The U.S. labor and employment sector may seem poised for dramatic change under the new Trump administration. Uncertainty still remains on many levels, however, for companies, lawmakers, workers and regulators. Two veteran attorneys and erstwhile rivals in the courtroom waded into this contentious area with The National Law Journal.
P. David Lopez recently joined Outten & Golden, in Washington, just shy of finishing his second term as general counsel to the U.S. Equal Employment Opportunity Commission. He led some of the Obama administration’s strongest efforts to take on systemic change in workplace disputes.
Grace Speights, a partner at Morgan, Lewis & Bockius, also in Washington, fights for employers on the other side of the aisle. She has represented major companies in employment discrimination and class action claims before U.S. federal courts around the country and local courts in the D.C. area. Our interview was edited for length and clarity.
National Law Journal: What do you expect to be some of the most charged issues in the labor and employment sector under the Trump administration?
P. David Lopez: You are already seeing the Department of Labor take some steps to back up on some of the initiatives taken by the Obama administration. I think, likewise, with the National Labor Relations Board there are certain issues that will probably come under fire once the membership of the board changes. You’re probably going to see a more conservative EEOC. The consequence will probably be many enforcement opportunities that are left on the table that probably would not have been left on the table otherwise.
Grace Speights: We know that the Trump administration is focused on less regulation. To the extent that is a focus, I think in all of the agencies or departments that deal with labor and employment issues, you’re going to see an effort to pull back on or withdraw various regulations and guidance that was issued under President Obama’s administration. We may see less enforcement, a lot of it being due not just to sort of a pull-back on regulations and guidance but budgetary issues. When you look at the president’s budget, there is a focus on the fact that the government budget is too large.
NLJ: What do you think the effect of fewer regulations would be on business and large companies?
Speights: With respect to many of the regulations that came out under the Obama administration, our employers had to make certain changes or at least anticipate certain changes that they might need to make. Some of them went ahead with starting to implement changes. They didn’t want to get left flat-footed, and that’s my word, if those things stayed in place or went forward. That’s not all employers, but I think many of them did. So, the question will be for those who did make those changes, whether you roll those back or you just keep them in place? Some of the larger employers are probably likely to keep them in place because there’s a cost associated with making various administrative changes within companies.
Lopez: I think one thing that is certainly true is that businesses like a predictable regulatory environment. The whole idea of rolling back regulations is a little bit of a talking point for the Trump administration. What you’re often talking about is not necessarily eliminating regulations, but as to the substance of the regulation. What it often means if you do eliminate regulations is you actually have more litigation, and you have less predictability for the business community.
NLJ: What effect would budget cuts have on enforcement and duties of federal agencies such as the EEOC?
Speights: While there may be less enforcement, or less regulation by the federal government, we are seeing that state, cities, counties are becoming more aggressive in terms of their legislation. Various cities and states have passed all types of pay equity laws that go well beyond some of the issues that have been the focus at, for example, the EEOC on pay equity [guidelines].
Lopez: I think that’s a really important point that Grace makes. About half the states are talking [about] employing regulations that go beyond federal protection on areas of pay equity, and LGBT rights and a host of other issues. For the employer community, it becomes a challenge dealing with the big patchwork of state laws. I think what some of the national companies have done is that they tend to adopt practices formally across the country that comply with the most stringent state laws.
Speights: That definitely is a trend. If you’re a company and you’re operating in a number of jurisdictions, you can’t have different processes or procedures all over the country. Our advice to clients is look at what’s the most aggressive position, and to comply and to form your procedures and policies around that.
NLJ: Are employers doing anything to address some immigration issues that have become hot-button topics in recent months?
Speights: Obviously, in terms of the limitation on visas and the question of whether the travel ban affects companies, it does impact employers. They impact their ability to fill certain jobs. Yes, they do have great interest in seeing that there are fair immigration policies so that they can bring in the workers that they need.
Lopez: We know that there are whole sectors of the economy they are very dependent upon in immigrant labor, whether authorized or unauthorized. I think there’s a real concern that many of the workers who are still working are sort of pushed in the shadows and are extremely reluctant to come out and complain about violations of the labor laws. That thereby makes them much more susceptible to exploitations in places and further on the margins. Unscrupulous employers are really able to basically cheat and undercut the employers who are playing by the rules.
NLJ: What do you think would be the effect of the EEOC pursuing a less systemic approach when it comes to pursuing cases?
Lopez: It’s interesting because the EEOC’s effort to rejuvenate its systemic initiative came under a Republican administration. I certainly think that under the Obama administration, it really generated a lot of push back from the business community. I know that politically there was sort of a pushback against the systemic efforts and a narrative spun by the business community that the commission was being too aggressive.
Speights: Some of that pushback came, speaking on the management side, once companies were faced with some systemic cases or investigations that they didn’t think were appropriate. I had some cases that I’m talking about with the EEOC in conciliation in 2014 or 2015 that had started, for example, in 2007. There’s something wrong with that, that an investigation would take that long. It becomes a burden and expense on companies when they’re dealing with a systemic investigation. That’s where a lot of the pushback came.