Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
We are pleased to present the Policy Week in Review (PWR) prepared by Littler’s Workplace Policy Institute (WPI), the government relations and public policy arm of Littler. The PWR will set forth in one place WPI’s updates on federal, state, and local matters, as well as Littler’s published in-depth analyses of the prior week. Our hope is that the PWR, as well as Littler’s First 100 Days compilation page and Executive Order Tracker, our go-to resources collecting orders and actions taken by the Trump administration, will assist readers in navigating the rapidly changing labor and employment legal landscape.
Congressional and Administrative News
BLS Releases Report Showing Decline in Union Membership Rate
The Bureau of Labor Statistics (BLS) released a report which shows a continued decline in unionization rates. According to the report, overall union membership rate has steadily dropped from 20.1 percent in 1983 to 9.9 percent in 2024 (with the private sector union rate being only 5.9 percent). The report highlights several other key data points: public-sector worker union memberships are five times higher than the rate of private sector workers; workers in education, training, library occupations and protective occupations have the highest unionization rates; men have higher union memberships rates than women; Black workers remain more likely to be union members than white, Asian or Hispanic workers; nonunion workers had median weekly earnings that were 85 percent of earnings for workers who were union members; and Hawaii and New York had the highest union membership rates, while the lowest rates were in North Carolina, South Dakota, and South Carolina.
White House Fires NLRB General Counsel Abruzzo and Member Wilcox
On January 27, 2025, President Trump terminated Jennifer Abruzzo, the general counsel of the National Labor Relations Board, and Board Member Gwynne Wilcox. Abruzzo’s termination was widely expected (with some wondering why she was not fired on the first day of the new administration); Wilcox’s termination is somewhat more surprising, and, if held to be lawful, would deprive the Board of a quorum to do business until successor members are confirmed. For further Littler analysis, read here.
White House Fires EEOC General Counsel Gilbride and Commissioners Burrows and Samuels
Following on the heels of the January 27, 2025 firings at the NLRB noted above, President Trump fired two of the three Democratic Commissioners on the five-seat Equal Employment Opportunity Commission, including Charlotte Burrows, who chaired the Commission during the Biden administration, and whose term on the Commission was scheduled to expire on July 1, 2028, and Joycelyn Samuels, the Biden-era vice chair of the Commission, who was confirmed to serve until July 1, 2026. The president also fired EEOC General Counsel Karla Gilbride, who was confirmed during the Biden administration for a four-year term ending in 2027. Both commissioners indicated they are exploring legal options to challenge their terminations. For further Littler analysis, read here.
Acting Secretary of Labor Brings All OFCCP Activities Under Executive Oder 11246 to a Halt
On January 24, 2025, Acting Secretary of Labor Vincent Micone, III issued an order to all Department of Labor employees, including employees of the Office of Federal Contract Compliance Programs, Office of Administrative Law Judges, and the Administrative Review Board, instructing them to “immediately cease and desist all investigative and enforcement activity under the rescinded Executive Order 11246” and its implementing regulations. For further Littler analysis, read here.
White House Issues New Executive Order on AI; Prior Order Revoked
Among the blizzard of executive orders issued following his inauguration, President Trump revoked former President Biden’s executive order addressing artificial intelligence. A few days later, on January 23, 2025, President Trump issued his own AI executive order, entitled, “Removing Barriers to American Leadership in Artificial Intelligence.” For further Littler analysis, read here.
Littler Executive Order Tracker
Littler's Executive Order Tracker is your go-to resource for staying updated on all executive orders and actions issued by the Trump administration. We are tracking every order, analyzing its impact, and providing summaries to help you understand the changes and the implications to your business. Only those orders that impact compliance with labor and employment directives are identified with a topic. In the first 100 days, the Trump administration is also rescinding executive orders issued by previous administrations and those are available here.
Littler’s Workplace Policy Institute will keep readers apprised of relevant developments.
Weekly Labor and Employment News
EEOC Acting Chair Issues Statement on Gender Identity, Removes Guidance on Transgender Issues
ASAP – On January 28, 2025, Andrea Lucas, the acting chair of the Equal Employment Opportunity Commission, issued a statement outlining her views on gender identity in the workplace, and listing a series of actions she has taken to “return” the agency “to its mission protecting women from sex-based discrimination in the workplace by rolling back the Biden administration’s gender identity agenda.” Among the actions Lucas identified that she has and will take to achieve this end include prioritizing compliance, investigations, and litigation to “defend the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work”; removing EEOC employees’ ability to indicate pronouns in their communications; eliminating the use of the non-binary “X” gender marker for charges; and removing materials “promoting gender ideology” on the Commission’s internal and external websites.
ASAP – On January 16, 2025, then-NLRB General Counsel Abruzzo issued Memorandum GC 25-04, Harmonization of the NLRA and EEO Laws. The memo responds to criticism from employers that NLRB decisions issued under the Biden administration, such as Stericycle and Lion Elastomers, undercut an employer’s duty under federal and state equal employment opportunity laws to maintain a workplace free of unlawful harassment and discrimination.
The change of party leadership at the NLRB signals a more business-friendly approach to employer policies in the long term, at the same time that Biden Board decisions are receiving an unfriendly reception in federal courts of appeal. Change will not be overnight, however. In the meantime, employers are advised to work with counsel to manage the risks associated with balancing EEO and NLRA compliance.
Littler’s Workplace Policy Institute will keep readers apprised of relevant developments.
President Trump Relies on Executive Orders to Promote Anti-IE&D Policies
ASAP – Since taking office on January 20, 2025, President Trump has issued several executive orders that address inclusion, equity and diversity (IE&D) programs and policies. Although these orders are important to consider, employers should be aware that they do not alter federal civil rights laws. Indeed, the language used in these orders specifically calls for the enforcement of existing laws, which provide that it is unlawful to make employment decisions based on an employee’s protected traits.
Here are some of the more noteworthy executive orders implicating IE&D issues that were recently repealed by the president.
Higher Ed DEI Practices to Be Reviewed Under President’s New Executive Order
ASAP – President Trump issued an executive order on January 21, 2025, that, among other things, revokes Executive Order 11246, ending the long-standing practice of requiring federal government contractors to take and report on affirmative action efforts thereunder in their work for the government. In addition, the new executive order covers a number of other issues involving diversity, equity and inclusion efforts in higher education and the private sector. This ASAP focuses specifically on the portions of the executive order that apply or refer directly to institutions of higher education.
IRS Updates Guidance on Section 530 and Worker Status Issues
ASAP – The Internal Revenue Service has released new guidance, Rev. Rul. 2025-3, clarifying the application of Section 530 of the Revenue Act of 1978, Section 3509 of the Internal Revenue Code (IRC), and Section 7436 of the IRC in five common situations where the IRS has determined that a worker is misclassified as a non-employee.
ASAP – On January 9, 2025, the New Jersey attorney general and the Division of Civil Rights (DCR) announced that the DCR has launched a new Civil Rights and Technology Initiative to address the risks of discrimination stemming from the use of artificial intelligence (AI) and other advanced technologies. As part of this new initiative, the New Jersey Office of the Attorney General and the DCR issued Guidance on Algorithmic Discrimination and the New Jersey Law Against Discrimination. The Guidance clarifies that the New Jersey Law Against Discrimination (NJLAD) prohibits “algorithmic discrimination,” that is, discrimination resulting from a covered entity’s use of automated decision-making tools. Automated decision-making tools generally refer to any tool “that is used to automate all or part of the human decision-making process,” including, for example, generative AI, machine-learning tools, statistical tools, and decision trees.
ASAP – Earlier this week, New York State and Public Partnerships LLC (PPL), the entity selected to become the Statewide Fiscal Intermediary (SFI) as of April 1, 2025, suffered another roadblock in their efforts to transition New York’s Consumer Directed Personal Assistant Program (CDPA Program) to a single SFI that would assume the fiscal intermediary responsibilities of over 600 entities currently operating in New York. Specifically, on January 28, a New York Supreme Court Justice in Nassau County granted a temporary restraining order (TRO) request filed by Caring Professionals, Inc. and the Consumer Directed Personal Assistance Association of New York State (CDPAANYS) (collectively, “Plaintiffs”) against the New York Department of Health (DOH) in connection with the DOH’s December 6, 2024, transition memorandum.
Littler is continuing to monitor all legal developments concerning the DOH’s single SFI and will report developments as they occur.
