Where Do We Go From Here? How the New Administration is Likely to Address Labor and Employment Issues

In this timely webinar, Jim Wimberly and Les Schneider will make predictions about how the new administration will deal with the National Labor Relations Board, Equal Employment Opportunity Commission, Occupational Safety and Health Administration, and the host of other agencies involved in the complex relationships between employers and their employees.  Jim and Les each have their own opinions, backed up by decades of experience with courts and the legislature.  Please join us for what is sure to be an enlightening, entertaining, and wide-ranging discussion with two masters in the field.

Watch This Webinar

Les A. Schneider (00:00:00):
Good afternoon. I'm Schneider, and with me is my partner, Jim Wimberly. And we are here today to discuss some of the changes that we expect in the administration of the employment laws in this country. And Jim has been practicing a little bit longer than I have, but you both, as you both see, we have little hair or gray hair. And <laugh>, we've been at this a long time. And we wanna try to give you some perspective on what we see moving forward. So, Jim, we know that Trump won not just the electoral vote, but the popular vote and had had a pretty strong mandate that nobody, I think, really expected to be that overwhelming of a victory. So now we're dealing with the, how is this gonna affect the federal agencies that deal with employment law. So the first one I guess I would ask you about is the National Labor Relations Board. How do you see things changing there with this new administration?

James W. Wimberly Jr. (00:01:09):
Well, the Labor Board has traditionally changed philosophies based upon the administration and office. Once the President's party comes into a majority on the board mm-hmm <affirmative>. They have five members of the board that decide policy. We have four city members now, three to one Democrats. But as to how it will eventually affect board policies, president Biden campaigned to be the most pro union president in history. And I think both parties would agree he would probably achieve that goal and know was it more evident than at the Labor Board. His first move as president was to fire the NLRB Republican General Counsel the first day, his first move in office. And he appointed all union lawyers to positions such as general counsel and members of the board. And they began to carry out a very pro-union agenda. So it's expected that President Trump, on his first day in office, will follow suit and fire the Democratic General counsel, the general counsel of the Labor Board is a prosecutor who decides which cases to pursue and what theories to argue.

James W. Wimberly Jr. (00:02:44):
So it's an extremely powerful position. Many believe it's more powerful than being on the five member board. So from day one, it will probably be a Republican prosecutor or general counsel. Now that new general counsel will be able to decide what cases to pursue. However, changing the law is not done by the general counsel. It's done by the five member board that will take more time to change the case law. The current Democrat chairman McFaren, her term, expires on December 16, less than two weeks from now. We don't know whether she will be confirmed for another term. It's expected that the Democrats will try to get her confirmed for another term prior to the change in Congress, which would allow the Democrats to remain a majority on the Board until 20 26, 2 more years. But if she's not confirmed by the end of the current term president Trump will be able to appoint two or three, at least two new board members that will give the Republicans a majority and allow them to change the decided cases more quickly.

Les A. Schneider (00:04:09):
So what, what is your best guess there? Do you think that she will get a get reconfirmed?

James W. Wimberly Jr. (00:04:17):
I, I don't really know. I've seen commentators believe that she will I'm not so sure because they're also very anxious to do a lot of other things in the waning days. The current Congress as well as confirm a lot of federal judges. But if you wanna know what the majority opinion is, she will be confirmed for another term which wouldn't allow the Republicans to actually change the law at the board level until 2026. But again, with the Republican prosecutor, that prosecutor will be able to decide what cases to bring, what there is to argue. So it, it's certainly possible that there in an active prosecutorial discretion, the new general counsel won't pursue some cases. They won't get to court, so to speak. They won't get to the NL rrp.

Les A. Schneider (00:05:20):
And that's critical. That would be a critical gain for the employer community if that occurred.

James W. Wimberly Jr. (00:05:29):
Yes. And I do wanna say that I heard the sole Republican on the board member Kaplan give a speech yesterday, and he listed all the new precedents set by the current board, which he descended. And he didn't say this, but you could just tell that he was just waiting <laugh> to reverse those new precedents and go back to previously existing loans.

Les A. Schneider (00:05:57):
Lemme ask you specifically, Jim, obviously two of the areas that was achieved during the Biden administration was this issue of captive audience speeches and the Cmex case. Could you comment on that a little bit and tell us, yeah. Are those priorities that

James W. Wimberly Jr. (00:06:14):
Yeah, if I had to say probably the two most important cases that in my opinion will be reversed, those would be the two. The captive audience issue is that ever since the thirties or at least forties, employers have been allowed to call your employees together on paid working time and give the company's position as to why they prefer not to have a union in their operation. And in the Cmex case, a few months ago, the board reversed this. They didn't say these type meetings were per se, illegal, but they set a lot of conditions that had to be met, such as voluntary attendance. Everybody should know what the meeting is about. There would be assurances of no reprisals against persons that didn't wanna go to the meeting or listen. I think that case will be reversed since it's, it's been since the forties considered lawful for an employer to have these meetings.

James W. Wimberly Jr. (00:07:24):
The Cmex case is even more dramatic because we've heard about the car check issue, and those of you don't know what that is. The Labor Act was set up to allow employees to determine by secret ballot whether they wanted the union or not, whatever the cmex case. If an employer commits virtually any unfair labor practice, then they can be ordered to recognize the union. If the union has a majority of persons indicating support for the union through so-called union authorization cards. In other words, the Cmex decision by ruling has put the card check law into effect. I think a Republican board will wanna reverse that quite quick.

Les A. Schneider (00:08:17):
What about the areas dim of employee handbooks and rulings that have limited employers free speech? Do you think there will be that too will be attacked by this this new board once they receive their majority?

James W. Wimberly Jr. (00:08:35):
Absolutely. Those would be the next two in the laundry list of changes that will be made by the new board. I heard Member Kaplan say yesterday that it was virtually impossible for an employer under the current board ruled during the Biden administration to, to write a legal handbook. Because anything in there that might be construed by an employee to potentially kill union or concerted activities would be considered unlawful and any enforcement of that rule to be unlawful. So the new board will wanna reverse that in a hurry. Now, the other issue you mentioned there was what?

Les A. Schneider (00:09:24):
Well, the the whole issue of really

James W. Wimberly Jr. (00:09:27):
Oh, free speech. Free speech. Free speech. Yeah. Let me give you an example of, of a free speech limitation. The board placed on employers just within the last three weeks. The board ruled that if an, that an employer could not tell employees that if you vote in a union, you'll lose the right to come directly to management with your sir grievances and wants, because you'll have a third party represent you. He will represent you and do that on your behalf forever. Employers have been able to say something like that. Now, the board said that that chills wanting a union's going too far and is therefore illegal kind of thing. That could bring about one of these bargaining orders, the card checks. So you've named the top of the list of things the new board will want to reverse.

Les A. Schneider (00:10:28):
Okay. Well, let's switch over from the board. And now let's look at the changes that will occur in your view. And at the EEOC, obviously there is a member, a commissioner now Andrea Lucas she's on the EEOC commission now, and it's expected she'll become the chairman and the Republic administration. You see that as happening?

James W. Wimberly Jr. (00:10:53):
Yes. she'll become a chairman almost immediately, but less, they're gonna be much less changes at the EOC.

Les A. Schneider (00:11:02):
Why is that?

James W. Wimberly Jr. (00:11:04):
For one thing, the EEOC doesn't function like the NLRV. Mm-Hmm <affirmative>. Yes, it can bring a few cases a year in court, and yes, it can publish guidance on how it interprets the federal laws, but by and large, the EEOC doesn't prosecute cases like the NLRB does. All cases involving unfair labor practices are prosecuted by the NLRB. So it's also the NLRB adjudicates those cases through administrative law judges, and they can appeal to the five member labor board in Washington. The EOC doesn't work like that. So there's several reasons why I don't expect to see much change at DEOC. Number one, if you look at the five person membership, it'll be a couple of years before the EEOC will come into a majority. Right now they just have one member and she'll become chair or chairperson, but that's not enough to be a majority. Number two, as I just indicated, the EEOC doesn't set policy to the same extent the NLRB does, and it certainly doesn't decide litigated cases. So I really think that although some of the EEOC policies will change or guidance will change, it'll be largely business as usual at the EOC, even under their publican administration.

Les A. Schneider (00:12:44):
So when we deal with issues like the harassment guidelines for the prediction of L-G-B-T-Q Workers misgendering and the interpretation of the Pregnant Workers' Fairness Act will include abortion, infertility, and menopause. Do you think that's going to change at all with the eventually under this administration?

James W. Wimberly Jr. (00:13:08):
Yes, but what will change is really just the guidance or interpretations that the courts can follow or not follow as they choose. So while the directions of the EEOC will change the day-to-day enforceable laws won't, and yeah, there are few hot button issues and you just mentioned the hot button issues and the EOC will issue guidance or interpretations that may deviate from those under the prior administration. For example, the Supreme Court has, has, has not ruled on the extent to which the LGBT rules are affected by federal law. There's no Supreme Court case that covers all aspects of that, such as restrooms, et cetera, particularly with transsexuals. So but I I, although the EOCs position will change, those interpretations are largely up to the courts. And by and large, the EEOC doesn't prosecute cases and service cases, and they're not the decision maker as C-N-L-R-B is.

Les A. Schneider (00:14:26):
I see. All right. Well, do you see any cases that are presently pending in the equal employment area that will have an impact in the coming year? Or has, is there no real hot button case that's now pending that will change?

James W. Wimberly Jr. (00:14:42):
No, there, there are several hot button cases addressing just the issues you mentioned that are pending. But now they're not supreme court level. Right. They're at the district court level and the circuit court levels. You know, the Supreme Court only hears a certain number of limited cases a year, and those cases hadn't percolated up to the Supreme Court yet. And the Supreme Court likes to see how the lower court's rule. Indeed, Supreme Court normally won't hear a case unless at the circuit court level, which is the next highest level other than the Supreme Court, there's a conflict among the circuits. So unlike the EEOC, which, or NLRB, which I see major change fairly quickly, I don't see much change at the EOC and none of, it'll be quick. It'll take time.

Les A. Schneider (00:15:39):
Alright, well, let's switch over to governor government contract rules and how they're affected. Obviously, one of the big issues in the election, we talked about diversity, equity, and inclusion programs, and it, it appears through the success of President Trump's vote, both during, through the electoral college and the the popular vote that there was a, there's a, seemed to be a real pushback regarding diversity, equity, and inclusion programs. Do you see that occurring in the coming year as it relates to government contractor rules?

James W. Wimberly Jr. (00:16:17):
Well, I do. First of all, we have a major event, which was the Supreme Court ruling in the Harvard University of North Carolina cases in which those cases essentially said that you could extend preferential treatment to any race or sexual group as far as assuring equitable admissions to schools. And the same concept is highly likely to apply to employment. And in addition DEI has kind of fallen out of favor in the corporate world. We've all just seen how Walmart is the latest, I believe, to abandon the DEI concept. And it's not that we can't have affirmative action programs, we can even under the current rules, but those affirmative action efforts are to promote applicants among certain groups to promote existing employees of all races and sexes to seek promotions, et cetera. So the, the courts have come into play.

James W. Wimberly Jr. (00:17:50):
Now, you might say the Trump administration anticipated this when the prior Trump administration, he issued an executive order for government contractors. It was called combating race and sex stereotyping. And this executive order said that federal contractors conducting equal employment training should not engage in stereotype training that puts guilt on any one racial or sexual group. So it's expected that President Trump will continue that concept, and although I think he'll support affirmative action, he will support affirmative action in a way that it's now legal, which is not to give preferences based on statistical imbalances, but to promote minorities and females to come forward and seek employment and seek promotions in employment, and in that way gain the quality and outcome.

Les A. Schneider (00:19:00):
Well, Jim, let me ask about that, because on the one hand, the, you say that they are willing to have affirmative action, yet I still hear you talk about females and minorities, et cetera. Are we, are we really headed towards a colorblind affirmative action program, which is going to be based more on people's economic status and trying to promote those folks at the lower de economic demographic? Or is there still gonna be focus on people of a certain race in addition to people of a certain sex in affirmative action? Where do we draw the line?

James W. Wimberly Jr. (00:19:43):
Well, I frankly don't think the line is that difficult to draw. I may be wrong, but I definitely have an opinion in, in a specific hiring or promotion decision or discipline decision or transfer decision. An employer is not supposed to make it on the basis of one's race or sex.

Les A. Schneider (00:20:11):
Agreed.

James W. Wimberly Jr. (00:20:13):
I think that's clear cut. But short of making one of these major employment decisions, an employer can do a lot to encourage applicants both for jobs and for promotions to offer certain mentoring, if you will, and encouragement and extend that encouragement to minority groups and underrepresented groups. So that's where the line is drawn, and I don't have any trouble drawing that line. Now, maybe others find that line very difficult to draw. I don't,

Les A. Schneider (00:20:57):
But again, you say minority. So what are we really talking about? On the one hand, we wanna be polar blind when it comes to affirmative action. We wanna encourage people in employment to, you know, progress within the company or join the company. But do companies are, are they, if we, if we talk about downplaying diversity, equity, and inclusion programs, but at the same time saying we're gonna have affirmative action to encourage people, what, what is the objective criteria that we're doing? Is it an economic demographic, people in the lower part of the economic demographic to go in? Or are we still gonna be looking at somebody who is black or female or Hispanic or whatever group to do it? I mean, it, it seems that, that it is a catch 22 for a lot of different companies.

James W. Wimberly Jr. (00:21:55):
Well, again many will agree with your assertion, Les I, I or not assertion the thrust of your questions. I don't, because I believe there are ways you can encourage persons and give 'em opportunities without giving them the benefit of an employment decision based on their race or sex. So that's where I'm drawing the line. Now, you allude to though a different issue that we have a lot of developments over. That is what is one of the race or sex because we actually live in a very mixed society. I'll give you the most famous example. The senator from Massachusetts Senator Warren promoted herself as the first Native American professor at Harvard. And later she made the mistake, I guess, of being tested for DNA and it determined that her percent that she had of Native American heritage was so minimal, the majority of Americans had more Native American heritage than she did.

James W. Wimberly Jr. (00:23:28):
I'm probably more Native American than she did. And we're finding so many people are of mixed races, and we're also finding that people may identify with different races and don't wanna be considered a part of any one race. So I would say that, and, and the government is really struggling with this, there's now been a, a federal commission that says that in the future, this country will go towards gathering racial data on many more categories than we used to use. And some of those categories will be known for race or, or variable races. So I, I personally like the concept that we're getting away from racial identities and looking at ourselves as more of a mixed society. I think that's a positive thing. Well,

Les A. Schneider (00:24:39):
I would agree with that. I, I think the problem though is, is that employer who was trying to have, trying to find good people to work with, and they wanna have affirmative action, I think it's still a very confusing area. And I know, I hear you respectfully

James W. Wimberly Jr. (00:24:58):
Disagree. I hear you. And, and lemme say this the reason employers or certain large major employers are abandoning DEI is not that they're abandoning affirmative action, but that the term DEI may have been misused or applied beyond the way it should be applied. And so if the term now nationally has more of a questionable reputation, and the new theme is we're gonna be all inclusive, we wanna have an all inclusive workforce, and we don't wanna look at people as members of a race or sexual group. We wanna look at 'em as associates of our country.

Les A. Schneider (00:25:57):
I I hear what you're saying. I, I think it is DEI has gotten to gotten dirty reputation as of late, but I still think that affirmative action needs to be more based on your economic demographic than your race or sex. And I think that there's no real reason for affirmative action to people in the higher economic demographic. They're gonna have their advantages anyway. And I think perhaps maybe we need to be refocus.

James W. Wimberly Jr. (00:26:31):
Okay. I, I agree with that. Less is advocating drawing distinctions of the basis of economic level. And at least on paper, that's a non-discriminatory criteria.

Les A. Schneider (00:26:45):
Exactly.

James W. Wimberly Jr. (00:26:47):
So I, I would agree with you on that.

Les A. Schneider (00:26:50):
All right. Well, Jim, let me, let me move on. In that government contract area, obviously the recent Supreme Court decision in SEC versus acy affected the limiting the power of administrative agencies. And that seems to have had a big effect among the all these agencies and what they have a right to do and not to, especially in the area of issuing financial penalties, et cetera. How do you see that playing out as affect as it affects government contractors?

James W. Wimberly Jr. (00:27:26):
Okay, lemme give you kind of a broader answer to that. First I'm gonna start with the proposition that, in my opinion, administrative agencies have on occasion gone too far. And we as a people, rather than depending on the judiciary, the legislative branch of the executive branch, have just delegated decisions to this new group of entities out there. We know as government agencies, and they make the rules and make the laws.

Les A. Schneider (00:28:05):
They're the unelected bureaucracy,

James W. Wimberly Jr. (00:28:06):
The unelected bureaucracy. And in many cases, they've gone too far. And so I believe that many of the recent changes, which have been dramatic, a reaction to the overreaching by these agencies. Now, there, there, there are two lines of how that's playing out. One of which is to not allow these agencies to be the final word. If they're applying some kind of law, the law was the final word, not what they say about the law. So that's been one way that the, the concepts have evolved. The, the second thing that's happened, maybe arguably more dramatic, let's take the NLRB for example. They are investigator prosecutor and Judge <laugh>.

James W. Wimberly Jr. (00:29:10):
And those kind of situations have caused the courts to say, look, the constitution guarantees a right of jury trial and actions that common law, and are these agencies going too far and all the powers they are asserting. And there are cases that now say, and you cite one that the agencies can't take it away, the constitutional right to a jury trial, if an administrative agency is seeking to find an an entity. And so this is going to change government in the future, but the rules are still being played out in court as to what that means. For example, there are many cases now pending claiming that the NLRB the immigration courts the O-F-C-C-P, osha, all of these federal agencies are denying defendants the right to defend themselves before a jury. And also that they've exceeded their powers in various ways. The, the rules haven't all played out as to how they're going to be. The answers to these questions are going to be resolved. But certainly the Trump administration has been what I would call suspicious of federal agency actions and is likely to support these court rulings to a greater extent than the Biden administration building.

Les A. Schneider (00:30:56):
So we're seeing a weakening, perhaps, of this unelected bureaucracy that That's right. Had an oversized effect Yes. On the

James W. Wimberly Jr. (00:31:06):
Country. But I I, I do wanna state the counterpoint here. We've gotten so used to letting these agencies handle the problems of society <laugh>. I think there's gonna be an adjustment period if we say that we can't leave these things up to these agencies, they go too far and so forth. There's another entity that's gotta be in a position to make decisions.

Les A. Schneider (00:31:32):
Exactly.

James W. Wimberly Jr. (00:31:33):
And Congress obviously has a difficulty achieving the consensus <laugh>

Les A. Schneider (00:31:39):
Well on, on many issues. Well, we could talk about that for a long time. But let, let me also try to ask you to talk about what's going on at the what you think will go on at the Department of Labor. Obviously there's gonna be a new labor secretary. She has some pro-union leadings, but in the issue of areas of overtime pay eligibility, classification of independent contractors versus somebody being employee, the expansion of labor rights for temporary agricultural workers and the updating of prevailing wage rules. Do you see those things changing in the on the Trump administration with the new labor secretary?

James W. Wimberly Jr. (00:32:27):
Well let, let me just say that the nominated lepa secretary about President Trump is a former female congresswoman from Oregon that was considered you know, Oregon being a blue state. She actually lost her most recent election. But when she ran and elected and was elected on a, basically a pro-union platform, and indeed had the support of some parts of organized labor right, to be a representative. And so the Teamsters have come out to largely supported President Trump, or at least they weren't negative about President Trump. Indeed, they spoke at the Republican Convention applauded President Trump's selection of what they considered to be an ideal secretary labor. Now, some may consider it ironic that President Trump would've not, would appoint a relatively pro-union Secretary of Labor. But at the same time, I wanna make everybody aware that working people are becoming Republicans.

James W. Wimberly Jr. (00:34:00):
Even union households voted for President Trump at a 50% rate. Now, that's union household. Once you get in the non-union worker households, it's, it's much higher. Several Republican senators, including Vice President Vance, have very close cordial relationships with organized labor. The new Secretary of State does Rubio Josh Hawley from Missouri, very close with organized labor. So the irony is that years ago we looked to upon the Democrat Party as being a party of organized labor. And the Republican Party is a party of management. Things have kind of shifted and the Republican party has become more supportive of organized labor. And the appointment of a pro laborer secretary of Labor is just one indication of that. Now, that's not to say that she will be as pro-labor as the previous administration. She has a boss, the president. It, it, it it's known that he himself and some of his closest advisors believed in a lot of things that organized labor wouldn't support.

James W. Wimberly Jr. (00:35:31):
So all I can say is there will be less of a pro management move at the, in the labor department that otherwise might be expected. I don't think her labor history will keep her from addressing four or five issues at the Department of Labor that the new administration probably wouldn't support. One of those is the new overtime rules for salary persons where the previous administration raised the salary levels in necess area to be exempt from overtime. So high did it cost millions of supervisors and even managers Yeah. No longer to be considered exempt.

Les A. Schneider (00:36:23):
They would be eligible for

James W. Wimberly Jr. (00:36:25):
Overtime. Yeah. And I, I I, I think the new Secretary of Labor will support dropping any appeals. That new rule has been declared illegal and enjoying on a national level. And I look for the new administration to drop that appeal

Les A. Schneider (00:36:48):
To just

James W. Wimberly Jr. (00:36:48):
Withdraw. Yeah. And I think this something very similar's gonna happen on independent contractors. The Biden administration set an independent contractor rule that was very difficult, if not impossible to meet, causing millions of people that had previously been gig workers to be deemed diplomas. Indeed, at some levels, <laugh> this erotic concept, this is gonna floor everybody, the Labor Board is now suggesting that to call somebody a student athlete is illegal because by calling, calling somebody a student athlete, you're denying their employees when they really ought to be considered employees. So you might say there's been a push on the left to consider everybody. Employees state win the legal rights of so many employment laws government flex taxes very easy. Whereas traditionally businesses and, and independent contractors, gig workers like their gig work, they like their independent contractor status and the Republican support the concept of gig work, and therefore the labor department will advocate tests of in contractor relationships that are realistic.

Les A. Schneider (00:38:20):
But some of those gig workers would be perfectly happy if they got some benefits from all of this and worked it out

James W. Wimberly Jr. (00:38:28):
Well. As a matter of fact, some states have come up with a hybrid situation Yeah. Where you can still be considered an independent contractor and still draw some form of benefits. Benefits. So that's probably in the

Les A. Schneider (00:38:42):
Future. Exactly. All right. Well, I know we have a, a lot to go over. So I wanna move our conversation along, obviously before we leave the DOL, the Republican administration I assume, and they've already stopped proceed some of this already, where the last few Democratic administrations under the Department of Labor has stopped wage in our opinion, letters and advisory opinions like that. We we expect that to be resumed under the Republican administration. And that to us is always a helpful guide for both, not just for employers, but for the labor community, et cetera, to have those advisory type opinions, which keeps people in compliance with the existing law. But let me move over to Asha, Jim, with where do you see any real changes there occurring?

James W. Wimberly Jr. (00:39:36):
Well first of all, I think there will be a situation that Asha, very much like the EOC, I don't think we'll see dramatic changes there. Everybody supports on both sides of the aisle worker safety. There are two issues that the new administration shift policies from the prior administration. One is the so-called walk around rule. Under a rule put in about a year ago by the Biden administration workers, any workers at a facility being inspected by OSHA could request a third party representative to participate in the inspection. It might be a union representative it might be a community activist group. It could be any number of different type of people. And it would be up to the OSHA inspector to make a decision in its discretion whether this outside of would assist in the process of inspecting the facility to safety violations.

Les A. Schneider (00:40:51):
So do you think this is gonna go away?

James W. Wimberly Jr. (00:40:53):
I think it's gonna go away. Okay. That's one major change. The other one is not gonna go away, but it's gonna be modified. There is gonna be, in the future an OSHA rule on heat, heat standard on heat heat standard. And there's one that's been proposed. And I think the Republican administration is gonna support the concept of heat standard. They don't like the one that's been proposed because it's one size fits all. It's not industry specific. It doesn't give the employer any discretion. It sets forth a uniform heat standard that every establishment has to apply. And I think the Republicans are gonna accept the concept of a heat standard, but make it a little more flexible, flexible and business friendly. Nevertheless, supportive attention needed for heat safety.

Les A. Schneider (00:42:02):
Okay. So we don't see a lot of movement in the o say Asha area, but let's move on because I do wanna save a good amount of time to discussion about immigration enforcement. 'cause That's been a huge issue in the last election. And there needs to be some positive approach or some positive gain in that issue. But let's just take a moment on antitrust and competition issues. Obviously in the last administration, there was a movement to use on the issue of wage fixing and no poaching agreements to try to use to proceed criminally on those areas. Do you see that waning in this Republican administration?

James W. Wimberly Jr. (00:42:48):
Well, to answer your question specifically, yes, but there are two reasons for it. The Biden administration attempted to prosecute certain companies and company officials criminally, and it's failed in every case.

Les A. Schneider (00:43:06):
Right.

James W. Wimberly Jr. (00:43:07):
So it, the criminal aspect of it has not been a successful technique for government. I will say, and I'm kind of proud to say this, antitrust is an area that is bipartisan. It is almost totally bipartisan. And I can say that with some authority since my own daughter was counseled to the house committee on antitrust and she confirmed that to me. So we're talking about a bipartisan issue. So I think the enforcement practices as a matter of fact, often Republicans have gone after antitrust violations with greater zeal than Democrats have. Two, two

Les A. Schneider (00:43:57):
Areas civil,

James W. Wimberly Jr. (00:43:59):
Yeah. Two areas of particularly fairly new and under attack now wage fixing among companies. You know, we think of antitrust as price fixing, but it also applies to wage fixing, where different companies reach an agreement to pay the same wage, et cetera. The other thing that's fairly recent is the attack under the antitrust laws of no poaching agreements. This means two companies get together and say, I hire your employees and hire money. So I look to, to the Republicans to continue efforts in those areas as President Trump did in his first administration. There is one thing that's gonna change.

James W. Wimberly Jr. (00:44:45):
The Federal Trade Commission is kind of considered a part of the antitrust effort, although it ahead is a little separate from the Department of Justice. And the Federal Trade Commission came out with a rule about a year ago, essentially banning common non-compete agreements. The theory is if was that if you've got somebody locked in under a non-compete, meaning that the person leaves, they can't go to work for another competitor for two years or whatever that locks that person into a job and doesn't allow them to go out and get a better job. And it thereby limits competition for workers. And the Republicans on the Federal Trade Commission didn't support that concept. Federal court has already ruled it to be unlawful. It's under appeal. And this is another thing. The new administration will drop the appeal.

Les A. Schneider (00:45:54):
So you feel the whole issue of non-competes, et cetera, will once again evolve to the states. Yeah. And the states will decide whether, whether it's in a particular state that bans them, or a state like Georgia, who obviously allows them. And the law has been clarified as to what's what they can and can't do. I agree with you. I think that's the direction it's going. Lemme although there's other things we can talk about in that area. I want to get to immigration 'cause that's probably is the biggest difficulty that I think employers have today. And what do you see as what various presidents have done? Obviously President Biden during the election and even when Paris was running in his place, was attacked dramatically on how immigration was handled during that administration. The Obama administration probably had more issues of sending people out of this country than any other administration of recent memory. What do you see in this particular administration of what's gonna happen when it comes to immigration?

James W. Wimberly Jr. (00:47:08):
Well, I'm gonna this is a hot button issue for me because it's the one issue in which the Trump administration is expected to be more anti employer, so to speak. Then the preceding administration, in other words the Trump administration is bad news for employers in terms of filling their workforce compliments because so many workers are going to be limited or kept out of the market, whatever. We start off with a proposition. Well, let, lemme lemme tell you what I think is gonna change. Number one, I don't look for the biggest mass deportation in history. You think there's a, that's a lot of fluff that it actually, I think that's more fluff. And I go back to the fact that when he campaigned for president the first time, he essentially had the same campaign approach of mass deportation. And yet during his administration lemme give you a couple of characteristics of what happened during his administration that I think will be repeated this time around.

James W. Wimberly Jr. (00:48:35):
Number one we did have raids. Now, what is a raid? A raid is when a lot of ice agents, maybe hundreds come in, surround the facility with a warrant that allows them to come in and investigate every single worker in that facility. And it requires a lot of agents because they literally surround the place so nobody could get away until they have checked out every single worker in that facility. That's called a raid. It was done during the previous Trump administration. And I expect it to be done in the next Trump administration. There won't be too many raids because it takes up so much manpower. But they're coming back. The Biden administration didn't have any raids. Right. They're coming back. Secondly, it's what's called a silent range <laugh>. That's an audit of all the I nine immigration documents that an employer has where ICE immigrations and customs enforcement comes in. And an employer has 72 hours actually three days to provide all their I nines and ice checks. The I nines and employers are fined for improperly completed I nines and in some cases fined for having illegal workers and required to terminate those or investigate. So I look for more I nine audits. I look for coming back of raids. I don't look for the mass deportation that some people say might occur. Let me,

Les A. Schneider (00:50:42):
Let me ask you just quickly, Jim, with these fines that come with this I nine analysis, what we talked about earlier about the administrative state, so to speak, will the imposition these fines have to result perhaps in a court to be affirmed? Or do you think they will continue just to be assessed and be able to be collected without without proper,

James W. Wimberly Jr. (00:51:12):
I don't know the answer to that, but that's one of the issues being litigated. Yes. Employers may argue that's subject to a jury trial. Right. But then employers might also say, maybe I'd rather have it come before an ice administrative law judge than go to a court

Les A. Schneider (00:51:29):
And get it over with one.

James W. Wimberly Jr. (00:51:30):
'Cause After all immigration was the second most important issue in the presidential election. Agreed. So now having said that, in the Trump administration, I'm looking for more I nine audits and the institution of raids. There are just so many raids that can be conducted in terms of manpower. Also, one limiting factor we have in terms of any kind of deportation is currently the maximum people taes we could hold is about 38,000. Now we have about 9 million estimated illegal workers in this country, but we can't detain, but 38,000 <laugh>. So, so do you see

Les A. Schneider (00:52:28):
Any possibility in this administration and this Congress, which will be majority Republican in both houses, that there will be a bill pass to address some of the issues relating to getting workers from other countries, whether it's guest workers, et cetera, and having some sort of plan to finally address it. 'cause You and I have talked over the years that no matter who's in power, this becomes the political football that somebody plays with. And, you know, obviously immigrants, most of them don't vote. And it becomes a, an issue where you can easily demonize the

James W. Wimberly Jr. (00:53:14):
Situation. Well, I, I, I'm gonna throw that question back to you before I throw it back to you. I wanna make this observation. Traditionally, the Republican party was pro-immigrant because the Republican party tended, tended to be more identified with management and companies and employers and business depends on immigrants to staff their facilities. Democrats traditionally have opposed immigration because organized labor very powerful and democratic party thought that immigrants drove down the wage levels and made it harder for unions to meet their demands. And

Les A. Schneider (00:53:59):
You've made that argument to me before. I don't necessarily agree with you on that, but I think the, the, our listeners would be interested as to whether or not, again, will there be some sort of legislation passed that makes this a more coherent and solvable issue?

James W. Wimberly Jr. (00:54:19):
Well, I I'm only saying that's the background. The roles are reversed now, but I'm gonna punt that back to you. I don't know. Mm-Hmm <affirmative>. What do you say?

Les A. Schneider (00:54:27):
Well, I think, I, I think we are very close to getting something passed that addresses it, because I think that there are people who wanna make sure people don't, aren't encouraged to cross over the border in a way that it is not, is not a positive, but the employer community does need workers in various industries. I would think that there should be a movement to let the decision as to how many workers should come into this country in the sense of guest workers evolved to the state labor department, not the federal government, although the protections of H two A, H two B, all those kind of categories would probably stay the same. But considering that they, the Congress and at least the Senate got very close to a bill that they were gonna push forward. But the president-elect obviously decided not, he didn't want that to happen politically.

Les A. Schneider (00:55:28):
Now, I'm wondering if now, since they control both houses and the presidency, that this would be the time to have a workable solution, including a secured border in a way that stops this cycle of unproductivity when it comes to the employer community. 'cause We still need people in certain jobs that are true labor shortages in this country. But we will see, we'll see what the crystal ball says at the end of the day. Jim, there is this temporary protected status program that has been in effect. What, do you see anything happening relating to that?

James W. Wimberly Jr. (00:56:16):
Well, you know, I mentioned it a few minutes ago that there were 9 million million illegal workers in this country. There are millions of others that are legal, but they're not citizens or, or what have you. For example, there's a, a temporary protected service or TPS program. I think there are about 17 countries that we now allow refugees for those countries to come into this country. They're also, there's another program called parole that for humanitarian reasons, individual people are allowed to, to come in this country. Maybe they're gonna be persecuted for exercising civil rights back home. And we're sympathetic. We wanna help 'em and we let 'em in. There's the DACA people, the dreamers. So we, we have several million persons that are not illegally in this country, but their status can be changed by the president pretty easily. Right.

James W. Wimberly Jr. (00:57:35):
So, president Trump has already said that he's gonna illuminate certain countries from the TPS list. You know, he, he's down on Muslim countries, for example. I believe we've got Afghanistan in our list of TPS countries. He, he thinks that Haiti is, is dominated by a lot of crime. He, he doesn't want Haiti to be on the TPS list. He wanted to eliminate the DACA people during his first administration, but drop that, I don't think he's gonna push that. I could be wrong, but I, I guess there, there's no question. But even the case of what I'll call legal immigration under one of these programs, TPS row daca, there's gonna be some cutbacks is what I call legal immigration. And so employers are gonna catch it from both ends. There's gonna be less legal immigration. I don't know how much less, I mean, if I was to pull a ratt out of a hat, maybe a 20% drop.

James W. Wimberly Jr. (00:58:52):
I don't know. I, I, I literally haven't thought about that. I just pulled it out of the air. And then there's gonna be a crackdown on other persons that are illegally in this country. But employers have a bonafide belief. And indeed, let's not forget that the immigration laws also protect the rights of immigrants. And employers have to be some of our clients have been sued for being too tough on immigrants in the hiring process. So let's, let's remember this, that immigrants have rights too. You might say illegal immigrants have certain rights. The employer is only supposed to make a good faith judgment as to whether their documentation indicates they're who they are and they're authorized to work. The employer has no way of guaranteeing that they're actually lawful. So yeah, we see a reduction in manpower are both among the legal sector of immigrants and those that are illegally in this country.

Les A. Schneider (01:00:07):
So, so it, so it behooves the business community to make sure they're communicating with their elected officials to look for some better solutions than what we have right now.

James W. Wimberly Jr. (01:00:17):
I would agree with that. A hundred. Amen. I would say <laugh>.

Les A. Schneider (01:00:22):
But we we've come up to the the witching hour here. And if any of you have any questions and would like us to respond to those, we can you all can either communicate with us after the this session and this webinar. At the same time, we appreciate the time you spent, and if there are comments that you have of how we can improve these webinars, we're always open to that. We're always trying to figure out the best solutions to an employer's issues. And I certainly think that there's some innovation, especially in the immigration area that really needs some work. And as Jim said, employers are getting it at both ends. And to get good people to work whether they are a US citizen or whether they are a lawful immigrant who wants to come into this country under the proper status to work, is something that employers need to have those options. And we, although it looks like there'll be some changes in the other area, I think other areas that we discussed today, I would think that immigration is the area where employers would like some relief in some direction, so they stay outta trouble.

James W. Wimberly Jr. (01:01:49):
We can begin with any questions, please.

Les A. Schneider (01:01:53):
We know silence is golden, but if someone has a question, please identify yourself and tell us. Well,

James W. Wimberly Jr. (01:02:02):
We won't even make you identify yourself. It might be just

Les A. Schneider (01:02:06):
Speak up.

James W. Wimberly Jr. (01:02:08):
We haven't gotten a single question yet.

Les A. Schneider (01:02:11):
We've either done a very good job or

James W. Wimberly Jr. (01:02:13):
Everybody's speechless.

Les A. Schneider (01:02:15):
Everybody's speechless. Exactly.

Speaker 3 (01:02:18):
Yeah. Jim,

Speaker 4 (01:02:19):
Jim, this is Harrison Kercher from the National Chicken Council. I just wanna thank you, gentlemen for having this webinar today. I think it was an excellent report on some really critical topics. You know, the one, the one comment I would make on the immigration reform watching this from Washington as to what Congress might do it's certainly gonna be very interesting to see how this all plays out. The most recent chatter is that there's going to be border security package included potentially in a reconciliation bill early next year as to what that includes, whether it has an E-Verify component to it certain enhancements that can be made in the current system and identifying and, and addressing some of those shortcomings could be part of that package. But, but I agree that border security will be first and foremost. But then you always get into the, the third rail of politics and we'll see what happens with regards to wider immigration reform. But I just wanted to, to put that point out there. It it's still murky and unclear from where we sit as to how Congress will ultimately address it, but I think you all did a, a great job today walking through these important topics. So I just wanted to say thank you very much.

James W. Wimberly Jr. (01:03:35):
Thank you, Harrison. Let, let's hear from somebody else. Okay. To I don't know if this will strike a chord with anybody, but two days ago, I think the president tweeted that he'd be willing to use the United States military to assist in a deportation effort. But again I don't think we have the manpower, the funding, et cetera. Certainly there are not enough ICE agents to carry out a major deportation. I, I will, I will comment on this. It would seem to me that the most likely source of deportation would be the facilities that are rated, because there you've got workers that are presumably gonna be detained, determined to be unlawfully in this country, and deport deported as part of that effort. The administration has announced that they're gonna go after criminals and persons who have been ordered to leave the country and haven't done that.

James W. Wimberly Jr. (01:04:57):
There have been a few instances, most notably in the Los Angeles, California area where ice agents have gone door to door to door knocking on doors. And this has actually been done in our own state here in Georgia back in 2 0 0 8, where ICE agents actually went out into certain communities, knocked on doors. As a matter of fact, in some cases it was alleged in litigation. They went further than knocking on doors. They demanded entry and in some cases forcibly entered. There was litigation over. But you know, it kind of could happen. And if you're curious as to how certain targets are selected and so forth, and end up in that situation, well ice getss information that gets their attention. For example, I know one facility was rated because a, an organization was found creating false documentation that organization was rated and the, and, and getting all of the hard drives and so forth, they sound a certain plant whose employees were buying a lot of these documents.

James W. Wimberly Jr. (01:06:25):
And so that plant was chosen for, right. I know of more informal document creating organizations that created grades at another facility. I know a third facility where an HR clerk was selling jobs for so much money, a person would get documentation and hired and that clerk was benefiting from it. I know of another case where an HR person was terminated and an act of retaliation went to ICE reporting bad things about the company. So, you know, these are the kind situations that can create attention from the enforcement authorities. And, you know, they even have ways of determining certain things remotely and electronically in the E-Verify process and so on. Whether a facility might be housing a lot of unauthorized workers. So I do think we're gonna have raised the facilities. I I just don't believe ICE has the resources to go around and knock on doors and do that sort of thing, although they have done that in isolated cases.

Les A. Schneider (01:07:45):
And again you know, Jim has outlined a lot of the problems and a lot of the difficulties that employers may encounter over the next year or so. And again, the employer community in, in my view, has to really work on solutions of how to be able to create pathways for people to come to work lawfully in this country. And based on the comments from the general gentleman from the NCC, I think it's important that any package that gets put together has some solutions in addition to any board of security. For instance, in Georgia last year, there was a bill in the state legislature that received bipartisan support, similar to the bill that was up in Congress a number of years ago, that was a bipartisan bill and had bipartisan support to, to change many aspects of the guest worker program, where people would have to come from their other country, they would have to come here legally, they would work, they would have the proper taxes taken out of their checks, and then they would go and then would go back to their mother country after the work was completed.

Les A. Schneider (01:09:04):
I think once you start creating paths like that, there's less desire to cross the border illegally to work in the underground, et cetera. We have to create a platform where people can have the labor shortages in this country addressed. And at the same time, people can work legally here to help the overall economy and help themselves. So again, there's some hard thinking, there's some sensible center conclusions that, and policies that need to be worked on. And as Jim has pointed out, there's a lot of horrible hypotheticals that can occur. But, you know, just as we have to perhaps redirect our thinking on the concept of affirmative action, we have to certainly try to get this issue of integration straight and moving forward, which I'm sure includes issues at the border, issues of how we determine who should come into this country to work and have a sane system in which to operate. Well, I think we've squeezed all the juice out of the lemon today, Jim, as best as we can in an hour. We appreciate all of you listening today, and if you have any thoughts that you wanna send us afterwards, you have you have the email of the firm and we certainly look forward to hearing from you. Thanks again for listening.