec. 1. However, this about-face could implicate some knotty administrative-procedure matters, and it is difficult to predict how extensive Trump's reversal could be.

6. Labor relations

It is probably safe to forecast that Trump's victory could slow down the tide of anti-employer developments at the National Labor Relations Board (NLRB). In time, we may get a more employer-friendly panel of board members.

However, Chairman Mark Gaston Pearce's term goes through August 2018, and Member Lauren McFerran's term extends through December 2019. Member Philip A. Miscimarra, the most pro-business of the current three members who has frequently been outvoted, will remain until December 2017. So, little is likely to change with the NLRB in the foreseeable future until the current vacancies are filled.

The Republican Party platform criticized the role labor unions have enjoyed under the Obama administration, and proposals put forth by the GOP seek to minimize their influence. It promises to require transparency so union members know how their dues are being used, limit veto power of union officials, and support right-to-work laws permitting workers to opt out of forced membership.

Trump signaled his agreement with these concepts during the campaign, specifically stating the country needs to be "very careful" with public sector unions.

7. Workplace safety

Several OSHA initiatives will likely be in Trump's crosshairs. He could reverse course on OSHA's penalty increases. Even if Trump decides to not repeal the penalty increase rule in its entirety, look for him to at least remove the rule's requirement that Fed-OSHA's maximum penalties increase each year to account for inflation.

Employers may see an elimination of the electronic reporting rule scheduled to take effect July 1, 2017. This rule will require certain employers to report injury and illness information to Fed-OSHA, which will then post this information online for public viewing on its website.

Trump may seek to create more state plans or provide existing state plans more jurisdiction. Trump may view expansion of state OSHA plan jurisdiction as an opportunity to shrink the federal agency and save taxpayer dollars.

Also, Trump may scale back the federal whistleblower oversight of Fed-OSHA, which currently enforces whistleblower provisions in approximately 22 statutes. These claims demand a significant amount of federal resources, especially because many are unfounded (only about 1 in every 30 whistleblower claims may have merit).

Trump may attempt to eliminate Fed-OSHA's jurisdiction over many of these statutes, heighten the threshold for a claimant to establish a prima facie whistleblower claim, or both. These changes would allow Fed-OSHA to focus on high-hazard industry enforcement, accident and fatality inspections, and safety outreach consultations with employers.


Trump campaigned on an agenda of change. He will be able to use his executive powers to impact the federal judiciary and to reverse the tide of executive orders and regulations swamping employers. But he will need the cooperation of Congress to get many of his other initiatives passed.

For now, we need to be patient and stay tuned to see what changes he can actually make.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

D. Albert Brannen
Similar Articles
Relevancy Powered by MondaqAI
Morrison & Foerster LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Morrison & Foerster LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions