The Second Trump Administration will Bring Significant Changes to the EEOC DOL and NLRB
The elections are over and the second Trump administration will start in January 2025 (the “Trump Administration”). The employment law landscape is likely to undergo a number of changes. If the past is any indication, many of these changes are likely to roll back the Biden-era priorities and initiatives at the federal agencies that are tasked with implementing federal law governing employer/employee relationships. Below is a summary of just some of the changes employers could expect at the Equal Employment Opportunity Commission (“EEOC” or “Commission”), Department of Labor (“DOL”), and National Labor Relations Board (“NLRB”) during the Trump Administration, as well as what employers could expect to see with respect to the federal government’s efforts to prohibit certain restrictive covenants.
The EEOC
The forthcoming Trump Administration undoubtedly means changes at the EEOC. Due to the current Democratic majority, the most significant changes at the Commission are likely to be delayed until 2026. The new administration will likely adopt a more conservative approach to diversity, equity and inclusion (“DEI”) and revise or outright reverse Biden-era policies aimed at strengthening the protections for LGBTQ+ workers and pregnant women. This is in line with Trump’s previous efforts to scale back DEI initiatives, including his attempts to ban racial-sensitivity training for federal contractor. Recent Supreme Court rulings, such as the overturning of affirmative action, are likely to signal a renewed emphasis on how federal agencies interpret anti-discrimination and civil rights laws. The Trump Administration could also try to limit the protections provided to employees under the Pregnant Workers Fairness Act (PWFA). Remember that the Pregnant Workers Fairness Act (PWFA) requires eligible employers to provide reasonable accommodations for an employee or applicant who has limitations related to pregnancy, childbirth or other medical conditions. This is true even if the accommodation would place undue burden on the employer. Andrea Lucas is widely believed to be the President-elect Trump nominee to chair the Commission. She has taken a more conservative stance on employment issues. Lucas, for example, has previously criticized the EEOC’s broad interpretation of PWFA which includes accommodations like menopause, infertility, and abortion. After the Supreme Court’s Dobbs V. Jackson Women’s Health Org. (overturning Roe v. Wade), Lucas initiated commissioner charges against companies offering abortion travel benefits–ostensibly on the basis that such benefits might constitute discrimination against pregnant workers who choose to carry pregnancies to term.
Finally, the Trump Administration may attempt to roll back protections for LGBTQ+ workers. The EEOC updated its workplace harassment guidelines earlier this year for the first time in 1999, expanding the definition of sex based discrimination. The EEOC has now expanded the definition of sex-based discrimination to include actions such as using a name or pronoun that is inconsistent with an individual’s gender identity or denying them access to a bathroom that matches their gender identity. Lucas publicly opposed that updated guidance–contending the guidelines might infringe on employees’ right to religious freedom or expression.
In sum, while changes to policies and priorities of the Commission under a second Trump Administration may take time, they are undoubtedly coming. The DOL
Employers can expect major changes at the DOL under a second Trump Administration. In all likelihood, the “new” Trump DOL will look much like the old–prioritizing more employer-friendly policies while rolling back Biden-era regulations and recommendations.
For starters, President-elect Trump has consistently vowed to reinstate “Schedule F”–a 2020 executive order that would reclassify thousands of federal workers as “at-will” employees. Many have speculated that if implemented, this would lead to a significant reduction of staff at the DOL as well as other federal agencies. Significant reductions in agency personnel could have wide-ranging implications for regulatory or enforcement priorities and actions. A Trump DOL may collaborate with other federal agencies to deal with undocumented workers. This could result in worksite raids and heightened scrutiny on–and requirements for–employment eligibility.
Almost certainly, a second Trump Administration will make it easier to reclassify workers as independent contractors. Remember that just before President Biden’s inauguration, the DOL of then-President Trump finalized the requirements for classifying workers as independent contractors. The Biden administration did not implement the rule, and it was never put into effect. In all likelihood, President Trump’s DOL will reinstate the proposed rule and make it easier for persons to be classified as independent contractors.
A second Trump DOL may also try to roll back Biden-era rules and regulations concerning overtime pay. In 2019, the Trump Administration implemented a rule which increased the salary threshold to be eligible for overtime pay. The new threshold is $35,568 per year. The salary requirement was greatly increased by President Biden’s Administration, and will reach $58,656 in 2025. Many expect the new Trump Administration will reassess the increased overtime threshold and at least partially roll it back. The updated salary baseline, however, will go into effect weeks before the inauguration of President Trump. Any rollback would require significant administrative and regulatory procedures. Employers should therefore not expect any Trump Administration changes to the new overtime rules to take effect immediately.
The NLRB
As we saw in 2008, 2016, and (as we outlined here) 2020, when a Presidential election results in a change from one political party to the other, it likewise brings both immediate and long-term changes to the labor law landscape. Employers should expect another similar paradigm shift in the new Trump Administration. This will begin with the likely removal Board General Counsel (GC), Jennifer Abruzzo. Since GC Abruzzo replaced GC Peter Robb, after then-President Biden removed GC Robb immediately following President Biden’s Inauguration in 2020, GC Abruzzo drastically altered the prosecutorial priority of the Board’s various regional offices by issuing various GC Memoranda. These GC Memoranda identified numerous Board precedents which GC Abruzzo deemed to be worthy of reversing, under a largely expanded (and oftentimes innovative) view of National Labor Relations Act. As previously covered, GC Abruzzo’s August 2021 agenda memo largely signaled the very changes we have seen over the course of the past 3 plus years.
Immediate Change for Agency’s Top Prosecutor
A new NLRB GC will likely rescind various memos issued by GC Abruzzo. Although we expect any newly-appointed GC to rescind scores of currently-active memorandums issued by GC Abruzzo, a sampling of the memos that are likely facing rescission include the following:
GC Memo 24-04, which greatly expanded the scope of consequential damages Regions should seek in unfair labor practice proceedings;
GC Memo 21-07, addressed here, which instructed Regions to seek no less than 100 percent of the backpay and benefits owed in cases that are settled, and, in cases where a discharged employee waived reinstatement to his or her former position, required Regions to include front pay as part of any settlement;
As we outlined here, GC Memo 23-02 set forth the GC’s recommendation to the Board to find that an employer’s use of surveillance practices that interferes with or prevents a reasonable employee from engaging in protected activity creates a rebuttable presumption that the employer has violated Section 8(a)(1), unless the employer can demonstrate that the practices at issue are narrowly tailored to address a legitimate business need. In such cases, even where the employer is able to demonstrate that its claimed business need for the surveillance practice outweighs employees’ Section 7 rights, the GC urged the Board to require employers to disclose to employees the technologies it uses to monitor and manage them, the reasons for doing so, and how the information obtained is being used, unless the employer demonstrates that special circumstances require covert use of the technologies;
As we covered here, GC Memo 22-04, which outlined GC Abruzzo’s intent to ask the Board to reconsider a well-settled, decades-old precedent, which has long permitted employers to hold mandatory “captive audience” meetings to educate employees, share views on unionization, and discuss what employees’ rights are with respect to the same; and
- More recently, GC Abruzzo issued GC Memo 25-01, arguing certain “stay-or-pay” provisions are unlawful under the NLRA as part of her earlier initiative declaring certain non-competes and restrictive covenants unlawful (which we covered here). Memo 25-01 calls on employers to go further than simply rescinding the non-compete clause and directs regions in accordance with Board law to seek traditional remedies to make whole unlawful provisions. Unless rescinded by a newly appointed GC, employers have through Dec. 6, 2024, to cure any existing stay-or-pay provisions that advance a legitimate business interest.
- Expected Change in Board Composition Over the Next Year
- In addition to an expected GC change, the Trump Administration will likely work to alter the Board’s composition to shift it to a Republican majority. The Senate has yet to act on these nominations, despite the fact that the current Board is 2-1 Democratic (and Board Chair Lauren McFerran’s term expires Dec. 16, 2024), and Joseph L. Ditelberg’s nomination to fill the Board’s vacancy Republican seat. It is possible that McFerran will be confirmed to a third term, which would give the Board a Democratic majority through August 2026 when Democratic Member David Prouty’s term expires. However, it seems unlikely that these nominees are confirmed by the Senate before Trump takes office. Should these seats remain unfilled through Inauguration Day, they will likely be filled by Trump appointees and the Board will return to a Republican majority – likely at some point in 2025 – thereby paving the way for pro-employer decisions.
- Likely Changes Through Board Decisions During Trump Administration
- Election and Related Demand for Recognition Procedures
As we outlined here, on August 25, 2023, the Board, through its decision in Cemex Const. Materials Pac. Materials A A Trump GC would likely cease pursuing cases under this standard and a newly-composed Board should be expected to overturn this decision relatively soon after reaching a republican majority.
Standard for Assessing Legality of Workplace Rules
Regarding employer work rules, a Trump Board will likely return to the more consistent, employer-friendly Boeing standard by overturning the Biden Board’s decision in Stericycle Inc., 372 NLRB No. The The This 01
On the other hand, the Boeing standard, which is anticipated to return under the Trump Administration, classified company rules into three categories:
Rules that are lawful to maintain under the NLRA;
Rules that warrant individualized scrutiny; and
Rules that are unlawful and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.
Following many years of increasing volatility (both under the Obama and Biden Boards), the standard established in Boeing gave employers a level of stability and predictability in their ability to maintain discipline and productivity in the workplace.
- Independent Contractor Test
- The Trump Board will likely return to the standard set forth by the Trump Board’s 2019 decision in SuperShuttle DFW, Inc., 367 NLRB No. The A return to the SuperShuttle standard would result in a Board focused on a worker’s “entrepreneurial opportunity” as an animating principle to determine independent contractor status, instead of equally evaluating all of the common-law factors (which, as applied by the current Board, has made it extremely difficult for employers to contest employee status).
- Issuance of Various Rules Impacting Election Processing
In addition to pursuing various doctrinal shifts via Board decisions (which require appropriate cases to work their way to the Board), a newly-seated Trump Board will likely contemplate issuing a notice of proposed rulemaking that will seek to (a) reverse the “quickie election” rules, introduced by the Biden Board, that set very tight timelines on hearing dates and elections, promoting election speed over resolution of various legal challenges brought by employers; (b) as outlined here, reverse the Biden Board’s Fair Choice – Employee Voice Final Rule (“Final Rule”), which has altered the Board’s blocking charge policy and permits regional directors to delay representation and decertification elections upon a filing and resolution of an unfair labor practice charge upon request by the party who filed the ULP; (c) reverse the Biden Board’s return to an immediate voluntary recognition bar, since the current Final Rule removes the 45-day window so employees will no longer be able to request an election to challenge an employer’s recent voluntary recognition of a union; and (d) revisit the Final Rule’s directive that makes it easier for construction industry unions to become the exclusive bargaining representative for construction employees based only on contractual language.
Retreat from Gerrymandered Bargaining Units
As we covered here, the Biden Board (through its decision in American Steel Construction, Inc., 372 NLRB No. The This We The 67 (2019) (decisions collectively referred to as the “PCC-Boeing” standard).
The above likely represents only a fraction of the changes at the NLRB that employers should expect in the coming four years.
What About Noncompetes?
It is unlikely the incoming Trump Administration will make the prohibition of restrictive covenants a priority. While We These See, for example, here and here.
Currently, the FTC rule prohibiting noncompetes remains ensnared in litigation. It Lin We Should that occur, the rule would, for all intents and purposes, be null and void, and there would no longer be any federal ban on restrictive covenants.
Conclusion
As identified above, we anticipate that there will be numerous changes to the employment law landscape with the incoming Trump Administration. We
