Beltway Buzz, November 8, 2024

Republicans Sweep. The Republican Party’s capture of the White House and both chambers of Congress this week will usher in a new labor, employment, and immigration policy agenda beginning in early 2025. Here is what employers can expect during the remaining weeks of 2024 and looking ahead to the new year.

Remainder of 2024: Playing Out the String. Congress will return to Washington, D.C., the week beginning November 13, 2024, and is scheduled to be in session for roughly five weeks prior to the end of the calendar year. Congress has a significant to-do list to get through during this lame-duck period, including funding the federal government beyond December 20, 2024, and passing the National Defense Authorization Act (setting policies and funding levels for the military), hurricane disaster relief, and the Farm Bill (setting agriculture, nutrition, and forestry policies), among other efforts.

Nominations will also be a priority for Senate Majority Leader Charles Schumer (D-NY), and he will likely focus on confirming President Biden’s nominees to lifetime appointments on the federal bench. Also looming large is the nomination of Lauren McFerran to another term on the National Labor Relations Board (NLRB), though it is unclear where this issue fits among Schumer’s priorities. McFerran’s term expires on December 16, 2024, and keeping her off the Board will allow President-elect Trump to immediately appoint two new Board members to join Marvin Kaplan to form a Republican majority.

2025: A New Congress and New Administration.

• Executive orders. As with many new administrations, the Trump administration is likely to begin with a flurry of executive orders. For newly inaugurated President Trump, such executive orders could be related to immigration (likely focusing on the border and travel), diversity equity and inclusion (DEI) in the federal government and federal contracting community, energy, regulatory reform, and international trade, among other topics. Agency rulemaking may be required to implement some of these executive orders, which will take time.

• Personnel. Confirmation hearings for judicial and agency appointments are likely to be a focus for the Senate in 2025. Because agency officials can be confirmed with a majority vote in the Senate, President Trump will have a relatively easy time getting people confirmed, though this is never a guarantee (see Julie Su and David Weil). “Personnel is policy” in Washington, D.C., and these officials will play an outsized role in shaping labor and employment policy regardless of the administration. President-elect Trump will likely draw on officials who served in his previous administration, as well as Republican members of Congress.

• Congress. As of this writing, Republicans will have at least a two-member majority in the U.S. Senate and are projected to maintain a slim hold on the U.S. House of Representatives. This “trifecta” presents Republicans with a realistic opportunity to pass legislation, though the Senate’s legislative filibuster—assuming it remains in place—may limit their ability to do so. Republican leaders in the Senate have gone on record stating that they would preserve the filibuster, but pressure from President Trump could change their minds.
  • Taxes. Much of the legislative debates during the first session of the 119th Congress will focus on taxes because many provisions of the 2017 Tax Cuts and Jobs Act (TCJA) will expire at the end of 2025. Republicans will seek to make these provisions permanent. As they did with the passage of the TCJA in 2017, Republicans in Congress will likely use the reconciliation process to advance tax cuts legislation, as it allows legislation to pass in the Senate through a simple majority vote. In particular, the Buzz will be interested to see if President-elect Trump’s “no tax on tips” promise gains any traction.
  • Immigration and energy. Congress will also focus on legislation to address security at the southern border and to require proof of citizenship to register to vote. Opening up more land for energy exploration and production and repealing the Inflation Reduction Act’s green energy provisions will also be priorities.
  • Labor and employment. This is not a favorite issue area for Republicans. Still, some issues to monitor include child labor, portable benefits, the Employee Rights Act, and anti-DEI measures. Along these lines, congressional Republicans could use their subpoena authority to investigate and shine a light on DEI and ESG practices in the private sector (this could include letters to CEOs from members of Congress requesting information or inviting them to testify about these practices). The Buzz also wonders whether Republicans would consider a federal paid family leave framework with language to preempt state/local laws.

• Supreme Court of the United States. With Republicans in control of Congress, legislative attempts to add justices to the Court or enact ethical/recusal reforms will go by the wayside (for now). Additionally, there could be opportunities for President Trump to appoint new justices to the Court, should Justice Clarence Thomas (age seventy-six) and/or Justice Samuel Alito (age seventy-four) choose to retire. President Trump appointed Justices Gorsuch, Kavanaugh, and Coney Barrett during his first term.

• U.S. Department of Labor (DOL).
  • The DOL in the new Trump administration will likely rescind Biden-era regulations relating to independent contractors, overtime, OSHA’s “walkaround” regulation, and prevailing wages on federal construction projects. It would also hit “pause”—at the very least—on the Occupational Safety and Health Administration’s (OSHA) pending regulatory proposal regarding heat in indoor and outdoor workplaces.
  • The DOL’s Wage and Hour Division will likely focus on voluntary compliance efforts, perhaps by reinstituting the Payroll Audit Independent Determination (PAID) program.
  • The Office of Federal Contract Compliance Programs (OFCCP) will also lean into compliance outreach and transparency. There may be conversations about combining OFCCP with the U.S. Equal Employment Opportunity Commission (EEOC), as this was proposed in the fiscal year 2018 budget proposal during the first Trump administration. This discussion happens in most Republican administrations, but it has always been abandoned due to logistical issues and concerns about combining the worst parts of both agencies (e.g., giving the EEOC debarment authority).
  • One caveat: President-elect Trump and Vice President-elect Vance have a populist bent to them, so it is possible that these political views may lead to some trepidation in withdrawing regulations that are perceived as “worker friendly.”

• National Labor Relations Board. It is highly likely that President Trump will fire NLRB General Counsel (GC) Jennifer Abruzzo very quickly—likely on Inauguration Day. A new acting general counsel will likely be appointed until a Senate-confirmed GC can be installed. Shortly thereafter, stakeholders can expect the new GC to issue a memorandum outlining his/her priorities. (Suffice it to say that General Counsel Abruzzo’s current efforts to outlaw noncompete agreements and limit employer speech would not be included in such a memo.)
But reversing the Board’s recently union-friendly decisions may not be so easy. If Lauren McFerran is reconfirmed, as mentioned above, the NLRB will have a Democratic majority through August 2026, and the pro-union policies we have seen over the last several years will continue during that time. That said, there are current cases in the federal courts arguing that NLRB members—like Cabinet members—should serve at the President’s will, as opposed to set five terms. President Trump could run with this argument and fire McFerran (or even sitting Democratic members David Prouty or Gwynne Wilcox, which would raise a quorum issue). This would result in a big legal and political fight, which Trump may or may not want. On the other hand, if the Senate fails to confirm McFerran, then Trump would be free to nominate two Republicans (or one if President Biden’s Republican nominee, Joshua Ditelberg, is confirmed) to team with current Republican Marvin Kaplan.

When Republicans do get a majority on the Board—whether in 2025 or 2026—they can be expected to roll back recent Board decisions second-guessing commonsense workplace policies, countenancing potentially harassing conduct under the rubric of protected concerted activity, expanding the type of remedies available, and green-lighting a form of unionization via card check, among other matters.


• U.S. Equal Employment Opportunity Commission. Similar to the NLRB, Democrats will have a three-member majority on the EEOC through the summer of 2026. However, President Trump is expected to make Republican commissioner, Andrea Lucas, the chair. This means that Lucas will control the Commission’s agenda, but she won’t have the votes. This will create a bit of a policy stalemate at the EEOC—which we saw for much of the first half of the Biden presidency, when the Commission was deadlocked with two Democrats and two Republicans—in terms of trying to make changes to its recent harassment guidance or pregnancy regulations. But, on the plus side for employers, it also means that the EEOC will not be able to advance its pending proposal to require employers to submit to the agency employee pay data.
Additionally, President Biden, for all intents and purposes, fired President Trump–appointed EEOC general counsel, Sharon Fast Gustafson, two months into his term. In turn, we can expect newly inaugurated President Trump to ask for the resignation of the EEOC’s current general counsel, Karla Gilbride.

Immigration (DOL, U.S. Department of Homeland Security, U.S. Department of State). Whereas the Biden administration focused on streamlining and modernizing employment-based immigration processes, a Trump administration is expected to slow down processes and increase vetting and scrutiny of petitions. Stakeholders can expect an increase in requests for evidence, elimination of deference to prior approvals, roadblocks at U.S. consulates abroad, and the like. On the regulatory front, the administration my try to resuscitate its H-1B wage rule, which was struck down by a federal judge because the rule was not issued with the required notice-and-comment process. The administration could further propose eliminating work authorization for spouses of H-1B visa holders, something that the Trump administration forecasted in 2020, but never actually proposed.

Election Day. We’ve grown accustomed to Election Day being in early November, but that wasn’t always the case. From 1787 to 1844, each state picked its respective date to elect local and national politicians. This resulted in a confusing patchwork, and it impacted voter turnout when news of national results spread throughout the states. It also created opportunities for fraud. Some historians speculate that the result of the 1844 election, in which William Henry Harrison defeated incumbent President Martin Van Buren, was partly due to the fact that voting was held in various states from November 1 to December 4, which allegedly allowed individuals to cross state lines to vote multiple times. As a result, in 1845, Congress passed the Presidential Election Day Act, which established the Tuesday after the first Monday in November as Election Day. November was thought to be a good month because it was after spring planting and summer harvest seasons. Tuesday was chosen because it fit nicely in between Sunday services and farmer’s markets that were traditionally held Wednesday through Friday. Finally, designating Election Day on the Tuesday after the first Monday avoided potential conflicts with All Saints’ Day (November 1).