How the 2016 election could impact the workplace


business forms After what seemed to be a never-ending campaign season, the 2016 general election is over. Donald Trump will be the 45th president of the United States, and the recreational use of marijuana in California will be legal.

bruce sarchet
Bruce Sarchet

The election results will no doubt impact workplaces in the Central Valley. Some of those potential impacts are discussed below.  However, as always, this article does not substitute for the advice of legal counsel.

Presidential appointments  

There is a current vacancy on the U.S. Supreme Court, and President-elect Trump has pledged to appoint conservative judges. This will influence the outcome of cases that involve regulation of the workplace, including the question of whether employees may agree to arbitrate their individual claims against an employer and thereby waive their right to pursue class-action litigation.

In addition, various federal agencies that enforce workplace regulations are staffed by presidential appointees.  Under President Obama, the individuals appointed to such enforcement positions tended to favor organized labor and promote employee rights.

As we transition to a Republican administration, there will likely be a shift in the overall philosophy of future appointees. However, the impact likely will be delayed.  For example, the five members of the National Labor Relations Board each serve five year terms.  New appointments occur one at a time, as terms of the current members expire.  The pendulum likely will swing toward a more business-friendly position, but it will take time.

“White Collar” overtime regulations

Regular readers of this column are aware of the change coming Dec. 1:  the new Department of Labor regulation that increases the minimum pay required to qualify for an exemption from overtime for executive, administrative and professional employees.

It is possible that Congress or the Department of Labor itself could eventually change the scope of this regulation.  However, it will not impact the California requirement:  an employee must be paid two times the state minimum wage to qualify for a white-collar exemption.  That amount currently equates to an annual salary of $41,800, and will increase to $43,680 on Jan. 1 when our state minimum wage increases to $10.50 (for employers of 26 or more workers).

Affordable Care Act

President-elect Trump pledged on the campaign trail to repeal the Affordable Care Act. However, the act consists of a series of complex and intertwined income tax and other laws, which may not be so easily undone.

Further, many provisions of the Affordable Care Act are quite popular:  coverage of children until age 27, the elimination of lifetime caps on medical coverage, and coverage notwithstanding pre-existing conditions.  Employers obviously need to wait and see what transpires with the Affordable Care Act before making any changes in their medical benefit plans.

Recreational marijuana

California voters passed Proposition 64, which legalizes the adult recreational use of marijuana in the state.  This will no doubt increase the use of the substance and potentially impact the number of workers who report to work under the influence of the drug.

Notwithstanding the new California treatment of marijuana, the substance remains a “Schedule I” controlled substance under federal law — deemed to have no medical value.

Contrast that with methamphetamines and cocaine, Schedule II substances, which are found to have specified medical purposes under federal law.

Notwithstanding the passage of Proposition 64, it remains today a federal crime today to possess marijuana.

Proposition 64 does not limit the ability of an employer to promote and enforce a drug-free workplace policy and will not “undo” employment-based drug testing.

However, it appears some employers may decide now to treat marijuana use in a manner similar to alcohol use: prohibiting employees from consumption on the job and from reporting to work under the influence.

Unfortunately, unlike the blood alcohol test, which can identify actual impairment, there is no drug test available today which indicates whether an individual is under the influence of marijuana. Current tests merely indicate whether the substance has been consumed in the past 30 days.

In summary, the results of the 2016 election may not bring about immediate changes for Central Valley employers, but changes are coming.  It is likely the impact of this election will be felt in our workplaces for years to come.


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