The employment relationship in the United States is governed by a number of overlapping federal, state, and local laws. According to the United States Constitution, federal law is a higher authority than state or local law, and will often pre-empt state and local laws when they deal with the same subject. That said, in cases where state and local laws provide greater protection of employees’ rights, the greater of the federal, state and local protections will often apply.
These overlapping laws govern the creation of an employment relationship, the substance of that relationship and the termination of that relationship. Most of these laws, however, are prohibitory. For example, an employer may not make hiring or termination decisions based on an individual’s protected characteristic (e.g., age, race, gender, religion). But the law does not dictate whom the employer must hire. Most details regarding the terms and conditions of the employment relationship are left to private agreement between employer and employee. Without an unlawful motive (e.g., discrimination based on a protected category) or a contract providing for employment for a definite duration, the employment of non-unionised employees in the US is generally ‘at will’, which means that either the employer or the employee is at liberty to terminate the employment relationship at any time, with or without advance notice or cause. Certain exceptions exist, as discussed below.
Employment-related lawsuits can be brought in federal or state court. Certain employment contracts may require arbitration or mediation of disputes, while others (such as collective bargaining agreements) may specify detailed grievance mechanisms for the handling of employment disputes. A number of federal and state government agencies also regulate aspects of the employment relationship. For example, the National Labor Relations Board (NLRB) will hear and rule on cases that implicate laws related to collective bargaining and unions in the United States. The Equal Employment Opportunity Commission (EEOC) investigates complaints of discrimination on a federal level, while agencies such as New York State’s Division of Human Rights do the same on a state level. Many federal whistle-blowing laws are governed by the United States Department of Labor (DOL), which, like the NLRB, has its own set of judges (administrative law judges) and appeals process. In many cases, employees must first bring their claims to the appropriate governmental agency (and within a specific time frame) before attempting to file a lawsuit in court. Failure to do so can prevent the employee from having his or her complaint heard in court.
ii YEAR IN REVIEW
The main drivers of change in employment law throughout 2016 were state and local legislatures and federal agencies. The United States Congress, which was controlled by Republicans, passed no new national employment laws of note.
i Changes to FLSA overtime regulations
With a mandate from the White House to strengthen overtime protections for American workers, the DOL issued new overtime regulations on 23 May 2016. The regulations, which took effect on 1 December 2016, raise the minimum salary threshold required to qualify for certain exemptions from the minimum wage and overtime requirements under the Fair Labor Standards Act (FLSA). The new minimum salary for exempt status more than doubles the current minimum from $455 a week to $913 a week ($47,476 annualised).
The new rule would also increase the threshold for exemption as a ‘highly compensated employee’ from $100,000 to $134,004 per year. The new rule does not make any changes to the ‘duties tests’ that, along with the salary threshold, determine exemption from the overtime laws.
On 22 November 2016, a federal judge in Texas enjoined the new overtime rule on a nationwide basis, blocking it from taking effect on 1 December 2016. In its decision, the court noted that nothing in the FLSA indicates that Congress intended the DOL to define the exemptions with respect to a minimum salary level – only with respect to duties – and that, consequently, the new rule is ‘unlawful’. At the time of writing, it is unclear if the injunction will be lifted and if the new regulations will go into effect.
ii The EEOC Announces Revised EEO-1 Rule
In October 2016, the EEOC announced that it had finalised its rule for new EEO-1 pay equity reporting requirements. According to the EEOC’s announcement, the new rule, which was first proposed in January and then revised in July, requires private employers (including federal contractors) with 100 or more employees to submit pay data with their EEO-1 reports. Employers with fewer than 100 employees will continue their current EEO-1 practices. The first deadline for the new reports will not be until 31 March 2018. As of writing, the final rule has not yet been published in the Federal Register.
iii State and local legislatures passed several new laws affecting employers
Employers must also be aware of new statues affecting employees in particular states and cities. In particular, several state and local legislatures, including Nebraska and West Virginia, passed laws in 2016 to place restrictions on employers’ access to applicants’ and employees’ personal social media accounts. Generally, such laws prohibit employers from requesting or requiring applicants and employees to:
- a provide any password or other related account information to gain or demand access to the applicant’s or employee’s personal account or profile on a social networking website;
- b divulge whether the applicant or employee has such an account;
- c add an employee, supervisor or administrator to the list of contacts associated with such an account; or
- d change privacy settings associated with such an account.
Notably, certain laws expressly restrict an employer’s ability to encourage an employee to ‘friend’ or add anyone to the list of contacts for his or her personal social media account. This may include the employer, its agents, supervisors or other employees.
State and local governments have also continued the trend of ‘ban-the-box’ laws, which prohibit potential employers from inquiring about an applicant’s conviction history and permit such inquiries only after a conditional offer of employment has been made. Missouri, Oklahoma, Tennessee and Wisconsin’s ban-the-box laws went into effect in 2016.
iii SIGNIFICANT CASES
i Green v. Brennan (decided 23 May 2016)
In Green v. Brennan, the Supreme Court held that under federal employment discrimination law the limitations period for a constructive discharge claim begins to run only after the employee provides notice of resignation. The decision resolves a conflict in the courts of appeals, which had split over whether the limitations period was triggered by the notice of resignation or by the last discriminatory act of the employer.
Marvin Green alleged racial discrimination under Title VII of the Civil Rights Act, claiming he was denied a promotion because he is black; his supervisors had accused Green of the crime of intentionally delaying the mail. In an agreement between the parties dated 16 December 2009, the Postal Service agreed not to pursue criminal charges and Green agreed to retire. Green submitted his resignation paperwork on 10 February 2010, effective 31 March. On 22 March 2010, Green reported an allegedly unlawful constructive discharge to the EEOC – 41 days after submitting his resignation and 96 days after signing the agreement to resign. A federal civil servant such as Green must contact the EEOC ‘within 45 days of the date of the matter alleged to be discriminatory’. The United States Supreme Court held that the 45-day statute of limitations began to run on the date Green submitted his resignation (10 February) and not the earlier date on which he agreed to resign because Green did not have a ‘complete and present cause of action’ for constructive discharge until he actually resigned.
ii CRST Van Expedited, Inc. v. EEOC (decided 19 May 2016)
In CRST Van Expedited, Inc v. EEOC, the Supreme Court held that a favourable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party for purposes of an award of attorney’s fees under Section 706 of Title VII of the Civil Rights Act of 1964.
The EEOC filed suit against CRST (a trucking company) alleging that over 250 female employees and prospective employees had been subjected to sexual harassment. However, the district court dismissed all of the claims on various grounds, including that the EEOC had not adequately investigated or attempted to conciliate its claims on the employees’ behalf before filing suit. The district court then granted CRST more than $4 million in prevailing-party attorney’s fees. On appeal the United States Court of Appeals for the Eighth Circuit reversed the dismissal of only two claims, which led it to vacate without prejudice the attorney’s fees award. On remand, the EEOC settled one of the reversed claims and withdrew the other. The district court again awarded CRST more than $4 million in attorney’s fees. On appeal, the Eighth Circuit reversed, holding that a Title VII defendant can be a ‘prevailing party’ only by obtaining a ruling on the merits. In this opinion, the United States Supreme Court vacated the Eighth Circuit’s judgment, holding that a favourable ruling on the merits is not a necessary predicate to finding that a defendant is a prevailing party.
IV BASICS OF ENTERING AN EMPLOYMENT RELATIONSHIP
i Employment relationship
In the US, employer and employee are usually free to agree to a contract on terms chosen by them. Based on mutual consent, an employment contract is an agreement by which the employee gives the employer his or her labour or services at a predetermined price. These contracts can range from fixed and negotiated agreements to contracts that are implied under certain situations. Negotiated contracts are formed either orally or in writing. If the parties enter an oral contract of undefined duration, this will generally be considered an ‘at-will’ contract. An at-will employment relationship means that either party can terminate the employment relationship at any time and for any reason that is not unlawful.
When there is no express employment contract, a court may find that an implied contract was, nevertheless, formed. The court will look for certain indications that an employment contract was contemplated by looking at the conduct of the parties and the usual practices within the business in question. Many jurisdictions also look to the provisions of employee handbooks for implied contract terms. Generally, however, an employee without an express employment contract must prove the existence and terms of an implied contract. Moreover, an employer can generally avoid implied contract claims by using express disclaimers that state that the employment relationship is terminable at will.
The promises within the employment contract should be definite and certain as to essential terms, such as the identity of the parties, the nature and extent of the service, the location of the service and the compensation. However, if there are uncertain terms within an employment contract, courts will often uphold its enforceability if they can discern intent from the parties’ behaviour. The parties to an employment contract may modify it by mutual assent. Also, if the employment is at will, the employer will usually be able to unilaterally impose future changes on the conditions of employment, for example, by altering policies contained in an employee handbook.
ii Probationary periods
Probationary periods are not required by statute, but are common in employment agreements and employee handbooks in the United States. During a probationary period, an employee’s performance is subject to more frequent review and the benefits made available to employees may be more limited. Even if an employee successfully completes a probationary period, however, employment typically remains at will unless the employee’s contract specifies otherwise, meaning that no notice is required to terminate the employment relationship.
iii Establishing a presence
To hire employees and conduct business in the United States, foreign corporations must register with the national and state tax authorities. All businesses operating in the United States must pay federal, state, and in some cases, local taxes. When a corporation registers with the appropriate tax authorities, it receives a tax ID number or permit.
Depending on the size and nature of the corporation, the list of taxes imposed on it can be quite extensive. Also, depending on the size of the corporation there may be requirements for medical leave, continuation of employee benefits after termination, health and safety standards, and compensation for employees injured on the job.
A company that is not registered with the tax authorities may engage an independent contractor. However, it should be noted that federal and state taxation and labour authorities are rapidly increasing their enforcement activities against employers who misclassify workers as independent contractors rather than employees.
A company that is registered with the tax authorities will have certain withholding and deduction requirements under taxation laws at the federal, state, and sometimes local level that must be followed.
V RESTRICTIVE COVENANTS
Non-compete clauses that restrict an employee’s ability to compete with his or her former employer for a limited period following termination of employment are permissible in most US states. Some states take a negative stance towards these clauses, while others are much more permissive when it comes to their enforcement.
In California, for example, the legislature has stated: ‘Every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.’ California will, however, allow the limited use of non-compete clauses in the context of a sale or dissolution of a corporation, partnership, or limited liability corporation. This approach emphasises the benefits of open competition and employee mobility while protecting the value of a business interest being sold to a buyer.
Almost all other states, including many of the states with a major international business presence such as Delaware, Illinois, New York and Texas, will enforce a non-compete agreement if it satisfies the particular state’s requirements of reasonableness. To be reasonable, a non-compete agreement generally must:
- a satisfy general contract law requirements (e.g., be the product of mutual agreement, supported by adequate consideration, free from duress, etc.);
- b have restrictions that are reasonably limited, both geographically and temporally;
- c advance a legitimate business interest of the party seeking to enforce the non-compete agreement; and
- d survive a balancing of both parties’ interests and consideration of the public interest.
The standards of reasonableness with respect to geographic and temporal restrictions vary depending on the state. In Delaware, courts will generally balance the harm to the former employee, the legitimate interests of the employer (e.g., the protection of goodwill, confidential information and trade secrets, but not merely a desire to stifle ordinary competition), and any harm to the public (e.g., preventing a medical specialist from serving a community where there is great need) in determining whether the reasonableness standard has been met. In New York, as in many states, courts state that they disfavour non-compete agreements but will often enforce narrowly tailored clauses that are necessary to protect legitimate business interests and which are reasonable in scope.
In general, non-compete agreements must be ‘ancillary’ to another valid contract; for example, an employment agreement supported by adequate consideration. Jurisdictions differ on whether an offer of continued employment is sufficient consideration for the imposition of a non-compete agreement, or whether a beneficial change in the employment relationship (such as hiring, a promotion, or the provision of a bonus or other benefit) is required. Regardless of whether a post-employment non-compete agreement is entered into, employees may not compete with their employers while they are employed, as this is generally viewed as a breach of an implicit duty of loyalty that each employee owes their present employer.
i Working time
The federal FLSA does not impose maximum working hours for adults. It does, however, prohibit the employment of minors under 14 years of age. It also regulates the type and amount of work in which minors under the age of 18 can engage. States have similar laws, with some states specifying limits on working time, such as prohibiting employers from requiring work for seven consecutive days.
ii Minimum wage and overtime
Federal and state laws require that employees receive a minimum hourly wage for each hour worked. In addition, the FLSA and many state laws require that employees be paid overtime for any time spent working over 40 hours in a working week. In general, an employee must be paid one-and-a-half times his or her regular hourly rate of pay for all overtime hours worked. Overtime is calculated on a weekly basis, so that if an employee works 60 hours one week but only 20 hours the next week, the employer is still obligated to pay the employee for 20 hours of overtime worked during the 60-hour week. Some states have overtime laws that are more generous than federal law. For example, in California overtime is generally payable for all work exceeding eight hours in one day or exceeding 40 hours in a given week at one-and-a-half times the regular rate of pay. However, overtime pay in California becomes double the regular hourly rate of pay if an employee works more than 12 hours in a workday and for all hours worked in excess of eight hours on the seventh consecutive day of work in a working week.
Both federal and state laws provide for a range of exemptions from overtime requirements. Under federal law, the most common exemptions apply to certain employees who are:
- a executives;
- b administrators;
- c professionals (e.g., doctors or attorneys);
- d outside salespeople; and
- e certain computer employees.
States may add categories to these exemptions (or subtract from them) with respect to state wage and hour laws. To determine whether an employee qualifies for an exemption, the employee generally must meet certain tests, such as a requirement that he or she be paid on a salary basis (with certain threshold requirements) and have specified ‘primary’ job duties. The employee’s job title does not determine whether an exemption applies to the employee.
VII FOREIGN WORKERS
A domestic company that wishes to employ a foreign worker must apply for a temporary work visa for that worker. This is not to be confused with employment-based immigration, where the foreign worker wishes to immigrate to the United States permanently as an employee. In those cases, the foreign worker must fit into one of a number of categories showing that he or she has highly unique skills, or the employer must obtain a labour certification from the USDOL by showing that the foreign worker is being offered a job that will not displace a US worker or have a negative effect on wages and working conditions of US workers.
One of the most common temporary work visas is for ‘specialty occupations’. A specialty occupation usually requires a certain level of experience or type of education. For the foreign worker to be able to accept an offer of employment in a specialty occupation he or she must also meet certain educational requirements or have extensive training or experience in the field.
Some non-immigrant visas also require the employer to obtain a certification of labour condition from the USDOL. In its application, the employer must assure the agency that it will pay proper wages and provide a working environment that is not detrimental to its workers.
Foreign workers generally must pay state and federal taxes. An individual’s ultimate federal tax liability will depend on the nature of any tax treaty between his or her home country and the United States. A number of employee rights are built into the temporary visa programmes. These contain basic employment protections as well as protections unique to non-immigrant workers. These protections are announced and enforced by the USDOL.
viii GLOBAL POLICIES
Employers of a certain size (depending on the particular legislation) must comply with non-discrimination laws. For example, employers who employ 15 or more employees are prohibited, under Title VII of the Civil Rights Act of 1964, from discriminating against employees and applicants on the basis of race, religion, colour, sex or national origin, and are likewise prohibited under the Americans with Disabilities Act from discriminating on the basis of an individual’s mental or physical disability. Employers who employ 20 or more employees are prohibited from discriminating on the basis of age against employees aged 40 and older. Many states have laws of their own regarding discrimination that are more protective of employees than the federal requirements.
Independent contractors, on the other hand, generally do not enjoy the same protection as employees. Religious organisations, which enjoy a certain amount of protection from government infringement under the United States Constitution, are also exempted from some discrimination laws.
Federal law also establishes requirements regarding workplace health and safety. Employers covered by the Occupational Safety and Health Act of 1970 (OSHA) must ensure that their workplaces are free of serious health hazards, and they must follow the health and safety standards promulgated under OSHA. The USDOL may impose fines on employers that do not abide by OSHA’s requirements. As in most areas of federal employment legislation, OSHA encourages the individual states to move beyond the minimum standard of protection under federal law. It encourages states to submit their own proposals for occupational health and safety. If a state does not submit a plan, then the federal law overrides any state laws passed concerning issues covered by OSHA. If a state does submit a plan, and it is approved by the USDOL, the state may assert jurisdiction over the workplace health and safety issues covered under the state law or regulation.
Rules regarding company discipline or conduct are often contained in employee handbooks.
There is no general requirement under United States law that employment-related documents be translated into an employee’s primary language, or that they be written in English. While English is by far the most common language used in business and legal transactions, there are no general federal laws requiring the use of a particular language in legal or contractual employment documents.
Federal and state courts in the United States (except in local courts in some United States territories such as Puerto Rico) conduct court business in English. There are no federal legal certifications required of translators who translate documents into English for use in the federal courts. However, there are some federal and state legal requirements that mandate translation of employment notices into employees’ primary languages. An example is the regulation of the NLRB that requires a posting of unionisation-related rights in employers’ workplaces, and also states that such posting must be in the employees’ primary languages.
While it is not required, it is generally recommended that employment contracts and handbooks be translated into an employee’s native language if the cost of translation will not be excessive. This is because employee contracts and handbooks are frequently used as evidence in employment-related lawsuits. If the employee can reasonably claim that he or she could not understand the employment agreement, offer letter, work rules, or handbook, the usefulness of these materials in defence of the employer may be more limited.
X EMPLOYEE REPRESENTATION
The National Labor Relations Act (NLRA) explicitly provides for self-organisation among employees and for collective bargaining between those employees and management. It also establishes certain ‘unfair labor practices’, which, if violated, could result in administrative sanctions before the NLRB.
Employees have the right to form labour organisations or unions (which, if approved by a majority of employees in a secret ballot, management must recognise and bargain with). The NLRA also allows them to engage in collective activities such as strikes and peaceful picketing in support of lawful bargaining objectives or to protest against alleged unfair labour practices. Managers cannot organise for collective bargaining purposes.
An appropriate bargaining or election unit typically contains employees with similar skills and levels of pay who work together in close physical proximity and perform the same functions. A union seeking to organise a group of employees must first file an election petition and show that they have substantial support among the proposed unit. Then, the NLRB conducts a preliminary investigation to ensure that the election would be within the NLRA’s jurisdiction and comply with its regulations. If the parties agree on all relevant issues, such as the place and timing of the election, the definition of the bargaining unit, and who is eligible to vote, then the NLRB will approve that agreement and the election will be scheduled.
The election is usually held at the workplace and is monitored by the NLRB. Voters use a secret ballot, and either the union or the management may have observers to monitor the election and challenge potential voters. Apart from these challenges, a party can challenge the conduct of the election. In those cases, if the regional director of the NLRB finds valid objections, he or she will order a new election. If the employer’s unfair labour practices have made it impossible to hold a fair election, however, the NLRB has sometimes ordered the employer to recognise and bargain with the union.
There are a number of statutory protections for unions and workers who wish to organise. For example, employers may not threaten employees with discipline or termination if they support a union. The employer likewise may not promise benefits to workers who vote against the union. The NLRA also prohibits discriminating against job applicants or employees on the basis of union affiliation, either in hiring, termination, discipline or the awarding of benefits.
Once the bargaining representative is determined, the two sides must meet to agree on a collective bargaining agreement (CBA) that will govern the relationship between the represented employees and the employer. The CBA is a product of the parties’ own negotiations and there are no imposed terms. Both sides must, however, bargain in good faith. If one side can prove that the other is bargaining in bad faith (or is refusing to bargain), the NLRB or a court can impose unfair labour practice sanctions on an offending party.
Under the NLRA, the parties must bargain about wages, hours and certain other conditions of employment. This is the bare minimum and both sides must be open in their bargaining (including with respect to the exchange of information). Once the CBA has been agreed to, it must be set in writing and signed by all representatives. If the parties cannot reach an agreement despite bargaining in good faith, either side can declare an impasse.
XI DATA PROTECTION
The United States has no centralised data protection agency. There are federal laws regarding the protection of financial and medical data. Some states have their own data protection laws, which vary from state to state.
i Requirements for registration
The United States reached an agreement with the European Commission in 2000 regarding the permitted export of data from the European Union to the United States, under certain conditions. Called the Safe Harbor Principles, this agreement allows a company that wants to transfer personal data from the EU to the United States to do so by having its US counterpart notify the Department of Commerce that it has adopted the Safe Harbor Principles agreement. Safe Harbor is a self-certification registry that must be confirmed annually to the US Department of Commerce.
ii Cross-border data transfers
According to the agreement, the organisation responsible for data transfer must inform individuals whose data are being transferred about the purposes for which the information is being stored and used. Those individuals must be informed about how to contact the organisation, the types of third parties to which it discloses this information and the steps the organisation takes to protect privacy. Individuals must be allowed to decide if their personal information will be transferred to a third party or used for purposes different from those for which it was originally collected. For sensitive information, individuals must agree to third-party transfer or use for different purposes.
iii Sensitive data
There is some protection of sensitive data in the United States. For example, the Health Insurance Portability and Accountability Act (HIPAA) seeks to protect the privacy of employees’ health information in the health insurance context. HIPAA also encourages health-care providers and insurers to store and transfer health information electronically.
The FCRA seeks to protect the privacy of consumers’ financial (and especially credit) information. To this end, the FCRA imposes obligations on consumer credit reporters to investigate and verify the accuracy of consumers’ credit information, at their request.
iv Background checks
The permissibility (or mandatory nature) of criminal and credit-related background checks generally varies by state and occupation. At the federal level, the FCRA creates procedural requirements for background checks performed on applicants or employees by third-party providers, which regulate both criminal history and credit-related background checks. Many states require a criminal background check for employees in certain occupations such as those working in childcare, primary education, nursing, law enforcement and prison security. Some states authorise background checks either expressly or implicitly, but do not require employers to request them.
As discussed above, increasingly states and localities are placing limits on an employer’s ability to use criminal records uncovered in a background check to disqualify an applicant, particularly where the job raises few concerns regarding security, safety, or confidentiality. New York City recently passed such a law, dubbed the ‘New York City Fair Chance Act,’ which took effect on 27 October 2015. Also, a number of states strictly limit or prohibit in most contexts an employer’s use of credit history to disqualify an applicant for employment, including, for example, California, Connecticut, Illinois and Maryland.
XII DISCONTINUING EMPLOYMENT
At-will employees may generally be dismissed for any lawful reason or no reason at all. While the employment-at-will doctrine governs most employment relationships in the United States, there are many limitations on the doctrine. As mentioned above, employee handbooks and manuals can create an obligation to follow certain procedures for dismissal, which, if not followed, could give rise to a claim for breach of contract.
Oral contracts can also alter an otherwise at-will relationship. As long as the language and promises are specific enough, and there is an exchange of value within the contract, courts may uphold oral contracts that attempt to limit terminations only for good cause.
Contracts implied from the conduct of the parties can also limit the at-will doctrine. Many states look to the nature of the occupation, any prior course of dealing between the employer and employee, and any general customs within the industry to determine whether it was reasonable for an employee to think that he or she was being offered more job security than the at-will doctrine would supply.
Carefully written contracts can preclude or limit claims based on subsequent oral or implied contracts.
Union members who are subject to a collective bargaining agreement may only be dismissed under the terms of that CBA, and union members are virtually never employed at will. Most CBAs have a dispute or grievance mechanism, and the parties must work within that contractual framework. And most CBAs require the employer to show just cause before discharging or disciplining an employee.
Group lay-offs, plant or site closings, and reductions in force are governed by a federal law, the Worker Adjustment and Retraining Notification Act (WARN). WARN requires businesses that employ 100 or more full-time employees to provide the affected employees (or their bargaining representatives) and certain state and local government entities with 60 days’ written notice before: (1) any shutdown of a site, or of one or more facilities or operating units at a single site, that results in an employment loss for 50 or more employees; or (2) a large-scale lay-off in the form of an employment loss during a 30-day period (or a 90-day period for lay-offs that occur for similar reasons as part of the same process) at a single site of either 33 per cent of that site’s workforce (if they number 50 or more) or a loss of 500 or more employees in total. Certain states, such as New York have their own ‘mini-WARN’ laws that contain similar or more protective provisions.
XIII TRANSFER OF BUSINESS
The United States does not have a general transfer of undertakings law or business transfer law affecting mergers, acquisitions or outsourcing decisions by companies. However, some collective bargaining agreements and other employment contracts may have provisions affecting business transfers. And some federal and state laws require advance notice in cases of large-scale lay-offs and plant closings.
In an asset sale where the purchaser wishes to retain employees of the selling business, it will be required to make individual offers of employment to the employees because their employment will not transfer automatically.
With President Donald J Trump having taken office in January 2017, both the executive branch of the federal government, as well as both houses of the US Congress, will be under Republican control for at least the next two years. The centralisation of power in one party creates the possibility of federal legislation and rulemaking that would favour businesses and employers, and scale back some of the pro-employee rulemaking of the last administration. That being said, President-elect Trump has not discussed in significant detail how, if at all, he plans to address issues involving workers’ rights. It is reasonable, however, to expect certain broad trends that are likely to come about given the general pro-business and states-rights approach Mr Trump has espoused throughout his campaign for office. The US DOL, NLRB and other federal agencies will likely become less active than under the prior administration. As a result, we are likely to see an increase in state and local government activism on wage and hour and worker-protection issues such as minimum wage, pay equity, and paid leave. As a general matter, employees will continue to be entitled to the greatest of the protections provided by federal, state and local law.
1 Allan S Bloom is a partner and Carolyn M Dellatore is an associate at Proskauer Rose LLP.