Five areas of employment law (at least) may be affected by Trump's second act.
by Robin Shea
at Constangy, Brooks, Smith & Prophete, LLP
The times, they are a'changin'.
Wasn't it nice of me to give you some time to recover from the election?
I hope everyone is safe and strong again, and ready to talk about what employers can expect from President Trump's second term. Here's a bipartisan summary of what we expect to see.
Labor law. I predict that Jennifer Abruzzo, General Counsel of the National Labor Relations Board, will be fired if she doesn’t quit first. (President Biden fired the Trump-appointed Board GC within days of taking office.) GC Abruzzo has taken very aggressive positions adverse to employers during her tenure, so her expected departure would not make me cry. President Trump can name a new Chairman of the NLRB. The only Republican on the Board now is Marvin Kaplan, who was first appointed during President Trump's first term. I'm gonna go out on a limb and predict that the new Chairman of the Board (get it?) will be Member Kaplan.
The President can't get new NLRB members confirmed by the Senate until the current members’ terms expire, but there is currently one vacant Republican seat, so he may be able to get that position filled right away. (Unless President Biden beats him to it.) The term of the current Chairman, Democrat Lauren McFerran, will expire next month, giving President Trump another vacancy. The terms of the other Democratic members will not expire until 2026 and 2028.
With a new GC, at least the "vision" for the Board should become more even-handed right away. This outstanding bulletin by Colin Finnegan of our Kansas City Office, written before the election, has much more.
Equal Employment Opportunity Commission. In my experience, political shifts don't cause dramatic changes at the investigator or district director levels. They're the same (good, at least in North Carolina) folks, whether the president is Bush Sr., Clinton, W, Obama, Trump, or Biden. But bigger changes could take place at the higher levels. I would expect Trump II to promptly inform General Counsel Karla Gilbride that her services are no longer required. (As with the NLRB, President Biden fired the EEOC's Trump-appointed General Counsel not long after he took office in 2021.)
The Commission itself currently has only one Republican, Andrea Lucas, who was appointed by -- you guessed it -- Trump I. I would expect Trump II to appoint Commissioner Lucas as Chair, and nominate another Republican to fill a vacant seat and, assuming Senate confirmation follows, name that individual Vice Chair. Then the current chair, Charlotte Burrows, Vice Chair Jocelyn Samuels, and Commissioner Kalpana Kotagal -- all Democrats -- would stay on until their terms expire. Chair Burrows' term won't expire until 2028, Vice Chair Samuels' term expires in 2026, and Ms. Kotagal's term expires in 2027. (Ms. Lucas's term expires in July 2025, but I would expect President Trump to nominate her for another term.) When Vice Chair Samuels' term expires in 2026, President Trump would have the opportunity to nominate a Republican and if the nominee is confirmed by the Senate, the EEOC would have a Republican majority.
Once the EEOC has a Republican majority again, I would expect it to either rescind or revise its recent Enforcement Guidance on Workplace Harassment, toning down (if not removing) the provisions relating to use of pronouns and preferred names, and restroom rules, as forms of unlawful gender identity harassment. Commissioner Lucas has been sharply critical of these provisions. We may also see more explicit provisions relating to reasonable accommodation of employees' religious beliefs in this regard.
The EEOC might also promulgate revised regulations under the Pregnant Workers Fairness Act to remove the requirement that employers make reasonable accommodations for employees having elective abortions. Both the Enforcement Guidance and the PWFA regulations are being challenged in the courts on these grounds, so removing those provisions would presumably make the lawsuits moot. Apart from that, I would not envision radical changes at the EEOC under a second Trump Administration.
The Department of Labor
As of Thursday night as I was writing this post, President Trump had not yet identified a nominee for Secretary of Labor. But we can safely assume that he would name someone relatively employer-friendly. If that's correct, then here is what we might expect in the areas of wage and hour, OSHA, and affirmative action (with a little help from my friends):
Wage and Hour. The salary threshold for the white-collar exemptions to the overtime requirements under the Fair Labor Standards Act increased in July and is due to increase again on January 1, before President Trump is inaugurated. So I would expect that January increase to go into effect as scheduled unless a court enjoins it. Once President Trump takes office and his Secretary of Labor is confirmed, new regulations could be issued. However, any new regulations would have to go through the notice-and-comment period, which could take a while. Also, a reversal -- especially where people's pay is concerned -- may be more difficult to pull off than merely putting on the brakes. So we'll have to see. For more on this issue, please see the excellent bulletins by Jim Coleman and Ellen Kearns, chairs of our firm's Wage and Hour Practice Group, here, here, and here.
The DOL during the Biden Administration also issued independent contractor regulations which -- to oversimplify like crazy -- made it much more difficult for a worker to be classified as an independent contractor as opposed to an employee. Under a second Trump Administration, those regulations are likely to be replaced by regulations that reinstate the more contractor-friendly standard that the first Trump Administration tried to put in place.
I wouldn't expect any radical changes to the DOL's current interpretation of the Family and Medical Leave Act.
Occupational Safety and Health Administration. I admit it. For this one I didn't dare to even summarize! Instead, I asked Bill Principe and Pat Tyson, the chairs of our Workplace Safety Practice Group, to provide their insights. Here is what Bill said (and Pat agreed):
“You can expect any proposed OSHA Standards, such as the Heat Stress Prevention Standard, to get stalled if not completely withdrawn. The new head of OSHA will be someone from the business community, if the position is filled at all. During the first term, as Compliance Officers left the Agency, they weren’t replaced or at least the replacements were slowed down significantly. If there are vacancies at the OSH Review Commission, you can expect them not to get filled. There will be more emphasis on compliance assistance than enforcement, although it will not be very useful assistance. But, enforcement will continue with large penalties as happens now. The personnel in Area and Regional Offices will be unchanged and will largely be free to continue to do their jobs, business as usual. There will not be the promotion of retaliation or whistleblower cases to the same extent as under the present Administration."
Bill added that the regulations allowing third parties to accompany OSHA inspectors has not been a major issue but that the new Trump Administration may still roll that back.
Affirmative Action. This is another area where I thought it best to quote a higher authority -- Cara Crotty, head of our Affirmative Action/OFCCP Compliance Practice Group and also co-chair of our new Diversity Equity & Inclusion Practice Group. Here's what Cara had to say:
“The OFCCP in the second Trump administration is likely to look a lot like the first. The agenda may include
- Focusing on contractors’ questionable DEI policies and practices that could constitute reverse discrimination
- Reissuing an executive order prohibiting “divisive” training by contractors
- Returning to enforcement procedures that the Biden administration rescinded
- Providing more transparency to contractors regarding agency practices
- Ensuring religious organizations have clear and appropriate exemptions
- Eliminating Executive Order 11246 altogether
Wait, what? According to Cara, I read that last one right:
“Regarding the final bullet, conservative pundits have suggested that President Trump could rescind the presidential order issued by President Lyndon Johnson, which requires federal contractors to recruit women and minorities and to develop 'affirmative action plans' analyzing the racial and gender demographics of employees. Such a rescission would be a radical change for contractors and would dramatically alter their compliance obligations."
Whoa. Glad I asked. It never occurred to me that abolition of E.O. 11246 was in the cards.
BONUS: Judicial appointments
As most people know, during his first term, President Trump had beaucoups of judicial appointment opportunities, including three U.S. Supreme Court justices (Gorsuch, Kavanaugh, and Barrett). He won't have quite so many this time, but as of this morning there were 45 judicial vacancies in the federal courts and only 15 pending nominations. Even if all 15 nominees are confirmed, that would give President Trump 30 seats to fill, which isn't too shabby. And in addition to the 45 current vacancies, there are 20 future vacancies (for example, when a judge gives notice of intent to step down or take senior status). For those future vacancies, there are already 11 pending nominations, so really only about nine positions that President Trump might be able to fill, assuming President Biden's nominees are confirmed.
Of course, a burning question is whether Supreme Court Justices Clarence Thomas (age 76) and Samuel Alito (age 74) will decide to step down after President Trump takes office so that he can nominate their successors. Some Democrats are encouraging Justice Sonya Sotomayor (age 70) to step down now so that President Biden might have a shot at appointing her successor. (Justice Sotomayor has replied, in so many words, "Nope.")
Interesting times! We will keep you posted.
