If Trump wins, one thing is certain: NLRB General Counsel (GC) Jennifer Abruzzo would be fired at once. Just as President Joe Biden sacked then-NLRB GC Peter Robb almost before the Inaugural Balls were over, Abruzzo would meet the same fate. Because the GC sets agency policy and decides what cases to pursue, the Board instantly changes character. As a result, the Board’s prounion stance—despite recent “proworker” pronouncements on the Republican campaign trail—stops. Efforts to raise the minimum wage end. Paid leave and other workplace benefits are unlikely.
And the changes aren’t likely to stop there. Administrative law judges and others appointed with a variety of removal protections are being challenged under the “appointments clause” of Article II of the Constitution, with a surprising degree of success. They are next. Dozens of officials in “secure” positions at regulatory agencies, including the Federal Reserve, are wondering if they must go to court to remain in office under an antagonistic president.
Perhaps most exposed are the thousands of civil servants—the unsung people who keep our government running. They were targeted with an Executive Order (EO) in the Trump administration’s dying days, which effectively stripped them of their civil service protections and converted them to political appointees serving at the president’s whim. Such an EO has been promised by Trump and embraced by JD Vance, although neither has addressed how the government would keep functioning. We’re reminded that the Trump Organization was really a “family office,” and the boss more an impresario than a CEO.
Other changes may be welcomed by the business community. Regulations likely will be withdrawn or modified. The EEOC likely won’t seek compensation data. The OFCCP and affirmative action may disappear—along with EO 11246! Diversity, equity, and inclusion will continue to be demonized. More oil and gas pipelines will be permitted (if not built, in light of the glut), and wind and solar power and support for electric vehicles will be curtailed. OSHA or the EPA or the CDC may be run—or influenced by—people dedicated to diminishing them. Just how the promised tariffs and deportations of “millions” of undocumented immigrants will be implemented is as much a question as the ultimate impact on the economy and the labor market.
If Harris wins, the workplace will likely be a fly in amber: Biden II. Necessary reexamination of New Deal policies isn’t likely. Classification reforms for the “gig economy” will be left to the states, as the administration clings to outdated policies in the name of supporting unions. This may be welcomed by many as “stability.”
Protracted and serious efforts to enact a variety of paid leaves will consume Congress, and some may succeed. The NLRB will remain unleashed, but with a skeptical judiciary bearing down. Much the same is true of the other workplace regulatory agencies, all of which are finding their footing in a post-Loper Bright legal landscape. The overweening role of the judiciary may animate a legislative response—depending on the makeup of Congress. At least artificial intelligence will be acknowledged as a factor in the future of work, but whether the Democrats can design meaningful responses is unknown.
When all is said and done, workplace policy—despite its critical role in the health of our economy—won’t be a decisive factor in the minds of many voters. Only later, when these policies shape our lives, will we all wish we’d paid more attention.
Burton J. Fishman is an attorney at FortneyScott.