As mentioned earlier, there are numerous talks that the Trump Administration is primed for change. There are indications that the administration is set to make changes, especially in the labor and employment law via notable appointments to federal agencies. The agencies in question are the National Labor Relations Board (NLRB), and EEOC. Before the commencement of the election, the 5-member NLRB had two spare seats as only three seats were filled (1 Republican and 2 Democrats). These empty slots are providing Trump the chance to build a Republican-majority board.
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Mr. Trump’s first candidate is Marvin Kaplan. The Republican was added to the Board in August of 2017. A month later, the Senate confirmed the second Republican nominee, William Emanuel to complete the board.
Mr. William Emanuel is an experienced management-side labor attorney, and he has represented a good number of industries in various cases before the National Labor Relations Board. For the first time in 10 years, the board consists of a Republican majority. As expected, Senate Republicans and industries applaud Mr. Emanuel’s appointment while Democrats heavily criticized his appointment, citing his appointment as anti-union.
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It is expected that the board Chair Philip Miscimarra, who is a Republican, will vacate the Board comes December. This move will lead to an even split until a new appointment comes into place. The recent changes mean employers feel the board will change some key Obama-era rulings that reinforced labor protections for employees. Some of the key rulings include;
- Protection for employees who secretly record discussions in the workplace
- Protection for employees who use social media to criticize employers.
- A comprehensive test for identifying whether or not a union can obtain witness statements from internal investigations
The National Labor Relations Board shares certain similarities to a court. The board makes changes to labor law by case-by-case decisions on cases brought at the regional level. The National Labor Relations Board counsel has the power to choose which complaints are filed. The tenure of the current General Counsel Democrat Richard F. Griffin, Jr., will end by December, by which time a Trump-led appointee Peter Robb (also a Republican) is waiting on the wings to replace him. Currently, cases on appeal from regional Board offices already passed the briefing stage can be considered by the NLRB.
Notably, these changes are most likely to move federal labor law in an employer-friendly direction. But right now, there is still uncertainty about which areas of the law will be altered and the timeline. Everyone will just have to keep an eye out for the impact of the changes going forward.
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