Workers’ Rights and the Election

Owen H. Laird, Esq.

This should not come as a surprise: tomorrow is Election Day.   Coverage of the presidential race started over a year ago and has been inescapable for the last several months.  Putting aside the vitriol, nonsense, and mudslinging, the outcome of this election will have a significant impact on the employment of millions of Americans, and not just in terms of the candidates’ claims about job creation.  Should Hillary Clinton win the presidency, Americans will likely see a continuation of the worker-friendly policies instituted under President Obama.  However, should Donald Trump win, we will likely see a Republican administration roll back much of the progress of the past eight years, to the detriment of workers and the benefit of employers.

The Obama administration has influenced employment law policy through three main avenues: (1) executive order, (2) administrative agencies, and (3) appointment.

President Obama has signed several executive orders expanding the rights and protections afforded to government employees.  For example, he granted paid sick leave to federal contractors and prohibited federal contractors and subcontractors from discriminating against employees on the basis of sexual orientation and gender identity.  Although these steps do not affect the employment of most Americans, they do provide definite, tangible benefits for over one million employees working for the federal government.  These rights would be at risk under a Republican administration, which would have the authority to either rescind these executive orders or issue a new order curtailing the protections.

Next, the incoming president will be able to affect labor policy through executive administrative agencies; in particular, the Department of Labor and the Equal Employment Opportunity Commission each play a major role in determining labor rights in the United States. As executive branch agencies, both of these institutions pursue policies according to the will of the President. Under the Obama administration, the Department of Labor engaged in the lengthy process of raising the salary threshold for exemption under the FLSA, ultimately allowing potentially hundreds of thousands of employees to begin receiving overtime pay. Similarly, under the Obama administration, the Equal Employment Opportunity Commission expanded the reach of Title VII of the Civil Rights Act of 1964 to protect individuals from discrimination based on sexual orientation. A Clinton presidency will likely lead to these agencies continuing to expand workers’ rights, while a Trump presidency will likely result in increased restriction.

The final means by which Tuesday’s victor will be able to influence labor policy is the power to appoint judges and members of the National Labor Relations Board (NLRB). As the Republican-controlled Senate refuses to proceed with the nomination process for President Obama’s nominee for the Supreme Court, the next president will be responsible for filling at least one seat on the Supreme Court, as well as numerous seats on District and Circuit Courts. These judges will interpret the law and set practical boundaries of nearly every federal employment statute. Less well known but just as significant are the President’s appointments to the NLRB, the entity that decides disputes between unions and management. The President is tasked with appointing one new board member each year; the NLRB’s decisions on collective bargaining and the Fair Labor Standards Act can either expand or restrict the ability of union and union members to effectively organize against ownership.

It should be clear which way we at The Harman Firm will be voting tomorrow.  We encourage everyone to get out and vote to protect the rights of workers in America.