Election's Implications for Employers Explored at HRPA Meeting

HR Policy Association’s Employment & Labor Group held its annual conference on December 12, 2024, featuring a variety of expert speakers from Congress, the incoming administration, and leading companies and law firms that provided deep dives into how the new presidential administration and new Congress may impact labor policy, employee engagement, AI innovations, DEI, and more. 

Future of DEI Examined by Panel of EEOC Experts

The panel, rich with expertise from current and former EEOC experts, explored that latest EEOC initiatives.

What they’re saying: Panelists tackled two major questions on the minds of members: Will the EEOC target DEI under the incoming Trump administration and will the new Department of Government Efficiency (DOGE) gut the Commission?

• The panel provided some context for consideration. Panelists discussed how the EEOC is bipartisan by statute resulting in commissioners working on a consensus basis despite partisan differences.

• The EEOC is charge driven, meaning that to take action, the Commission would need to receive a charge claiming a DEI program is discriminatory, but whether the Commissioners would choose to file a charge remains to be seen.

• Overall, panelists were skeptical that EEOC would become an anti-DEI entity pointing to the fact that these types of lawsuits have happened with employers who follow EEOC guidelines having an absolute defense.

Key takeaways:

• While a newly configured EEOC may bring charges, panelists emphasized that employers have many options to pursue DEI lawfully.

• While Project 2025 recommends eliminating the EEO-1 report, panelists felt that was unlikely. They highlighted that charges are not brought solely on the basis of reported data.

• The DOGE could recommend slashing the Commission’s funding but panelists felt that Congress, which makes funding decisions, would not be interested in a dramatic funding decrease.

• Former commissioner Lipnic added that funding for the Commission has been flat and “without budget and salary increased, the Commission will experience staff attrition.”

The EEOC’s current commissioners recommended Commission resources as relevant and helpful for employers:

• Enforcement Guidance on Harassment in the Workplace. Commissioner Kotagal noted that “40% of charges coming to commission in FY23 included harassment.”

• Guidance on assessing adverse impact of AI under Title VII.

• Guidance on using AI to assess job applicants under the Americans with Disabilities Act.

Inside the Beltway: Update from Capitol Hill

The panel discussed the legislative priorities of the next Congress as new members and new committee leaders prepare for the upcoming year.

Cyrus Artz, Senior Labor Policy Advisor for Speaker Mike Johnson (R-LA-04) outlined priorities for the 119th Congress, with passing a budget reconciliation bill being paramount for both the House and Senate, stating, “the emphasis on a reconciliation bill is in part to pay for the President’s immigration initiatives, especially with regard to securing the border.”

Margie Almanza, Labor Policy Advisor for the Senate HELP Committee echoed Cyrus adding that much of the first few months will be consumed with the confirmation process for President-elect Trump’s appointee. When asked if the new Senate leadership will be as pro-union as some of the populist rhetoric coming from the administration, she quoted Senator Bill Cassidy who said, “I’m not against unions, I am for a worker’s right to choose.”

Seth Waugh, Workforce Policy Director at the U.S. House Committee on Education and the Workforce allayed concern over some anti-business stances taken by nominees stating that many of the individuals nominated to run agencies fall in line with a historically more pro-business slant.

Key takeaways: Issues that are primed for action after the Senate confirms it’s slate of nominees include rolling back DEI initiatives and invalidating certain Biden administration regulations through the Congressional Review Act.

What Lies Ahead for the NLRB and Its Effect on Employee Engagement

The HR Policy Association’s Senior Labor and Employment Counsel Roger King led a panel of former NLRB members, legal experts, and ER/LR and HR practitioners on what to expect from the National Labor Relations Board, how it will impact employee voice, and how companies can effectively respond.

Key takeaways:

• Grassroots organizing and “homegrown” unions continue to proliferate, posing unique risks and challenges for employers

• With Chair McFerran’s bid for re-nomination failing this week, expect a new Republican majority on the Board sooner rather than later, with a focus on undoing Biden Board policy changes.

• Keeping workplace policies nimble and principled - as opposed to far-reaching and overly specific - is more effective for employers seeking to stay safe from constant policy changes at the Board.

The Role of Companies in the Next Administration’s Labor Policy

Panelists engaged in an fascinating conversation on the second Trump presidency and ongoing shifts in political power.

What they’re saying:

The Honorable Eugene Scalia spoke about his experience as Secretary of Labor in the first Trump administration, saying people should “expect an active administration and one that is willing to take action even if it’s controversial.”

The Honorable Tevi Troy, who served in various roles in Congress and the George W. Bush administration, described the Bush White House as “highly governed by process,” contrasting it with the Trump administration administration philosophy of taking action by advising staff to “ski downhill—just keep going.”

Key takeaways:

• The incoming Trump administration will be more skeptical of corporate America than other Republican administrations.

• There is a growing trend of the “administrative state” absorbing power from Congress, the courts, and the Presidency, requiring a focus on limiting the ability of agencies to suck power from the three branches.

• Congress could exercise more authority over agencies after the Loper Bright decision overturning the Chevron deference. Whether Congress will have the will to exercise its authority remains unclear.

• The second Trump presidency is poised to take immediate steps toward their policy priorities, likely pursuing executive actions to avoid working through Congress which could slow them down.

Harnessing AI Innovations in Labor & Employment

The panel featured an innovative partnership between Microsoft and the AFL-CIO on AI designed to “educate workers, incorporate labor’s voice in tech development and help shape policy that supports workers.”

What they’re saying:

Amanda Ballantyne cited research showing that 70 percent of unionized workers are fearful about the impact of AI on their jobs. She added that recent strikes by the dockworkers and by the Writer’s Guild of America that were largely fueled by AI concerns, showed that workers need a say in AI’s use adding “technologies that are not trusted are not adopted.”

Allyson Knox described the partnership as “an open dialogue,” acknowledging that there was “a fair amount of work to be done just to get on the same page with language.” She underscored that the conversations led to creating systems that are fair, inclusive, and accountable.

Camille Olson discussed areas of potential discrimination under existing law when relying on algorithmic decision-making for the most common HR uses: selection, learning & development, and assessments.

Key takeaways:

• Employers must test AI tools before use to determine if bias has been introduced into the system.

• Involving employees in discussions of how AI will be used can generate good ideas, decrease fear, and increase employee uptake of new technologies.

State Priorities: Perspectives on State-Level Labor & Employment Policies

The panel discussed states filling legislative and regulatory gaps in areas where Congress has stalled.

What they’re saying:

Judy Conti discussed the concept of states as policy laboratories where the best ideas are adopted at the federal level to apply nationwide. “It used to work better,” she commented, “with Congressional gridlock, it results in a patchwork.”

Anne Thomas commented that, with employees working from 18 states where her company does not have existing operations, compliance is complex and costly. As a result, “the company will have to make a decision not to hire in certain locations” regardless of their talent needs.

Corey Franklin noted that he created a policy manual with supplements for each of the 34 states where his client has operations, “the supplement was as long as the whole policy manual.”

Key takeaways:

• The growing number of state and local laws means that even the most sophisticated employers and HR teams risk simple misapplication of rules.

• Issues expanding on the state level, particularly the prohibition on captive audience meetings, paid leave laws, and restrictions on non-competes, are ripe for negotiating federal solutions.