It may be difficult to believe, but the new Administration concluded only its first month in office at noon on February 20, 2025. Since President Donald Trump began his second term, there have already been significant changes in U.S. employment law.
Please note that, given the fast pace of the new Administration, we do not purport to give you a comprehensive analysis of what has happened in the field of employment law, and this document is necessarily limited to its date (meaning the next month will probably bring more changes).
Over 60 lawsuits have been filed against the Trump Administration pertaining to its various Executive Orders and actions. Until that litigation is concluded (which may require one or more rulings by the U.S. Supreme Court), employers should confer with their attorneys if they think they are or will be impacted by these developments. For our part we will continue to report the changes in employment law as we learn of them while leaving analysis of the changes to your attorneys.
1. Changes for Federal Contractors and Subcontractors:
- New Order: On January 21, 2025, Executive Order 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” revoked Executive Order 11246 and thus eliminated most affirmative action requirements for federal contractors. Also, DEI, or diversity-equity-inclusion, requirements were eliminated for Federal contractors and subcontractors. The only enforcement activity by the Office of Federal Contract Compliance Programs (OFCCP) remaining will concern individuals with disabilities (Section 503 of the Rehabilitation Act of 1973 prohibits discrimination against people with disabilities by federal contractors and subcontractors) or protected veterans (The Vietnam Era Veterans’ Readjustment Assistance Act protects veterans from employment discrimination by federal contractors and subcontractors).
- Employer Action:
- Review hiring and promotion policies to ensure compliance with OFCCP requirements for individuals with disabilities and veterans.
- Review Affirmative Action Plan requirements with attorney.
- Review DEI initiatives and HR policies with attorney.
2. Changes at the Equal Employment Opportunity Commission (EEOC) Affecting Employers:
- The EEOC currently lacks a three-member quorum, so expect no major policy announcements coming from the Commission.
- The Acting Chair of the Commission has announced her intention to focus on sex-based discrimination and sexual harassment charges while scaling back gender identity protections.
- The Acting Chair of the Commission has also announced her intention to enforce Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”, which includes privacy rights of women in “intimate spaces” (for example, women’s bathrooms and locker rooms) and protections for biological female participation in women’s sports under Title IX of the Civil Rights Act.
3. Changes at the Occupational Safety and Health Administration (OSHA) Affecting Employers:
- In 2024 OSHA proposed a major rule affecting employers named “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings Rulemaking”. That Rule would require employers to do various things for employees who work at any workplace or work space that has an average temperature of 80 degrees (Fahrenheit); the regulations become more strict for a workplace or work space that has an average temperature of 90 degrees (Fahrenheit). While this “Heat Rule” was published in final form in December 2024, it has not been formally adopted. OSHA is planning a virtual “informal public hearing” on June 16. 2025, which is unusual because the public comment period on the Heat Rule ended last year. If enacted by OSHA in its present form, the Heat Rule will affect almost every employer.
- At this writing the Heat Rule has not been withdrawn, meaning it could come into effect.
4. Changes at the National Labor Relations Board (NLRB) Affecting Employers:
- The NLRB currently lacks a three-member quorum, so expect no major policy announcements coming from the Board.
- The Acting General Counsel, who is the operational head of the NLRB, on February 14 rescinded several Biden Administration NLRB initiatives, including:
- Facilitation of unionization efforts of college student athletes;
- Prohibitions on IT monitoring of employees (for example, using metrics for remote workers to monitor attendance and measure productivity);
- Prohibitions on non-competition agreements by employees;
- Prohibitions on non-disparagement and confidentiality clauses in employee severance/termination agreements;
- Facilitation of unionization protections for illegal aliens (“immigrant workers”);
- Inter-agency cooperation (the Biden Administration’s “all of government” approach when suing employers); and
- Treating mandatory employee meetings as constituting an unfair labor practice by the employer.
5. Antitrust Guidelines for Business Activities Affecting Workers, U.S. Department of Justice and the Federal Trade Commission:
- Four days before the end of the Biden Administration, the Department of Justice and the Federal Trade Commission issued joint Antitrust Guidelines that affect employers. The Guidelines do the following:
- Agreements between companies not to recruit, solicit, or hire workers, or to fix wages or terms of employment, may violate the antitrust laws and may expose companies and executives to criminal liability.
- Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees may violate the antitrust laws.
- Exchanging competitively sensitive information with companies that compete for workers may violate the antitrust laws. This includes exchanges of information about compensation or other terms or conditions of employment, and other exchanges of information that harm competition for workers. Exchanging such information with competitors may be illegal even if companies use a third party or intermediary — including a third party using an algorithm — to share such information.
- Employment agreements that restrict workers’ freedom to leave their job may violate the antitrust laws. These include non-compete provisions that prevent workers from leaving a job to join a competing or potentially competing employer; that prevent workers from leaving their job to start a new business; or that require workers to pay a penalty upon leaving their job.
- Other restrictive, exclusionary, or predatory employment conditions that harm competition may violate the antitrust laws. These include overly broad non-disclosure agreements, training repayment agreement provisions, non-solicitation agreements, and exit fee or liquidated damages provisions.
- At this writing these jointly issued Guidelines have not been withdrawn, meaning they could be enforced today.
