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12.9.24
1.Returning to a Level Labor Relations Playing Field
Look for Marvin Kaplan, the only Republican on the Board, to be designated NLRB Chairman, but how quickly the Biden Board’s pro-union precedent may begin to be rolled back will depend on several different factors. These include whether current-Chairman Lauren McFerran is confirmed by the Senate before the end of this Congress and how quickly the Trump-appointed Board members are seated. There will be two NLRB Republican vacancies if McFerran does not rejoin the Board.
A newly constituted Republican-majority NLRB would likely roll back many of the pro-union policies of the Biden administration. This includes the new policies that make it easier for unions to organize and will include most likely include the new Cemex framework that allows unions to organize without an election and imposes bargaining obligations based on a single unfair labor practice during an organizing campaign. The Biden precedent also reintroduced microunits, reinstituted the “quickie” election rules, and just recently changed the rules on what employer can say during organizing campaigns and banned captive audience speeches. All of these Biden policies are in serious trouble.
2. Relaxed Workplace Safety Measures
The Trump – Vance Administration will likely reduce government oversight on workplace safety issues. During his first term in office, Trump’s administration cut the number of inspectors to the lowest amount in OSHA’s history, declined to mandate employers to take any protective measures against COVID-19, and rescinded part of the electronic recordkeeping requirements. Expect more of the same over the next four years.
3.No (or Very Little) Increases in the Federal Minimum Wage
Don’t expect President Trump to seek any type of increase in the federal minimum wage in his second term. He made no move to increase the rate during his first term in office.
First Trump would need the approval of Congress to carry out any federal minimum wage hike – so that must be taken into account before any other consideration.
Second, Trump has long criticized the idea of increasing the federal minimum wage and has stated he believes an increase is harmful to small businesses.
With that being said, I think it is safe to say, expect to see more states and localities implementing their own minimum wage hikes over the coming years.
4. Pay Data Collection Won’t Get Resurrected
The Equal Employment Opportunity Commission (EEOC) has already announced it seeks to revive “Component 2” pay data collection as part of employer’s annual EEO-1 submission – but there is little doubt the Trump administration will put an end to this initiative before it gets started.
The EEOC proposal would require employers to turn over information to the government about the wages they pay their workers, and the number of hours worked. The EEOC (and others) would use this data to identify pay gaps and then target specific employers to investigate alleged pay discrimination practices.
5. Expect Paid Leave to Remain a State Issue
The United States remains the only industrialized nation that doesn’t provide a federal mandate ensuring workers have at least some paid time off to manage an illness or for the birth of a child. And Trump took a big step during his first term in 2020 by approving a law permitting federal employees to take 12 weeks of paid parental leave. When you combine those two facts with the notion that the Trump-Vance campaign targeted middle-class working voters as a key demographic, it is not out of the realm of possibility that the Trump administration makes a push for some sort of federal paid leave law.
Complicating a Trump-Vance attempt to make a push for a federal paid leave law is the myriad of existing state leave laws that many employers are facing, and it seems likely that federal lawmakers will allow this issue to remain at the state level for the next several years.
6. Civil Rights Enforcement and DEI
While not likely to materialize immediately, we expect to see significant changes at the EEOC and Office of Federal Contract Compliance Programs (OFCCP) in the new Trump administration. In the short term, current Republican EEOC Commissioner Andrea Lucas will likely be appointed Chair or Acting Chair of the Commission, and the three current Democratic commissioners will likely stay on until their terms expire. (Commissioner Jocelyn Samuels’ term is the first to expire, in July 2026.)
It is expected that EEOC General Counsel Karla Gilbride will be replaced by an acting General Counsel, likely a career EEOC attorney, until the president can nominate a new General Counsel, and Acting OFCCP Director Michele Hodge, a career attorney at the US Department of Labor (DOL), will likely stay in her role until the president appoints a new OFCCP director.
7. Immigration Reform Will Tighten Foreign Workforce Use
Although the Trump campaign’s platform did not include specific business immigration proposals for a new administration, statements made by President Trump and those involved in immigration policy during his first administration suggest that a second Trump administration may favor the following:
- Increased worksite enforcement related to undocumented workers and Form I-9 compliance.
- Reintroduction of severe restrictions or outright bans on travel to the United States by citizens of specific countries or regions
- Changes to prevailing wage methodology that will result in increased wage requirements for H-1B nonimmigrants and PERM labor certification beneficiaries.
- Increased rates of requests for additional evidence and denials of H-1B and other nonimmigrant petitions
- Narrowing eligibility criteria for H-1B nonimmigrants
- The reversal of policies permitting certain spouses of H-1B workers to receive work authorization in a rollback of Biden administration policies meant to encourage more approvals of petitions for foreign nationals in STEM fields.
8. Easier to Classify Workers as Independent Contractors
Finaly, I think it is safe to say, the next Trump administration will reverse President Biden’s efforts that made it harder for businesses to classify workers as independent contractors.
- Just weeks before President Biden took office in 2021, the Trump administration’s DOL finalized a new rule that would have made it easier for businesses to characterize some workers as contractors for wage and hour purposes – but then the Biden DOL froze it without it ever taking effect.
- Similarly, the NLRB issued a decision last year to make it significantly harder for companies to classify their workers as independent contractors for labor relations purposes.
Trump’s current administration has not yet provided any specifics for how his administration would approach the issue in 2025 and beyond but expect to see action on this issue in the next few years.
Written by:
Scott M. Zurakowski
Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.
330-497-0700
szurakowski@kwgd.com