Workplace Strategies Watercooler 2025: The Election Is Over, What’s Next? Part I

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Jim Plunkett: Hi, my name is Jim Plunkett, and I chair the Ogletree Deakins Government Affairs Practice Group in Washington, D.C. But I am joining you here from Las Vegas at our Workplace Strategies 2025 Conference, where we just wrapped up a panel on what changes employers can expect as a result of the new administration. And this is part one of our discussion. So, I’m going to start with Scott Kelly from our Birmingham, Alabama office, who chaired our Government Contracting and Reporting Practice group. And Scott has been spending a ton of time on DEI, diversity, equity, and inclusion, in these last couple of months. But before we dive into that, Scott, talk to me about what’s happening with the Office of Federal Contract Compliance Programs. They eliminated the executive order, they’re cutting staff, but now there’s a new person in charge. She’s indicated that the OFCCP might have a new mission. What’s happening?

Scott Kelly: Yeah, so lots going on, Jim. You’re right, the Executive Order 14173 that was signed by President Trump did rescind the executive order that has been in place for several decades that gave protections, both affirmative action and non-discrimination requirements were imposed upon federal contractors and subcontractors for women and minorities. In the executive order, those protections were rescinded along with the implementing regulations. And so, that leaves OFCCP really only with enforcement authority for two laws, section 503 of the Rehabilitation Act and VEVRAA, which allows for protections of protected veterans. And so federal contractors and subcontractors subject to those obligations still are required to prepare affirmative action programs. And we think it’s important to do those, especially to ensure that you can comply with some of the new obligations that have been conferred upon federal contractors, grant recipients, and subcontractors.
And that’s to certify compliance with all federal anti-discrimination laws and that they aren’t operating any illegal or promoting any DEI programs that would be deemed illegal under federal anti-discrimination statutes. Because the executive order rescinded not only the protections, but also the implementing regulations, even though there is a new director, and she announced that she was going to perform an autopsy, not only on the authorities that OFCCP had to enforce these obligations on federal contractors, but also it appears she wants to look back and determine if any of the agency’s prior requirements might’ve violated federal anti-discrimination laws, particularly as it relates to diversity, equity, and inclusion programs. And what we’re seeing there is a question in our minds of what authority the agency would have to actually do that or do anything related to enforcing concerns that perhaps a federal contractor might’ve violated anti-discrimination laws by having a robust DEI program. Because the acting Secretary of Labor in late January entered an order indicating that the Secretary of Labor, at least at that point, or the acting Secretary, felt that the implementing regs under 11246 were gone.
And so, that would mean that OFCCP really, in my mind, wouldn’t have authority. Folks at America’s First Legal, which is a conservative activist group, have stated that there is some authority under the EO clause and that OFCCP could do something for federal contractors, bar them from having any other federal contracts. I don’t know if I totally agree with that argument. I think federal contractors would have Fourth Amendment challenges that they could raise and some due process challenges if we saw the OFCCP taking the steps that it seems like the new director might want to take.
I think the real practical takeaway, or the reality is, whether or not they have the authority to do anything directly to the federal contractor from OFCCP or not. I think that what we might see as a referral or some information sharing from OFCCP to other parts of the other federal agencies, like the EEOC, perhaps the Department of Justice Civil Rights Division, for those entities to start investigating federal contractors for their DEI practices. And AFL has already indicated that those investigations should occur. In February, they sent a letter to the acting Secretary of Labor and to then a different acting director of OFCCP asking for those two entities to investigate, I think there were eight federal contractors they identified for having some DEI programming that they didn’t feel was lawful.

Jim Plunkett: Let’s pivot to diversity, equity, and inclusion, Scott. There’s been multiple executive orders addressing the topic from this administration. In turn, there’s been multiple lawsuits, we’ve had multiple court rulings. It’s really creating a lot of confusion for employers. Give us the current state of play on the administration’s enforcement efforts on this front.

Scott Kelly: The current administration, I would say, is full steam ahead on enforcement on DEI practices and trying to encourage employers, both private employers as well as federal contractors and grant recipients from continuing any kind of DEI programs that they would deem unlawful. I think first for federal contractors and subcontractors and grant recipients, we’re seeing federal agencies both in the United States and some State Department embassies requesting that grant recipients or federal contractors certify compliance with Executive Order 14173.
And there’s two components to that. There’s one that you’re complying that you agree or certify that you are complying with all federal anti-discrimination laws. And for federal contractors, that’s important because prior, you were a federal contractor, of course, you were subject to all those federal anti-discrimination laws if you met the statutory thresholds that were out there. But for OFCCP and federal contract compliance purposes, really it was a Title VII, the ADA, not USERRA, but section 503 of the Rehab Act. But we didn’t have things like the Age Discrimination Act that OFCCP could enforce or GINA and other federal anti-discrimination laws that seemingly could impact whether or not the federal government would want to continue to contract with you or not.
The second certification requirement is that the federal contractor or the grant recipient is not operating any programs that would be deemed illegal under current federal anti-discrimination statutes. The legal challenges have come swiftly to this certification requirement and this executive order. There are over 11 challenges in federal district courts, and some have made their way to the Ninth and the Fourth Circuit for some of these challenges. So, we’re watching all of those. A preliminary injunction was entered by a court in Maryland. That preliminary injunction was lifted, and that’s the one where the Fourth Circuit sent it back down to that Maryland District Court. And there has been a motion to vacate filed by the plaintiffs in that case, and they’re trying to put new evidence before the court. The Department of Justice has opposed that motion. So, we’re waiting for a hearing on that.
And some of the other challenges we’ve seen some preliminary injunction motions, and even some hearings, and some reply motions or oppositions filed by the Department of Justice. And in one case, the Chicago trades case, we’ve seen a federal district judge enter a narrow preliminary injunction that really only pertains to grant recipients and federal contractors that are receiving demands from the Department of Labor to agree to these certifications. So, where that leaves everybody is in a state of flux. I check every day all these great litigation trackers that are out there to see where cases may be. If you’re getting certification requests for federal contractors, it’d be smart for them to look and make sure that the requests are still eligible to be completed. And definitely make sure that all of your DEI programming would be seen as lawful under the anti-discrimination statutes.

Jim Plunkett: So, you’ve really been talking really exclusively about federal contractors with regard to DEI. But if I’m not a federal contractor, why should I care about what the administration is saying and doing about diversity, equity, and inclusion?

Scott Kelly: Sure. So, the Executive Order 14173 did have a component or a section to it aimed at private employers. And it’s really, I think, in line with what I believe is a fair statement that this administration has a bit of an animus towards diversity, equity, and inclusion programming and initiatives. And basically, the President directed the Attorney General to confer with the OMB Director and the Assistant in the White House to come up with a strategic enforcement plan that they are going to release, I believe by May 21st of this year. And that release is going to be to all the federal agencies. I believe they’re at the beginning of the administration, where approximately 4,000 of those agencies.
And it appears that this executive order is going to open the way for each of those agencies to start civil compliance investigations for different employers that they feel like are egregious offenders of having programs that would violate anti-discrimination laws. I think what you’re going to see is a lot of agencies that don’t really have a history or a lot of experience in dealing with employment law-related issues that are now going to be stepping in the shoes of folks that you normally would see from the government doing that. So, the EEOC, perhaps OFCCP, Department of Justice. Really, it’s putting all of government with an eye on trying to root out these DEI programs that the administration is going to not find to be supportive of federal anti-discrimination laws.

Jim Plunkett: So, lots more to come on this. I have a feeling that we’ll be talking about DEI at Workplace Strategies 2026 in Austin, Texas.

Scott Kelly: I believe you’re right. I would say that in Vegas is a good bet to take.

Jim Plunkett: There you go. I love it. All right, let’s pivot from the DEI policy area and talk now about traditional labor policy. And I’m happy to have John Merrell from our Greenville, South Carolina office to join us and share with us his thoughts on what’s happening at the Board. John, let’s start with the makeup of the Board. President Trump has taken really some unprecedented actions with regard to board personnel, in particular Member Gwynne Wilcox. What’s the story with her membership on the Board, and what’s the status of her legal challenges to what’s happened?

John Merrell: Yep. So, about a week after Trump was inaugurated, he terminated Member Wilcox from the Board, which, as you said, was unprecedented. Normally, board members serve out their appointed five-year term, and her term was supposed to run out in 2028. So, she brought a lawsuit challenging the administration’s actions, saying that the administration violated the statutory language that provides for removal of board members, but only under certain circumstances which aren’t present here. Trump administration’s defense has been that that portion of the statute is unconstitutional, and that basically, they ought to be able to remove board members whenever. So, as Wilcox’s case has proceeded, and her appeal has proceeded, she’s been put back on the Board two times over the last couple of months. But currently, she’s off; the Supreme Court issued a stay on April 9th, saying that while we decide whether to take up this case and decide this issue, she’s off the board for the time being. So, it leaves us with two board members, Kaplan, who is the chairman and who’s a Republican, and Prouty, who is a Democrat. That means there’s no quorum on the board, so they can’t issue any decisions.

Jim Plunkett: So, employers are anxious to get their hands on what those decisions are. Well, we’ll talk about some of those expected policy changes in just a minute. But talk about the Board, the unique role that the General Counsel plays in developing policy at the NLRB, and who’s in that role now, and talk about who might be in that role on a permanent basis going forward.

John Merrell: Yeah. So, other than the board members themselves, the people who, up to five members at the top, who are basically the Supreme Court of the agency and issue decisions interpreting the law and deciding novel issues of law. Other than those folks, probably the most important person in the agency is the General Counsel. They’re the head lawyer within the agency, and they set the enforcement priorities of the agency, which means they decide what kind of cases they’re going to prosecute and, ultimately, what kind of cases get appealed up to the full NLRB in an attempt to either decide a novel issue of law or change existing law.
So, General Counsel is an extremely important position. Currently, it’s occupied by Acting General Counsel Bill Cowen, who was previously the regional director out in LA in region 21 of the NLRB and many years ago was actually a board member himself, appointed by George W. Bush. He’s in the acting GC role for now. There is a nominee, Crystal Carey, who’s a management-side labor lawyer. And previously, prior to being in private practice, she spent nine years as a Board lawyer. So, she’s somebody who is very familiar with the NLRB and its processes, and is also someone who is more likely to take a pro-employer view of the law, or at least not a overwhelmingly pro-union view of the law, which is what we really saw over the last few years with some of the decisions under the prior GC and the prior Board.

Jim Plunkett: So, let’s build on that a little bit about those more union-friendly decisions that we saw generally between 2020 and 2024. The employer community is looking for a lot of those changes to be reversed. So, talk a little bit more specifically about what those case priorities will be for employers.

John Merrell: So, there are a few decisions that I could see the future Board and the future General Counsel trying to overturn that were issued over the last four years or so. It’s important to know that even if the current General Counsel or Crystal Carey, if they disagree with one of those decisions, they can’t just choose not to enforce it. So, they have to continue issuing complaints against employers for violating the case law that the general counsel might disagree with, but then the general counsel can appeal those cases up to the full NLRB and ask them to change the law to what it was before.
So, examples of cases where I could see the General Counsel asking the Board to overturn recent decisions, the decision really lowered the bar for the type of conduct that can result in a bargaining order from the Board. And a bargaining order is just when the Board orders an employer to bargain with the union without requiring the union to actually go through the process of winning an election. It typically historically has only occurred if an employer had committed egregious unfair labor practices, but cases really lowered the bar in terms of the type of conduct that can result in a bargaining order. So, I could see the General Counsel asking the Board, once there is a board, once there’s a quorum, to overturn that decision and go back to the prior standard for a bargaining order, the Stericycle standard for handbook reviews. The Stericycle standard is really a restrictive standard in terms of what you can and cannot say in your handbook policies without violating the National Labor Relations Act. You could possibly see the board go back to a more permissive standard like the Boeing standard that was in place before Stericycle, which gave a lot of weight to the business justification behind a rule in addition to evaluating whether the rule would actually discourage employees from engaging in some kind of protected conduct under the National Labor Relations Act. Captive audience meetings—those are mandatory meetings that an employer holds with its employees to talk about the topic of unions. And from 1948 until about 2024, the Board had taken the position that it was lawful for an employer to have a meeting with its employees to talk about unions.
And many employers have done that during the course of union organizing campaigns. Under a recent decision from 2024, the Board reversed course and said no longer can an employer have a mandatory meeting with employees on the topic of unions, that instead, you have to give disclaimers on the front end telling employees this is a voluntary meeting, you won’t be punished if you choose not to attend. You can leave at any time, you won’t be punished, and we’re not going to track attendance. So, that decision reversed, as I said, decades of precedent. You could see the future general counsel and the future board going back to the law as it stood from 1948 until 2024, which was that it’s okay to have mandatory meetings with employees to talk about unions.
And the last thing is the ambush election rules or quickie election rules that are currently in place. They’re rules implemented by the NLRB that shorten the amount of time between a union petition and an election. You could possibly see the future NLRB, once there’s a quorum, going back to the way the rules were during the first Trump administration, which was that there was more time between a petition and an election, which gave employers a little more time to communicate with employees about the topic and really engage in campaigning on that topic.

Jim Plunkett: Well, let’s hope that we get that quorum filled quickly so we can have these changes come about to correct the labor management landscape. Great insights. Thank you, John. Really appreciate it.

John Merrell: Anytime. Thanks for having me.

Jim Plunkett: All right. Well, last but not least on this part one of our post-election discussion at Workplace Strategies 2025 is Wayne Pinkstone from our Philadelphia office, who is one of our Occupational Safety and Health Administration (OSHA) gurus. So, Wayne, when I talked to our colleagues about OSHA in the first Trump administration, one thing that I’ve heard over the years is that there was a little bit of a disappointment, I guess, in terms of the changes that they were hoping to see in Trump 1.0. And I think there’s some renewed hope that we might get some more significant changes this second time around from the Trump administration. But just in these last couple of months, and really these 100 days of Trump 2.0, what’s been your personal experience as an OSHA practitioner with OSHA in Trump 2.0?

Wayne Pinkstone: Yeah, Jim. So, I mean, we’re expecting that there will ultimately be changes at some point because there’s going to be some cuts in funding that are going to impact the agency’s enforcement process. So, the investigators and inspectors that you typically see go out to workplaces to conduct inspections, when there’s a cut in funding, there’s usually a cut in personnel. So, you don’t see as many of these inspectors conducting investigations and inspections. So, we’re anticipating that happening. Now, we anticipated that in Trump one, and it really didn’t materialize. I can tell you that thus far, 100 days in, I haven’t seen it. I haven’t personally seen a reduction in the enforcement process for OSHA. Now, I’m primarily focused on Pennsylvania and New Jersey, New York, and then into New England. But they’re all governed by Fed OSHA, and I’ve seen the area offices that cover that region. And then also in speaking with other workplace safety colleagues in other areas of the country, they’re still seeing enforcement actions; they’re still seeing inspections; they’re still seeing citations being issued. Now, will that change? Probably. But thus far, we haven’t seen it.

Jim Plunkett: So, with regards to the regulatory agenda, the heat stress proposal, this was the one that was issued in the second half of 2024, really was keeping employers up at night about what might happen for them if it was finalized, all the requirements of this proposal. It really would’ve been, I think if the election had gone different, I think the Harris administration would’ve really pushed to finalize that proposal, and it really would’ve been a legacy rulemaking, one of those rulemakings at OSHA that they would be talking about for years to come. Obviously, we have different election results, but so everybody’s wondering what is going to happen to this heat stress rule that, if finalized as proposed, would be really significant for all workplaces?

Wayne Pinkstone: Yeah. So, if you asked me at the time that Trump took office in January, my answer would’ve been, and I think most management-side OSHA lawyers would’ve said, that heat stress rule is probably going away in total. It is not going to see the light of day for the next four years. Maybe if there’s a Democratic administration four years down the road, it reemerges, but it’s going to go away under this administration. Surprisingly, what’s happened is there’s a public hearing that’s scheduled for June 16th of this year to gather and solicit comments on the heat stress rule. Somewhat surprising.
What’s going to happen? I think it’s possible that this heat stress rule potentially reemerges, but in a much, much different form. They’re going to strip it of a fairly cumbersome number of requirements that existed under the original rule, that make it very difficult. And it applies to all employers nationwide, the original rule. I think what you’re going to see is they’re going to strip some of those more cumbersome requirements out, they’re going to narrow its focus to specific industries in specific areas. And I think it’s going to be a pared-down heat stress rule. Potentially. There is still the possibility that it doesn’t reemerge at all. But surprisingly, given the public comments that are going to be happening in June, it’s possible it does reemerge as something much less than what it was originally thought of.

Jim Plunkett: Yeah, it’ll be interesting to see what happens as a result of that public hearing. So, you talked about how enforcement was at a status quo type of level, and it made me think if that has anything to do with the lack of political leadership at OSHA. Talk about who we might be seeing in that role and what they might be doing.

Wayne Pinkstone: Yeah. So, David Keeling has been nominated. I think you will see him as the head of the agency. David Keeling is someone who’s a workplace safety veteran, is supported by management, which is typically not something you see in this position, considered practical, considered objective. But I think what you’re likely to see from Mr. Keeling is an emphasis on outreach, an emphasis on consultation with employers on how to make workplaces safer as opposed to just outright enforcement, to enforce the regulations and issue citations and issue penalties and collecting penalties. I think you’re going to see more of an outreach-type program. But OSHA, it’s just not going away. He’s not going to simply eradicate the agency. I do think the regulatory agenda is going to be pared down. I think the walk-around rule is likely going to go away. Heat stress, we’ll see what happens with that. Electronic injury reporting, I think that’s likely, we’ll see, to go away as well. But overall, I think the pick of David Keeling signals a return to a more, I think, practical consultative type arrangement with OSHA.

Jim Plunkett: Yeah, let’s hope he gets his Senate hearing and gets confirmed soon so we can start making those changes.

Wayne Pinkstone: That’s right.

Jim Plunkett: Great insights, Wayne. Really appreciate it. Thank you so much for joining us.

Wayne Pinkstone: All right. Thanks for having me.

Jim Plunkett: So, that concludes part one of our post-election policy change discussion that we’re reviewing after our presentation at Workplace Strategies 2025 in Las Vegas. Stay tuned for part two.

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