A peek into the labor and employment crystal ball

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Much of national labor and employment policy and enforcement depends on who occupies the White House—and, of course, we are on the cusp of a hotly contested race for the presidency. A peek into the future, therefore, depends, to some extent, on who wins the upcoming race because the president appoints cabinet secretaries and other positions in government influencing the workplace. To continue the civics lesson, the president also nominates federal judges and justices of the United States Supreme Court, who interpret the laws and regulations emanating from Congress and administrative agencies.  

There is, in fact, such a thing as the administrative state, and it has a durable and long life. Let’s take the National Labor Relations Board (NLRB) as an example. 

NLRB has five members, all appointed by the president to serve five-year terms. In keeping with long-standing practice, three of the members are from the president’s party, while two are not. The current Board has four members—three Democrats and one Republican. A fifth member, a Republican, has been nominated but not yet confirmed. Because of the lengths of the Board members’ terms, a Republican president could not fill vacancies to attain a majority and regain control of the Board until late 2026. In addition to the members of NLRB itself, the heads of the 26 regional offices of NLRB are chosen by the Board. The regions are staffed with enforcement folks who many practitioners would argue are not typically favorable toward employers—and these are people whose jobs would generally survive no matter who occupies the White House.  

Although the recent Federal Trade Commission (FTC) ban on non-compete agreements was enjoined, NLRB has taken a stance against such arrangements (including non-solicitation provisions) and has ruled against employers for having non-disparagement clauses in separation agreements. NLRB has all but done away with secret ballot voting, making it significantly easier for unions to organize workplaces. Injunctions are an aggressive enforcement tool, and NLRB has decreed it will seek more injunctions rather than merely conducting methodical investigations. 

If the Democrats retain the White House, we can safely predict that the current emphasis on employee rights and union-friendly regulations and administrative decisions will continue. Even if we see a Republican in the White House next year, we should not expect quick changes. NLRB is a good example of the lingering effects of the current administration even if the Republican wins.  

Some see the courts as a potential counterbalance against activist federal agencies, especially after a recent United States Supreme Court decision curtailing the concept of Chevron Deference to agency discretion. The future direction of labor and employment policy and enforcement will depend to a measurable extent on life-tenured federal judges and Supreme Court justices who are, of course, nominated by the president. 

Politics aside, the crystal ball suggests one area which will become a prominent workplace law issue: the use of artificial intelligence (AI) in the workplace. Illinois recently enacted a law requiring employers to notify employees whenever AI is used for recruiting, selecting employees, promoting employees, for disciplinary purposes, and in connection with termination of employment. Discriminatory effects of using AI are prohibited. On the federal level, the Equal Employment Opportunity Commission (EEOC) has adopted an initiative to make sure that employer use of AI complies with job discrimination laws. EEOC plans to scrutinize job searches which tailor ads toward an applicant’s online profile or activity, as well as employers that screen resumes or online job histories for specific words or experiences that could lead to discriminatory exclusion from employment opportunities. 

In other developments, jurisdictions around the country are restricting employers in their use of criminal background checks in making hiring and other decisions. Wage transparency requirements are expanding. Some jurisdictions prohibit asking job applicants for their salary history.  

The bottom line: If the Democrats keep the White House and the federal agencies which regulate employment, we can expect even more aggressive workplace oversight. If the Republicans prevail, there will eventually—but not quickly—be a shift toward a more employer-friendly posture in Washington and in the courts. Finally, some workplace regulatory trends, such as concerns surrounding AI, are relatively apolitical and likely to receive attention no matter which party is in power. Stay tuned. 

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Posted In: ACCA Now, Government, Legal, Polices & Procedures