We learned this week that Donald J. Trump will re-become (my word, not yours, but you can use it with proper attribution to me) president in January 2025, and at least for my employment law area of practice, that brings up the question: What does Trump’s election mean for employment law? And specifically for my clients, what will it mean for South Carolina employees?
We don’t know exactly what aspect of employment law may draw Trump’s attention, but we have a few ideas based on what Trump did in his prior administration and what he’s said on the campaign trail.
Possible Changes to the Fair Labor Standards Act After Trump’s Election
Increase to Salary Test Amount: Under Trump’s prior administration, his Department of Labor (DOL) opposed the Obama-era attempt to increase the salary level for exempt employees. Under the FLSA, employees are entitled to overtime pay for all hours worked over 40 per workweek UNLESS the employee makes a certain amount in salary (the salary test) and work certain job duties (the duties test). Obama’s DOL tried to raise that salary amount to a much higher level, which would mean that more employees would be entitled to overtime. Trump halted that rule, and instead, instituted a rule that still had an increase but to a much lower degree.
Biden implemented his own rule that increased the salary level, starting July 1, 2024, up to $844/week ($58,656 per year). A federal judge issued an injunction on the enforcement of that increase, but only for Texas government employees. Unless a judge puts the rule on ice before the end of the year, the latest increase will go into effect on January 1, 2025, which is several weeks before Trump takes office. Rolling back that regulatory increase will take a much longer administrative process, but Trump may work to roll that back in the coming months and years.
No Taxes On Tipped Wages: Both the Harris and Trump Campaigns advocated for Congress to stop requiring employees to pay taxes on tipped wages for hospitality employees. Currently, employees are required to report tips as wages so that taxes can be calculated and collected for those tips. We’ll watch and see whether both parties can push this issue forward into actual legislation.
Possible Changes to the Equal Employment Opportunity Commission (EEOC) After Trump’s Election
Data Collection: Right now, the EEOc requires companies with more than 100 employees to provide certain demographic information about their employees to the EEOC. The EEOC recently announced its intent to begin requiring pay and hours worked information as well. However, once Trump takes office, it seems likely that the EEOC would drop the pay and hour information requirement, given that Trump had that same requirement dropped in 2017.
But the makeup of the EEOC commissioners will remain a Democratic majority until commissioners start to roll off in 2026. There are five commissions and one general counsel that are appointed, and they don’t leave until their terms end. So any major changes may end up waiting until 2026.
Enforcement and Litigation Focus: Once Trump can appoint new commissioners, we may see a change in enforcement and litigation cases brought by the EEOC. I suspect that the EEOC’s recent focuses on misgendering and bathroom rules for LGBTQ+ employees will be abandoned or limited, as well as the protections for employees seeking reasonable accommodations for abortion-related matters (leave, treatment, etc.).
Also, the EEOC under Biden has taken the position that DEI (diversity, equity, and inclusion) initiatives don’t violate Title VII, even though the Supreme Court recently curtailed affirmative action in college admissions cases. It’s possible that a Trump-directed EEOC could begin challenging DEI policies by bringing lawsuits against those companies.
Possible Changes to Independent Contractor v. Employee Test After Trump’s Election
For employment lawyers, the age-old question in employment cases is whether a worker is a classified as an “employee” (which triggers additional protections under several state and federal laws) or an “independent contractor” (which offers fewer protections). Under Trump’s first administration, the Department of Labor issued a new rule that made it easier for companies to classifying workers as independent contractors for wage and hour purposes. But Biden froze the rule from going into effect when he took office. Then the National Labor Relations Board (NLRB) last year issued its decision that made it harder for companies to classify workers as contractors.
Trump hasn’t really spoken specifically to this issue so far, but given his prior actions in his first administration, I would suspect that eventually the NLRB’s decision gets walked back after Trump’s election. The DOL could also move to re-implement the prior rule.
Takeaways for South Carolina Employees
We’re still very early in the transition process for the Trump administration, so it’s too early to make any concrete predictions. But I will be keeping an eye on these issues (and possibly many others) as we get closer to Inauguration Day in January 2025.
Every new administration brings about a flurry of changes as new personalities and agendas take over and the old guard steps out. Generally speaking, Republican administrations are less concerned with employee rights and more focused on protecting businesses. I would expect more of the same as we move forward.
Regardless, if you have any questions or concerns about discrimination, harassment, unpaid wages, unpaid overtime, and misclassification as contractor v. employee, then please reach out to our office at (864) 233-4351 or on our Contact Us page.
