Category: Labor Law

January 20, 2025

Kaplan NLRB Chair Again Upon Trump Inauguration

On January 20, 2025, newly inaugurated President Donald J. Trump promptly reinstated Marvin E. Kaplan as Chairman of the National Labor Relations Board (NLRB). Kaplan, who has been a member of the NLRB since August 10, 2017, previously served as its Chairman from December 21, 2017, to April 15, 2018. His current term is set to expire on August 27, 2025.

Prior to his tenure at the NLRB, Kaplan held several government positions, including Chief Counsel to the Chairman of the Occupational Safety and Health Review Commission, counsel for the House Committee on Oversight and Government Reform, and policy counsel for the House Committee on Education and the Workforce. He also served at the U.S. Department of Labor’s Office of Labor Management Standards and practiced law with McDowell Rice Smith & Buchanan. Kaplan earned his B.S. from Cornell University and his J.D. from Washington University in St. Louis.

Current Composition of the NLRB

As of January 20, 2025, the NLRB comprises the following members:

Marvin E. Kaplan (Chairman): Republican appointee serving a term expiring on August 27, 2025.
David M. Prouty: Democratic appointee with a term expiring on August 26, 2026.
Gwynne A. Wilcox: Democratic appointee serving a term expiring on August 27, 2028.

Two seats on the five-member board are currently vacant. Notably, former Chair Lauren McFerran’s term expired on December 16, 2024, and her reappointment was blocked by the Senate in a 50-49 vote, with Senators Joe Manchin and Kyrsten Sinema joining Republicans in opposing the nomination. That vote will allow President Trump to nominate replacements, and will certainly result in shifting the board to a Republican majority in the near future.

Anticipated Changes and Impact

With President Trump’s reappointment of Kaplan as Chairman and the opportunity to fill the two vacant seats, the NLRB is poised for a significant shift in its policy direction. Historically, Republican-majority boards have favored more employer-friendly interpretations of labor laws. Employers and labor organizations should prepare for reversals of pro-union decisions made during the previous administration.

In addition to changes in board composition, it is expected that President Trump will promptly appoint a new General Counsel to the NLRB, replacing Jennifer Abruzzo. The General Counsel plays a crucial role in setting enforcement priorities and interpreting labor laws, further influencing the Board’s direction.

These developments suggest a forthcoming pro-employer shift in labor policy, affecting union activities, collective bargaining processes, and employer-employee relations across the United States. Employers should stay informed and adapt to the evolving regulatory landscape.

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November 25, 2024

Trump Surprises with Proposed Secretary of Labor Nominee

In a move few saw coming, President-elect Donald Trump announced Friday that his Secretary of Labor nominee is Republican Representative Lori Chavez-DeRemer of Oregon. Chavez-DeRemer is a politician with a track record of siding with both labor and business interests.

Chavez-DeRemer’s nomination has sparked significant attention due to her co-sponsorship of the Protecting the Right to Organize (PRO) Act—a bill that would dramatically expand labor rights and weaken right-to-work laws in nearly 30 states. Her cross-aisle appeal, exemplified by support from Teamsters President Sean O’Brien and prominent Democrats like Senator Patty Murray, stands in stark contrast to Trump’s historically pro-business labor agenda.

A Bipartisan (?) Pick with Union Support

Teamsters leader Sean O’Brien lauded the choice for Secretary of Labor nominee. He noted Trump’s outreach to his union last year and framed Chavez-DeRemer as a unifying figure for workers and businesses. “Now let’s grow wages and improve working conditions nationwide,” O’Brien said, signaling optimism about the nominee’s potential impact.

Chavez-DeRemer, a former mayor of Happy Valley, Oregon, and entrepreneur in the healthcare field, lost her reelection bid earlier this month but left Congress with a distinct reputation. As one of the few GOP members to align with progressive labor goals, her nomination has already garnered praise from unions, including the National Education Association and the American Federation of Teachers.

Reaction from Conservatives

The announcement has provoked backlash from influential conservative groups. Americans for Prosperity, a staunchly pro-business organization, criticized the nomination, arguing it betrays Trump’s previous labor policies and risks alienating his base.

“Trump’s record on labor policy was so strong, and he didn’t flip on a single labor issue yet still improved with union voters,” said AFP’s Akash Chougule. “He completely undid that and undermined his own agenda and movement by picking a teachers union hack for Labor. Senate GOP should reject this nomination.”

Chavez-DeRemer’s pro-labor stance—embodied in her support for legislation like the Public Service Freedom to Negotiate Act—has drawn ire from right-to-work advocates who view her as out of step with Republican orthodoxy.

Immediate Challenges for the Department of Labor

If confirmed, Chavez-DeRemer will face several pressing issues at the Department of Labor. Among the most urgent is the long-awaited update to the Fair Labor Standards Act (FLSA) salary exemption test. The Biden administration proposed increasing the salary threshold for exempt employees—potentially expanding overtime eligibility for millions of workers. A federal court recently struck down the rule, and the new administration will have to decide whether to appeal or walk away from the rule. Business groups have expressed concern over the financial burden of such changes, while labor advocates argue that the update is long overdue to ensure fair pay for workers.

Chavez-DeRemer will also have to address broader labor market challenges, including:

Modernizing worker classifications to reflect the evolving gig economy, a contentious issue that pits tech companies against labor advocates.
Reevaluating federal regulations on independent contractors and joint employers, key concerns for both unions and businesses.
Enforcing compliance with labor standards while balancing business concerns about regulatory overreach.

Her ability to navigate these challenges will define the department’s trajectory under the new administration and could influence how workers and businesses view Trump’s labor policies moving forward.

What This Means for Trump’s Labor Agenda

This nomination signals a potential shift in Trump’s labor policy approach. While his first term focused on deregulation and business-friendly initiatives under Labor Secretaries Alexander Acosta and Eugene Scalia, Chavez-DeRemer’s selection could open the door to more balanced policies aimed at addressing worker concerns.

Her ability to navigate confirmation in a polarized Senate remains uncertain. However, her potential bipartisan appeal, bolstered by endorsements from unions and some Democrats, positions her as a viable, albeit controversial, choice to lead the Department of Labor.

A Nominee with a Unique Profile

Chavez-DeRemer’s nomination follows a line of Trump labor secretaries with diverse backgrounds, but her record stands apart. A Latina entrepreneur and former mayor, she combines business experience with a legislative focus on worker rights—a combination that may redefine the Labor Department’s priorities under Trump’s second administration.

Whether this move represents a new chapter in Trump’s labor policy or a temporary departure from his traditional approach, one thing is certain: Lori Chavez-DeRemer’s nomination has set the stage for a heated confirmation battle and a possible recalibration of how the federal government balances labor and business interests.

Just One Part of the Equation

Even if Chavez-DeRemer is confirmed to head the U.S. DOL, the administration will be more business-friendly. Her views are not shared with other Republicans in Congress, making pro-union or worker amendments to federal law unlikely. Plus, the National Labor Relations Board has more direct control over much of the field of employer-union relations. Through other appointments, President Trump is still likely to effect significant rollbacks from pro-labor interpretations of the National Labor Relations Act that have stifled employers during the Biden administration.

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October 19, 2023

2023 NLRB Update (Webinar Recap)

On October 18, 2023, I presented a complimentary webinar entitled “2023 NLRB Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Work Rules & Policies
Election Rules & Results
Bargaining Rules & Standards
What’s Next?

and much more!

The National Labor Relations Board enforces the National Labor Relations Act, which applies to most public-sector employers in the United States. This law permits employees to unionize, but also has implications in non-union workforces as well. The NLRB’s interpretation and application of the NLRA fluctuates, typically based on which political party is in the majority on the 5-member Board in Washington. NLRB Board members are appointed by the President to five-year terms, so policy shifts, which primarily occur through adjudicating cases, do not occur immediately upon a change in the White House. But recently, the Board has reversed course on many issues, creating a more burdensome regulatory environment for employers.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “2023 NLRB Update”

A series of significant policy changes from the NLRB should have all private employers on alert. For example, many previously commonplace work rules and employee policies may now be found to violate the NLRA. Moreover, changes to the union election rules and related procedures will likely make it harder for employers to oppose union organizing campaigns. Developments regarding collective bargaining rights and obligations are also shifting, as is pertinent to those companies whose employees are already represented by a labor organization.

Much of the most dramatic new caselaw arose in August 2023. The new election rules are scheduled to take effect on December 26, 2023. This webinar discusses what all U.S. businesses should know about the latest from the NLRB. More than ever, employers must be proactive to avoid unfair labor practice charges and representation proceedings.

This webinar also provides insights into recent union election data, trends, and results that aren’t available elsewhere.

Don’t Miss Our Future Webinars!

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