Beltway Buzz, February 21, 2025

NLRB Acting GC Rescinds Abruzzo Memos. The National Labor Relations Board (NLRB) still lacks an operational quorum, but Acting General Counsel William B. Cowen is taking steps to undo policy positions held by his predecessor, Jennifer Abruzzo. Thomas M. Stanek and Zachary V. Zagger have the details on Cowen’s rescission of at least eighteen of Abruzzo’s general counsel memoranda relating to expanded remedies, noncompete agreements, and severance agreements, among others. These memoranda represented Abruzzo’s opinion on areas of the law in which she wanted the Board to act, or her interpretations of how Board decisions should be implemented. By rescinding these memoranda, Cowen effectively “wipes the slate clean” and sets the stage for himself—or another individual serving in the general counsel role—to establish his or her own labor policy agenda at the Board. Of course, Cowen’s actions do not overturn any Board decisions that have been issued over the last several years.

Senate HELP Committee Examines Secretary of Labor Nomination. On February 19, 2025, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to examine the nomination of Lori Chavez-DeRemer to serve as secretary of labor. Chavez-DeRemer didn’t reveal too many details about her agenda should she get confirmed, but here are some takeaways about what we might expect:

• Chavez-DeRemer promised to work on or review regulations relating to joint employer and independent contractor status under the Fair Labor Standards Act (FLSA).
• As for workplace safety, Chavez-DeRemer stated that she would review the Occupational Safety and Health Administration’s (OSHA) proposed emergency response rule, as well as OSHA’s pending proposal on workplace violence prevention.
• No senators asked Chavez-DeRemer about the prospects of the Office of Federal Contract Compliance Programs (OFCCP), which was gutted by Executive Order (EO) 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
• Chavez-DeRemer expressly denounced her support of the provision in the Protecting the Right to Organize (PRO) Act, which would eliminate state right-to-work laws, stating that her support of the bill was to start a conversation about workers’ rights and that the bill was imperfect.
• Regarding immigration, Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) expressly asked Chavez-DeRemer to encourage the U.S. Congress to issue the maximum allotment of H-2B visas, while Senator Tommy Tuberville (R-AL) impliedly asked her to support the H-1B program. In response, Chavez-DeRemer noted the U.S. Department of Labor’s (DOL) limited role in these programs, but promised to work with the senators on these issues.
• Democratic senators generally raised issues that are likely to resound as reoccurring themes from their side of the aisle during this congressional session: raising the minimum wage, promoting unionization, attacking right-to-work laws, endorsing paid family leave, criticizing noncompete agreements, and condemning President Donald Trump’s removal of U.S. Equal Employment Opportunity Commission (EEOC) commissioners Jocelyn Samuels and Charlotte Burrows, as well as NLRB member Gwynne Wilcox.

Republicans outnumber Democrats on the HELP Committee 12–11, so even one Republican “no” vote could cause problems for Chavez-DeRemer’s nomination. The committee is expected to vote on Chavez-DeRemer’s nomination on February 27, 2025.

House Republican Introduces Independent Contractor Legislation. Representative Kevin Kiley (R-CA) has introduced two bills addressing independent contractors.

• The Modern Worker Empowerment Act (H.R. 1319) would amend both the FLSA and the National Labor Relations Act (NLRA) to create a two-part test for determining whether a worker is an independent contractor, rather than an employee. Pursuant to the bill, a worker is an independent contractor if the putative employer “does not exercise significant control over the details of the way the work is performed by the individual” and if the worker “has the opportunities and risks inherent with entrepreneurship, such as the discretion to exercise managerial skill, business acumen, or professional judgment.” The bill also lists several factors that cannot be used as part of the employee/independent contractor inquiry, such as requiring the worker to comply with legal requirements, carry insurance, or “meet contractually agreed-upon performance standards, such as deadlines.’’
• The Modern Worker Security Act (H.R. 1320) allows employers to provide workers with portable benefits—such as paid leave, health insurance coverage, and retirement savings—without those benefits being an indicia of employment under federal law.

Kiley represents California’s 3rd congressional district, is very familiar with the state’s A.B. 5 independent contractor statute, and has been a strong opponent of the Biden administration’s DOL’s independent contractor rule.

Democratic State AGs Issue DEI-Related Guidance. The Trump administration’s opposition to diversity, equity, and inclusion (DEI) continues to reverberate in the private-sector employer community. For example, sixteen Democratic state attorneys general have issued a document entitled, “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives. The document sets forth the legal opinions of the attorneys general regarding the impact of EO 14173 on private-sector DEI initiatives. The guidance takes the position that DEI programs and practices “are not illegal, and the federal government does not have the legal authority to issue an executive order that prohibits otherwise lawful activities in the private sector or mandates the wholesale removal of these policies and practices within private organizations, including those that receive federal contracts and grants.” The guidance does not carry the force of law, and does not compel employers to take any particular action, but it does serve as an example of Democrats’ efforts to counter Republican attempts to undermine diversity and inclusion practices in the private sector. Future Democratic efforts could exert more pressure on employers that have changed their DEI practices as a result of the administration’s actions. Nonnie L. Shivers and Leah J. Shepherd have the details.

EEOC to Prioritize “Anti-American National Origin Discrimination.” On February 19, 2025, the EEOC issued a press release reemphasizing that Acting Chair Andrea Lucas will prioritize “protecting American workers from anti-American national origin discrimination.” The release coordinates the EEOC’s enforcement agenda with the administration’s scrutiny of both legal and illegal immigration, noting, “The EEOC will help deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers.” The press release further states that federal law makes it unlawful for employers to adopt policies or practices preferring “illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers.”

Incorporating the Bill of Rights. On February 19, 1923, Edward Terry Sanford was sworn in as an associate justice of the Supreme Court of the United States. Sanford only served seven years on the Court until his death in 1930, but he was instrumental in the Court’s adoption of the “incorporation doctrine,” which applies the Constitution’s Bill of Rights to the individual states. Several Supreme Court decisions in the 1800s—including the Slaughter-House Cases (1873)—had restricted the application of the Bill of Rights to the federal government. This began to change incrementally with the turn of the century, and the “incorporation doctrine” was cemented in Supreme Court jurisprudence when Sanford wrote the majority opinion in a 1925 case called Gitlow v. New York. In Gitlow, the Court upheld—by a vote of 7–2—New York’s conviction of Benjamin Gitlow under its Criminal Anarchy Law for publication of a document, titled “Left Wing Manifesto,” as a reasonable action “to protect the public peace and safety.” While the case was an exception to the First Amendment’s free speech protections, Sanford made clear that the amendment was applicable to the states. He wrote:

We may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.

Gitlow paved the way for future cases applying the Bill of Rights to the states, such as Gideon v. Wainwright (1963) (extending the Sixth Amendment’s right to counsel to the states).