General Employment Law Trends

NLRB’s General Counsel Signals New Priorities

Emily Toler Scott Leave a comment

By: Emily Toler Scott

The National Labor Relations Board (NLRB) General Counsel, Crystal S. Carey, recently signaled important shifts in labor policy under the second Trump administration. On February 27, 2026, Carey issued Memorandum GC 26-03, outlining her priorities as she leads the agency. The memo clarifies what issues may be priorities, sets new parameters around remedies, and establishes a settlement-friendly approach to enforcement. This article will highlight some key developments and discuss what they mean for employers.

President Biden’s General Counsel, Jennifer Abruzzo, pursued an aggressive agenda for the NLRB, including efforts to obtain enhanced remedies and advance an expansive reading of the National Labor Relations Act (NLRA) generally. Shortly after President Trump was inaugurated, he replaced Abruzzo with Acting General Counsel William B. Cowen; in a February 2025 memorandum, Memorandum GC 25-05, Cowen rescinded many Abruzzo-era, labor-friendly memos. (Letitia Silas and Ashley Mitchell covered Cowen’s memo shortly after it was issued last year.)

President Trump nominated Carey in March 2025. She was confirmed by the Senate on December 18, 2025, and sworn in on January 7, 2026. She is already moving to focus the agency’s priorities.

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Reading the Tea Leaves: What are the Wage and Hour Division’s Priorities in Year Two of Trump 2.0

Scott Hecker Leave a comment

By Scott Hecker

With a little more than a year of the Second Trump Administration in the books, we are getting a better idea of the President’s priorities, including at the U.S. DOL’s Wage and Hour Division (“WHD”).  Rulemaking plans described by the current Spring 2025 Unified Agenda are limited, but there are other avenues to deduce WHD’s points of emphasis, for example, through press releases and opinion letters.  This blog entry focuses on the latter, including a recent batch representing the first letters signed by WHD Administrator Andrew Rogers, who was confirmed by the Senate on October 7, 2025, during the government shutdown.

WHD Opinion Letters

Opinions issued by DOL cover numerous statutes, but we will address some recent activity concerning the Fair Labor Standards Act (“FLSA”).  According to the Department, opinion letters represent “an official ruling or interpretation of the Wage and Hour Division,” and “[s]uch rulings provide a potential good faith reliance defense for actions that may otherwise constitute violations of the FLSA . . . .” Continue reading →

The SpaceX and Jarkesy Ripple Effect: What Recent Court Decisions Could Mean for OSHA’s Whistleblower Program

Mark Henry Ishu Leave a comment

By Mark Ishu

A New Constitutional Reckoning for Agency Adjudication

The Supreme Court’s decision in SEC v. Jarkesy (2024) and the Fifth Circuit’s ruling in SpaceX v. NLRB (2025) together mark the most significant challenge in decades to the modern administrative state. Both decisions question how—and by whom—federal agencies may prosecute and adjudicate enforcement actions.

Although neither case arose under OSHA or the Department of Labor (DOL), their reasoning reaches squarely into the heart of OSHA’s whistleblower program, which relies on Administrative Law Judges (ALJs) in DOL’s Office of Administrative Law Judges (OALJ) and Administrative Review Board (ARB) to decide retaliation claims.

For employers, these rulings signal not an enforcement surge, but a structural shift that could fundamentally alter how whistleblower cases are handled and appealed. Continue reading →

A Look at What’s Ahead for WHD per Spring 2025 Regulatory Agenda

Lindsay A. DiSalvo Leave a comment

By Lindsay A. DiSalvo

Last week, the Trump Administration published its 2025 Spring Regulatory Agenda, in which administrative agencies provide information on proposed regulatory and deregulatory actions. The Regulatory Agenda provides the public a roadmap of these agencies’ priorities over the short- and long-term and allows employers to track potential changes to the current law impacting their workplaces. As has been clear from the beginning of the Trump Administration, deregulation is a big priority, and the Regulatory Agenda reflects it, identifying several regulations for rescission among the various agencies.

Within the Department of Labor, the Wage and Hour Division (“WHD”) described five regulatory/deregulatory actions it intends to actively pursue. Of particular interest are the proposed rulemakings addressing independent contractors and joint employer status.

Intent to Rescind Independent Contractor Rule Continue reading →

Leadership Updates and a New Opinion Letter Program Confirm the U.S. Department of Labor’s Increased Focus on Compliance Assistance

Scott Hecker Leave a comment

By Scott Hecker

The U.S. Department of Labor (“DOL”) recently named several political appointments to its Wage and Hour Division (“WHD”). Employers know WHD is an entity with vast enforcement authority, including over minimum wage and overtime provisions of the Fair Labor Standards Act (“FLSA”), so should consider in their pay practice planning the impacts these leaders will have on WHD priorities.

We previously suggested (e.g., here and here) that the WHD pendulum would likely swing back towards compliance assistance during Trump 2.0, and these leadership appointments indicate such predictions are coming to fruition: Continue reading →

Newly-Confirmed Secretary of Labor Lori Chavez-DeRemer and Deputy Secretary Keith Sonderling Set to Lead U.S. Workplace Policy

Kara Maciel Leave a comment

By Kara M. Maciel

On March 10, 2025, the U.S. Senate confirmed Lori Chavez-DeRemer as Secretary of Labor with Keith Sonderling joining her as Deputy Secretary of Labor in the new Trump Administration. The vote was 67 to 32, with 17 Democrats voting in her favor and 3 Republicans voting against.  As we previously reported on our blog, their appointments mark a shift in labor policy under President Trump’s second term, with a focus on business-friendly regulations and workforce development.

Lori Chavez-DeRemer: Second Latina Secretary of Labor

Lori Chavez-DeRemer, a former U.S. Representative from Oregon, will now lead the Department of Labor. She has emphasized a commitment to job growth, reducing regulatory burdens on businesses, and strengthening apprenticeship programs. Her confirmation aligns with the administration’s focus on creating a more flexible labor market and rolling back policies from the Biden Administration. The Senate Health, Education, Labor, and Pensions (HELP) Committee held her confirmation hearing on February 19, 2025, during which Ms. Chavez-DeRemer emphasized her commitment to working-class Americans. She cited her background as the daughter of a Teamsters union member and her experience as a small business owner. She also stressed the importance of expanding alternative career pathways, such as apprenticeships, to bolster the U.S. workforce.  She also expressed support for the H-1B visa program, which allows foreign workers to fill specialized roles in the U.S., while also acknowledging concerns from lawmakers regarding its impact on American workers.  The HELP Committee advanced her nomination by a vote of 13-9 to the full Senate.

Keith Sonderling: Deputy Secretary with a Business-Focused Agenda

Keith Sonderling, a former Equal Employment Opportunity Commission (EEOC) vice-chair, will serve as Deputy Secretary of Labor. With experience in labor law and business regulation, Sonderling is expected to focus on policies supporting gig workers, AI in the workplace, and voluntary compliance for businesses. He previously served in the Department of Labor’s Wage and Hour Division under Trump’s first term. His nomination received bipartisan support, particularly from the business community, and was praised by lawmakers such as Senator Bill Cassidy and Representative Tim Walberg.

As they take office, both Secretary Chavez-DeRemer and Deputy Secretary Sonderling will play key roles in shaping labor policies that prioritize employer flexibility and economic growth while navigating debates over worker protections.  Their leadership is expected to lead to a more deregulatory approach compared to the previous administration.

 

Image courtesy of Lori Chavez-DeRemer for Congress

Trump Administration 2.0: The Impact on the Federal Judiciary

Mark Trapp Leave a comment

By: Mark M. Trapp and Kara M. Maciel

With his recent re-election, former President Donald Trump will once again become President Trump. Given his significant shaping of the federal courts during his first term, it is worth considering what additional impact he could have on the Article III judiciary during a second term. The answer may be, in the short term, probably slightly less than his first term, but in the long run, potentially very significant indeed.

During his first term, President Trump had 234 of his picks for the federal judiciary confirmed, a number that included more than 170 U.S. District judges, 54 U.S. Court of Appeals judges and three U.S. Supreme Court justices (Justices Gorsuch, Kavanaugh and Barrett). That number marked the second most judicial appointments of any president in a single term, and undoubtedly moved the federal judiciary as a whole towards a more conservative bench. Several Circuits “flipped,” and Republican appointees now make up the majority on six of the 12 nation’s circuit courts.

President Trump’s first-term impact was perhaps a bit outsized because when he took office in January 2017, there were 108 pending federal judicial vacancies, the most for an incoming president since President Clinton in the early 1990s. By way of comparison, there are currently less than half the judicial vacancies than when Trump began his first term – approximately 40 seats currently vacant, and maybe another 20 that are expected to open up in the near future, assuming those judges keep their plans to take “senior status,” a form of semi-retirement that allows their slot to be filled while they continue to work a reduced caseload.

While President Trump’s second term may not match his first term numbers, he will probably have a real opportunity to cement his conservative legacy on the federal courts. As he begins his second term, President Trump will have another opportunity to fill some immediate vacancies, although less than the first time around. As noted above, there are three to four dozen seats that can be filled right away, and at least 25 circuit judges expected to become eligible for retirement in 2025. Under any count, it can be expected that enough judges will turn over to allow President Trump the chance to lock in conservative majorities on some circuit courts and narrow or even flip other courts.

And the next four years will see plenty of opportunity to further reshape the lower courts, as well. The American Constitution Society, a progressive organization, has determined that 247 total judges, district and circuit, will be eligible to take senior status during the next four years – Continue reading →

Biden EAP Overtime Exemption Rule Vacated, as Judge Sounds Death Knell for Increased Salary Thresholds

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By Scott Hecker, Jordan B. Schwartz, Kara M. Maciel, and Lindsay A. DiSalvo

On November 15, 2024, U.S. District Judge Sean D. Jordan of the Eastern District of Texas vacated the Biden Administration’s overtime exemption rule.  The final rule, which went into effect on July 1, 2024, included a biphasic approach to raising the executive, administrative, and professional (“EAP”) OT exemption salary thresholds.  The threshold moved to $844 per week, or $43,888 annually on July 1, and would have escalated to $1,128 per week, or $58,656 annually, on January 1, 2025.  The rule also included automatic triennial updates to the threshold.  But as President Trump readies to return to the White House, the salary threshold for EAP exemptions under the FLSA now reverts to $35,568, the level set during his first term. [1]

Judge Jordan’s Memorandum Opinion and Order

Explaining a court’s role in the context of Loper Bright Enters. v. Raimondo, Judge Jordan vacated the rule as an unlawful agency action exceeding departmental authority under the Administrative Procedure Act and remanded it to the U.S. Department of Labor (“DOL”).  He provided an extensive treatment of the salary threshold’s history, noting

the fundamental aspects of the salary-level test have included setting low minimum salary levels designed to exclude only obviously nonexempt employees, premised on wage-data for the lowest-wage region, the smallest-size business establishment group, the smallest-size city group, and the lowest-wage industry, applied by the Department in a manner consistent with serving only the purpose of separating exempt from nonexempt employees, not improving the status of such employees

Texas v. DOL, 4:24-CV-499, 4:24-CV-468, slip op. at 14 (Nov. 15, 2024, E.D. Tex).  He also explored the recent U.S. Court of Appeals for the Fifth Circuit decision in Mayfield v. DOL, which was issued in response to a legal challenge to the 2019 DOL Final Rule that increased the minimum salary requirement for the EAP exemption from overtime, and held that:

[u]sing salary as a proxy for EAP status is a permissible choice because, as we have explained, the link between the job duties identified and salary is strong.  That does not mean, however, that use of a proxy characteristic will always be a permissible exercise of the power to define and delimit.  If the proxy characteristic frequently yields different results than the characteristic Congress initially chose, then use of the proxy is not so much defining and delimiting the original statutory terms as replacing them.

117 F.4th 611, 619 (5th Cir. 2024).  The Fifth Circuit’s Mayfield opinion concerned the Trump era overtime rule, so it did not address the new Biden Administration thresholds.  Judge Jordan’s opinion took the next step, applying the Court of Appeals’ rationale to invalidate President Biden’s thresholds.  His analysis considered three limitations on the DOL’s congressionally-delegated authority to define and delimit the EAP exemptions: Continue reading →

Historic U.S. Supreme Court Confirmation Hearings Begin for D.C. Circuit Judge Ketanji Brown Jackson

Kara Maciel Leave a comment

This week, hearings before the Senate Judiciary Committee began for D.C. Circuit Judge Ketanji Brown Jackson’s nomination to  the U.S. Supreme Court, which would make her the fourth woman Justice to serve on the Court at the same time.  President Biden nominated Judge Jackson earlier in March to replace Justice Stephen G. Breyer who is retiring after over 20 years on the Court.  The nomination is historic for several reasons and with the hearings occurring during Women’s History month, it is an example of the importance of honoring diversity at all levels of the branches of government. 

(AP Photo/Evan Vucci)

During the first day of her confirmation hearings, Judge Jackson detailed her personal and professional history.  She spoke in personal terms about her childhood, including her first exposure to the law as a young child while her father was a full-time law student, and her mother supported their family. She introduced her daughters and talked about navigating “the challenges of juggling my career and motherhood.”

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U.S. Supreme Court to Hear Legal Challenge to Auer Deference Standard

Lindsay A. DiSalvo Leave a comment

shutterstock_gavelIn 1997, the U.S. Supreme Court decided the case of Auer v. Robbins, establishing the standard for what has become known as Auer deference (or Seminole Rock Deference from Bowles v. Seminole Rock and Sand Co. (1945)).  This decision and the standard it set is significant for employers because it gives substantial latitude to federal agencies, like the Department of Labor, to interpret their own ambiguous standards.  Specifically, in Auer, the Supreme Court held that an Agency’s, in this case the Department of Labor, interpretation of its own standards is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’”  In other words, if it’s not clear what is required by the plain language of the standard, the Court will generally defer to the Agency’s own reasonable interpretations of its regulations.

However, the Supreme Court will now have the opportunity to reconsider Auer deference in the case of Kisor v. Wilkie.  On December 10, 2018, the Court agreed to review Question 1 of the petition for certiorari, which specifically asks “[w]hether the Court should overrule Auer and Seminole Rock.”  Continue reading →