Employment / 5 min read
Just 11 days before the new administration took office, Andrews Myers Shareholders and board-certified labor and employment attorneys Mark Levine and Tony Stergio presented a comprehensive overview of expected changes in labor and employment law under incoming President Trump. The presentation, the first in a series of client education discussions named "AM Talks," covered several critical areas that will impact human resources professionals and employers in the coming years.
It's important to note that these insights and predictions were presented prior to the president's inauguration, based on historical patterns and anticipated policy directions. For specific guidance on recent executive orders and their impact on your business, we encourage you to consult with your employment attorney.
The discussion began with an analysis of Trump's unusual choice for Secretary of Labor, Lori Chavez-DeRemer. Unlike traditional Republican appointees, Chavez-DeRemer has been considered pro-labor and received an endorsement from the Teamsters union. She previously supported the extremely pro worker "PRO-Act", though the legislation "went absolutely nowhere" in Congress per Mark Levine. It was also mentioned that Chavez De-Remer is also unusual because she is a Congresswoman from Oregon with no discernible history in the Department of Labor (DOL) or the Department of Justice (DOJ).
In the realm of worker classification, the presenters examined the anticipated return to the first Trump administration's "core factor" test for determining independent contractor status. This approach differs from the Biden administration's more comprehensive test that does not single out any particular factor as more important. Employers will need to navigate these changes while managing varying state standards. The "core factors" that the Trump administration emphasized are profit and loss and the nature and degree of work performed. Ultimately, however, Mr. Levine indicated that the impact of the comprehensive test versus the "core factor" test may be a moot point, since courts who rule on these cases conduct a highly case specific analysis of their own. Mr. Levine cautioned against companies determining for themselves whether they have classified their workers correctly, and advised companies to have their lawyer look into it.
Mark Levine discussed overtime regulations and salary thresholds for white-collar exemptions. During his first term, President Trump's DOL set the minimum salary threshold at $684 per week, where it currently remains. The Biden administration had proposed increasing this threshold to $844 per week (approximately $43,888 annually) effective July 1, 2024, with a further increase to $1,128 per week ($58,656 annually) planned for January 1, 2025. However, these increases were vacated by court ruling. The speakers discussed the ongoing battle over these thresholds and noted that while the Trump administration may propose some increase during the four-year term, it's likely to be more modest than the Biden administration's proposed figures. This area remains one of significant interest for employers, particularly those with employees near the current threshold, as any changes would directly impact overtime eligibility and payroll costs.
Tony Stergio stated that the National Labor Relations Board (NLRB) is expected to shift to a Republican majority, leading to significant policy changes. The new board will likely reverse many Biden-era policies regarding union recognition rights and employer-employee communications during union elections. The presentation also covered expected changes to how the NLRB will view social media policies and protected employee activities. In fact, since this presentation was given, Trump has nominated the sole Republican on the NLRB, Marvin Kaplan, to be its next chair.
Regarding the Equal Employment Opportunity Commission (EEOC), the speakers outlined anticipated leadership changes and enforcement priorities. They discussed the significant increase in LGBTQ discrimination claims and how the commission might handle these cases moving forward. The presentation also addressed potential changes to EEO-1 reporting requirements and the future of Diversity, Equity, and Inclusion (DEI) initiatives under heightened scrutiny. However, Mark Levine advised that he does not anticipate the EEOC to take less cases, or to stop doing their job. Levine highlighted that when he studied the matter last, the EEOC took on more lawsuits in the first Trump administration than did Biden.
OSHA enforcement is expected to maintain focus on fundamental safety concerns, including trenching hazards, fall protection, struck-by incidents, and electrical safety. Tony Stergio discussed potential changes to inspection practices and enforcement priorities, including modifications to heat stress regulations and workplace walk-around rules that will ease the compliance burden on employers. President Biden's administration's "favorite" citation "failure to provide for regular and frequent inspections" is one that Mr. Stergio hopes to see less under the new regime. Tony Stergio emphasized that the prior Trump administration treated OSHA matters seriously and emphasized that OSHA administrators homed in on citations for fatalities and serious accidents and focused less on trivialities. Mr. Stergio did mention that OSHA deregulation might be something on Elon Musk's radar. Mr. Musk, of course, is an extremely influential voice in Mr. Trump's ear.
Immigration enforcement and compliance received particular attention, with the speakers addressing potential changes to E-Verify requirements and increased enforcement activities. Throughout the presentation, both attorneys emphasized the importance of maintaining strong compliance programs while preparing for regulatory changes. They stressed that employers should stay informed about these developments and be ready to adapt their policies and procedures accordingly. Levine and Stergio both emphasized that E-Verify, though required for federal contracting, is not mandatory in general, and that employers can pick and choose who to e-verify for certain jobs that may require it. The construction industry faces a critical tension between strict immigration compliance demands (including potential mandatory E-Verify requirements and increased enforcement) and the practical reality of an ongoing labor shortage that threatens project timelines and costs. While the new administration is expected to increase immigration enforcement and worksite audits, construction companies must find ways to balance these heightened compliance obligations with their fundamental need to maintain an adequate workforce in an industry that has historically relied heavily on immigrant labor.
The presentation underscored that while significant changes are expected, employers who stay informed and maintain proactive compliance programs will be best positioned to navigate the evolving regulatory landscape. The speakers encouraged attendees to maintain open communication with legal counsel as these changes develop and new policies are implemented.