Post-Election Pulse Update: Employer expectations under the Trump administration
Our recent webinar, “Post Election Pulse Update: Employer Expectations Under the Trump Administration,” provided an in-depth analysis of labor and employment policy changes that are anticipated or have already been implemented. The changes, covered by Labor and Employment attorneys James Boutrous, Karina Conley, and Jennifer Phillips, underscored the importance of adapting to the shifting regulatory landscape to maintain compliance and mitigate risks.
In case you missed the webinar, we have summarized key takeaways employers need to know.
Labor Policy Shifts: Department of Labor and National Labor Relations Board:
President Trump’s Department of Labor (DOL) is expected to implement employer-friendly policies. Interestingly, Trump has nominated Lori Chavez-DeRemer to lead the DOL. Chavez-DeRemer, a pro-union Republican, has garnered strong support from the Teamsters, signaling a potential shift in traditional Republican labor policy.
With the removal of Jennifer Abruzzo as General Counsel and Gwynne Wilcox as a Board Member, the direction of the National Labor Relations Board (NLRB) remains uncertain. The NLRB currently lacks a quorum, preventing the Board from issuing decisions due to recent vacancies following Trump’s firings. While regional offices continue to investigate and prosecute unfair labor practices, the absence of a quorum means that key rulings are on hold. Trump is expected to nominate two Republican appointees, which would restore a majority on the Board. Marvin Kaplan has been named as the agency's chair.
Increased ICE Activity:
Employers should anticipate increased ICE activity and stricter I-9 requirements/regulations around worker eligibility.
Independent Contractor Changes:
Potential changes to the independent contractor rule may lead to a reassessment of workforce classifications. During the Biden administration, various federal agencies implemented policies to limit and restrict independent contractor status. In contrast, the Trump administration is expected to reverse these rules, making it easier for employers to classify workers as independent contractors.
EEOC Focus Shift:
Under Republican leadership, the Equal Employment Opportunity Commission (EEOC) is shifting its focus to ‘DEI-motivated discrimination, protecting American workers from anti-American bias, and defending biological and binary sex rights,’ according to Andrea R. Lucas, who was named acting chair of the EEOC. Employers should anticipate tensions between the EEOC’s prior guidance and the White House’s evolving stance.
The Trump administration is expected to roll back guidance on workplace harassment protections, which could impact LGBTQ+ workers' rights, as well as the EEOC’s position on remote work accommodations under the Americans with Disabilities Act (ADA).
Employers should continue to adhere to federal and state civil rights laws, document legitimate, nondiscriminatory reasons for employment decisions, and prepare for an increase in charges filed with state civil rights agencies, which are likely to take a more active role in pursuing discrimination claims.
DEI, Executive orders and the trickle-down effect:
Executive orders from the Trump administration signal a shift away from DEI (Diversity, Equity, and Inclusion) initiatives, particularly impacting federal contractors, and potentially influencing private employers to review their diversity practices.
These executive orders aim to eliminate illegal DEI programs at the federal level, requiring federal contractors to certify that they are not engaged in DEI programs that violate the administration's policies. The orders also focus on defending women from what they deem as gender ideology extremism, and reinforcing the concept of biological sex, instructing federal agencies to interpret sex strictly as male or female.
Private employers should be aware that federal agencies may develop strategies to deter DEI programs that constitute illegal discrimination or preferences. As a result, you may see some employers scaling back their diversity teams or folding these initiatives into other areas of operation. Employers should also review their DEI programs for compliance with federal civil rights laws. Programs that were legal prior to the new executive orders should remain legal, but it is important to evaluate hiring practices, training on implicit bias, employee resource groups, and public statements about DEI initiatives.
Non-Compete Compliance:
With the FTC’s attempt last year to institute a nationwide ban on non-compete agreements now defeated, the enforceability of non-compete agreements remains governed by individual state law. Employers should, therefore, ensure compliance with state-specific requirements while also considering alternative protective measures, such as non-solicitation clauses and various trade secret laws.
