LAS VEGAS–Credit union human resources execs here were told to keep their heads on a swivel.
That’s because there’s “lots of uncertainty” now over numerous labor and employment laws and their enforcement under the Trump Administration.
“The Obama Administration focused on administrative enforcement, with the Equal Employment Opportunity Commission and the National Labor Relations Board enforcing their respective laws,” said Bret Yaw. “We’re not necessarily so sure that is going to continue.”
Law, an attorney with the Orlando-based firm FordHarrison, told the CUNA HR and Organizational Development Council here that much is in flux around laws and regulations related to credit union employee factors.
While the Trump Administration has provided few details around its intentions related to labor law, Yaw said the overarching theme is the administration is looking to save small businesses from “crushing regulations.”
He said in some cases analysts have even been asking “WWID: What would Ivanka do?” In this case, Ivanka Trump, the president’s daughter, who has had her father’s ear on certain issues such as paid leave around child care and other related issues.
Still to be seen, said Yaw, is the effect of newly appointed Supreme Court Justice Neal Gorsuch on the court’s decisions. Gorsuch, said Yaw, has traditionally given limited deference to agencies’ interpretations, and has ruled in the past that courts should not second guess decisions, as the issue is whether it’s a violation of law.”
A big issue to watch later this year, he told the CUNA Council meeting, is the Supreme Court hearing on “class action waivers.”
“At issue is the legality of arbitration agreements containing class and collective action waivers,” Yaw said. “The Supreme Court has generally upheld the use of arbitration agreements. But the NLRB’s position is that a class/collective action waiver violates employees’ rights under the National Labor Relations Act to engage in protected, concerted activity—to litigate collectively in challenging an alleged unlawful employment practice.”
The 5th, 8th and 2nd Circuit Courts of Appeal have rejected the NLRB’s position. A decision is unlikely prior to 2018.
Meanwhile, Yaw noted the Equal Employment Opportunity Commission is supposed to be a five-person commission, but it currently has four members, three of whom are Democrats. But all their terms expire prior to 2020, which would allow President Trump to appoint a 3-2 Republican majority as those terms expire.
Yaw said that possible actions with a GOP controlled EEOC could mean a “less expansive” interpretation of its authority and more reasonable positions by EEOC in settlements, or consent decrees.
In addition, Yaw said the Trump Administration will be more cooperative and less punitive in enforcing labor rules with employers. He said it is also likely to reevaluate the employment data that is submitted by employers and whether it is necessary.
“With OSHA, similar to the EEOC, it is likely that fewer regs will be issued, and there will be more information and compliance approaches to business rather than confrontational and aggressive enforcement,” he said.
With the NLRB, Yaw said he expects to see some rollbacks related to rules and cases before it, including the use of corporate email, specialty healthcare, joint employment, expedited election rules and handbook policies.