Donald Trump’s return to the presidency means dramatic changes in the law are coming. Those changes will be greatest in areas over which the federal government has exclusive authority under the Constitution, such as immigration and national defense.

Non-unionized California employers, however, will see limited change in their legal obligations in the workplace.

Employment mostly regulated by state, not federal, law

The U.S. Supreme Court observed nearly 50 years ago in De Canas v. Bica that states have “broad authority” to regulate the employment relationship to protect workers within their borders. “Child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmens compensation laws are only a few examples,” said the high court.

Congress has enacted minimum wage, workplace discrimination and workplace safety laws. But states are free to enact laws that provide greater protection to employees working there. In each of those categories, and others, California has enacted more protective laws.

That means California employers will have to continue to pay their employees at least California’s minimum hourly wage, which is more than twice the $7.25 federal minimum wage. California’s now-familiar ABC test generally will continue to limit the classification of workers as independent contractors.

Cal-OSHA’s robust workplace safety and health rules will continue to govern the California workplace. And California’s virtually complete prohibition on noncompete agreements will be untouched.

Unionized workplaces in California will be affected

Unionized workplaces, and those in which workers are seeking to organize unions, will be most affected by the change of administration. The National Labor Relations Act governs rights and duties related to unionization and collective bargaining. The law is administered by the five-member, presidentially-appointed National Labor Relations Board.

President Joe Biden made and kept a campaign promise to be the most pro-union president in American history, even walking a picket line as president. Biden’s appointees to the NLRB frequently sided with unions in disputes over the scope of the NLRA, particularly related to employees’ rights to unionize in the first place.

The NLRB’s general counsel, who is independent of the NLRB, investigates and prosecutes alleged unfair labor practices. General counsel Jennifer Abruzzo took an expansive view of employee rights and employer duties under the NLRA and issued guidance to NLRB field offices to ensure they did as well.

A recent New York Times news analysis headlined “The White House Will Be Shedding Its Union Label” observed: “If Mr. Trump’s first term is a guide, his appointee as general counsel will probably adopt an approach that makes it harder for union campaigns to succeed. His appointees to the labor board will probably reverse Biden-era rulings on high-profile issues, including one allowing the board to order recognition of a union if the employer makes a fair election impossible, such as by firing workers who seek to unionize.”

California recently enacted a law that, effective Jan. 1, 2025, will prohibit employers from requiring employees to attend meetings in which employers share their (presumably negative) views on unionization. Business groups will challenge that law as blocking employer rights the NLRA gives them.

On Nov. 13, the NLRB ruled 3-1 that the NLRA itself blocks such so-called “captive audience” meetings as undermining workers’ right to organize, adopting a position Abruzzo has taken. Trump’s appointees almost certainly will overrule that ruling in due course.

Restrictions on use of foreign workers here and abroad

The Trump administration also is expected to make it harder for U.S. employers to use foreign workers, taking especially aggressive action to combat the use of workers here illegally. But the administration also probably will restrict employer use of foreign workers through special federal visa programs to fill jobs for which there are assertedly too few qualified American workers.

In addition, the GOP platform promises to “strengthen Buy American and Hire American Policies, banning companies that outsource jobs from doing business with the Federal Government.”

California will no longer be model for federal labor policy

In May, I addressed how Biden administration officials have issued national rules on independent contractor classification, farmworker rights, and noncompete agreements that tracked rights extended to California employees. While the California workplace will continue to be governed by those rights and duties under state law, those federal California-like rules will not survive this administration. Vice President Kamala Harris, coincidentally a Californian, lost the election. That will have consequences.

Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.