Posted in Benefits, Class actions, Discrimination, Equal Pay, Family and Medical Leave Act, Independent Contractor,Labor Relations, Lactation, Pregnancy, Sexual Orientation, Wage-Hour
As our regular
readers know, Employment & Labor
Insider is a
non-partisan blog. But with the first Presidential debate coming on Monday
night, I thought it would be helpful to look at the two major presidential
candidates and their positions on issues of interest to employers.
The following comes from each of the candidates’
websites, supplemented by some news stories, with a dash of speculation
and extrapolation from me. I do have one editorial comment, but it’s based on
the law, not the relative merits of the candidates.
I am covering the candidates in alphabetical order.
(Have
I told you lately that we are non-partisan? Just wanted to make sure I got
that point across.)
Hillary
Clinton
On many labor and employment issues, an
HRC Administration would essentially continue the priorities of the
Obama Administration. This would include Secretary Clinton’s position
on immigration, her expressed opposition to worker misclassification, and her
expressed opposition to “wage theft and other forms of exploitation.” She is
opposed to right-to-work laws (laws that prohibit employers from requiring
union membership or payment of union dues as a condition of employment). She
favors pay transparency and advocates enactment of the Paycheck Fairness Act, which would
make it easier for plaintiffs to bring equal pay actions, either individually
or as class actions.
When she was a U.S. Senator, Mrs.
Clinton was a co-sponsor of the Employee Free Choice Act, which fizzled
out in 2010. That legislation would have required, among other things,
“card-check recognition” of unions. In other words, if a union obtained signed
cards from 51 percent of the workers in the applicable unit, the employer would
have been forced to recognize the union without an election. Here’s a 2007 letter
from the U.S. Chamber of Commerce, describing (and opposing) the EFCA. Mrs. Clinton’s campaign website notes
her co-sponsorship and support of the EFCA. Just about every union that has
endorsed a candidate has endorsed Mrs. Clinton.
Mrs. Clinton was initially in favor of the
Trans-Pacific Partnership trade deal (as is President Obama), but she has now
parted company with the Administration and opposes it.
Mrs. Clinton is also in
favor of raising the minimum wage to $12 an hour (and has no problem with
state and local governments’ establishing higher minimums). She favors
requiring employers to provide 12 weeks of paid family/medical leave, I assume
for all of the reasons that currently qualify under the Family and
Medical Leave Act.
On equal employment
opportunity issues, I would expect Mrs. Clinton to continue the current
Administration’s expansive interpretation of Title VII to include LGBT
individuals, regardless of whether Congress actually amends Title VII. Mrs.
Clinton has also expressed a desire to offer better opportunities for
individuals with disabilities, but at the moment, the specifics are a bit
vague.
Donald
Trump
Mr. Trump opposes the
TPP and the North American Free Trade Agreement, entered into during the
Administration of Bill Clinton. Mr. Trump’s views on immigration are well
known: In addition to “the Wall,” he favors making E-Verify a national
requirement, raising the prevailing wage for workers under the H-1B visa
program (to make American workers more competitive with their H-1B
counterparts), and requiring that employers hire (or, at least, try to hire)
Americans before seeking to hire foreign nationals.
Mr. Trump has expressed support of right-to-work laws. Otherwise, his positions do not appear to
be directly related to labor relations but aimed at preventing foreign
workers from competing with Americans for jobs. We know of one union that has
endorsed Mr. Trump, the National Border Patrol Council. Heh.
Mr. Trump said in July
that he would favor an increase of the minimum wage to $10 an hour but thinks
states should be able to vary from that. (I’m not sure whether he thinks they should be allowed
to establish wages below the minimum.)
On the cutting-edge
equal employment opportunity issues of our day, I suspect that a Trump
Administration might be more “incremental” than, but perhaps not
drastically different from, an HRC Administration. At the Republican Convention
in August, Mr. Trump and his kids signalled support for LGBT rights, and one of the featured speakers
was Peter Thiel, co-founder of PayPal, who is openly gay. I would not expect Mr. Trump to push hard for
“traditional values” the way, for example, a Ted Cruz might have.
Mr. Trump favors paid maternity leave (women only, for
recovery from childbirth) for six weeks. He also wants to make child care tax
deductible, and favors an Earned Income Tax Credit for lower-income families
who need child care.
Editorial aside: Is Mr. Trump’s maternity leave plan discriminatory or
unconstitutional, as was recently claimed by Ilya Somin at The Volokh Conspiracy? I say not just “no,” but “heck, no.” As I understand
Mr. Trump’s proposal, the six weeks of leave would be immediately after
the birth of a child. As all moms (and most people) know, this is the
period of genuine physical disability for mothers who have undergone a
normal, uncomplicated birth. (If the mother has a Caesarean section or has
other complications, the recovery period will be longer.) As proof, check out this “first six weeks postpartum page” on WebMD. If you dare!
I don’t know why an
entitlement of paid leave – restricted to women, for a disability period
that is unique to women – would be considered illegal or a violation of Equal
Protection. Does that mean that the Nursing Mothers Act, which mandates
“lactation accommodation,” is also discriminatory and
unconstitutional? (If Mr. Trump were to advocate granting paid
“bonding” leave to women and not men, then Professor Somin’s position
might have merit, but I don’t think that’s what Mr. Trump is saying.)
Want more? For an unfiltered view of the candidates’, uh, views, here is Hillary Clinton’s
Issues page, and here is Donald Trump’s
Positions page. If
you want more about the 2016 elections and the impact on employers, here is
more from the Dan Schwartz of the excellent Connecticut
Employment Law Blog: “Three employment law debate questions for Donald Trump” and “Three employment law debate questions for Hillary
Clinton.”
Image Credits: All from flickr, Creative Commons license. Blind Justice by Valerie Everett, Hillary Clinton by Nathaniel F., Donald Trump by Gage Skidmore, caricature of Hillary Clinton and Donald Trump by Donkey Hotey, “I Voted” stickers by Brett Nielsen.
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