What Happens to Wage Law with Trump Elected (and with a Republican controlled House and Senate)?
With the surprising (to most) result of the Presidential election making Donald Trump the United States Commander in Chief, taking office alongside a Republican controlled Senate and House – – and soon to be filling the vacant seat on the U.S. Supreme Court with a conservative Judge – – businesses/employers and employees alike may ask: What is going to happen to wage laws in California? The answer: probably not much, and at the same time maybe a lot.
How is that possible? Because first, California wage law, set forth mostly in various parts of the state Labor Code, applies and must be followed independent from federal wage law. As Courts have consistently held, the federal Fair Labor Standards Act (or the “FLSA”) does not control over or preempt the core of California wage law. A good example is the fact that overtime pay is required under the FLSA only for hours worked above 40 per week, while California law requires overtime pay for any work above 8 hours per day – – and the FLSA does not override the California ‘8 hour day’ rule for overtime. Similarly California minimum wage rates must be satisfied separately for each hour worked, and this requirement is not affected by the fact that the FLSA allows ‘averaging’ the total pay received divided by the total hours worked to comply with federal minimum wage rates. So if changes are made to the FLSA and related federal Department of Labor (or “DOL”) regulations under Trump and the Republican Congress, as supported by a conservative majority Supreme Court, the core of California wage law will remain unchanged.
Outside core requirements such when and how overtime pay and minimum wage rates apply, however, other aspects of California wage law may very well be affected by changes to federal wage law and regulations – – and that is because part of state wage law are ‘modeled’ on DOL regulations. For example, many of the details for the ‘legal test’ as to whether an employee should be classified as ‘salaried exempt’ versus ‘non-exempt, hourly’ under California wage law follow FLSA rules and DOL regulations, such that changes to the federal scheme could be applied to certain aspects of California wage law. Any such effects, however, will likely be nuanced, and not significantly change state wage law.
So how then could the new Presidency/Congress/Supreme Court change wage law a lot? Because of the legal truth which many employers and employees don’t know about (or think about): California wage law, for the most part, applies only in the private sector, and does not apply to public employers and public employees. Instead, state, County, City and local District employers and employees fall only under the FLSA. Therefore if any significant changes to the FLSA and associated DOL regulations are pushed by the Trump administration and passed into law by the Republican controlled Congress, public employers and employees will be directly affected by such changes – -regardless of whether California wage law remains the same. What might such changes in federal wage law under Trump be? That is hard to predict, but two very possible issues/changes are: a) not raising federal minimum wage rates at all (keeping the rate at $ 7.25 per hour); and b) lowering the minimum salary required for classifying employees as exempt from the $ 913 per week recently established under the Obama administration back down closer to the previous salary of $ 455 per week.
For public employees this emphasizes the importance of unions and the associated collective bargaining agreements negotiated by the unions which help ensure adequate wage rates and overtime pay for the union members – – separate and apart from how the FLSA may change. Of course under Trump, the Republican controlled Congress, and a conservative majority in the Supreme Court, the viability of protective collective bargaining agreements and the very existence of unions are at risk.
If, as the Trump Presidency and the Republican controlled Congress moves through the next four years, you have any questions on the effect on wage law – – whether from the business/ employer point of view, or as an employee, such questions can be addressed to the experienced attorneys at Goyette & Associates.