Post-Election Analysis: What Employers Can Expect Under the New Administration
3 minute read | December.17.2024
Employers can expect a number of employment law changes under Donald Trump’s second term. While certainly difficult to predict, below is a guide to key anticipated changes, including leadership changes at federal agencies, potential changes to regulations and policy directives, as well as future employment litigation trends.
Equal Employment Opportunity Commission (EEOC)
- Leadership. Republican Commissioner Andrea Lucas likely will become Acting Chair or Chair of the EEOC. Democrats likely will retain a majority among EEOC Commissioners until June 2026. The EEOC General Counsel Karla Gilbride likely will resign or be fired in January 2025. Trump is likely to appoint an Acting General Counsel until a Republican General Counsel can be confirmed by the Senate.
- Published Guidance. We do not expect immediate changes to published EEOC guidance. We also do not expect the EEOC to continue to defend pending legal challenges to harassment guidance or Pregnancy Worker Fairness Act regulations.
- Policy. We expect new policy initiatives that focus on preserving religious freedom and supporting traditional family values. We also expect that there will be no return of EEO-1 Component 2 (compensation) data collection and that there will be an anti-DEI emphasis.
Office of Federal Compliance Program (OFCCP)
- Leadership. We expect that Trump will appoint a new Director of OFCCP.
- Continued Existence. Setting aside the change in administration, there have been a number of recent legal actions challenging OFCCP’s authority under EO 11246. While difficult to predict, we anticipate it is likely that OFCCP will continue to exist as an anti-discrimination agency, but one that is equally focused on “reverse” discrimination, including based on aggressive DEI programs. The future of OFCCP’s existing affirmative action regulations is uncertain, at best.
- Policy. We may see rescissions or revisions of affirmative action obligations, an increased focus on combating “reverse discrimination,” and a potential rescission of LGBTQ protections.
Department of Justice, Civil Rights Division
- Leadership. Trump has announced that he will nominate Harmeet Dhillon to lead the Civil Rights Division, announcing her career highlights to include “suing corporation who use woke policies to discriminate against their workers.”
- Enforcement. We expect the Civil Rights Division to focus its enforcement efforts on eliminating “anti-white racism,” protecting the jobs of U.S. citizens from foreign workers and promoting religious liberties. We expect that the Civil Rights Division also will de-emphasize its focus on pattern or practice/disparate impact cases.
National Labor Relations Board (NLRB)
- Leadership. Trump likely will have an opportunity to fill two NLRB Board vacancies in 2025, which will result in the swing of control of the Board from Democrats to Republicans. Trump is expected to appoint the current sole Republican Board member, Marvin Kaplan, to become Acting Chair. Trump also likely will fire the current NLRB General Counsel Jennifer Abruzzo, appoint a pro-employer Acting General Counsel, and later, appoint a more business-friendly General Counsel, who will need to be confirmed by the Senate.
- Policy. With these changes in leadership, we likely will observe a shift in NLRB policy, potentially reversing many pro-union developments under the Biden administration:
- GC Memo 25-01, which states that certain stay or pay provisions violate Section 7 of the National Labor Relations Act (NLRA), likely will be rescinded.
- GC Memo 23-08, which states that non-compete agreements violate Section 7 of the NLRA, also likely will be rescinded.
- GC Memo 23-05, which advocates aggressive enforcement of the Board’s McLaren Macomb decision, in which the Board found that broad non-disparagement and confidentiality provisions in severance agreements violate the NLRA, also likely will be rescinded.
- The Board’s Stericycle decision, in which the Board adopted a strict new legal standard for evaluating the validity of workplace rules under the NLRA, may be altered by the new Board.
- The Board’s Cemex decision, in which the Board reversed longstanding precedent and placed the burden on employers rather than unions to file representation petitions, also may be altered by the new Board.
Department of Labor (DOL)
- Leadership. Trump announced that he would nominate Lori Chavez-DeRemer to lead the Department of Labor.
- Policy. The DOL may revisit the overtime rules, the independent contractor rules, the joint employer rules, and immigration policy, including eligibility for H-1B Visa rules.
Federal Trade Commission (FTC)
- Leadership. Trump announced that he will appoint current Republican FTC Commissioner Andrew Ferguson to lead the FTC, replacing current Chair Lina Khan, and that he will nominate Republican Mark Meador as a Commissioner, shifting the majority of Commissioners from Democrats to Republicans.
- Policy. We expect that the FTC will abandon pending appeals in the Fifth and Eleventh Circuits from District Court decisions invalidating the FTC’s final rule that would have banned virtually all new non-compete agreements.
Litigation Trends
We anticipate that we likely will see a continuation, if not an increase, in the following types of claims over the next four years:
- Reverse discrimination/anti-DEI claims
- Pay equity/pay transparency class actions
- Citizenship discrimination claims (discrimination against Americans in favor of foreign workers on visas)
- Religious freedom/accommodations claims
What to Expect from the States
We also anticipate that “blue states” may step in to fill the void of federal enforcement actions by enacting more state statutes and regulations, including:
- Pay data collections
- Pay transparency legislation
- AI regulations
- Minimum wage increases
- Paid leave legislation
- Captive audience bans
- Independent contractor/misclassification issues
We anticipate that “red states” may pursue more anti-DEI and/or “reverse” discrimination investigations/litigation and potential citizenship discrimination investigations/litigation.
