The election is over and a second Trump administration will start in January 2025 (“Trump Administration”). Quite a few adjustments to the employment regulation panorama will include it. And if previous is prologue, many of those adjustments will roll again varied Biden-era initiatives and priorities on the varied federal businesses tasked with implementing and administering federal regulation governing the employer/worker relationship. Beneath is a abstract of simply a few of the adjustments employers might count on on the Equal Employment Alternative Fee (“EEOC” or “Fee”), Division of Labor (“DOL”), and Nationwide Labor Relations Board (“NLRB”) through the Trump Administration, in addition to what employers might count on to see with respect to the federal authorities’s efforts to ban sure restrictive covenants.
The EEOC
The forthcoming Trump Administration undoubtedly means adjustments on the EEOC. Probably the most vital adjustments to the Fee will seemingly be delayed till 2026 as a result of present Democratic majority. Nonetheless, the brand new administration is more likely to undertake a extra conservative stance on range, fairness, and inclusion (“DEI”) initiatives, and revise—or outright reverse—Biden-era insurance policies and priorities geared toward strengthening protections for LGBTQ+ and pregnant staff.
A second Trump Administration will seemingly problem employer DEI practices in employment. This aligns with Trump’s earlier efforts to cut back DEI efforts, together with makes an attempt to ban racial sensitivity coaching for federal contractors. Latest Supreme Courtroom selections, together with overturning affirmative motion, seemingly sign a renewed give attention to how federal businesses interpret civil rights and anti-discrimination legal guidelines. And, with respect to decoding anti-discrimination statutes, a extra conservative Supreme Courtroom is more likely to align with extra a conservative EEOC.
The Trump Administration may search to restrict the scope of protections afforded to workers underneath the Pregnant Staff Equity Act (“PWFA”). As a reminder, the PWFA requires that eligible employers present cheap lodging to a professional worker’s or applicant’s recognized limitations associated to, affected by, or arising out of being pregnant, childbirth, or associated medical situations—except the lodging would trigger the employer an undue hardship. Andrea Lucas, the only Republican appointee is broadly regarded as President-elect Trump’s nomination to chair the Fee and has publicly voiced extra conservative stances on employment points. For instance, Lucas beforehand criticized the EEOC’s broad interpretation of the PWFA, which incorporates lodging for abortion and situations like menopause and infertility. Following the Supreme Courtroom’s choice in Dobbs v. Jackson Girls’s Well being Org. (overturning Roe v. Wade), Lucas initiated commissioner prices in opposition to firms providing abortion journey advantages—ostensibly on the premise that such advantages may represent discrimination in opposition to pregnant staff who select to hold pregnancies to time period.
Lastly, the Trump Administration could try to roll again protections for LGBTQ+ staff. Earlier this 12 months, the EEOC revised its office harassment pointers for the primary time since 1999, broadening the definition of sex-based discrimination. This now encompasses actions such because the repeated and intentional use of a reputation or pronoun inconsistent with the person’s recognized gender id (misgendering), or denying a person entry to a toilet per their gender id. Lucas publicly opposed that up to date steerage—contending the rules may infringe on workers’ proper to spiritual freedom or expression.
In sum, whereas adjustments to insurance policies and priorities of the Fee underneath a second Trump Administration could take time, they’re undoubtedly coming. Employers ought to subsequently work with out exterior counsel to watch developments on the EEOC.
The DOL
Employers ought to count on vital adjustments on the DOL throughout a second Trump Administration. In all chance, the “new” Trump DOL will look very similar to the outdated—prioritizing extra employer-friendly insurance policies whereas rolling again Biden-era laws and proposals.
For starters, President-elect Trump has constantly vowed to reinstate “Schedule F”—a 2020 government order that might reclassify 1000’s of federal staff as “at-will” workers. If carried out, many have speculated this might end in a major discount in workers on the DOL and different federal businesses. Vital reductions in company workers might have sweeping implications for regulatory or enforcement actions and priorities throughout the board.
A key component of President-elect Trump’s marketing campaign was immigration reform and, extra significantly, deportation of undocumented individuals. Accordingly, a Trump DOL might probably collaborate with different federal businesses on undocumented staff. This might end in worksite raids and heightened scrutiny on—and necessities for—employment eligibility.
Nearly actually, a second Trump Administration will make it simpler to reclassify staff as unbiased contractors. Recall that shortly earlier than President Biden was inaugurated, then-President Trump’s DOL finalized easing the required necessities to categorise staff as unbiased contractors. However the Biden administration by no means carried out the rule and, accordingly, it by no means went into impact. In all chance, President Trump’s DOL will reinstate the proposed rule and make it simpler for individuals to be labeled as unbiased contractors.
A second Trump DOL may attempt to roll again Biden-era guidelines and laws regarding time beyond regulation pay. In 2019, the Trump administration carried out a rule that elevated the wage threshold for time beyond regulation eligibility to $35,568 yearly. President Biden’s administration drastically expanded the wage requirement—which can hit $58,656 on January 1, 2025. Many count on a brand new Trump Administration to reassess and roll again the heightened time beyond regulation threshold, a minimum of partially. Importantly, nonetheless, the up to date wage baseline will take impact weeks earlier than President Trump is inaugurated. To that finish, any rollback would require vital administrative effort and regulatory procedures. Employers ought to subsequently not count on any Trump Administration adjustments to the brand new time beyond regulation guidelines to take impact instantly.
The NLRB
As we noticed in 2008, 2016, and (as we outlined right here) 2020, when a Presidential election ends in a change from one political get together to the opposite, it likewise brings each speedy and long-term adjustments to the labor regulation panorama. Employers ought to anticipate one other comparable paradigm shift underneath a brand new Trump Administration, beginning with the seemingly removing of Board Common Counsel (GC) Jennifer Abruzzo. Since GC Abruzzo took over for GC Peter Robb in 2020, following then-President Biden’s unprecedented removing of GC Robb shortly after President Biden’s Inauguration, GC Abruzzo has drastically altered the prosecutorial priorities of the Board’s varied regional workplaces by the issuance of varied GC Memoranda. These GC Memoranda have recognized quite a few Board precedents that GC Abruzzo deemed worthy of reversing underneath a largely expansive (and oftentimes novel) view of the Nationwide Labor Relations Act. As beforehand coated, GC Abruzzo’s August 2021 agenda memo largely signaled the very adjustments we now have seen over the course of the previous 3 plus years.
Quick Change for Company’s Prime Prosecutor
A brand new NLRB GC will seemingly rescind varied memos issued by GC Abruzzo. Though we count on any newly-appointed GC to rescind scores of currently-active memorandums issued by GC Abruzzo, a sampling of the memos which are seemingly dealing with rescission embrace the next:
- GC Memo 24-04, which drastically expanded the scope of consequential damages Areas ought to search in unfair labor apply proceedings;
- GC Memo 21-07, addressed right here, which instructed Areas to hunt at least 100% of the backpay and advantages owed in instances which are settled, and, in instances the place a discharged worker waived reinstatement to his or her former place, required Areas to incorporate entrance pay as a part of any settlement;
- As we outlined right here, GC Memo 23-02 set forth the GC’s advice to the Board to seek out that an employer’s use of surveillance practices that interferes with or prevents an affordable worker from partaking in protected exercise creates a rebuttable presumption that the employer has violated Part 8(a)(1), except the employer can exhibit that the practices at subject are narrowly tailor-made to handle a reliable enterprise want. In such instances, even the place the employer is ready to exhibit that its claimed enterprise want for the surveillance apply outweighs workers’ Part 7 rights, the GC urged the Board to require employers to speak in confidence to workers the applied sciences it makes use of to watch and handle them, the explanations for doing so, and the way the knowledge obtained is getting used, except the employer demonstrates that particular circumstances require covert use of the applied sciences;
- As we coated right here, GC Memo 22-04, which outlined GC Abruzzo’s intent to ask the Board to rethink a well-settled, decades-old precedent, which has lengthy permitted employers to carry obligatory “captive viewers” conferences to coach workers, share views on unionization, and focus on what workers’ rights are with respect to the identical; and
- Extra just lately, GC Abruzzo issued GC Memo 25-01, arguing sure “stay-or-pay” provisions are illegal underneath the NLRA as a part of her earlier initiative declaring sure non-competes and restrictive covenants illegal (which we coated right here). Memo 25-01 goes even additional and requires employers to transcend mere rescission of the non-compete provision and directs areas to hunt conventional make-whole treatments for illegal provisions per Board regulation. Until rescinded by a newly appointed GC, employers have by Dec. 6, 2024, to remedy any present stay-or-pay provisions that advance a reliable enterprise curiosity.
Anticipated Change in Board Composition Over the Subsequent 12 months
Along with an anticipated GC change, the Trump Administration will seemingly work to change the Board’s composition to shift it to a Republican majority. Whereas the present Board has a 2-1 Democratic majority (and Board Chair Lauren McFerran (whose time period expires on Dec. 16, 2024) is awaiting a vote to be confirmed to a 3rd time period, together with Biden’s package deal nomination of Joseph L. Ditelberg to fill the Board’s vacant Republican seat), the Senate has not but acted on these nominations. Whereas it’s attainable McFerran may very well be confirmed for a 3rd time period (thereby leaving the Board with a Democratic majority till a minimum of August 2026, when Democratic Member David Prouty’s time period expires), it seems unlikely these nominees might be confirmed by the Senate previous to Trump taking workplace. Ought to these seats stay unfilled by Inauguration Day, they are going to seemingly be stuffed by Trump appointees and the Board will return to a Republican majority – seemingly in some unspecified time in the future in 2025 – thereby paving the best way for pro-employer selections.
Doubtless Modifications By Board Selections Throughout Trump Administration
Election and Associated Demand for Recognition Procedures
As we outlined right here, on August 25, 2023, the Board, by its choice in Cemex Const. Supplies Pac. LLC, 372 NLRB No. 310 (Aug 25, 2023), created a brand new customary that basically revived the dormant Pleasure Silk Mills doctrine with some modifications, thereby permitting unions to attain recognition because the licensed bargaining consultant of workers with out requiring a proper NLRB secret-ballot election. A Trump GC would seemingly stop pursuing instances underneath this customary and a newly-composed Board ought to be anticipated to overturn this choice comparatively quickly after reaching a republican majority.
Commonplace for Assessing Legality of Office Guidelines
Relating to employer work guidelines, a Trump Board will seemingly return to the extra constant, employer-friendly Boeing customary by overturning the Biden Board’s choice in Stericycle Inc., 372 NLRB No. 113 (2023), which choice we beforehand coated right here. The Stericycle customary applies to union and non-union workplaces and goes far additional than merely overruling instances determined through the Trump administration. Underneath this customary, a piece rule is presumptively illegal if it has an affordable tendency to sit back workers from exercising their rights when seen from the attitude of the cheap worker, even when a opposite interpretation of the rule can be cheap. As soon as established, the employer should show that 1) the rule advances a reliable and substantial enterprise curiosity, and 2) that the employer is unable to advance that curiosity with a extra narrowly tailor-made rule.
Then again, the Boeing customary, which is anticipated to return underneath the Trump Administration, labeled firm guidelines into three classes:
- Guidelines which are lawful to take care of underneath the NLRA;
- Guidelines that warrant individualized scrutiny; and
- Guidelines which are illegal and the antagonistic affect on NLRA rights is just not outweighed by justifications related to the rule.
Following a few years of accelerating volatility (each underneath the Obama and Biden Boards), the usual established in Boeing gave employers a stage of stability and predictability of their capacity to take care of self-discipline and productiveness within the office.
Unbiased Contractor Take a look at
The Trump Board will seemingly return to the usual set forth by the Trump Board’s 2019 choice in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), which established a check for figuring out if a person is an unbiased contractor, as mentioned right here. A return to the SuperShuttle customary would end in a Board centered on a employee’s “entrepreneurial alternative” as an animating precept to find out unbiased contractor standing, as a substitute of equally evaluating all the common-law elements (which, as utilized by the present Board, has made it extraordinarily tough for employers to contest worker standing).
Issuance of Varied Guidelines Impacting Election Processing
Along with pursuing varied doctrinal shifts through Board selections (which require acceptable instances to work their strategy to the Board), a newly-seated Trump Board will seemingly ponder issuing a discover of proposed rulemaking that can search to (a) reverse the “quickie election” guidelines, launched by the Biden Board, that set very tight timelines on listening to dates and elections, selling election pace over decision of varied authorized challenges introduced by employers; (b) as outlined right here, reverse the Biden Board’s Honest Alternative – Worker Voice Last Rule (“Last Rule”), which has altered the Board’s blocking cost coverage and permits regional administrators to delay illustration and decertification elections upon a submitting and determination of an unfair labor apply cost upon request by the get together who filed the ULP; (c) reverse the Biden Board’s return to a right away voluntary recognition bar, for the reason that present Last Rule removes the 45-day window so workers will not be capable of request an election to problem an employer’s current voluntary recognition of a union; and (d) revisit the Last Rule’s directive that makes it simpler for development business unions to change into the unique bargaining consultant for development workers based mostly solely on contractual language.
Retreat from Gerrymandered Bargaining Items
As we coated right here, the Biden Board (by its choice in American Metal Building, Inc., 372 NLRB No. 23 (2022)) had reinstated the Obama-era Board’s 2011decision in Specialty Healthcare and Rehabilitation, 357 NLRB 934 (2011), establishing {that a} bargaining unit was acceptable if the petitioned-for unit was “readily identifiable” as a gaggle and shared a group of curiosity. This customary basically allowed unions to set the scope of the bargaining unit except the employer might present that an “overwhelming group of curiosity” existed between the chosen unit and the excluded workers. We count on a Republican-majority Trump Board to as soon as once more reverse Specialty Healthcare and return to a conventional group of curiosity check for figuring out the appropriateness of a bargaining unit, because it had beforehand finished in PCC Structurals, Inc., 365 NLRB No. 160 (2017) and The Boeing Firm, 368 NLRB No. 67 (2019) (selections collectively known as the “PCC-Boeing” customary).
The above seemingly represents solely a fraction of the adjustments on the NLRB that employers ought to count on within the coming 4 years.
What About Noncompetes?
It’s unlikely the incoming Trump Administration will make the prohibition of restrictive covenants a precedence. Whereas the Trump marketing campaign has largely stayed away from the subject, main Republican lawmakers broadly oppose such guidelines and laws as “anti-business,” a sentiment echoed by pro-business teams such because the Chamber of Commerce. We are going to seemingly see the development of states passing their very own laws prohibiting restrictive covenants—both typically or restricted to sure industries, corresponding to healthcare suppliers—proceed. These state legal guidelines are being handed not solely in traditionally pink states however blue states as properly. See, for instance, right here and right here.
At the moment, the FTC rule prohibiting noncompetes stays ensnared in litigation. Primarily based upon the Trump marketing campaign’s place relating to restrictive covenants, it’s unlikely his administration will search to defend the rule in court docket. The lead champion of the rule is present FTC Chair Lina Khan, whose time period as Chair expired on September 25 however continues to function Chair till a successor is appointed. We count on the Trump Administration to switch Ms. Khan with somebody it deems extra “enterprise pleasant” and who seemingly will trigger the Division of Justice to desert its protection of the rule. Ought to that happen, the rule would, for all intents and functions, be null and void, and there would not be any federal ban on restrictive covenants.
Conclusion
As recognized above, we anticipate that there might be quite a few adjustments to the employment regulation panorama with the incoming Trump Administration. We are going to proceed to watch any developments and supply updates as they change into obtainable.