The Trump administration is uniquely positioned to effect major changes in labor and employment law. This is the first time since President Dwight D. Eisenhower that a Republican president has taken office with a Republican-controlled House of Representatives and Senate. This week President Donald Trump announced his nominee for U.S. Supreme Court justice, conservative Tenth Circuit Judge Neil Gorsuch, who would restore the United States’ highest court to a Republican majority. He also has the opportunity to fill many vacancies within the labor and employment agencies and divisions of the federal government. It is expected that the Trump administration will, without much difficulty, be able to undo a number of employee protections put in place under the Obama administration because President Barack Obama often relied on executive orders and administrative rulemaking instead of Congressional lawmaking. These factors have provided President Trump with the opportunity to scale back many of President Obama’s efforts. This month’s column focuses on significant changes that may occur at four key federal labor and employment agencies.
In his first week in office, President Trump appointed Republican Philip A. Miscimarra, the sole Republican member of the National Labor Relations Board (NLRB), as the agency’s Acting Chairman, taking over from Democrat Mark Gaston Pearce. There currently are two vacant seats on the five-member NLRB which President Trump also is expected to fill with Republicans. In addition, in November 2017, NLRB General Counsel Richard F. Griffin Jr.’s term will expire. With the new makeup of the NLRB, a number of controversial NLRB rulings during the Obama administration may be reversed. One issue in particular that is expected to be revisited by a newly composed NLRB is the 2015 ruling in Browning-Ferris Indus. of Cal., 362 NLRB No. 186 (2015), which significantly broadened the joint employer standard to include relationships where the potential joint employer has the ability to control an employee’s essential terms and conditions of employment, even if it never actually exercises such control. Nevertheless, with the Browning-Ferris decision on appeal, and oral argument scheduled for March, the D.C. Circuit may weigh in on this issue before the NLRB has the opportunity to do so.
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