Every other employment attorney has been offering their opinion on how the election of Donald Trump will impact employment law. So, I’d feel left out of this riveting discussion if I didn’t offer my two cents about how a Trump presidency might impact by far the most exciting area of employment law — employee medical leave, of course!
How likely is employee paid leave to become reality in a Trump administration? In short, don’t bank on it.
Trump’s Position on Employee Paid Leave
On the campaign trail, Mr. Trump did not offer a detailed position on federally-mandated paid leave for employees, though it certainly is notable that he was the first Republican presidential nominee to propose paid maternity leave for employees across the country. Under his proposal as highlighted on his campaign website, Mr. Trump would provide six weeks of paid maternity leave to new moms, and he would pay for it by funds recovered in fighting unemployment compensation fraud. Mr. Trump would not offer any paid leave to a father after the birth of a child, nor any paid time off (for either) for the adoption of a child.
If Mr. Trump carries through on his campaign promise and continues to endorse such a proposal, which has been pushed publicly by his daughter, Ivanka Trump, it faces a rocky road in a Republican-controlled Congress. It’s hardly clear whether the Republican Congressional leadership would advance any of Mr. Trump’s priorities, but if the past is any indication, the GOP Congressional leadership has long been opposed to paid leave. There is little chance this position will change with Mr. Trump taking office. Shout out to SHRM for providing a thorough analysis on this topic, too.
How Might Trump Administration Affect other areas of employment law, such as the impending FLSA regulations and Immigration? My colleagues Bill Pokorny, Tejas Shah, and Karlie Dunsky provide some excellent insight. View their thoughts on FLSA here and immigration here.
Who Will Become the New Secretary of the U.S. Department of Labor (aka the new “Head FMLA Nerd”)?
Speculation has been swirling that current EEOC Commissioner Victoria Lipnic, who holds one of the two Republican spots on the Commission, is the leading candidate to become Secretary of Labor. If her name rings a bell, Ms. Lipnic was the leading author of the changes to the (more employer-friendly) 2009 FMLA regulations. From 2002 to 2009, she served as an assistant secretary of labor for employment standards, a role which allowed her to oversee the Wage and Hour Division, including FMLA enforcement. Since 2010, she has served as an EEOC Commissioner, delicately advocating that the agency take a more moderate position on some of its most publicized priorities.
During her time as an EEOC Commissioner, she has become known for working collaboratively with her Democratic counterparts. Notably, however, she criticized the EEOC’s decision to issue the 2015 Pregnancy Discrimination Guidance, arguing that it was issued without public comment and review and that it was published prematurely given that the Supreme Court was taking pregnancy and accommodations issues up at the time in Young v. UPS. She also has expressed concern for the gap in pay for men and women, but also opposed the EEOC’s push to try and fix it, again voting against a proposal that would require certain employers to disclose their pay data to the government.
Personally, I have found Commissioner Lipnic to be delightful and down-to-earth, not to mention realistic and thoughtful about the burdensome nature of government regulations on employers. Her appointment would be a benefit to the employer community. As a related aside, I also can say “I knew her back when . . .” when she and I co-presented about pregnancy accommodations at a DMEC conference last year.