I really do hate to be the bearer of bad news.
There is no “but…” to follow that. It is simply a statement of fact. In recent weeks, at conference presentations
and in conversations with clients, I have found myself in the role of dampening
the enthusiasm of business owners and executives when they begin to gush about
the windfall of support they expect from having a Republican-led White House,
Senate and House of Representatives.
“This is the most business friendly administration and Congress
that we’ve had in decades,” they often say.
And clearly, based on statements from President Trump and Congressional
leaders during and since the campaign, one would certainly expect that to be
But not according to your friendly, pessimistic HR expert. So far I am seeing regulatory rollback
focused on environmental rules, but not so much when it comes to employment and
Why do I think that, when all is said and done, we are in
for a lot of disappointment?
First, while under typical circumstances a
Republican-controlled government would presage a deregulatory, pro-business
approach, Donald Trump is not your typical Republican president. And now that we’ve started to get into the
nitty gritty of regulatory rollbacks, the outcomes do not seem quite so assured.
The one big employment-related initiative thus far, of
course, has been the attempt to repeal and replace Obamacare – and that hasn’t
gone so well. In the end, the White
House and the Republican majority could not hold together and get the
legislation passed, so the Affordable Care Act remains the law of the land.
Given the complexity of the act (it extends far beyond the employer mandate and
the minimum benefit package), along with the demonstrated political complexities
of its repeal, our best guess is that the ACA will continue in its current form
until at least the 2019 renewal period.
What about the overtime threshold that the Obama
administration doubled to more than $47,000 last year? While the business community was hoping to
see that reversed, all Mr. Trump has said so far is that he will want to exempt
small businesses from the requirement.
Not sure what will happen next on this.
During the campaign Mr. Trump and his daughter Ivanka spoke
frequently about the need to expand paid child care and parental leave. Since the inauguration, however, very little
has been said and it remains unclear how these programs would be administered
or funded. We shall see.
In one key area, immigration, there are signs that the Trump
administration will actually be adding new layers of regulation on
employers. Most notably, during the
campaign Mr. Trump often called for mandatory E-verify for all employers, which
is something that very few states require and some, including Illinois and
California, prohibit. Requiring its mandatory use will certainly impact many of
our clients, particularly in the janitorial and car care industries.
There’s another big reason why I have doubts about an
impending wave of regulatory relief for employers. Looking at this more broadly, it is not much
of a stretch to assume that as Washington continues to muddle along in
hyper-partisanship and dysfunction, states and local governments will continue
to forge ahead with their own workplace laws and requirements, leaving
businesses to scramble to remain compliant in all the locations where they do
business. Put another way, it’s one
thing to be hopeful for regulatory relief at the federal level, but don’t let
that divert your focus away from real regulations that are being put into place
in the states where your business operates:
Wage – Effective in 2017, 19 states increased their minimum wage
provisions, requiring that businesses in those states adjust accordingly. Moreover, many more counties and cities have
established their own minimum wage requirements as well, further creating a
financial and administrative burden on businesses.
– In an increasing effort to facilitate pathways to employment for rehabilitated
ex-convicts, many localities have instituted requirements that prohibit
businesses from having on their employment application a box that inquires
whether the applicant has ever been convicted of a crime. The argument for Ban-the-Box laws is that by
answering this question on the application, qualified candidates with criminal
records are adversely impacted during the hiring process.
Equity – In a continued effort to establish equal pay for women, many
states and localities have made it illegal to ask for prior salary history when
hiring a new employee. The reasoning is
that pay discrepancies for women become perpetuated when employers base new
hire pay on their prior salary rather than on the equitable pay of the
· Paid Sick
Leave and Parental Leave – Many localities have implemented some form of
minimum benefit for paid sick leave and for parental leave upon the birth or
adoption of a child. Again, these
programs vary in how they are administered and funded and establish differing
reporting and notification requirements.
Predictability - Many cities have instituted some form of scheduling predictability
legislation that requires a minimum period of time to post schedules, such as
10 to 14 days ahead, to ensure that workers can plan their work schedules and
make accommodations for other jobs or family obligations. These laws typically require an added pay
incentive for employees who are required to be on-call or face short notice
Testing – With the increasing passage of recreational and medical marijuana
laws, combined with the continued federal ban on marijuana use, employers are
left to navigate a myriad of compliance issues around testing for marijuana
use. Establishing a cohesive, legal
policy that complies with both the state and federal laws is not easy and
employers are left to do their best with little guidance from state or federal
Clearly, there remain many initiatives on the federal, state
and local level that have a significant impact on employers. When I discuss these issues with business
owners and executives, invariably I get the feeling I am spoiling their good
mood. It is never my intention to do so
– a good mood is a terrible thing to waste.
But before we get too excited about anticipated deregulation, we need to
keep an eye out for what is happing at all levels of government, not just the
one in Washington.
By Claudia St. John, President – Affinity HR Group, Inc.