If there’s one thing I’ve learned from this tumultuous election season it’s that conventional wisdom and traditional assumptions are obsolete. Conventional wisdom said that Donald Trump probably wouldn’t run for president, didn’t have a chance to win any of the primaries, had no shot to get the nomination and would never, in a million years, win the presidency of the United States of America. Commuting to New York City yesterday amidst throngs of stunned sleep-walkers made me wonder: is this what it felt like when Copernicus threw the entire world for a loop by theorizing that the sun, not Earth, was the center of our solar system?
For those of us who believed Trump had no chance along the way – rather strongly, in my case – today is a repudiation of our confidence and our knowledge. A lot of the work performed in the past several years may be undone and a lot of the rights that our colleagues have come to count on might (or might not?) be stripped away. That may very well lead to tensions in the workplace and short-term economic struggles, but guess what? That’s what we’re here for. We all have a responsibility to ensure that the partisan divide that has plagued our country doesn’t bleed over into the workplace, because that would be terrible for business. And it won’t be easy.
Things will be challenging for HR in this new post-Trump world, ideologically and administratively, but it’s also a chance to grow as individuals and as professionals. Because tomorrow (and next year) will bring tremendous uncertainty, we have a responsibility to be stewards of calm, to use restraint, to build bridges with people who don’t share our views and to work together to seek not only business objectives, but personal and national growth. The British World War 2-era mantra of “keep calm and carry on” comes to mind as particularly prescient advice for today’s challenges.
To be sure, lots of things are going to change in the next four years that you or I may not agree with, but that doesn’t mean the debate ends there. As HR professionals, you have the ability to advocate that your company go above and beyond the black letter of the law. You have the ability to advocate that even though certain people may be disenfranchised in society at large, that they will have a good place to work with solid benefits and career prospects. You have the ability to make the argument that better benefits and protections for workers is tied to higher profits by sharing your knowledge, expertise and experience demonstrating as much. You can ensure that your company becomes an employer of choice in an environment that may not always be friendly to workers. It sounds cheesy, but you can help make the American dream come true for individuals in addition to that of your own American dream simply by doing your job as an HR professional and doing it well.
So with that pep talk in mind, let’s take a look at what the next four years might actually mean for American businesses and the workers they employ. If anything, we can help prepare each other for the coming legislative storm, so we’re informed about the implications when and if our employees come to us with their own concerns.
The First 100 Days
First and foremost, the results of the election almost certainly mean that we’ve seen the end of the Affordable Care Act. There are some legislative hurdles in place to an outright repeal of the bill, but with a fully Republican-controlled Congress, those hurdles are not really meaningful. Congress can use the “reconciliation” process – requiring only 50 votes – to undo major portions of the ACA and President-elect Trump would sign almost any bill aiming to reconcile the ACA. The new breakdown of the Senate will likely be 52-48 in favor of the GOP, so the 50 vote threshold shouldn’t be hard to surmount.
It will be extremely interesting to see if the Trump administration follows through on the promise to “repeal and replace” the ACA (which would require 60 votes) or if it turns out to be more of a basic repeal, reverting back to the pre-ACA health insurance system. Trump has said that he does prefer to keep the prohibition on refusal of medical insurance due to preexisting health conditions, but he may find some Republican Congressional leaders don’t agree with him on that point. Shockingly, they may not agree on Congressional term limits, either.
Divides within the GOP like these might make it difficult to achieve consensus on what exactly to replace the ACA with, but shouldn’t get in the way of de-clawing the ACA as we currently know it. In either case, any action on the ACA is likely to cause a huge administrative burden for HR, but with lower overall costs to employers in the form of required healthcare benefits. It may also mean that tens of millions of Americans lose their health insurance, which may have negative impacts on their productivity and overall job satisfaction.
We’ve also likely seen the end (at least temporarily) of cheap and abundant immigrant labor in the U.S., though the rollback on this will be much slower. President-elect Trump has promised to deport millions of immigrants, but he may find that to be logistically difficult and prohibitively expensive. Ultimately, ramped-up immigration enforcement will mean fewer workers available for low-wage jobs, scaling back of issuance of H1-B visas and ultimately, more American businesses with open jobs that they can’t fill, either for lack of labor or lack of skills.
Some economists say this will lead to a recession, but even if that doesn’t happen, it is sure to make things difficult for businesses that have achieved efficiency and profitability from employing these types of workers. And it’s unclear as to whether Americans want the jobs they will leave behind.
Part of Trump’s effort in this regard will be the “big, beautiful wall” itself – color me skeptical on whether it ever gets finished – but also the pulling of federal funds from “sanctuary cities,” which protect undocumented immigrants from the reach of federal agents. That means places like L.A., San Francisco, Seattle, Denver, Chicago, Dallas, Houston, Miami, Baltimore, Detroit, Washington, D.C. and New York City could all lose federal funding unless they pitch in to enforce immigration laws. Importantly, Senate Republicans already tried to strip funding from these cities back in July, but Democrats were able to block the bill. Again, the GOP still doesn’t have the 60 votes it needs for the legislation to pass, but things will be much different with all three parts of the federal legislative machine – House, Senate and Presidency – aligned.
Medium-Term Forecast
Once the dust has settled, President-elect Trump will get to work on nominating a new justice to the Supreme Court. We can now safely assume that DC Circuit Court of Appeals Judge Merrick Garland will never be appointed to the Court as Democrats failed to win the 60 seats they would need for a “cloture” vote to block a filibuster preventing hearings on Garland’s nomination. Trump has already stated that he prefers a judge in the mold of Antonin Scalia, and he has proposed a list of about 20 possible appointees that may fit the bill.
Nomination of a justice like Scalia would tip the ideology of the high court to the right (or restore it back to its proper balance – depending on your persuasion), which is sure to have major consequences for American workers. It could mean women lose the right to abortions in some cases, that homosexuals are again denied the right to marry and that unions will become even further marginalized, inhibiting them from protecting workers and working conditions.
On that note, President-elect Trump might also choose to declaw the EEOC, NLRB and DOL as part of his pro-business, anti-regulation agenda. That could mean the following:
- Scaling back of enforcement efforts to prevent discrimination and harassment in the workplace;
- Undermining of rulings that invalidated mandatory arbitration agreements or employee handbook language; and
- A repeal of the DOL’s “final rule” on overtime. Doesn’t seem so “final” now, does it?
Regarding the NLRB in particular, the board recently ruled that Trump Hotels violated the NLRA by refusing to negotiate with the Las Vegas-based Culinary Union, so don’t assume that personal vendettas won’t weigh on a decision to target the agency for an extended vacation.
Regarding the DOL’s overtime rule, repealing it would undo tremendous efforts by the business community to re-classify employees commensurate with new overtime guidelines set to go into effect on December 1. Practically, President-elect Trump might declare a permanent grace period for post-December 1 enforcement of the new rule, until such time as Congress is able to repeal the rule entirely. The House of Representatives recently tried to pass such a bill delaying enforcement of the new rule, so expect those efforts to continue with a united Congress and a new mandate.
Long-Term Forecast
The president-elect has also proposed a new policy which would make paid maternity leave federal law – but only for certain mothers. The proposal would expand the unemployment insurance system to require six weeks of paid maternity leave for new mothers, but would exclude new adoptivemothers. It also does not address paid paternity leave, but there’s much less public sentiment supporting that. About 70% of Americans believe that employers should be required to offer paid maternity leave to women after the birth of a child – and Trump seems to agree – but it remains to be seen if their views are shared by the elected officials who represent them in Congress. It also remains to be seen how we would pay for this new program and the lack of detail around it might mean it takes longer to become reality.
And now for some doom and gloom.
Assuming President-elect Trump succeeds in labeling China a “currency manipulator,” thereby attaching tariffs to imported Chinese goods, it stands to reason that we may be on the verge of a trade war. At the very least, this could lead to inflation in the U.S., as the price of Chinese-made goods is sure to skyrocket.
Assuming the “big, beautiful wall” gets built and immigration enforcement achieves the goals Trump has in mind, finding work as an immigrant in the U.S. might be more challenging, burdening immigrants and their families, but also the businesses that rely on immigrant labor to run efficiently. The countries that send us immigrants might retaliate as a result.
The upshot of all of this is a potential scaling back on the “globalization” of the American workforce. Companies may repatriate some overseas workers to avoid penalties and fees, but might also repatriate some of their off-shore money at corporate-friendly tax rates. It’s hard to predict where we go from there, but it’s sure to create a very different vision of the future than that which we held before the election.
The uncertainty of tomorrow is not necessarily a reason to despair, nor is it a reason to gloat. We are all in this together, whether we agree on ideology or politics or not. Lead by example in extending an olive branch to your employees, regardless of whether they share your views, and advocate for what you think is right, regardless of whether the law enables you or your company to pursue a shortcut. And above all else, remember that the “golden rule” applies to the workplace, now more than ever. It will outlive you and any individual who ever holds the prestigious office of the President of the United States. If you treat your employees like you want to be treated yourself, the world will be a better place for it.
How is this song related to HR?
In the last edition of HR Intel, we asked you how “When the Levee Breaks” by Led Zeppelin is related to HR. Full disclosure, this is my favorite song, so I’ve been looking for a way to shoe-horn it into HR. Given that the song is about levees breaking, you might think that I chose it to discuss environmental disasters and HR’s response thereto, but you’d be mistaken. You might also think I chose it as a proxy to discuss the plight of the poor in communities vulnerable to natural disasters, but likewise, you’d be wrong. Maybe I chose it as a metaphor for what I viewed as the onslaught of anti-establishment fervor, sure to disrupt HR as we know it, much like an unstoppable tide or tsunami? Nope.
I actually chose this song because it is a tremendous example of how you can use the template set by others who have come before you and make it even better for your own purposes. In particular, the drum track of this song is one of the most popular and oft-sampled pieces of music in history because of its unique, hollow, reverberating sound. Artists ranging from the Beastie Boys to Beyoncé to Eminem have used it and made it their own. And the best part is that Led Zeppelin’s version of this song is itself an adaptation of the original, recorded by Kansas Joe McCoy and Memphis Minnie in 1929 (without the awesome drums). Suffice to say that Led Zeppelin used the template but improved upon it substantially.
So remember, in HR, there’s no need to reinvent the wheel. Somebody, somewhere has been down the road you’re traveling before and dealt with similar challenges. Use the products, guidance and intelligence they’ve left behind, but bring them into the 21st century, make them your own and ensure they reflect your current values and objectives. You’ll save time but also learn something in the process.
We leave you with “Faith” by George Michael.
Originally published on HR Intel Blog.
Michael C. Jacobson is the legal editor for the organizational exit and investigations and litigation sections of XpertHR.
Prior to joining XpertHR, Michael worked as an attorney in Manhattan for six years where he defended employers and healthcare providers against wrongful termination, discrimination, medical malpractice and general liability claims.
Michael obtained his JD from the Benjamin N. Cardozo School of Law, where he was the notes and comments editor for the Cardozo Public Law, Policy and Ethics Journal.
Michael is on Twitter @HRTerminator and LinkedIn: http://tinyurl.com/lf2hrnr
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