Workplace Policy Institute Insider Report — December 2016

Littler's WPI Insider Report details key labor, employment, and benefits news and events at the federal, state, local, and global levels. The December edition of the Insider Report discusses recent efforts to block controversial regulations, highlights state and local ballot initiatives that succeeded on Election Day, and explains how the future Trump Administration will attempt to “repeal and replace” the Affordable Care Act.

The Insider Report includes the following sections:

Insider Briefing [p. 1].  After an election outcome that few expected, Donald Trump will be sworn in as the 45th President on January 20, 2017, with a Republican majority in both Houses of Congress. With Republicans in control of both the White House and Congress, a seismic shift in workplace policy lies ahead for employers. Much of President Obama’s labor, employment and benefits policies implemented under the rubric of his “Middle Class Economics” agenda are no doubt on the chopping block. Yet, the timing and format for the change of direction remains unclear. Even with the GOP sweep on election night, not all of the changes implemented by the Obama Administration’s Department of Labor (DOL), National Labor Relations Board (NLRB) and Equal Employment Opportunity Commission (EEOC) can or will be immediately reversed on Inauguration Day. Whether by the courts, Congress or presidential pen, some policy changes could come rather quickly. Others may have to wait for more formal and lengthy rulemaking and adjudicative proceedings.  In the interim, employers have much to consider as the workplace policy agenda of one Administration unravels and that of the next begins.

On the Move [p. 4].  President-elect Trump's stunning upset over Hillary Clinton in this year's long and protracted presidential race will reverberate at the local level over the next four years. Expect some traditionally "red" states to enact—if they have not already done so—preemption laws. These laws typically prevent municipalities from implementing ordinances requiring employers to provide benefits, such as minimum wage or paid leave, greater than those conferred by the state or federal government. States with Democratic legislatures, in turn, might see state or local laws as the only avenue to advance employee-friendly measures now that the U.S. Congress and presidency will be under Republican control. The independence of local electorates was made clear on November 8, when various states and localities approved ballot initiatives covering a range of employment-related topics. The following discusses the results of notable labor and employment ballot measures, and other state and municipal laws that made headway in November.

In Focus [p. 10].  The annual enrollment for the Affordable Care Act (ACA) marketplaces or exchanges began on November 1, 2016, for health insurance coverage during 2017.  With Donald Trump’s victory on election night only a week later, many are asking if the ACA’s fourth open enrollment period will be its last.  Since the law’s passage in 2010, congressional Republicans have made criticism of the sweeping health care reform law a rallying cry on the floors of the Senate and House chambers. President-elect Trump echoed this opposition to President Obama’s most significant legislative legacy on the campaign trail. Legislative efforts to repeal the ACA have failed with President Obama in the Oval Office and in control of the veto pen. Now, with President-elect Trump soon to be in the White House and Republican majorities retained in both the House and Senate, the days of the ACA—or at least significant portions of it—may be numbered.  As “repeal and replace” moves from political talking point to a reality, important questions about the extent and timing of the ACA’s demise and, more specifically, the contents of its replacement, remain.

Global Report [p. 7] This section provides a roundup of international labor and employment news.

Outlook [p. 13] A calendar of events provides information on upcoming regulatory comment deadlines, agency meetings, and related activities.

Click here to read the full Insider Report.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.