After President Trump took office on Monday, he lost no time in undoing as much as he could from not only the Biden Administration, but also going all the way back to the days of President Lyndon Baines Johnson.
Here is a recap of the most significant, or potentially significant employment-related actions he took as of Thursday evening. (I have no doubt that this post will be out of date before it’s published.)
HOT ISSUES
RTO! ASAP! He ordered all federal workers back to the office (allowing for limited exceptions). This doesn’t affect the private sector, but I suspect it will accelerate the trend back toward in-person work everywhere.
Brrrrrr! He imposed a freeze (really, a suspension) of pending regulations (1) issued before he took office and (2) that have not yet been published in the Federal Register, so that his people could review them and determine whether they should go forward. Limited exceptions apply. I do not know whether this will affect anything employment-related, but it could.
No birthright citizenship? He purported to do away with “birthright citizenship.” According to the Executive Order, citizenship will not be granted to any person
(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
It remains to be seen whether this will survive a Fourteenth Amendment challenge. The Fourteenth Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Binary biological sex is back. Yes, that’s “sex,” not “gender.” The federal government is ordered to recognize only two sexes: biological male, and biological female. Among other things, the Executive Order provides that biological males will not be allowed in females’ intimate spaces — such as restrooms and locker rooms — regardless of their gender identity. I fully expect this to get a legal challenge, but Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County clearly said that the Court was not ruling on issues related to “shared spaces.” Justice Gorsuch said only that discrimination based on sexual orientation or gender identity violated Title VII. In light of Bostock, would the courts say that a return to binary sex (such as not being allowed to designate one’s “gender” as “X” on a passport) is a form of discrimination based on gender identity? Who knows? Should be an interesting couple of years.
No more DEI — heck, no more affirmative action! The federal government may no longer make hiring decisions based on diversity, equity, and inclusion. More significantly for the private sector, the Executive Order says, “I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” Private sector employers can expect to see an increase in so-called “reverse” discrimination charges and litigation (discrimination against males and Caucasians), as well as legal challenges to overly aggressive DEI programs, all of which we were already beginning to see.
IMPORTANT!!! This is also the Executive Order that rescinds President Johnson’s Executive Order 11246, which had been in effect since 1965 and required federal contractors to have affirmative action plans. If you are a federal contractor, you will not want to miss Cara Crotty’s outstanding bulletin on the implications of this component of President Trump’s Executive Order. The President has also issued a fact sheet that contains a helpful summary.
APPOINTMENTS
President Trump nominated Lori Chavez-DeRemer as Secretary of Labor. The Secretary of Labor is in charge of the Wage Hour Division (which interprets and enforces the Fair Labor Standards Act and the Family and Medical Leave Act, among other laws), the Occupational Safety and Health Administration, the Office of Federal Contract Compliance Programs, and more. Ms. Chavez-DeRemer was a Congresswoman from Oregon and a Republican, but she is pro-union and was a sponsor of the PRO Act, failed legislation that would have greatly expanded the rights of employees seeking to organize. Her nomination was reportedly promoted by Sean O’Brien, President of the International Brotherhood of Teamsters, who remained neutral in the 2024 Presidential election and spoke at the Republican National Convention. I would call that, in effect, an endorsement of candidate Trump.
While Ms. Chavez-DeRemer’s nomination is pending, Vincent Micone will be Acting Secretary of Labor. Mr. Micone has a long career with the federal government, most recently as Deputy Assistant Secretary for Operations in the DOL’s Office of the Assistant Secretary for Administration and Management. (Try saying that three times fast.)
The President appointed Keith Sonderling as Deputy Secretary of Labor. Mr. Sonderling was a Commissioner with the Equal Employment Opportunity Commission, and before that was Acting and Deputy Administrator of the DOL’s Wage Hour Division, all during the first Trump Administration. Constangy was honored to present a webinar in 2022 with Mr. Sonderling, while he was still an EEOC Commissioner, on the use of artificial intelligence in making employment decisions. (I’d link to it, but it is no longer available on our website.) It is good to see Mr. Sonderling back in the federal government.
President Trump named Marvin Kaplan as Chairman of the National Labor Relations Board. Mr. Kaplan, who was appointed to the Board during the first Trump Administration, is the only Republican member remaining on the Board. There are two vacant positions on the five-member Board, both of which President Trump will be able to fill.
The President appointed Andrew Ferguson as Chair of the Federal Trade Commission. This almost certainly means the end of the FTC’s attempt to outlaw noncompete agreements, which was struck down by a federal judge in Texas but was on appeal by the Biden FTC. Here is a statement that Mr. Ferguson, then a Commissioner, made in dissenting from the non-compete ban. Lina Khan, the prior FTC chair who was behind the no-noncompete rule, left the FTC when her term expired.
And the President named Andrea Lucas as Acting Chair of the EEOC. Ms. Lucas, appointed to the EEOC during the first Trump Administration, is the only remaining Republican on the Commission. (There is one vacancy.) In a statement published on the EEOC website after her appointment, Ms. Lucas said,
I look forward to restoring evenhanded enforcement of employment civil rights laws for all Americans. In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”
I guess this means we can expect a change in the EEOC’s enforcement priorities in the not-too-distant future, ya think?*
*The EEOC will keep its Democratic majority until 2026, when the term of Commissioner Jocelyn Samuels (D) expires and President Trump can nominate her successor.
We’ll continue to keep you up to date on all of the latest from the Trump Administration, Part Deux.
