Election 2024 Labor & Employment Special Report

During the second Trump administration, we anticipate that the EEOC’s routine enforcement and litigation activities would continue, as would policy initiatives capable of garnering bipartisan support. Indeed, the vast majority of the EEOC's day-to-day enforcement and litigation activities are politically uncontroversial and enjoy strong bipartisan support. However, the EEOC is unlikely to move forward with policy initiatives or new litigation filings perceived as advancing Republican priorities, because the EEOC is unlikely to have a Republican majority until at least July 2026. On the other hand, even without a Republican majority, the EEOC will likely not be able to move forward with policy initiatives or filing amicus briefs or litigation perceived as advancing Democratic priorities.

Currently, the five-member EEOC has three Democratic Commissioners and one Republican Commissioner, with one unfilled vacancy. President-elect Trump’s second inauguration will not automatically end the terms of sitting EEOC Commissioners, who, pursuant to Title VII, are confirmed to staggered 5-year terms. Based on the expiration of the terms of the currently serving Commissioners, there will not be sufficient vacancies to give Republicans a majority on the EEOC until July 2026.

After his second inauguration, one of President Trump’s first executive actions would almost certainly be to designate the lone Republican EEOC Commissioner, Andrea Lucas, as Acting Chair. But even though she would be able to exercise the administrative and procedural powers as the Acting Chair, until future vacancies on the EEOC are filled, Acting Chair Lucas would continue to be in a Republican minority on the EEOC. 

We believe it extremely unlikely that any of the current Democrats on the EEOC would voluntarily resign, giving President-elect Trump the opportunity to nominate their replacements before the end of the current term. Thus, even assuming that upcoming vacancies on the EEOC are filled by having a candidate be nominated by the President and confirmed by the Senate, which is by no means a certainty, the EEOC would maintain a Democratic majority until July 2026.

With control of the Senate flipping to the Republicans, it is likely that President-elect Trump will prioritize filling the upcoming vacancies on the EEOC, and that Republican leadership in the Senate would be likely to prioritize granting floor time to these nominees to keep the EEOC out of Democratic control. However, barring resignations or other disruption to the membership of the EEOC, sufficient vacancies to give the Republicans a majority on the EEOC would not occur until July 2026.

Even without a majority, the EEOC Chair (or an Acting Chair) can, on her own authority, issue subregulatory guidance such as technical assistance. Notable EEOC technical assistance documents, issued solely under the authority of the Chair, include the EEOC’s 2022 technical assistance regarding artificial intelligence and the Americans With Disabilities Act, its 2023 technical assistance regarding Title VII and AI, and the EEOC’s COVID-19 “What You Should Know” document, which was updated frequently during the COVID-19 pandemic.

However, formal EEOC guidance (including notice-and-comment rulemaking pursuant to the Administrative Procedures Act) requires the approval of the Commission. While Acting Chair Lucas could, on her own authority, revoke or revise technical assistance documents issued solely under the authority of a previous Chair, she would not be able to revoke existing formal guidance, or start new rulemaking initiatives, without the approval of the full Commission. Without a Republican majority to overcome the objections of Democratic members of the EEOC, an Acting Chair Lucas would be unable to revoke the EEOC’s rules implementing the Pregnant Workers’ Fairness Act, its enforcement guidance regarding harassment, or to initiate new initiatives to collect pay data.  Absent a Republican majority, a Republican-led EEOC would similarly be unable to modify the EEOC’s current Strategic Plan or its Strategic Enforcement Plan.

As the administrative head of the Agency, the Acting Chair is responsible for evaluating the agency’s senior career executives, and setting the criteria by which that evaluation would take place. The Acting Chair also has a great deal of discretion regarding how the agency spends its allocated budget. Despite these and other ways that an Acting Chair can influence career staff, other structural and regulatory safeguards limit direct political interference in many types of enforcement decisions.

Thus, while Commissioner Lucas has spoken out regarding her view that many private-sector employers’ DEI programs violate Title VII, and in 2022, Bloomberg Law reported that Lucas signed commissioner charges asserting that at least three companies unlawfully discriminated by providing employees with abortion-related travel benefits, wielding the power of the Acting Chair, Lucas would have to push through multiple levels of career staff in order to directly influence the outcome of those investigations.

In October 2020, then-President Trump signed an executive order, seeking to create a new “Schedule F” classification that would have stripped civil service protections from career federal employees in positions of a “confidential, policy-determining, policy-making, or policy-advocating character.” While this order was formally revoked by President Biden as one of his first acts in office, similar proposals have resurfaced in conservative policy circles, including in the Heritage Foundation's Project 2025 initiative (which President-elect Trump has sought to distance himself from). Even if these reclassification efforts gain momentum in the second Trump administration, they would face extensive procedural hurdles and high-profile legal challenges, significantly delaying any attempted expansion of the EEOC Chair’s authority to reclassify and remove career staff. In short, while “Schedule F” or similar reclassification effort could theoretically expand an EEOC Chair's authority over career staff decisions, the combination of procedural requirements, legal challenges and institutional safeguards means that any such authority would not be immediately available to the Chair as a tool to influence specific enforcement outcomes early in a new administration.

Regarding EEOC-initiated litigation, the current internal procedures that the EEOC operates under require an affirmative vote of the Commission to approve all amicus filings. Under these procedures, the Chair can exercise her discretion to decline to present an amicus brief to the Commission for approval, so during the second Trump administration, even without a Republican majority, only amicus briefs aligning with the Chair (or Acting Chair’s) philosophy would even be presented to the Commission for approval.

The statutory text of Title VII reserves to the Commission the right to approve litigation, but grants to the EEOC General Counsel the ability to “conduct” litigation. Thus, an EEOC Chair or Acting Chair faces statutory limits on her ability to direct ongoing litigation once it has been approved by the Commission and initiated by the General Counsel's office. Under the Commission’s current procedures, the General Counsel, or in the absence of a General Counsel career staff in the General Counsel’s office, have been delegated the authority to initiate certain types of litigation. Thus, litigation perceived as “routine” is likely to continue, notwithstanding any change in the political leadership. Additionally, careful watchers of the EEOC have observed that Commissioner Lucas has often previously voted to approve litigation, over the objection of her then-fellow Republicans on the EEOC. Those prior bipartisan votes further indicate the probability that an Acting Chair Lucas would support similar ongoing litigation and enforcement efforts.

However, under the Commission’s current procedures, the full Commission must vote to approve the filing of certain types of litigation, including but not limited to all litigation characterized as “systemic” litigation, cases “likely to generate public controversy”, and cases that seek to overturn existing precedent. Thus, career staff in the Office of General Counsel would face significant headwinds in any attempt to unilaterally initiate significant litigation that falls into categories proscribed by the current litigation delegation. Of course it is also possible that during the upcoming lame duck period, the current Democratic majority on the Commission will exercise their prerogatives to revise the current litigation delegation to delegate additional authority to career staff, or to create additional procedural hurdles for the incoming administration.

Additionally, while a second Trump administration could potentially follow President Biden's precedent in firing the EEOC’s General Counsel, the Federal Vacancies Reform Act would then elevate the current Deputy General Counsel, Christopher Lage, a career EEOC official, to Acting General Counsel. Any attempt by Republican political leadership at the EEOC to direct specific litigation outcomes in politically volatile matters would require either tacit cooperation from, or otherwise pushing through resistance from multiple layers of career leadership, including managers in the Office of General Counsel, individual Regional Attorneys, and supervisory and trial attorneys in the district offices.

Thus, while there is a great deal of momentum for the EEOC’s routine enforcement and litigation efforts to continue during a second Trump administration, an Acting Chair Lucas would face significant structural and institutional constraints in directing specific litigation outcomes.

In conclusion, while a second Trump administration would immediately bring new political leadership to the EEOC, the combination of fixed Commissioner terms, civil service protections, and existing procedural safeguards would significantly constrain any immediate dramatic shifts in policy or enforcement priorities. While Acting Chair Lucas will be able to exercise meaningful administrative authority, she will still face substantial structural limitations in implementing partisan policy changes without a Republican majority on the EEOC.

Title VII’s religious organization exemption and the common law ministerial exception have become a battleground for hot-button issues like LGBTQ+ rights and religious liberty.

Pursuant to the religious organization exemption, Title VII allows “religious organizations” and “religious educational institutions” to hire and employ people who belong to the religion espoused by the employer (which otherwise would not be a permissible basis for making hiring decisions).  Pursuant to the “ministerial exception,” Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws, including Title VII; the Age Discrimination in Employment Act; the Equal Pay Act; and the Americans with Disabilities Act.

In a landmark 2020 case, Bostock v. Clayton County, the US Supreme Court held that Title VII’s prohibition of discrimination in employment because of an employee’s “sex” includes a prohibition of discrimination based on the employee’s sexual orientation or gender identity.  In reaching its holding, the Court noted the statutory exception to Title VII for religious organizations, and implied that religious organizations may be exempt from the prohibition of discrimination based on sexual orientation or gender identity:

[W]hile other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

In the aftermath of Bostock, Courts across the country have grappled with (and disagreed about) the scope of the religious organization exemption.  Notably, in a 2023 case, Braidwood Management, Inc. v. EEOC, the United States Court of Appeals for the Fifth Circuit held that a for-profit employer may be exempt from Title VII prohibitions against sexual orientation and gender identity discrimination if those requirements are found to substantially burden the employer’s religious beliefs.

Likewise, the ministerial exception has been vigorously litigated in the past several years.  In a 2024 case, Billard v. Charlotte Catholic High School, the United States Court of Appeals for the Fourth Circuit expanded the scope of employees excluded from the protections of federal civil rights laws under the ministerial exception.  In Billard, the plaintiff was a longtime, beloved drama and English teacher at a private Catholic school.  Both the plaintiff and the school agreed that he was a lay teacher, not an ordained priest.  However, the plaintiff’s lessons adhered to religious doctrine, and he collaborated with the school’s religion instructors to ensure continuity in religious messaging.  After the plaintiff announced that he was getting married to a person of the same sex, the school did not invite him to return as a teacher.  Despite the fact that the school had conceded the ministerial exception defense, the Court said it was entitled to revive the defense on its own accord because the case implicated structural Constitutional issues.  Then, the Court held that any employee advancing the religious teachings of a religious institution is a “minister” exempt from federal civil rights laws.

President-elect Trump's campaign addressed religious exemption and ministerial exception issues indirectly in published campaign materials.  The Trump campaign framed the issue in terms of religious liberty, while vowing to “end Left-wing Gender Insanity.”  President-elect Trump’s platform was that the First Amendment “protects the Right [sic] not only to Worship [sic] according to the dictates of Conscience [sic], but also to act in accordance with those Beliefs [sic], not just in places of Worship [sic], but in everyday life.”  President-elect Trump's campaign pledged to “support a new Federal Task Force on Fighting Anti-Christian Bias [sic] that will investigate all forms of illegal discrimination, harassment, and persecution against Christians in America.”

The big-picture impact of the Second Trump administration on Diversity, Equity, Inclusion, and Belonging (DEIB) programs is simple and stark. President-elect Trump and others in his administration will likely take steps to obviate or scale back existing DEIB programs within the government and other workplaces.

Although it was the consideration of race in university admission decisions that the Supreme Court struck down in the 2023 case Students for Fair Admissions (“SFFA”) v. Harvard and UNC, SFFA was a milestone in long-standing efforts by largely conservative opponents to broadly undermine DEIB programs. Within hours of the ruling, President-elect Trump touted “a great day for America” because “[w]e’re going back to all merit-based—and that’s the way it should be!”

President-elect Trump’s statements on DEIB programs remained consistent throughout the campaign, including its home stretch. For example, President-elect Trump pledged to “remov[e] all Marxist diversity, equity, and inclusion bureaucrats” and “drastically cut … the costly, divisive, and unnecessary Diversity, Equity, and Inclusion bureaucracy.”

Based on both statement during the campaign, and actions taken during the first Trump administration, actions that the Trump administration may take include, but are not limited to:

• Rescind regulations prohibiting discrimination on the basis of sexual orientation, gender identity, transgender status, and sex characteristics
• Direct agencies to focus their enforcement of sex discrimination laws on the biological binary meaning of “sex”
• Seek to keep “anti-life” benefits out of benefit plans
• Seek to prohibit or at least restrict DEIB trainings, particularly targeting ones associated with Critical Race Theory (CRT)
• Eliminate EEO-1 data collection
• Seek to prohibit private employers from identifying and tracking race and perhaps other protected characteristics
• Seek to eliminate disparate-impact liability (without which it becomes easier to prohibit the identification and tracking of one or more protected characteristics)
• Eliminate the OFCCP or, more likely, undercut its scope of authority (including forbidding it from using disparate impact in its analyses)

Of course, there are far from insignificant limits to what can be implemented from the above through executive orders and administrative actions, which would be limited in reach to federal employment and federal contractors.  In contrast, legislation would have a broader reach, but would need to make it through the House and Senate without Presidential veto. There could also be change from broad (such as Constitution-based) Supreme Court Rulings, though it remains to be seen whether the composition of the Court (and its political balance) will be impacted by a vacancy during the Second Trump administration. Regardless, the impact of the Second Trump administration on DEIB programs seems likely to be great.

Democratic leadership at the EEOC signaled their desire to initiate new pay data collection efforts in early 2025. Employers should not expect these efforts to continue under the second Trump administration, and the deadlines established by the Paperwork Reduction Act mean that the current Democratic majority on the EEOC cannot finalize any data-collection approvals before President Trump's inauguration. (In order to meet the deadlines set by the PRA, the Democratic majority would have had to publish its first Federal Register notice on the issue in August 2024. No such notices have been published.)

As discussed above, we expect that after his second inauguration, one of President Trump’s first executive actions would almost certainly be to designate the lone Republican EEOC Commissioner, Andrea Lucas, as Acting Chair.

We believe it unlikely that Acting Chair Lucas would move forward with any pay-data collection efforts at the EEOC. In 2022, the National Academies issued a report assessing the EEOC’s prior pay-data collection efforts, and then-Commissioner Lucas issued a public statement emphasizing her view that, “Before the EEOC gambles on a potentially billion-dollar burden on our nation’s private employers,” it should at a minimum go through formal notice and comment rulemaking and solicit public input. Moreover, data collection efforts under the PRA must be approved by the White House’s Office of Management and Budget, and we believe it highly unlikely that the second Trump administration will look favorably on imposing costs of this magnitude on American businesses.

One of the “strategic priorities” in the EEOC’s Strategic Enforcement Plan for FY 2024-2028, is “advancing equal pay for all workers”. As discussed above, we expect the EEOC to operate with a Democratic majority until at least 2026, so the EEOC’s career enforcement and litigation staff will continue to have a mandate to devote extra resources to investigating (and potentially developing litigation) regarding pay equity issues. Assuming the Senate’s prompt confirmation of the President’s nominees to the EEOC, a Republican majority on the EEOC would only be able to revisit these enforcement priorities by the middle of 2026.

In January 2024, the Federal Acquisition Regulatory Council proposed a new rule on pay transparency and equity in federal contracting, and while public comment on the Proposed Rule closed in April 2024, the Final Rule has not yet been issued.  If adopted as written, the Proposed Rule would prohibit contractors and subcontractors from seeking and considering information about job applicants' compensation history when making employment decisions for certain positions, and contractors and subcontractors would be required to disclose the compensation to be offered to the hired applicant in job announcements for certain positions. 

Some business groups have raised objections to the Proposed Rule through public comments, and we do not expect to see much support for the proposal from President-elect Trump's administration. Indeed, if the proposed FAR rule is finalized before January 20, it is likely that the incoming Administration will seek to take some executive action to delay or rescind the rule.

In the next Trump administration, we at a minimum expect to see new executive orders related to the scope and authority of the Office of Federal Contract Compliance Programs (OFCCP) and existing contractor obligations.  

We note, that while President-elect Trump has not endorsed Project 2025, some commentators believe that it may reflect certain policy priorities in the second Trump administration.  Here, if that is the case, that may translate into actions that may scale back or eliminate the OFCCP altogether. 

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) was recently enacted with widespread bi-partisan support.  It requires employers to provide reasonable accommodations to pregnant employees and job applicants with temporary physical or mental limitations due to pregnancy, childbirth, or related conditions. The EEOC issued its final regulations under the PWFA in April 2024; those regulations became effective June 18, 2024, over the disapproval of the two sitting Republican Commissioners, Keith Sonderling and Andrea Lucas.

The EEOC’s PWFA regulations have already been challenged in court in the Eastern District of Arkansas and the Western District of Louisiana.

When then-Commissioner Lucas voted to disapprove the EEOC’s PWFA regulations, she issued a 16-page memorandum explaining her vote. While then-Commissioner Lucas expressed support for some elements of the rule, praising the PWFA as a “tremendous, bipartisan achievement,” she sharply criticized the rule’s scope.

As discussed above, under the EEOC’s current voting procedures, even without a Republican majority, Acting Chair Lucas will have the power to prevent the EEOC from initiating controversial litigation she disagrees with.

Also, as discussed above, after his inauguration, Trump could fire the EEOC General Counsel, but if he does so EEOC litigation would be managed by career staff at the EEOC, at least until the Senate confirms a new General Counsel. A new Trump-appointed General Counsel would also have the power to halt (or hamper) the initiation of PWFA litigation she disagrees with.

Thus, both a Trump-nominated and Senate-confirmed EEOC GC and Acting Chair Lucas would have many tools at their disposal to prevent some EEOC-initiated litigation from being filed. Thus, after Trump’s inauguration, we believe the EEOC is unlikely to initiate litigation (or file amicus briefs) seeking to broaden the scope of the PWFA from pregnancy and childbirth accommodations to accommodations relating to all conditions or procedures relating to the female reproductive system. Likewise, and especially given Andrea Lucas’ prior statements on the issue, we believe the EEOC is unlikely to support initiating litigation as to the enforceability of the regulations’ reach as they relate to the PWFA definitions of “related medical conditions” as well as “temporary” and “in the near future,” as related to defining whether the employee is qualified to perform the essential functions of the job.

Under the Biden administration, a shift in federal OSHA’s focus to vulnerable worker populations and the effects of climate change has further highlighted occupational heat illness as a primary enforcement focus.

The Biden administration’s long-awaited draft heat illness prevention standard (“Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings”) was released on July 2, 2024. OSHA then published its Notice of Proposed Rulemaking in the Federal Register in August 2024, setting off the official rulemaking process. Per OSHA, “this is a significant step toward a federal heat standard to protect workers.”

The proposed standard would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agriculture sectors where OSHA has jurisdiction. The standard would require employers to create a written plan to evaluate and control heat hazards in their workplace. OSHA is accepting comments on the proposed standard until December 30, 2024. After OSHA considers the comments, OSHA states that it can take anywhere between 18-36 months for it to publish the final rule.

In the interim, OSHA under the Biden administration continues to aggressively enforce indoor and outdoor heat illness hazards through the OSHA Act’s General Duty Clause. In addition, on April 8, 2022, OSHA released a National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, which provides the Agency’s policies and procedures with respect to targeted enforcement of heat hazards. The Program will remain in effect for 3 years unless canceled or superseded by another directive.

The summer of 2024 was the hottest on record in the northern hemisphere according to the U.S. Department of Commerce.

Despite that fact, the arrival of a new Trump administration – which has touted deregulation as a key objective – may very well derail the prospects of the rule becoming final and could have a similar impact on the current National Emphasis Program.  Two states that tilted decidedly in President-elect Trump’s favor – Texas and Florida – have aggressively opposed heat illness protections in those states by prohibiting local governments from enacting such protections. Some have opined those states and, potentially, others may challenge a federal heat illness prevention standard, if implemented.  Still, for the time being, it remains unclear what will become of the proposed rule. 

Under the first Trump administration, we saw OSHA budgets remain mostly flat coupled with a decrease in compliance personnel and a rollback of some of the more controversial Obama-era initiatives.  At the same time, OSHA compliance activity actually increased during the first Trump administration.  However, the fact that neither the agency nor its enforcement agenda underwent the kind of dramatic overhaul promised for government agencies this time around likely stemmed from the fact that the first Trump administration never gained confirmation of an Assistant Secretary of Labor to head the agency.  This stymied implementation of policies prognosticators believed would mark a significant departure from his predecessor’s.  That said, our last experience with a Trump administration may provide little insight into what to expect this time around given the decidedly different political environment.

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo overturned long-standing precedent, known as the Chevron doctrine, that deferred to a federal agency’s reasonable interpretation of ambiguous statutes. Though the full impacts of the decision remain unknown, the new ruling will undoubtedly affect administrative agencies in their regulatory and enforcement capacities and present additional considerations for any new administration. This includes the operation of the Occupational Safety and Health Administration (“OSHA”).

While the ruling does not immediately alter OSHA’s regulations and standards, it opens the door for bringing—and increases the likelihood of succeeding—on legal challenges concerning ambiguous statutes. For example, employers now have new potential defenses in response to OSHA-issued citations. Specifically, that OSHA lacked the authority under the OSH Act to promulgate the cited regulation as the regulation derived from OSHA’s incorrect interpretation under the OSH Act. Should an employer prevail, the regulation would become hollow and the citation vacated.

A further consequence of the decision is that it is likely that OSHA, which traditionally engaged in broad rulemaking authority, will narrow its regulations to more closely align its proposed rules with relevant statutory authority. This has already been observed as OSHA, since the Loper Bright decision, ceased issuing interpretation letters. Interpretation letters provide responses to employers who write to the agency asking for guidance on how to comply with certain regulations. It is notable that in the four months since the decision, OSHA has issued none. In the past decade, OSHA has never failed to release an interpretation letter in the same period (July-October).

While agency power has arguably been constricted in the wake of the Loper Bright decision, a new administration raises additional considerations and consequences. Specifically,  President-elect Trump will likely reduce the number of inspections, rescind certain rulemaking, and decline to expand the current regulatory framework. It may also attempt to walk back or amend rules favorable to union workers, such as the recent final “Walkaround” rule, which clarified that employees have the right to designate a non-employee third parties to be their representative during physical inspections of worksites.

Given the above, post-Loper Bright, employers should continue to comply with existing OSHA regulations or interpretations and recognize that under the current Supreme Court majority, agency power has been weakened. The new regulatory landscape increases the likelihood of success in challenging OSHA’s rulemaking and enforcement authority, presenting new opportunities for employers in their defense of OSHA citations.

In the wage and hour space, one of President-elect Trump repeatedly proposed the elimination of taxes on overtime wages to ease the tax burden on hourly workers.   For employers, the implementation of such a proposal would incentivize hourly employees to work longer hours as their effective overtime rate would be even higher without paying taxes.  Such a change could significantly shift employees' views as to whether their positions should be deemed exempt or non-exempt, given the significantly greater value of overtime pay.   This change could in turn lead to an increase in misclassification lawsuits. President-elect Trump has also called for tax-free tip earnings with the same goal in mind of easing the burden on low-wage earners. Interestingly, though, we know in practice many tipped workers do not report most of their tipped earnings to the IRS. Often, we see tipped workers report enough tips to rise to minimum wage but not much beyond that. If tips were not taxed by the IRS, we could see a trend that could be favorable to service industry businesses when it comes to reporting measures, as employees would have no reason to misreport their wages to avoid taxation. It might also create a shift where employees prefer to have lower wage rates if it means there is room in consumer budgets to tip, as presumably a lower amount of compensation would be subject to income tax.

Another focus on overtime is the current salary thresholds set by the Department of Labor (DOL) in the Spring of 2024. In July, the salary threshold for exempt employees rose to $43,888. Come January 1, 2025, the salary threshold is set to increase to $58,656 – a big number for most corporations. The increase to the salary threshold will make millions of US workers eligible for overtime – who otherwise would have been exempt based on their job duties. Many believe that the new administration may direct the Department of Labor to lower the threshold. The rule, however, goes into effect on January 1^st, and President-elect Trump will not take office until January 20^th. It is unlikely that on day one he would reduce the salary threshold. More likely is that one of the pending cases will freeze the rule and allow President-elect Trump and Congress to amend the rule.

Republicans have advocated in recent years for amendments to be made to the FLSA to limit the law’s scope, while Democrats have pushed to enhance protections against and penalties to punish employers for what they call employee “wage theft.” Most practitioners in this space agree that congressional action is unlikely to succeed on the parties’ various respective proposals on these points, though with President-elect Trump winning and a high chance of all three branches being uniform, broad revisions to the FLSA could occur in piecemeal.

One other wage-hour hot-topic concerns who is an employee and who is an independent contractor, which is addressed below.

The following is a forecast regarding flexible work options, worker independence, and independent contractor status changes that are on the agenda of the Republican administration following the 2024 election.

Under the current Biden administration, the Seyfarth policy team dubbed the new DOL goals as the “Great Undoing,” i.e., pursuing a strategy to withdraw anything and everything accomplished by DOL during the Trump administration. We predict that a second Trump administration will mirror this “Great Undoing,” including possible withdrawal of the current 2024 Independent Contractor (IC) Rule with the 2021 IC Rule promulgated under the Trump administration.

The Biden administration’s 2020-2024 term began with attempts to remove the Trump-era regulation on the classification of ICs.  As a result of a successful court challenge to the Biden administration’s attempts to remove the 2021 IC Rule, the 2021 IC Rule was effective from 2021 through March 10, 2024.  Ultimately, a new IC Rule was promulgated in its place and became effective on March 11, 2024, three years after the start of the Biden administration. Even so, the 2024 IC Rule is currently being challenged in a number of lawsuits as arbitrary and capricious under the Administrative Procedure Act. There is widespread support in the employer community for a return to the 2021 IC Rule, as opposed to the 2024 IC Rule promulgated under the Biden administration.  Whether the pending lawsuits’ challenges to the 2024 IC Rule will be successful must await a final judicial ruling. 

The DOL under a Trump administration will be much less active with respect to curtailing the opportunities for independent contractors to provide services outside a traditional employee:employer relationship, including decreased engagement in enforcement actions, while focusing on education, guidance, and a return to the 2021 IC Rule through DOL rulemaking. A 2024-2028 Republican administration will continue to base its policies on ensuring that the federal government does not unreasonably limit the opportunities of independent workers to perform work in flexible work arrangements, including independent contractor relationships.

Republican Administration

1. Possible Secretary of Labor Appointments
   During a second term, President-elect Trump may consider Patrick Pizzella, a figure who is well-known to business groups and conservatives. Pizzella served as United States Deputy Secretary of Labor throughout the Trump administration.  Bryan Slater is also a potential pick.  Currently the Virginia Governor’s Labor Secretary, Slater was an assistant secretary at the Labor Department later in the last Trump administration.
2. Agenda
   President-elect Trump has not yet directly addressed how his administration would approach independent contractor issues, but it is expected that one of the first priorities of a second Trump administration will be a return to the 2021 IC Rule.
   
   Project 25, which has been said by some to have been drafted by advisors closely aligned with the Trump campaign, have made clear that the value of flexibility extends beyond ride-sharing and that businesses should have wide leeway to classify workers as independent contractors throughout the economy.  While President-elect Trump has not endorsed Project 25, it is in line with President-elect Trump’s position on the importance of allowing independent workers to engage in independent work in light of the freedom and flexibility it provides to workers.
   
   While President-elect Trump has not provided details with respect to any plans related to independent workers, we note that throughout 2024, certain Republican lawmakers, including Senator Bill Cassidy, ranking member of the Senate Health, Education, Labor, and Pensions Committee, are focused on removing roadblocks to independent work as well as barriers to companies offering portable benefits to independent workers. Earlier this year, Senator Cassidy issued an RFI on obstacles that currently exist to providing independent workers with portable benefits.  We are likely to see Congressional hearings schooled on this topic and new legislation proposed both to provide clarity and certainty to a worker’s status as an independent contractor as well as to remove barriers to the provision of certain benefits and protections to workers classified as independent contractors.
   
   It is also likely that in a second Trump administration you will see the Congressional Review Act come into play in connection with any new federal regulations issued by government agencies late in the Biden administration. The CRA gives Congress the right to review new federal regulations and by passage of a joint resolution, to disapprove of a newly proposed regulation.  That “disapproved regulation” can then be invalidated it if the disapproval resolution is signed by President-elect Trump or passed by two-thirds of both Houses of Congress.
3. Enforcement
   In a second Trump administration, employers are likely to see a focus on enforcement and education as well as resolving compliance issues through settlements as opposed to through enforcement litigation.  In addition, one would expect that in a second Trump administration, the imposition of civil monetary penalties will not be as often or as significant as under the current Biden administration.

The National Labor Relations Board’s (NLRB or Board) 10-year odyssey to redefine its joint employer standard will continue regardless of the outcome of the 2024 election, although the Board’s direction may well be shaped by which Presidential candidate wins.

The Long and Winding Joint Employer Road

Under the Obama administration, the NLRB overturned, in its 2014 Browning-Ferris decision, 30 years of precedent holding that joint employment is based on two or more employers exercising substantial direct and immediate control or co-control over an essential employment term(s) (e.g., hiring, firing, discipline, compensation, work rules, supervision/direction).  The Browning-Ferris Board instead concluded that a joint employer relationship could be found as a result of employers sharing indirect or contractually reserved but unexercised control – in addition to or in lieu of direct control – over such subjects.  A joint employer finding can be significant because it can result in, e.g., a service client or franchisor being ordered to collectively bargain with or remedy unfair labor practices regarding the service provider’s/franchisor’s employees.

The NLRB’s Browning-Ferris decision was partially enforced by the US Court of Appeals for the District of Columbia Circuit, which remanded the case to the Board to reconsider its definition of indirect control given the court’s concerns.   On a separate track, in 2020, during the Trump administration, the NLRB issued a joint employer rule, which explicitly provided that the touchstone of joint employer status was substantial direct and immediate control over another employer’s employment terms.  Indirect or reserved control could be relevant to the joint employer analysis, but was insufficient to establish joint employment.  The 2020 rule returned to many of the aspects of the Board’s pre-Browning Ferris concepts.  Along those lines, reserved rights in service contracts that, for example, established minimum provider qualifications, required drug testing, or gave a service client the right to remove a contractor’s employee from the premises, would not give rise to a joint employer finding.

In 2023, during the Biden administration, the NLRB issued its own joint employer rule, which purported to abrogate the rule from the NLRB in the Trump administration.  Among other things, the 2023 rule provided that: (a)  an “employer” is an entity which has an employment relationship with employees under common-law agency principles; (b) to be a “joint employer,” an entity must both be an employer under the common-law test, and must “shar[e] or codetermining[e] matters governing [the employees’] essential terms and conditions of employment;” (c) “sharing or codetermining” can include direct control, as well as indirect and/or reserved control over the relevant employment terms; (d) “essential terms and conditions of employment” include wages, scheduling, assignment of duties, supervision, work rules and discipline, hiring/firing, and working conditions related to the safety and health of employees; and (e) “[p]ossessing the authority to control one or more essential terms and conditions” and “[e]xercising the power to control indirectly one or more essential terms and conditions” is sufficient to establish joint employer status.

On March 8, 2024, the United States District Court for the Eastern District of Texas invalidated the Board’s 2023 joint employer rule, finding that it was both unlawfully broad and arbitrary and capricious.  In addition to finding the 2023 rule internally inconsistent, the court found the test so broad that it would render every contract for third-party labor a joint employment relationship because every labor contract has terms that impact at least one of the “essential terms and conditions of employment.” The court also chastised the NLRB for failing to provide a definite, readily available standard to assist employers and reduce litigation.

What Might Happen After the Election?

After invalidating the 2023 rule on a nationwide basis, the Texas court determined that the rule issued during the Trump administration remained in effect; the court found that the Board’s initial justification for rescinding the 2020 rule also was arbitrary and capricious.

Accordingly, at present, the 2020 rule’s provision that requires exercise of substantial direct and immediate control over one or more essential employment terms warrants finding the existence of a joint employment relationship; indirect or contractually reserved, but unexercised control is not enough.

In court filings and out-of-court statements, under the Biden administration, the NLRB has indicated that it is likely to pursue rescission of the 2020 rule; and, instead, have joint employment issues decided on a case-by-case basis as they were prior to 2020.  No definite plans for such a rescission have been announced, i.e., the Board has not issued a proposed rule.

In the wake of President-elect Trump’s election, if NLRB Chairman Lauren McFerran is re-confirmed for another term during the Congressional lame-duck session, Democratic appointees will continue to comprise a majority of the Board until 2026.  Under this scenario, we expect the Board to pursue rescinding the 2020 rule.  Given the notice-and-comment rulemaking process, doing so could take several months, and likely more than a year.  Moreover, as with the 2023 rule, it is possible that a court could find that rescinding the 2020 rule is itself unlawful.  If the 2020 rule is rescinded, this seemingly would leave the 2014 Browning-Ferris test in effect, which allows for joint employment to be found based on a lower quantum of direct, indirect and/or reserved control. 

Conversely, if Chairman McFerran is not reconfirmed,  a reconstituted Republican-majority Board presumably would keep the 2020 rule in effect.

Immigration, specifically the regulation of unlawful immigration, was a key theme of the 2024 campaign.  Coupled with the extensive record of immigration policy changes during President-elect Trump’s first term, observers should anticipate that consequential changes in immigration policy will continue as a centerpiece of a second Trump term.

President-elect Trump’s campaign website does not outline an action plan to achieve immigration-focused end goals, but the landing page of his website outlines his “20 Core Promises To Make America Great Again!,” and the first two of which are: (1) seal the border and stop the migrant invasion and (2) carry out the largest deportation operation in American History. The website links to a document entitled, “2024 GOP Platform Make American Great Again!” outlining ten chapters of objectives. In the first chapter, focused on “defeating inflation,” President-elect Trump establishes his goal to “stop illegal immigration” and ties that effort to reducing housing, education, and health care costs. The second chapter is focused on immigration, and provides end goals for his immigration policy, including “securing” the border by moving troops to the southern border states, strengthening ICE to reduce illegal entry and visa overstays, as well as reinstating the “stay in Mexico” policy.  Specifically for the business community, the website notes that Republicans will “prioritize merit-based immigration,” focusing on contributions to society and the economy rather than reliance on public resources. 

Beyond the broadly stated goal of focusing on US workers first, President-elect Trump and his team have not released actionable plans or discussions surrounding business immigration. Before leaving office in 2020, then President Trump did propose requiring companies to pay foreign-born scientists and engineers in H-1B status a minimum wage of $150,000 to $250,000 or more a year, depending on the job title and location, so it is possible that policy proposal comes back.

Anticipated priorities include:

• Southwest Border – A Trump administration will further tighten asylum standards and reinstate measures to cause asylum seekers to wait outside of the US for adjudication of their asylum cases, leaving them unavailable to work in the US. Humanitarian parole options, which also introduce a large number of new workers into the economy, will either be reduced or eliminated.  
• Interior Enforcement – President-elect Trump has newly pledged to deport all those illegally in the U.S. and also to end the Biden-era parole programs. While this unlikely to occur, at least not as comprehensively as the Former President has suggested on the campaign trail, it does suggest that a 2025-2028 Republican administration will crack down more aggressively on unauthorized persons, will curtail or eliminate to the greatest extent possible flexibilities such as DACA, Temporary Protected Status, and parole, and will attempt once again to clamp down on asylum pathways. All of these actions could potentially reduce the legal U.S. workforce.
• Employment-Based Immigration: In a 2025-2028 Republican administration, it is likely that measures which increased the burdens on employment-based immigration in the first term will be revived. These include:
  • Increased processing times, with a focus on vetting rather than timely adjudication
  • Travel disruptions based on travel bans and extended backlogs for visa stamping abroad
  • Elimination of the deference policy
  • Increased scrutiny of cases, as well as issuance of Requests for Evidence and Notices of Intent to Deny
  • Screening on applications and petitions for risk of becoming a public charge and association with or support for any communist, Marxist, socialist, jihadi, or Hamas-affiliated groups
  • Increased USCIS fees
  • Return to use of adjustment interviews for employment-based workers
  • More aggressive use by DOJ of 8 U.S.C. 1324b, which prohibits discrimination in recruitment and hiring based on citizenship, to investigate and take enforcement action against employers alleged to be discriminating in favor of sponsored foreign nationals.
• Comprehensive Immigration Reform – There were some efforts made in the 2017-2020 Trump term to develop a “merit-based” system for eligibility for legal permanent residence that would favor higher levels of education and professional achievement. It is not clear whether a 2025-2028 Republican administration will revive these efforts.

While employers remained able to lawfully hire large numbers of foreign national workers during the first Trump administration, employers will need to prepare for increased immigration processing burdens in connection with those workers.

Bipartisan efforts to create a nationwide paid family and medical leave program have materialized in recent years and are expected to continue over the next four years.

The Biden administration attempted to create a federal paid family and medical leave program as part of the Build Back Better framework. The Build Back Better Act was introduced in the House in September 2021, proposing, among other things, 12 weeks of paid family and medical leave. The proposed program was scaled back to provide four weeks of paid leave to all workers for all reasons covered by the FMLA, as well as other reasons, and while it passed the House, it ultimately did not pass the Senate. The Family And Medical Insurance Leave (“FAMILY”) Act has been proposed multiple times since 2013. In 2023, the bill was reintroduced, proposing up to 12 weeks of paid, job-protected leave for all workers but stalled for various reasons, including due to funding concerns.

Although we do not believe this issue will be as high a priority under the forthcoming Trump administration as it would have been under a Harris administration, the issue of paid leave has proven to resonate with both Democrats and Republicans. Thus, discussions and potential movement on federal paid leave remain realistic over the next four years. 

However, many details remain murky and there are potential roadblocks. The makeup of a federal paid family leave program – employee eligibility, employer coverage (including for small employers), the amount of leave, scope of covered absences and family members, how the program would be funded, how the program would interact with employer leave and time off policies, etc. – remains unclear. In addition, any federal paid family leave legislation would need to reconcile how it intersects with the existing patchwork of paid family, paid medical, and paid family medical leave laws currently in place at the state level. Similarly, the makeup of Congress also could have a major impact on whether, and what type, of federal paid leave proposal ultimately makes it to a vote.

That said, over the last nearly two years, there has been a steady stream of bipartisan work in both Chambers regarding paid family leave. In particular, the House bipartisan Paid Family Leave Working Group has issued several updates since early-2023 on their efforts consulting various stakeholders in the family leave space and identifying key issues, challenges, and other considerations. Earlier in 2024, the House working group released a legislative framework containing a nonexclusive list of possible legislative options for paid family leave. One particular option garnering attention and that is worth keeping an eye on is the “Interstate Paid Leave Action Network,” also known as “I-PLAN.”

The simple existence of House and Senate bipartisan working groups on paid family leave offers a foundation to the next administration that has not been available to previous administrations, which in turn increases the possibility of some form of federal paid family leave being enacted over the next four years.

The underpinnings of Environmental, Social, and Governance (ESG) – in its current state – was supercharged by institutional investors in 2020.  Spurred by COVID’s global disruption of supply chains and social justice movements, institutional investors more actively sought transparency on an organization’s ESG considerations in an effort to assess a company’s long-term value.  Unfortunately, ESG lacks any clear definition and has remained a mystery for many. 

This ambiguity left it ripe for politicization on the premise that ESG is fundamentally about advancing social and climate agendas.  For some, it certainly can be.  Over the past few years, the strong calls for more ESG transparency have been met with equally strong calls advancing an anti-ESG movement.  In the US, through state legislation, inquiries by Attorney General and other state regulatory actors, and litigation, ESG is a moving target.  All the while, companies are facing mounting ESG regulation at the international, federal and state levels. 

One area to watch is the role of ESG in the investment considerations of the Thrift Savings Plan (“TSP”), which is a retirement savings plan for federal employees and members of the armed forces.  We have already seen similar activity in public pension plans at the state level, on both the pro-ESG and anti-ESG sides of the debate.

Today, we are seeing just how influential anti-ESG state action has been on bringing ESG considerations to the federal level.  Currently, there is a bill that is being reviewed in the Senate called the “No ESG at TSP Act.”  This piece of legislation aims at prohibiting investments under the TSP in mutual funds “that are based on environmental criteria (e.g., emissions standards), social criteria (e.g., company diversity), political criteria (e.g., political affiliations), or corporate governance criteria that differ from the standards that currently apply under law.” The bill would prevent the Federal Retirement Thrift Investment Board from offering any fund or investment vehicle that makes decisions based on ESG criteria, to the extent that those criteria are unrelated to maximizing monetary returns for investors.  With what looks to be Republican control in all three branches of government at the time of this publication, the “No ESG at TSP Act” has a likely path to passage.

Relatedly, the Biden-era Department of Labor (“DOL”) regulations addressing ESG investing for ERISA-governed plans could meet the same fate it rendered to replace the Trump-era DOL regulations. Currently, the Biden-era DOL regulations are facing a court challenge. Even if the DOL regulations survive that litigation, the incoming Trump administration may direct the DOL to rescind the rules and issue new regulations consistent with comparable policy actions in the first Trump term.

In 2022, under Dobbs, the Supreme Court dismantled the federal Constitutional protections around abortion access specifically (and arguably reproductive health care more generally), and in light of the absence of specific federal legislation regarding the right to an abortion, gave the decision on access to each of the states.  This triggered fairly immediate action in many of the state legislatures and mobilized citizen initiatives around the country.  As a result, the topic was a focal point in the Presidential election with the two main candidates having had seemingly very different platforms and catering to their constituencies who have strongly held beliefs and values on the issue. This aspect has been well covered in the media. 

However, employers also have a vested interest in how the federal and state laws and jurisprudence evolve in this area, which is impacted by this year’s election results.  Putting aside personal belief systems on reproductive health care (be it abortion, IVF, or contraception), the costs to an employer’s health plan is directly linked to the governments’ policies where employees access care.  Studies are in agreement that lack of access to this care in those states who have severely restricted abortions adversely impact both infant and maternal mortality.  This is not just a human tragedy, but also a driver of high medical plan costs.

State Legal Landscape

We have already seen multiple state constitutional ballot initiatives seeking to either protect or prohibit abortion access with most outcomes resulting in protecting the right to access reproductive health care.  In the first sign of things to come, in August 2022, voters in Kansas soundly defeated a ballot measure that would have taken away the right to an abortion that the Kansas Supreme Court had found existed in the state constitution.  Montana voters then defeated a proposal that would have extended legal personhood to all infants “born alive” from an attempted abortion.  Citizens in Michigan and Ohio approved ballot initiatives protecting the right to abortion under their state constitutions in 2022 and 2023 respectively.

There were a whopping ten states with ballots initiatives to protect the right to an abortion (and one state with dueling measures).  In seven of those states, voters approved creating or expanding abortion rights:: Arizona, Colorado, Maryland, Missouri, Montana, , Nevada, and New York.  In three states, however, proposed expansion of abortion rights did not pass: Florida, Nebraska (the state with dueling measures, with the provision restricting abortion prevailing) and South Dakota.  The outcomes of these state initiatives are critical to the residents of those states, but also to the national discourse on this topic.

In the wake of the rapid evolution from a single standard to a myriad of state and local laws, employers have grappled with what care should (or could) be offered under their medical plans in any given state, how to ensure that their employees have equal access to medically necessary healthcare, and the resulting cost related to absenteeism and the impact on their medical and disability benefit plans.  We are tracking this patchwork of laws for our clients in our Reproductive Health Care Survey found [here]. See our discussion of those medical plan issues, including coverage for travel benefits [here]. 

National Legislation

President-elect Trump and his campaign have made shifting statements as to how they would approach access to reproductive health care.  At times he has refused to answer questions on whether he would sign a national abortion ban into law, and at other times stated he would veto it, claiming that he wants to leave it up to the states. In light of the results in the Congressional election, it may be possible that a national abortion ban could be proposed, but it remains to be seen what impact the states’ policies would have on such a measure.  It may be that the Trump administration decides to continue to leave the issue to the states.

Emergency Care

The Biden administration has been aggressively pursuing their position that the federal Emergency Medical Treatment and Labor Act (EMTALA) which requires access to emergency medical service from health care providers, includes access to abortion care where required to stabilize the patient.  Certain states have fought that interpretation through the courts.  While not entirely clear, there is a distinct likelihood that the Trump administration may reverse course and not require abortion care in an emergency situation.  And, Project 2025 (which President-elect Trump has disclaimed as an official platform for his campaign) explicitly calls for the administration to revoke the current guidance under EMTALA and stop enforcing the law in this manner.  Allowing hospitals to deny emergency, life-saving abortion care to pregnant women in crisis would seem to negatively impact employers by resulting in significant medical plan cost increases, and potentially loss of life.

Access to Contraception and Abortifacient Drugs

We have seen the debate over access to abortifacient drugs play out in the lawsuit against the FDA over its approval of mifepristone.  Although the FDA’s approval was ultimately upheld, the case was decided due to lack of standing of the plaintiffs who were a group of pro-life doctors.  More recently, three Republican-led states (Missouri, Kansas, and Idaho) have filed a new lawsuit (in the same favorable venue in Texas) seeking again to restrict access to mifepristone.  Again, while not completely clear, President-elect Trump indicated in early August that he is open to banning access to the abortion pill, and Project 2025 would seek to ban such access through use of the Comstock Act.  

It's not entirely clear what the Trump administration position will be  on protecting access to contraception, which is a covered medical item under group health plans pursuant to the Affordable Care Act (ACA) unless a religious exemption applies.  President-elect Trump's campaign suggested that a second Trump administration will remove and replace the ACA,  but the replacement program has not been explained.

In-Vitro Fertilization (IVF)

Continued access to IVF has become a concern highlighted by the Alabama Supreme Court’s decision that found an embryo created through IVF to be a child within the meaning of an Alabama statute. (See our Legal Update on that case here.)  In response, the Republican governor of Alabama signed into law a bill protecting IVF and the providers of the treatment. Both campaigns have indicated they support continued access to IVF.  On the other hand, Project 2025 calls for legal personhood status from the moment of conception, which threatens the continued availability of IVF nationwide.

Privacy (Travel)

As discussed above, many employers’ medical plans have looked at providing coverage for travel benefits where otherwise covered care is not available in the participant’s home state.  There has been unease that some states (e.g., Alabama, Idaho, Tennessee, and Texas) where abortion is illegal would seek to prosecute its citizens (and those who helped them) who sought care in states where the procedure is legal.  As a result, concern has been expressed over a woman’s right to privacy concerning her pregnancy, and whether an employer’s health plan would have to report information it has as to a pregnancy of a participant to law enforcement. 

HHS, under the Biden administration has issued guidance under the HIPAA privacy rules that a covered entity, such as an employer’s health plan, may not disclose such information to law enforcement where it is sought for the purpose of conducting an investigation into a person regarding their reproductive health care or imposing liability for such care.  (See our report on the new rules here.) It is likely that a Trump administration would direct HHS to remove that guidance.

While the Trump campaign did not discuss a national program to monitor pregnancies, Project 2025 calls for passage of “The Ensuring Accurate and Complete Abortion Data Reporting Act of 2023” which would amend the Social Security Act and Public Health Service Act to improve the CDC’s reporting mechanisms by requiring all states, as a condition to receiving Medicaid payments for family planning services, to report data on abortions and miscarriages. 

With the election behind us, the incoming Trump administration personnel and focus will continue to clarify.  We will be monitoring these issues and the potential impact on employers.

The last 20 years have shown an increase in turbulence at the National Labor Relations Board with each change in administration.  Nothing about this election cycle suggests that the pendulum will stop swinging with a second Trump administration.  Following the self-described “history’s friendliest administration to labor,” President-elect Trump and his advisers will likely have major or at least significant changes in their sights.  While it is unlikely that the President-elect will want to label his administration “unfriendly” to labor - his blue-collar base (which apparently included a lot of union members) proved that the “Blue Wall” was surmountable – at least the Biden Board and its General Counsel’s propensity to expand the reach of the NLRA beyond what Congress ever contemplated will be reversed where possible.

Because the NLRB both prosecutes through its General Counsel and adjudicates by its 5 (on the increasingly rare times when there is a full complement)  Members, we discuss both offices. While the Board Members make law by deciding cases as they come before the Board, the General Counsel shapes the Board’s agenda, by deciding when to issue complaints to be adjudicated.  The General Counsel and their subordinate Regional Directors, also process election petitions from labor organizations seeking to represent groups of employees, and in doing so decide in the first instance the “appropriateness” of a unit. 

The General Counsel’s role has become at least as politicized as the Board Members’.  Although the General Counsel is appointed for a term of years not congruent with the President’s, President Biden broke with tradition and fired the Trump administration's appointed General Counsel on the first day of his administration.  There seems little doubt that the current General Counsel, the highly controversial Jennifer Abruzzo, will be dismissed or will resign on or about January 20, 2025.  While her ultimate replacement is subject to confirmation by the Senate, it seems likely that any rational selection would be confirmed by the new Republican Senate.

This means that one significant change that is essentially guaranteed is that General Counsel Abruzzo’s expansive view of the NLRA will end.  For example, her attempt to wrest control of restrictive covenants from the states will be abandoned, her attack on so-called captive audience speeches will end,  and decades of actual precedent will hopefully govern the new General Counsel’s agenda.  More generally, the General Counsel will focus on employees’ right to hear both sides of unionization issues.  We observe that while organized labor may miss Abruzzo, most of her agenda had little impact on rank-and-file union members. 

As to the Board itself, there are presently two vacant Board seats, both of which have nominees the present Democratic Chair, Lauren McFerran, and a proposed Republican, noted practitioner (and our Partner Josh Ditelberg).  It is unclear at this time what the lame-duck nominally Democratic-controlled Senate will do with the current nominees. If neither is confirmed, President-elect Trump can appoint two Republicans creating a Republican majority, likely without significant resistance from the then Republican-controlled Senate. Nonetheless, it may be that filling out the Board will not be his highest priority (or the Senate’s) and it may take a while to sort out his preferences.

When a Republican Board is given the opportunity, that is as a suitable (or almost suitable) case is presented, there is a substantial list of Biden Board rulings that will almost certainly be reversed.  For example:

1. The “Cemex” rule, which forces a union representation election in most circumstances when a union claims majority support.
2. Reversal of cases that are willing to speculate whether employer conduct chills protected conduct and return to a more rational view of how employees understand employer speech. The NLRA permits employer expressions of opinion about unionization which are not “coercive”, a Congressional message that seems to have been mislaid by the Biden Board.
3. Reverse rulings that indulge excessive employee behavior where the employees are exercising recognized rights – for example, hate speech on a picket line.
4. Slow by regulation what has been seen as the excessive speed and short-circuiting of union election procedures to permit more time for lawful campaigning and also to permit the litigation of more issues prior to an election being set.
5. In addition, one can assume that the regular see-saw of precedent will continue on other items, such as deferral to arbitration, terminating dues checkoff at contract expiration, jurisdictional coverage (e.g. students, independent contractors) of the NLRA, joint employer standards, etc.

There are wild cards in this pack.  Over the past several months employers have filed lawsuits seeking to establish that the NLRA is unconstitutional on multiple grounds, including that it denies employers their constitutional right to a jury trial and that the agency’s structure is inconsistent with separation of powers requirements.  The outcome of these cases is unclear, but the Biden administration has defended the constitutionality of the NLRA and it is possible the Trump administration might not.  While the enthusiasm of some for this litigation might diminish with a Board under the Trump administration, what has been commenced might not be easily stopped. In any event, even if the NLRA fails to pass constitutional muster, presumably ultimately before the Supreme Court, it remains to be seen whether the fix will bring the statute down in its entirety or it will limit remedies or change the tenure rights of NLRB officials.

While President-elect Trump has not made health care or retirement benefits a central tenet of his platform, there have been statements during the campaign that provide clues as to priorities of a Trump administration.  Notably:

Affordable Care Act

President-elect Trump has a turbulent history with the ACA.  Repealing and replacing the ACA was a key focus in the first year of the Trump administration.  Efforts to repeal the law were ultimately unsuccessful and the Trump administration never presented clear policy proposals on what a replacement law would look like.  While the Trump administration ultimately moved away from a full-scale repeal of the ACA, the administration later shifted its focus toward loosening some of the ACA’s guidelines intended to protect against Marketplace discrimination (through expanding access to Association Health Plans and short-term, limited duration health insurance policies, neither of which are subject to the full array of ACA protections).  In the debate and through surrogates (Speaker Mike Johnson), President-elect Trump has suggested that repeal and replacement of the ACA could once again become a focus of his administration, although the details on a replacement plan remain unclear. 

Prescription Drug Coverage

President-elect Trump’s campaign has not given extensive details regarding health care proposals, but their platform references “out of control” drug costs and suggests they will attempt to expand access to affordable prescription drug coverage.  President-elect Trump has suggested that Robert F. Kennedy, Jr. could play a prominent role in his administration.  The health care system has been a key focus for Kennedy, who would likely prioritize revamping the FDA approval process, which has the potential to greatly disrupt the prescription drug industry in the US.