With a change of administration employers can expect shifting policies. For a second Trump term, employers can likely expect similar policies as to the first Trump administration. A Republican president typically means that the National Labor Relations Board (NLRB) will ease up on prosecuting employers for alleged labor violations and shift certain policies to favor employers over workers and unions. However, in addition to predictions of easing labor policies, there is skepticism even as to the validity of the NLRB. There are questions as to whether a Trump administration will simply neglect the agency by not appointing vacant seats and not prosecuting employers, which would hurt workers. Or will the second Trump administration attempt to undo policies enacted by President Biden and shift the board to a traditional republican, pro-employer policy.
Democrats and Republicans have very different views regarding labor. The agency is prone to swings when control changes hands, and these swings invite stiff resistance from the faction out of power. The Biden administration was shifting policy towards pro-labor, broadening what was protected under the law and harsher penalties for violations. Trump will likely install a more business friendly chief prosecutor and operate in a narrower view of the law with lighter penalties. A Trump administration will likely end the Biden administration’s union friendly policies. Additional policies that could be targets of a Trump administration:
- Level of scrutiny of Employer Handbook rules;
- Level of scrutiny of Separation agreement language;
- Remedies for employment violations;
- Union representation processes, making it harder for unions to win orders forcing employers to bargain including reversals of precedents like Cemex and Columbia University.
A new administration spells for big changes regarding the NLRB.
The Equal Employment Opportunity Commission (EEOC) will likely not see as sweeping of changes and may only see gradual shifts. Trump will likely change the chief prosecutor and general counsel, but Democratic commissioners still have terms to serve out and there is currently only one Republican commissioner, Andrea Lucas, who served in the first Trump administration. Any changes to the EEOC will likely come when terms end in 2026 and Republicans can secure a majority. Until then there will likely be a general downturn in EEOC activity.
However, within the four years of a Trump administration, employers are likely going to see a shift in a few distinct areas. There will likely be a shift away from enforcement in general, and more of a shift towards assisting with compliance. As for specific policy goals, experts said, protecting religious workers and pregnant employees would likely be high on the commission's priority list. Protecting religious freedom is likely to be the highest priority. Civil rights groups have raised concerns as to how EEOC guidance could affect LGBTQ people and members of minority religions. Additionally, protecting pregnant employees from discrimination, ensuring they're accommodated but as long as it is "pro-family and pro-life." According to the EEOC's finalized rules, abortion is within the law's coverage, alongside a thorough list of other pregnancy-related conditions, including a current, past or potential pregnancy; lactation; birth control usage; menstruation; infertility and fertility treatments; endometriosis; and miscarriage and stillbirth. However, Lucas took issue with this interpretation, arguing that the law should only apply to "a specific, actual pregnancy and childbirth of an individual worker, and particular medical conditions related to them." Another policy goal of the Biden administration that will likely go away is workplace diversity, equity and inclusion efforts where the EEOC is likely to pivot away from over the course of the second Trump administration. While the NLRB is likely to see dramatic changes the EEOC’s changes in policy will be more gradual. Either way employers will have to adjust to a changing administration and new policy goals.
Please contact John Watson or your BrownWinick employment attorney with any questions or concerns.
