After the election results of November 2024, I considered what changes we might see in the realm of employment law with the change in presidential administrations. I made some predictions. After the first 100 days of the second Trump administration, some of my predictions have come to pass and others have not – or have not yet. Let’s have a look at what has happened and what may yet happen over the next four years.
Diversity, equity and inclusion on the chopping block
From the outset, the second Trump administration has aggressively sought to eliminate diversity, equity and inclusion programs. Not just in the government but at universities and private businesses, such as prominent national law firms. The director of the Equal Employment Opportunity Commission (EEOC) Andrea Lucas has stated that the agency is going to focus on “reverse discrimination” – i.e. discrimination against individuals who are in the majority in terms of race, gender or any of the other protected classes. Her biography on the EEOC website states:
She prioritizes evenhanded enforcement of civil rights laws for all Americans, including by rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces; protecting workers from religious bias and harassment; and remedying other areas that have been historically under-enforced by the agency.
This statement is a map telling us what the EEOC’s enforcement priorities are going to be during the next four years. And given the rhetoric during the 2024 Presidential campaign, it is pretty true to form to what we expected.
Back to the future on independent contractor classification under the Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) is a federal statute governing minimum wage and overtime. But it only applies to employees, not independent contractors. Over the years, companies have hired workers as independent contractors as opposed to employees, because the tax burden is less and various employment laws that apply to employees do not apply to independent contractors. Uber, Doordash and other “gig-economy” employers have adopted a business model that is based on paying their service providers as independent contractors, not as employees. But there is a danger in doing so. If you hire and pay someone as an independent contractor, but the law says they are an employee, there are potentially back pay and penalties to deal with. You have likely seen news reports of the many lawsuits that “gig-economy” workers have brought against companies asserting that they are employees, not independent contractors.
Recently, the law on this topic has been fluid. The Obama administration adopted a standard to determine whether a worker is an employee or independent contractor under the FLSA; the first Trump administration changed it (to make it easier for companies to classify a worker as an independent contractor); and the Biden administration changed the standard back to something similar to the Obama standard. The second Trump administration has changed the standard yet again.
When I predicted that the second Trump administration would put its hands in the cookie jar a second time and change the standard, I thought that the Department of Labor would simply reinstate the first Trump administration’s standard. I was wrong. The first Trump standard emphasized the degree of control that the company exercised over the worker and the opportunity for the worker to make a profit or loss. This time around, the Trump administration has turned the clock back to adopt a standard first appearing in 2008. That standard looks at several factors to determine whether someone is an independent contractor including:
1.The extent to which the services rendered by the worker are an integral part of the principal’s business
2.The permanency of the relationship
3.The amount of the alleged contractor’s investment in facilities and equipment
4.The nature and degree of control by the principal
5.The alleged contractor’s opportunities for profit and loss
6.The amount of initiative, judgment or foresight in open market competition with others required for the success of the claimed independent contractor
7.The degree of independent business organization and operation
Now, the big plot twist: The Department of Labor expressly stated in the document announcing the change that the change only applies to investigations by the Department of Labor and that “[u]ntil further action is taken” the Biden-era rule “remains in effect for purposes of private litigation.” Thus, as of now, there are two standards governing the determination of whether someone is an independent contractor under the FLSA. One for purposes of Department of Labor investigations and one for purposes of private litigation. As a reminder, the Biden-era rule focuses on whether the worker is dependent on the company for the type of work being done, not income and focuses on the following six factors in making that ultimate determination:
1.The worker’s opportunity for profit or loss based on managerial skill
2.Investments by the worker and the potential employer
3.The degree of permanence of the work relationship
4.The nature and degree of control over performance
5.The extent to which the work performed is an integral part of the employer’s business
6.The worker’s skill and initiative
While the Biden-era rule and its focus on economic dependence for work lives to fight another day, it is likely to be a short stay of execution. It is only a matter of time before the Biden-era standard is put out to pasture and the Department of Labor adopts the 2008 rule for all purposes.
Protections for LGBTQ persons rolled back
In response to the Supreme Court’s decision in Bostock v. Clayton County recognizing trans-gender status and sexual orientation as protected under Title VII of the 1964 Civil Rights Act, the EEOC under the Biden administration issued guidance stating that various behaviors directed towards gay and transgender individuals violated Title VII. Such behavior included disclosing someone’s sexual orientation or gender identity without their permission (“outing”); repeated and intentional use of a pronoun inconsistent with an employee’s known gender identify (“misgendering”); or denial of access to a restroom consistent with an individual’s gender identity.
The Trump administration issued an executive order rejecting this guidance. And on May 15, 2025, a federal court in Texas blocked the Biden-era guidance nationwide asserting that it was overreach by the Biden administration. The Trump administration touted the ruling on the EEOC’s website and will, it is fair to say, not appeal it. The EEOC will likely issue new guidance on this issue in the near future, as it is an issue on which the Trump administration has been laser focused in addition to DEI.
Limiting the scope of the Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (PWFA) was enacted by Congress in 2022. It is a federal statute that requires employers to provide reasonable accommodations to employees who are pregnant, have recently given birth or have related medical conditions, unless doing so causes undue hardship. The EEOC’s existing regulations, implemented during the Biden administration, state that abortions are covered under the Pregnant Workers Fairness Act as “related medical conditions” of pregnancy. That meant that employees who had abortions were afforded the same leave and accommodation rights under the PWFA as pregnant workers and workers who give birth.
When the regulations were implemented by the Biden administration, now Chairperson Lucas was a commissioner with the EEOC. She expressed her strong disagreement with the regulations and coverage of the PWFA to abortions. When she was appointed chairperson of the EEOC by the second Trump administration, I thought these regulations would not survive. A few days ago, a federal district court judge in Louisiana agreed with Chairperson Lucas. In a case brought by various Catholic organizations and the states of Louisiana and Mississippi challenging the regulation’s provision relating to coverage for abortions, the judge agreed with the plaintiffs. The judge found that if Congress intended for abortions to be covered under the PWFA, “it would have spoken clearly when enacting the statute, particularly given the enormous social, religious, and political importance of the abortion issue in our nation at this time.” In his ruling, the judge vacated the provision of the EEOC regulations stating that abortion is a “related medical condition” of pregnancy and childbirth. The rest of the regulations still stand. The judge’s order applies nationwide. I expect the EOOC to issue new regulations, expressly stating that abortions are not covered under the PWFA.
What’s next?
Additional areas that I expect to see existing rules and regulations changed by the Trump administration are: (1) roll back of overtime coverage expansion under the FLSA and (2) roll back of rules governing the use of artificial intelligence in hiring decisions. Whether this prediction is accurate remains to be seen. And undoubtedly there will other areas where the Trump administration will make changes that we do not anticipate. My only advice to employers? Buckle up and keep your employment law counsel on speed dial.