May 2025 Volume 7

OPERATIONS & MANAGEMENT

EMPLOYMENT ISSUES – WHAT’S THE CURRENT STATE OF THE LAW? By Johanna Fabrizio Parker

• Agencies also must “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” • Finding that “[e]fforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being,” so that the United States will only recognize two sexes – male and female – which are “not changeable” and “grounded in fundamental and incontrovertible reality.” • Ceasing all activities within the Office of Federal Contract Compliance Programs (OFCCP), including allowing federal contractors to “engage in workforce balancing” based on race, color, sex, sexual preference, religion, or national origin. • President Trump fired the General Counsel of the National Labor Relations Board (NLRB) as well as one of the NLRB’s two Democratic members. (Since I started writing this article, there have been multiple steps as to the termination of NLRB Board Member Wilcox. The Court of Appeals returned her to work, but the president appealed to the Supreme Court, which halted her return, so by the time you are reading this, the status could be different.) The new NLRB General Counsel has rescinded certain advice memos, including: • The memo addressing how an offer of severance can violate the National Labor Relations Act. (You may recall the McLaren Macomb decision where the NLRB found that confidentiality and non-disparagement provisions in such an agreement violated the NLRA.) • The memo addressing how non-compete agreements could violate the NLRA. (The former GC argued that non-compete agreements chill employees’ exercise of Section 7 rights because they deny them the ability to quit their jobs and pursue other opportunities.) • The memo addressing how “stay or pay” provisions could Of course, it is still too early to see how all these changes manifest. But we are seeing some immediate shifts in apparent priorities of the EEOC. As an example, under the previous administration, enforcing anti-discrimination provisions for transgender or gender non-conforming people was a priority. Now, the agency is moving to drop these cases and has removed certain materials promoting these issues. violate the NLRA. (The former GC argued that “stay or-pay” provisions, such as sign-on bonuses, restrict employee mobility and therefore violate the NLRA.)

A s I write the opening title question, my first thought is: the current state as of my date of submission may very well be outdated by the time of publication. So, I hope you bear with me here. We see a lot of headlines as to actions by the current administration as to employment law issues, and specifically, Diversity Equity and Inclusion (DEI) initiatives. Following is a summary of the communications and actions by the current administration as related to these issues: • Per the EEOC website (www.eeoc.gov), the president has issued a series of executive orders “restoring even-handed civil rights enforcement and directing the federal government, including the EEOC, to combat serious patterns of discrimination and harassment that have gone unchecked for too long.” These include rescinding multiple executive orders issued by the Biden administration and described by that administration as related to: • advancing equity for underserved communities, • including all state residents in a census regardless of immigration status, • preventing discrimination on the basis of gender identity or sexual orientation, • providing that transgender individuals could serve in the military, • specifically expanding Title IX anti-discrimination provisions to prohibit discrimination on the basis of sexual orientation or gender identity, and • establishing a diversity, equity, inclusion, and accessibility initiative within the federal government. • President Trump also has issued the following executive orders: • Calling DEI programs “illegal and immoral discrimination programs”, the federal government has been ordered to coordinate the termination of these programs.

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