With less than two weeks to go, election 2016 looms large. Heated rhetoric aside, experts are calling this election a “change election” – and for HR, that could mean ongoing compliance headaches nationwide.
“That’s what the polls seem to be saying,” Jim O’Connell, an executive consultant at Ceridian, told HR Dive. “Voters want change. Voters aren’t specific about that, but they want change. From an HR pro perspective, I’m concerned that means ongoing compliance uncertainty.”
Change is coming, whoever wins.
But whoever wins will also be affronted with a divided congress. The legislative branch will likely opt to stop proposals from whoever wins the White House, Mike Aitken, vice president of government affairs at SHRM, told HR Dive, so the future president will likely try to push executive orders at the same or even increased rate of the current administration.
“At a minimum, we are going to see the sorts of proposals and initiatives out of the EEOC, DOL and NLRB that we’ve seen in the past several years if there is a Clinton presidency,” David Garland, chair of the labor and employment practice at Epstein Becker Green, said. “The wild card is: will it go any further?”
If Clinton wins, it is possible that she could follow the footsteps of fellow Democratic presidents and sign an HR-relevant bill into law as one of her first actions. (President Barack Obama had the Lilly Ledbetter Fair Pay Act, and former President Bill Clinton had FMLA.) In turn, Trump may seek to repeal or reduce some contentious department rules, including overtime.
Here, we outline the key election issues that will impact HR management post-election, though with an important caveat: Change, while looming, is likely to be slow thanks to the legislative branch. Regardless of outcome, most action will likely come out of the EEOC, DOL and its like.
The Affordable Care Act: What’s next?
Treatment of the Affordable Care Act is currently “the biggest single contrast” in the position of the two parties, O’Connell said. Clinton and the Democrats want to build on the ACA, while the standard Republican word is “repeal.”
A drill-down into how each party views the law, however, reveals more complexity. Rather than repeal, Republicans are more realistically are looking to “4 R’s,” O’Connell said.
- Retain: Certain aspects of the law, such as prohibiting exclusion of those with pre-existing conditions, have been widely accepted as “must-keeps” that promote fairness and health.
- Remove: Republicans are interested in stripping prescriptive federal requirements, including the excise or “Cadillac” tax.
- Replace: They are also interested in replacing provisions that claim certain benefits packages must be offered in every exchange, for example, and want to create more flexibility so that consumers have a voice in the process.
- Reduce: O’Connell said he had heard discussion about potential reduction of the individual and employer mandates, though many experts have said such mandates are key to making the markets work.
Democrats and Republicans aren’t diametrically opposed; the excise tax has garnered ire from both sides of the aisle. Originally, the tax was in place to cut back on employees essentially receiving unlimited healthcare on a tax-free basis. Now, both sides are concerned about what kind of plans the excise tax will actually include in the future, especially as more companies shift to high-deductible offerings.
For any change to take place, leaders will need “to bury the hatchet,” O’Connell said.
“There is bipartisan interest in seeing if everything is structured correctly,” Aitken said, and that includes potential tax and health reform. But such complex change likely won’t happen “out of the box” with a new administration, Aitken added, if it happens at all.
But all are certain: The ACA is likely to remain, regardless of who takes office.
“Repeal is not likely at this stage,” Garland said. “The difficulty that would exist, it’s just overwhelming.”
FMLA and family leave
Each platform has presented polarized approaches to family leave. Clinton has called for regulations requiring employers to provide 12 weeks paid leave (essentially paid FMLA leave) for familial leave, while Trump’s current plan proposes essentially a childcare tax credit and six weeks paid maternity leave funded through the elimination of unemployment insurance fraud, according to Politico.
Both parties have reservations about these proposed plans, Aitken noted. Rank-and-file Republicans haven’t expressed whether they actually want Trump’s plan, and for Democrats, Clinton’s plan may not go far enough.
In any case, employers are currently faced with a swath of regulations across different states and even cities, leading to difficult compliance with no real solution, Garland said. Not much else has been said on the matter that goes into the weeds.
Aitken mentioned a third option: A federal safe harbor law. Such a law would allow various states and cities to create their own laws, but an employer would be free to simplify their compliance burden by matching their policy to or exceeding the safe harbor federal requirements, which would set a solid floor for all employers to follow.
No such bill has been introduced as of yet.
Compensation, time and wages
A number of policies have been proposed around minimum wage, pay equity and, of course, employee overtime.
- Overtime: O’Connell noted that he doesn’t see the new FLSA overtime rule as a “presidential issue,” adding that the “DOL totally has the authority to do this.” Unless a new president decides to change the executive order, the new rule is likely to remain in place, barring any court action prior to its deadline.
- Minimum wage: Clinton has expressed support for a $12 federal minimum wage, while Trump has somewhat wavered in his support over time. His latest support called for a $10 federal minimum, but he also supports largely leaving the brunt of legislation to the states.
- Pay equity: Massachusetts’ pay equity law sparked debate over the necessity of asking for past salaries. That law bans the practice entirely and broadens protections under the “comparable work” clause. The aforementioned Lilly Ledbetter Act is currently one the more well-known federal laws on the books, but it largely moves the statute of limitations for which a person may pursue an equal pay lawsuit.
The largest issue at hand for HR professionals are the concerns over E-Verify and current I-9 form regulations. Trump has discussed mandating E-Verify, Aitken said. While SHRM currently supports a federal system that is entirely electronic, the problem is that I-9’s are required with E-Verify, making employers at risk of “double jeopardy” if they get aspects wrong on both forms.
Clinton has not said anything on the topic of E-Verify, but the “dynamic” on her side of the aisle aligns with some Republicans that are calling for minimalist immigration reform in contrast to some of their peers (including, now, Trump), Aitken said – meaning bipartisanship would be required for anything on immigration to pass at all.
“I just don’t know if in this environment that that will be done,” he said. “It’s a pretty divisive issue.”
That means, if anything happens, it will likely be more executive orders. Clinton’s plan clearly points toward continuation of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) bills, and she’s also expressed support for H-1B reform and increased visas.
Trump’s plan is harder to pin down, Aitken noted. He could expand E-Verify, or he could focus entirely on an enforcement-only approach – aka the Mexico border wall.
The bottom line
Generally, immigration reflects many of the same issues chasing other calls for reform. Congress will likely remain entrenched, meaning more executive action could occur.
In all: With Clinton, expect a continuation trends, including employee-friendly rules from executive branch departments. With Trump, such rules may slow, change or be repealed in some way.