President Trump’s First 100 Days: What Has Been Done in Labor and Employment
In the first 100 days of President Trump's Administration, significant changes have been made in the labor and employment sector. We will focus on the changes at the National Labor Relations Board (NLRB), the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). We will also discuss recent executive orders impacting businesses’ diversity, equity and inclusion (DEI) programs.
National Labor Relations Board
One of the major changes is the leadership overhaul at the NLRB. President Trump dismissed the agency’s general counsel Jennifer Abruzzo, who was known for her union-friendly and aggressive enforcement approach. Abruzzo had expanded the scope of "protected concerted activity," allowing employees more leeway to band together for workplace improvements. Her replacement, William Cohen, has taken a different approach, focusing on lawful employer discretion and limiting the protections for concerted activities to traditional employee actions, such as protesting wages and working conditions, rather than political issues.
Another significant change was the firing of NLRB member Gwen Wilcox, leaving the Board without the quorum needed to issue decisions. This lack of quorum thereby reduces immediate regulatory risk for employers as no new violations of the National Labor Relations Act (NLRA) can be determined.
However, this also means that the decisions from the Biden Administration remain in effect until the Board can act to reverse them. The current situation has resulted in a backlog of cases, with the NLRB pushing for settlements to clear the docket. Employers might find opportunities to resolve disputes more favorably and efficiently during this period.
Employers can anticipate more balanced treatment from the NLRB, as the Board moves away from the previous administration's aggressive enforcement and union-favoring policies. This includes a focus on traditional labor issues rather than political activities. Cohen has rescinded approximately 30 union-favoring memoranda, including those related to joint employment and union-friendly election procedures. Although new guidance has not been issued to replace these, Cohen has indicated a return to the NLRB’s position during the first Trump Administration on employee handbook rules and a preference for secret ballot elections over union recognition without elections.
In addition, employers can expect a rollback of overly aggressive policies from the previous administration, offering them a more predictable regulatory environment.
However, they should remain vigilant, as the Board's inability to issue decisions leaves the current legal landscape somewhat uncertain. As the NLRB regains its quorum and resumes issuing decisions in the future, employers should stay informed about potential shifts in enforcement priorities. Being proactive and adaptable will be crucial in navigating any future regulatory changes.
U.S. Equal Employment Opportunity Commission
Upon taking office, President Trump fired EEOC General Counsel Carla Gilbride and EEOC commissioners Charlotte Burroughs and Jocelyn Samuels, leaving the EEOC without a quorum. Andrea Lucas, a Trump appointee and Kalpana Kotagal, a Democrat, remained in their seats. On May 7, President Trump nominated Brittany Bull Panuccio to serve as a commissioner. If confirmed, Panuccio’s placement at the EEOC would restore a quorum and permit the EEOC to engage in policy making.
Acting EEOC Chair Lucas announced several priorities aligned with President Trump's executive orders. One such priority focuses on defending the biological reality of sex, including by removing gender-neutral pronouns and options from the EEOC's processes and materials. Lucas also emphasized protecting women's rights to single-sex spaces at work.
The Trump Administration's stance on DEI has also influenced the EEOC's priorities.
An executive order entitled Ending Illegal Discrimination and Restoring Merit-Based Opportunity directs federal agencies, including the EEOC, to combat illegal DEI preferences in the private sector. In collaboration with the U.S. Department of Justice, the EEOC has issued resources to help employees identify unlawful DEI practices, such as limiting membership in workplace groups to certain protected classes or separating workers by race or sex for training purposes.
The Trump Administration has also directed the EEOC to deprioritize enforcement of disparate impact charges. This approach challenges the presumption of unlawful discrimination based on differences in outcomes, even when no discriminatory intent or policy may be evident. The EEOC has been tasked with evaluating pending investigations and civil suits to determine reliance on disparate impact theories inconsistent with the executive order.
The EEOC also intends to focus on anti-Semitism and anti-American bias. The agency aims to protect workers from religious bias and harassment, particularly in universities, and address national origin discrimination claims brought by Americans. This shift highlights the EEOC's broader enforcement priorities under the current administration.
Office of Federal Contract Compliance Programs
Under previous administrations, the Office of Federal Contract Compliance Programs (OFCCP)'s mission was to ensure that government contractors complied with requirements designed to prevent workplace biases, especially in pay and hiring practices. This included the establishment and submission of affirmative action plans (AAPs), which aimed to recruit underrepresented populations and align hiring rates for women and minorities with the available workforce. The OFCCP enforced these requirements through investigations and audits of employer records, mostly based on Executive Order 11246, which was issued in 1965.
President Trump's Executive Order on January 21 effectively revoked Executive Order 11246 and stripped the OFCCP of most of its enforcement powers. This revocation has led to a decline in OFCCP activity and plans to reduce personnel and office locations significantly. The U.S. Department of Labor (DOL) announced a halt in compliance with anti-discrimination laws and affirmative action programs, further diminishing the OFCCP's role. Additionally, on or about May 6, the DOL issued 30-day mass layoff notices to more than 300 OFCCP employees, whose employment will terminate on June 6.
The January 21 executive order, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” suggests that the current administration views previous enforcement of equal employment laws as itself discriminatory. This implies a shift towards dismantling policies and procedures required under the previous executive order, positioning the OFCCP to stop allowing DEI-type activities.
Under the January 21 executive order, federal contractors were permitted to comply with their prior OFCCP-imposed obligations for 90 days following the issuance of the executive order, after which they were expected to certify that they were not engaging in illegal DEI initiatives. However, the executive order does not clearly define what constitutes illegal DEI initiatives, leaving room for interpretation and ongoing litigation.
Keep in mind that the OFCCP will retain enforcement of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act (VEVRA), as its authority to do so is statutory and not subject to executive orders. However, even in this context, the agency appears to be moving away from regulating implicit bias and affirmative action, consistent with the Trump Administration's stance against disparate impact liability.
Finally, Catherine Eschbach, the newly appointed OFCCP director, has reinforced the Trump Administration's apparent view that previous OFCCP activities were out of step with the law. She has indicated plans to verify whether contractors have ceased using affirmative action plans and suggested examining previously submitted plans for indications of unlawful discrimination.
Employers should stay informed about ongoing litigation and potential changes to DEI and AAP requirements, as future administrations may alter the current landscape.
Executive Orders About DEI and Liability Risks for Companies and Individuals
The Trump Administration issued Executive Order 14173 and Executive Order 14151, aimed at eliminating DEI practices perceived as discriminatory and reducing DEI programs within federal agencies. These orders promote merit-based selection processes and prohibit employment actions based on protected characteristics. The DOJ and the EEOC have issued joint guidance to combat illegal DEI preferences in the private sector, further emphasizing the administration's focus on this issue.
One significant area of concern for employers is the risk posed by the False Claims Act (FCA). Executive Order 14173 includes a provision requiring federal contractors to certify that they do not operate DEI programs violating federal anti-discrimination laws. This certification establishes the materiality needed to pursue FCA claims, potentially leading to substantial civil and criminal liability for contractors found in violation. Keep in mind that the FCA imposes treble damages and penalties ranging from $14,308 to $28,619 per claim, making compliance a critical concern for government contractors.
Attorney General Pam Bondi has reinforced the Trump Administration's commitment to FCA enforcement. Additionally, the DOJ’s Civil Rights Division has been tasked with investigating and penalizing illegal DEI preferences, with an explicit call for criminal investigations in the private sector related to DEI.
Despite the Trump Administration's focus on DEI, the legal framework for criminal enforcement remains unclear, as no federal law directly criminalizes DEI-related HR policies. Yet, there is speculation that Section 241, the Conspiracy Against Rights statute, could be used to target DEI programs that allegedly obstruct the right to contract for employment. While the risk of criminal enforcement is considered low, the Trump Administration's willingness to stretch statutory interpretations poses potential challenges for employers.
These DEI-focused executive orders have faced numerous legal challenges, with district courts issuing national injunctions against them. Many courts find the orders overbroad and imprecise, leading to ongoing litigation and uncertainty about their enforceability.
Companies are responding to these changes in various ways, from eliminating racial hiring targets and diversity goals to rebranding DEI initiatives as inclusion-focused efforts. Other organizations have adjusted their public messaging to align with the Trump Administration's stance while maintaining their commitment to diversity in practice.
Contact John E. Duke, Molly C. McDiarmid, Jay A. Ebelhar, Raquel Ramirez Jefferson or any member of the Phelps Labor and Employment team with questions.