Trump's Labor & Employment Policy Shifts - News Directory 3

Trump’s Labor & Employment Policy Shifts

February 22, 2025 Catherine Williams Business
News Context
At a glance
  • The National Labor Relations Board (NLRB) is still operating without a full quorum, but Acting General Counsel William B.
  • Senate HELP Committee Examines Secretary of Labor Nomination.
  • Republicans outnumber Democrats on the HELP Committee 12–11, so even one Republican “no” vote could cause problems for Chavez-DeRemer’s nomination.
Original source: natlawreview.com

NLRB Acting GC Rescinds Abruzzo Memos; Senate HELP Committee Examines Secretary of Labor Nomination

Table of Contents

NLRB Acting GC Rescinds Abruzzo Memos. The National Labor Relations Board (NLRB) is still operating without a full quorum, but Acting General Counsel William B. Cowen is already making significant changes to the policies set by his predecessor, Jennifer Abruzzo. Cowen has rescinded at least eighteen of Abruzzo’s general counsel memoranda, which covered areas such as expanded remedies, noncompete agreements, and severance agreements. These memoranda represented Abruzzo’s policy positions and her interpretations of how Board decisions should be implemented. By rescinding these memoranda, Cowen has effectively “wiped the slate clean” and set the stage for himself—or another individual serving in the general counsel role—to establish a new labor policy agenda at the Board. It is important to note that Cowen’s actions do not overturn any Board decisions that have been issued over the last several years.

Senate HELP Committee Examines Secretary of Labor Nomination. On February 19, 2025, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to examine the nomination of Lori Chavez-DeRemer to serve as secretary of labor. Chavez-DeRemer did not reveal too many details about her agenda should she get confirmed, but several key points emerged from the hearing:

  • Chavez-DeRemer promised to work on or review regulations relating to joint employer and independent contractor status under the Fair Labor Standards Act (FLSA).
  • Regarding workplace safety, Chavez-DeRemer stated that she would review the Occupational Safety and Health Administration’s (OSHA) proposed emergency response rule as well as OSHA’s pending proposal on workplace violence prevention.
  • No senators asked Chavez-DeRemer about the prospects of the Office of Federal Contract Compliance Programs (OFCCP), which was gutted by Executive Order (EO) 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
  • Chavez-DeRemer expressly denounced her support of the provision in the Protecting the Right to Organize (PRO) Act, which would eliminate state right-to-work laws, stating that her support of the bill was to start a conversation about workers’ rights and that the bill was imperfect.
  • Regarding immigration, Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) expressly asked Chavez-DeRemer to encourage the U.S. Congress to issue the maximum allotment of H-2B visas, while Senator Tommy Tuberville (R-AL) impliedly asked her to support the H-1B program. In response, Chavez-DeRemer noted the U.S. Department of Labor’s (DOL) limited role in these programs, but promised to work with the senators on these issues.
  • Democratic senators generally raised issues that are likely to resound as recurring themes from their side of the aisle during this congressional session: raising the minimum wage, promoting unionization, attacking right-to-work laws, endorsing paid family leave, criticizing noncompete agreements, and condemning President Donald Trump’s removal of U.S. Equal Employment Opportunity Commission (EEOC) commissioners Jocelyn Samuels and Charlotte Burrows, as well as NLRB member Gwynne Wilcox.

Republicans outnumber Democrats on the HELP Committee 12–11, so even one Republican “no” vote could cause problems for Chavez-DeRemer’s nomination. The committee is expected to vote on Chavez-DeRemer’s nomination on February 27, 2025.

House Republican Introduces Independent Contractor Legislation. Representative Kevin Kiley (R-CA) has introduced two bills addressing independent contractors.

  • The Modern Worker Empowerment Act (H.R. 1319) would amend both the FLSA and the National Labor Relations Act (NLRA) to create a two-part test for determining whether a worker is an independent contractor, rather than an employee. Pursuant to the bill, a worker is an independent contractor if the putative employer “does not exercise significant control over the details of the way the work is performed by the individual” and if the worker “has the opportunities and risks inherent with entrepreneurship, such as the discretion to exercise managerial skill, business acumen, or professional judgment.” The bill also lists several factors that cannot be used as part of the employee/independent contractor inquiry, such as requiring the worker to comply with legal requirements, carry insurance, or “meet contractually agreed-upon performance standards, such as deadlines.”
  • The Modern Worker Security Act (H.R. 1320) allows employers to provide workers with portable benefits—such as paid leave, health insurance coverage, and retirement savings—without those benefits being an indicia of employment under federal law.

Kiley represents California’s 3rd congressional district and has been a strong opponent of the Biden administration’s DOL’s independent contractor rule. This legislation comes at a time when the gig economy continues to grow, with companies like Uber and Lyft facing ongoing legal battles over the classification of their drivers as independent contractors.

Democratic State AGs Issue DEI-Related Guidance. The Trump administration’s opposition to diversity, equity, and inclusion (DEI) continues to reverberate in the private-sector employer community. For example, sixteen Democratic state attorneys general have issued a document entitled, “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives.” The document sets forth the legal opinions of the attorneys general regarding the impact of EO 14173 on private-sector DEI initiatives. The guidance takes the position that DEI programs and practices “are not illegal, and the federal government does not have the legal authority to issue an executive order that prohibits otherwise lawful activities in the private sector or mandates the wholesale removal of these policies and practices within private organizations, including those that receive federal contracts and grants.” The guidance does not carry the force of law, and does not compel employers to take any particular action, but it does serve as an example of Democrats’ efforts to counter Republican attempts to undermine diversity and inclusion practices in the private sector. Future Democratic efforts could exert more pressure on employers that have changed their DEI practices as a result of the administration’s actions.

EEOC to Prioritize “Anti-American National Origin Discrimination”. On February 19, 2025, the EEOC issued a press release reemphasizing that Acting Chair Andrea Lucas will prioritize “protecting American workers from anti-American national origin discrimination.” The release coordinates the EEOC’s enforcement agenda with the administration’s scrutiny of both legal and illegal immigration, noting, “The EEOC will help deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers.” The press release further states that federal law makes it unlawful for employers to adopt policies or practices preferring “illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers.”

We may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.

— Edward Terry Sanford, Gitlow v. New York (1925)

Incorporating the Bill of Rights. On February 19, 1923, Edward Terry Sanford was sworn in as an associate justice of the Supreme Court of the United States. Sanford only served seven years on the Court until his death in 1930, but he was instrumental in the Court’s adoption of the “incorporation doctrine,” which applies the Constitution’s Bill of Rights to the individual states. Several Supreme Court decisions in the 1800s—including the Slaughter-House Cases (1873)—had restricted the application of the Bill of Rights to the federal government. This began to change incrementally with the turn of the century, and the “incorporation doctrine” was cemented in Supreme Court jurisprudence when Sanford wrote the majority opinion in a 1925 case called Gitlow v. New York. In Gitlow the Court upheld—by a vote of 7–2—New York’s conviction of Benjamin Gitlow under its Criminal Anarchy Law for publication of a document, titled “Left Wing Manifesto,” as a reasonable action “to protect the public peace and safety.” While the case was an exception to the First Amendment’s free speech protections, Sanford made clear that the amendment was applicable to the states. In Gitlow, Sanford wrote:

We may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.

— Edward Terry Sanford, Gitlow v. New York (1925)

Gitlow paved the way for future cases applying the Bill of Rights to the states, such as Gideon v. Wainwright (1963) (extending the Sixth Amendment’s right to counsel to the states).

Q&A on NLRB Acting GC Rescinds Abruzzo Memos and Current Labor Law Changes

What Actions has the NLRB acting GC Taken Regarding Abruzzo’s Policies?

Question: What significant steps has NLRB Acting General Counsel William B. Cowen taken in relation to the policies established by his predecessor, Jennifer Abruzzo?

Answer:

  • Acting General Counsel William B. Cowen has rescinded at least eighteen general counsel memoranda issued by Jennifer Abruzzo. These included policies on expanded remedies, noncompete agreements, and severance agreements.
  • Cowen’s actions represent a significant shift in labor policy direction at the NLRB. By rescinding these memoranda, he has essentially reset the policy framework for potential new initiatives or interpretations.
  • It is indeed crucial to note that these actions do not effect previously issued board decisions, maintaining a degree of continuity in broader labor law enforcement.

What Are the Potential Impacts of rescinding Abruzzo’s Memoranda?

Question: How do the rescinded memoranda by Acting GC Cowen impact labor law interpretations and employer practices?

Answer:

  • The rescission of memoranda encourages employers and legal practitioners to anticipate potential changes in how the NLRB might prioritize complaints related to noncompete agreements and similar employment clauses.
  • Legal professionals should monitor subsequent NLRB actions for a clearer picture of the future direction in labor policies.
  • Employers may see this as an opportunity to revisit their policies to ensure compliance with any new interpretations or guidelines that emerge under Cowen’s leadership.

Senate HELP Committee Examination of Secretary of Labor Nomination

Question: What were the key points discussed during the Senate HELP Committee hearing on Lori Chavez-DeRemer’s nomination to be Secretary of Labor?

Answer:

  • Joint Employer and Independent Contractor Status: Chavez-DeRemer expressed her intent to review the regulations under the Fair Labor Standards Act (FLSA) regarding joint employer and independent contractor status.
  • Workplace Safety: Her review agenda includes OSHA’s proposed emergency response rule and the pending proposal on workplace violence prevention.
  • Diversity,Equity,and Inclusion (DEI): No emphasis was placed on EO 14173 concerning the Office of Federal Contract Compliance Programs (OFCCP),wich had seen reduced capacities under the executive order.
  • Protecting the Right to Organize (PRO) Act: She took a cautious stance, denouncing the support for the part of the bill that aims to eliminate state right-to-work laws.
  • Immigration-related Issues: She committed to work with Congress on immigration-related labor matters, particularly concerning H-2B and H-1B visa programs.
  • Democratic Concerns: Topics such as raising the minimum wage, promoting unionization, and condemning actions from past administrations regarding labor rights were brought forth by democratic senators.

What Is the Legislative Context for Independent Contractor status?

Question: How is the federal legislature addressing independent contractor status in the united States?

Answer:

  • Representatives like Kevin Kiley (R-CA) have introduced proposed legislation such as the Modern Worker Empowerment Act (H.R. 1319) and the Modern Worker Security Act (H.R. 1320).
  • Modern Worker Empowerment Act: This bill proposes a two-part test for distinguishing between employees and independent contractors, focusing on control over work and entrepreneurial risks.
  • Modern Worker Security Act: The act allows employers to provide portable benefits without extending federal employment implications to the arrangement.
  • These legislative moves reflect ongoing debates on how to best regulate gig economy workers and address the growing significance of independent contracting in the labor market.

What Stance Do Democratic State AGs Take on DEI practices?

Question: What guidance have Democratic state attorneys general issued regarding diversity, equity, and inclusion (DEI) in the private sector?

Answer:

  • Sixteen Democratic state attorneys general jointly clarified that EO 14173, aimed at ending DEI programs, does not hold legal authority to mandate private sector DEI practice cessation.
  • The guidance emphasizes that DEI initiatives are lawful and employers should not feel compelled to remove such practices based on executive orders.
  • This stance aligns with broader efforts by Democrats to maintain and enhance DEI efforts within private-sector organizations.

What is the EEOC’s Focus on Discrimination?

Question: How will the EEOC respond to national origin discrimination under Acting Chair Andrea Lucas?

Answer:

  • The EEOC, under Acting Chair Andrea lucas, has prioritized combating discrimination based on national origin, aligning enforcement efforts with broader immigration policies.
  • Focus includes increasing scrutiny of employers that show preference for non-American workers over American employees, which could influence hiring practices and due diligence in diverse workplaces.

Understanding the Incorporation Doctrine and its Ancient Context

Question: What is the significance of the incorporation doctrine in American Constitutional Law?

Answer:

  • The incorporation doctrine refers to the process by which the Supreme Court applied the Bill of Rights to the states through the Fourteenth Amendment’s Due Process Clause.
  • Edward Terry Sanford was pivotal in this growth, particularly through his opinion in Gitlow v. New York (1925), which recognized the applicability of First Amendment protections to the states.
  • This marked a significant shift toward ensuring that individual rights were safeguarded at all governmental levels, with Gitlow acting as a foundational case in subsequent constitutional law decisions.

Conclusion

This Q&A article provides a comprehensive overview of ongoing and historical developments related to labor law, policy shifts at the NLRB, and broader constitutional themes. By reviewing these facets, employers, legal practitioners, and policymakers can better navigate the evolving landscape of labor regulations and rights.

Q&A on NLRB Acting GC Rescinds Abruzzo Memos and Current Labor Law Changes

What Actions Has the NLRB Acting GC Taken Regarding Abruzzo’s Policies?

Question: What meaningful steps has NLRB Acting General Counsel William B. Cowen taken in relation to the policies established by his predecessor, Jennifer Abruzzo?

Answer:

  • Rescission of Memos: Acting General Counsel William B. Cowen has rescinded at least eighteen general counsel memoranda issued by Jennifer Abruzzo. These encompass policies about expanded remedies, noncompete agreements, and severance agreements.
  • Policy Reset: CowenS actions represent a shifting landscape in labor policy at the NLRB. By rescinding these memoranda, he has reset the conditions for new initiatives or interpretations, though past Board decisions remain unaffected.

What Are the Potential Impacts of Rescinding Abruzzo’s Memoranda?

Question: How do the rescinded memoranda by Acting GC Cowen impact labor law interpretations and employer practices?

Answer:

  • Employer Preparedness: Employers and legal practitioners need to anticipate possible changes in how the NLRB handles complaints, especially concerning noncompete agreements.
  • Monitoring NLRB Developments: Legal professionals should closely watch future actions by the NLRB to understand emerging directions in labor policies.
  • Policy Review: Employers may need to revisit their internal policies to ensure they align with any new interpretations or guidelines introduced under Cowen’s leadership.

Senate HELP Committee Examination of Secretary of Labor Nomination

Question: What were the key points discussed during the Senate HELP Committee hearing on Lori chavez-DeRemer’s nomination to be secretary of Labor?

Answer:

  • Joint Employer/Independent Contractor Status: Chavez-DeRemer expressed plans to review FLSA-related regulations on joint employer and independent contractor statuses.
  • Workplace Safety: She aims to assess OSHA’s proposed emergency response rule and the workplace violence prevention proposal.
  • DEI Instruction: No specific discussion on EO 14173’s impact on the OFCCP, previously weakened by an executive order.
  • PRO Act Positioning: Chavez-DeRemer voiced concerns over the PRO Act’s provision to eliminate state right-to-work laws.
  • Immigration Labor Policies: She committed to supporting efforts around the H-2B and H-1B visa programs, recognizing the DOL’s limited role.
  • Democratic Themes: Democratic senators raised issues like minimum wage hikes, union promotion, and the critique of past management actions on labor rights.

What Is the Legislative Context for Independent Contractor Status?

Question: How is the federal legislature addressing independent contractor status in the United States?

Answer:

  • Introduction of Bills: Representative Kevin Kiley introduced the Modern Worker Empowerment Act (H.R. 1319) and the modern Worker Security Act (H.R. 1320),focusing on independent contractor legislation.
  • Modern Worker Empowerment Act: The bill proposes a novel test for differentiating employees from contractors, emphasizing control over work details and entrepreneurial risk.
  • Modern Worker Security Act: it allows for the provision of portable benefits without federal employment implications, reflecting the changing dynamics of the gig economy.
  • Debate Context: these laws emerge amidst ongoing legal discussions about the classification of gig workers by companies like Uber and Lyft.

What Stance Do Democratic State AGs Take on DEI Practices?

Question: What guidance have Democratic state attorneys general issued regarding diversity,equity,and inclusion (DEI) in the private sector?

Answer:

  • Stance on EO 14173: Sixteen Democratic state AGs clarified that EO 14173 does not legally compel private sectors to eliminate DEI programs.
  • Legal Position: DEI initiatives remain lawful, and the federal government lacks the authority to end such practices following the executive order.
  • Efforts to Maintain DEI: This position is part of broader Democratic efforts to uphold and bolster DEI initiatives across private organizations.

What Is the EEOC’s Focus on Discrimination?

Question: How will the EEOC respond to national origin discrimination under Acting Chair Andrea Lucas?

Answer:

  • Enforcement Priority: The EEOC prioritizes addressing discrimination based on national origin, raising scrutiny on employers giving preference to non-American over American workers.
  • Alignment with Immigration Policies: This focus integrates with broader administrative policies on legal and illegal immigration, reinforcing EEOC’s commitment to protecting American workers.

Understanding the Incorporation Doctrine and Its Meaning

Question: What is the significance of the incorporation doctrine in American Constitutional Law?

Answer:

  • Incorporation Doctrine Overview: This doctrine integrates the Bill of Rights into state-law through the Fourteenth Amendment’s Due Process Clause.
  • Influence of Gitlow v. New York (1925): Justice Edward Terry Sanford’s decision in Gitlow affirmed the request of First Amendment rights to the states, marking a pivotal moment in constitutional law.

Conclusion

This extensive Q&A article covers significant developments in labor law and broader constitutional themes, offering insights for employers, legal practitioners, and policymakers to keep pace with evolving regulations and rights frameworks. By understanding these key elements, stakeholders are better equipped to navigate the nuanced landscape of labor policy.