The 2024 presidential election was like no other in modern history, and it is clear that across a range of measures the American electorate remains dramatically polarized. This presents a host of challenges for policymakers on the federal, state, and local levels, as attempts to foster compromise or reach consensus on even some of the most basic issues can be elusive at best. In this report, Littler Mendelson’s Workplace Policy Institute discusses what the outcome of the 2024 elections—from the presidential election to state and local contests—means for the workplace generally and for employers specifically.
Introduction
The first Trump administration provides some insight into what a second administration might look like with respect to labor and employment policy. As key positions in executive departments and administrative agencies are filled, these appointments are likely to bring their own policy priorities and agendas to the table. Control of both houses of Congress is expected to be narrow. As of this writing we know that the U.S. Senate will be controlled by Republicans, who will hold at least 52 seats, with several still not yet called; they will not, however, have the 60 votes necessary to bypass any legislative filibuster, although the longer-term fate of the filibuster remains unclear. Control of the U.S. House of Representatives has not yet been determined as of publication, as recounts and narrow margins have delayed determining the victor in some races. Given the likely narrow margin no matter who ultimately controls the chamber, it appears unlikely that Congress will approve significant legislation on any bipartisan basis, and that the White House will instead effect policy change through executive orders and administrative regulations.
It is also unclear whether and to what extent the second Trump administration will draw guiding principles from “Project 2025,” a compendium of markedly conservative proposals. While the President-elect sought to distance himself from these policies during his campaign, it is likely that at least some of these positions will be adopted in some form by the incoming administration. For example, a Republican policy priority has long been providing for private sector “comp time,” which is time off accrued in lieu of overtime pay at an employee’s discretion. There have also been proposals to adopt regional overtime wage thresholds rather than a single national standard, and to extend the period in which overtime pay is calculated to two or four weeks, rather than the weekly standard under current law. All of these proposals are revisited in Project 2025, although many would require authorization by Congress. Whether the administration attempts to move forward on any of these proposals by way of executive action remains to be seen.
Any “midnight regulations” issued in the remaining months of the Biden administration are likely to face potential challenge under the Congressional Review Act, a statute by which Congress can repeal regulations it disfavors via majority vote; this will be likely if Republicans ultimately control the House as well as the Senate.
Finally, there are presently 47 vacancies on the federal judiciary (including district courts and courts of appeals), although President Biden’s nominations for 17 of those remain pending in the Senate. It is unclear whether (or how many) of these nominations the Democratic Senate will seek to confirm prior to the change of power in January, but President-elect Trump will have a number of court vacancies to fill, and with a Republican Senate his nominations are likely to be approved. This suggests that at both the lower court and appellate court levels the judiciary is likely to become more accommodating to business interests and less protective of employees. It is not clear whether there will be any openings on the Supreme Court in the next four years, although many have speculated that Justice Thomas and Justice Alito, both Republican-appointed justices, may step down during the next administration so as to allow for a Republican nomination to fill their seats.
Federal Agencies
U.S. Department of Labor
During the four years of the Biden administration, the Department of Labor (DOL) issued a number of significant final regulations addressing, among other things, white collar overtime rules, independent-contractor status under the Fair Labor Standards Act, Davis-Bacon prevailing wage requirements, project labor agreements, and OSHA inspections.
Two of the Biden-era rules, white collar overtime and independent contractor status, repeal and replace prior Trump administration regulations with new policy. Each of these rules is presently facing legal challenge, with courts poised to rule on their lawfulness at any time. Depending on how these legal challenges fare in the courts, a second Trump administration will likely repeal Biden-era rules and restore Trump-era policy, or, where Biden regulations are struck down by the courts, allow those lower-court decisions to stand and not appeal them. For cases decided and potentially appealed during the final days of the Biden administration, the Trump administration will certainly dismiss the appeals. The latter approach would likely restore Trump-era policy more quickly, as it would not require the administrative notice-and-comment procedures otherwise applicable to rescission or replacement of substantive regulations under the Administrative Procedure Act (APA). Creation of new policies in a second administration would in most instances require APA rulemaking.
Beyond reversing Biden-era initiatives, it is unclear what the DOL would focus on in a second Trump administration. While his campaign focused on the state of the economy and inflation, labor and employment was not a particular area of focus of his reelection platform. That said, the focus of several of the sub-agencies within the DOL are clearer.
Office of Labor Management Standards
The Office of Labor Management Standards (OLMS) is the sub-agency in the DOL which, among other things, oversees labor relations in the United States by required reporting showing unions’ financial condition and employers’ expenditures during union organizing campaigns, as well as by setting standards for union officer elections, trusteeships, and financial management. The agency’s focus traditionally shifts depending upon which party control the White House – during Republican administrations, OLMS tends to focus more on its oversight and scrutiny of labor organizations and union officials. While President-elect Trump courted organized labor (particularly rank and file members) during his campaign, it is likely that a Trump OLMS will continue the Republican trend of focusing on union corruption, at least as to unions (particularly union leadership) that did not vocally endorse Trump.
Office of Federal Contract Compliance Programs
During the prior Trump administration, the White House released an executive order, On Combating Race and Sex Stereotyping, aimed at limiting the topics government contractor employers could address in anti-harassment and anti-bias training. Among other things, the order instructed government contracting agencies to add provisions to government contracts prohibiting the use of any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” The executive order listed a number of prohibited concepts, most of which are not commonly emphasized in workplace diversity training programs but some of which are at least related to concepts of implicit bias or the history of systemic racism, that may be included in such programs. It would seem likely that the administration would again attempt to leverage its power over government contractors to advance similar policy initiatives.
Occupational Safety and Health Administration
As noted above, at least one Biden-era regulation is currently subject to challenge: the so-called “walkaround” rule, which would allow employees to designate a non-employee third party as their representative during an Occupational Safety and Health Administration (OSHA) inspection. This regulation has long been sought by organized labor and was strongly opposed by the employer community. Depending upon the regulation’s fate in the courts, a second Trump administration will very likely repeal it if it survives judicial scrutiny.
In 2024, OSHA proposed regulations to adopt a heat standard for workplaces. The proposed standard covers nearly all employers regulated by OSHA, including those in general industry, and in the construction, maritime, and agriculture sectors, and would require employers to develop a Heat Injury and Illness Prevention Plan (HIIPP) with site-specific information to identify, monitor, and control heat hazards in their workplace. As part of the HIIPP, the proposed standard requires employers to develop a heat emergency response plan, and further requires employers to implement specific control measures if the temperature reaches an Initial Heat Trigger (a heat index of 80°F) with additional controls required when the temperature reaches a High Heat Trigger (a heat index of 90°F). The comment period on the proposed standard is scheduled to close on December 30, 2024, and the agency is not expected to adopt a final rule prior to the end of the Biden administration. A Republican-led OSHA will likely either repeal the proposed rule in its entirety or propose a dramatically different standard in its stead.
National Labor Relations Board
As of this writing, the National Labor Relations Board (NLRB) has four members, with one vacancy: Democratic Chair Lauren McFerran, Democratic Members David Prouty and Gwynne Wilcox; and Republican Member Marvin Kaplan. Chair McFerran’s term will expire on December 16, 2024, although her renomination for a term that would end in 2029 is pending. Given an incoming Republican White House, and the loss of Democratic control of the Senate in 2025, many expect that current Senate Majority Leader Chuck Schumer (D-NY) will attempt to reconfirm McFerran during a lame-duck session of Congress before control of the Senate shifts in January. This would effectively give Democrats majority control of the Board through at least August 2026 when Member Prouty’s term is set to expire. It seems less likely that a lame-duck Democratically controlled Senate will confirm Republican nominee Josh Ditelberg, whose nomination to fill the current vacancy is pending. Were Ditelberg to be renominated by the Trump administration, a Republican-led Senate is likely to confirm him quickly.
On Inauguration Day, President Trump will likely designate Republican member Kaplan as either chair or acting chair of the Board. His term is scheduled to expire in August 2025, and it is unclear whether he will seek another five-year term on the Board. That said, the Trump White House will likely submit nominations for any Republican vacancies on the Board quickly, and a Republican-led Senate will confirm them in short order.
Pursuant to the text of the National Labor Relations Act (NLRA), members of the Board may not be removed by the White House prior to the end of their term without good cause. While several lawsuits are challenging the constitutionality of that “for cause” removal provision, what is clear is that the NLRB’s general counsel enjoys no such protection. It can be expected that on the first day of his administration, President Trump will remove NLRB General Counsel Jennifer Abruzzo from her position, as President Biden did to then-General Counsel Peter Robb on January 20, 2021.
In keeping with President Biden’s pledge to be “the strongest union president ever,” throughout her tenure, General Counsel Abruzzo has been aggressive in seeking to shift Board law and policy away from policies she views as favoring employers and more toward policies favoring union organization. During her four years as general counsel, Abruzzo sought to limit employer free speech during union organizing campaigns; prohibit the use of confidentiality clauses in settlements; limit the scope of independent contractor classification under the NLRA; restrict an employer’s ability to discipline workers and maintain workplace conduct rules and handbooks; and expand the standards for Board-ordered bargaining orders. And, in many instances, she has been successful in convincing the Board to adopt her position. A Republican general counsel will likely seek to reverse many of the interpretations of the NLRA advocated by Abruzzo; however, it will be difficult to adopt new positions on these issues until there is a Republican majority of members on the Board.
A Trump NLRB will likely abandon any effort to modify or rescind the current standard for joint employment under the NLRA, which was promulgated during the first Trump administration. By way of background, joint-employer status can have profound consequences for employers. A joint employer may be required to bargain with a union representing jointly employed workers; may be subject to joint and several liability for unfair labor practices committed by the other employer; and may be subject to labor picketing that would otherwise be unlawful. The Biden administration sought to repeal and replace the Trump joint-employer standard with a far more expansive definition that would have made common business-to-business contractual provisions indicia of joint employment under the Act. This effort was struck down by a federal court in Texas, and while the Board initially indicated it would appeal the decision, it later abandoned the appeal, meaning the Trump-era standard currently remains the governing regulation. Organized labor has petitioned the Board to withdraw the Trump-era rule without replacing it with a new test, meaning the standard would revert to case-by-case adjudication. While the Board has not yet indicated it intends to do so (and it would need to do so via lengthy notice and comment rulemaking unlikely to be completed prior to Inauguration Day), a Republican Board would likely abandon any such effort and maintain the Trump-era standard.
Equal Employment Opportunity Commission
On Inauguration Day, President Trump will designate a new chair of the Equal Employment Opportunity Commission (EEOC). Given that there will be only one Republican commissioner serving in January 2025, it seems clear that the White House will tap Commissioner Andrea Lucas to serve as chair, whether on an acting or permanent basis. Chair Lucas would immediately assume responsibility for the management of the agency and its 2,000+ employees in 53 field office throughout the United States. As chair, she would have the ability to set the Commission’s agenda, determining whether and which items were presented to the full Commission for approval, when and whether the Commission convenes public meetings, and the like.
In the absence of bipartisan support, however, at least in the near term, Chair Lucas would be limited in her ability to move forward on policy proposals that require Commission approval. Indeed, on Inauguration Day, Chair Lucas will find herself outnumbered by Democratic members on the Commission, three to one—a situation that will likely continue for some time. Current Democratic Chair Charlotte Burrows’ term doesn’t expire until July 2028; current Democratic Vice Chair Jocelyn Samuels’ term doesn’t expire until July, 2026; and Democratic commissioner Kalpana Kotagal’s term isn’t scheduled to expire until July 2027. There is presently one Republican vacancy on the Commission and the next open Democratic seat would be filled by a Republican, bringing the Commission to a three to two membership with three-Republicans and two Democratic Party members making up the Commission.
As a practical matter, this means the Commission would be limited in adopting broad new policy positions or reversing positions taken by prior administrations—a posture remarkably similar to that at the start of the Biden administration, which saw a Democratic chair and vice chair of the Commission outnumbered by three sitting Republican commissioners. Upon attaining a Republican majority, the Commission would likely seek to roll back the collection of workplace demographic data, and limit the agency’s interpretation of Title VII regarding protection for LGBTQ+ workers in the wake of Bostock v. Clayton County, in which the U.S. Supreme Court held that Title VII’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity. Moreover, the focus of the Commission may shift to the policy priorities of the new chair. For example, during her tenure as a commissioner, incoming Chair Lucas has been highly skeptical of the lawfulness of certain inclusion, equity, and diversity (IE&D) initiatives. She also has a long-standing interest in “religious liberty” in the workplace, co-chairing a task force with former General Counsel Sharon Fast Gustafson during the first Trump administration on the rights of religious employees.
Finally, similar to the general counsel of the NLRB, we expect that the incoming Trump administration will seek to replace the current EEOC general counsel, Democrat Karla Gilibride. Unlike the NLRB, however, the EEOC’s general counsel litigates on behalf of the agency in federal court, but generally does not advance policy recommendations to the full Commission. In the absence of a confirmed successor, Gilibride’s position will likely be filled on an acting basis by a member of the career staff in the general counsel’s office.
Throughout his campaign, President Trump and his allies increased criticism of IE&D initiatives, particularly in light of the U.S. Supreme Court’s decision in Students for Fair Admission v. Harvard, in which the Court largely eliminated affirmative action and the use of race-conscious admission practices in higher education. While the Court’s Harvard decision did not on its face extend to employment practices, the legal principles embodied in the decision are likely to be applied similarly, and employers seeking to engage in voluntary IE&D initiatives are cautioned to do so in close consultation with counsel. Indeed, in the wake of the Harvard case, we have already seen a number of courts hold that programs limiting participation to minority-owned businesses or enterprises run afoul of laws prohibiting private parties from discriminating on the basis of race in making and enforcing contracts. A second Trump administration will certainly seek to push this agenda farther and wherever possible.
Federal Trade Commission
In 2023, the Federal Trade Commission (FTC) made headlines by proposing rules that would effectively ban almost all non-compete agreements in the U.S. workplace. In 2024, the agency issued final regulations that would have essentially accomplished that goal, prohibiting the use of non-compete (and potentially non-disclosure and non-solicitation agreements) in all but the narrowest instances. In August 2024, the final regulations were struck down by the U.S. District Court for the Northern District of Texas, which held that the agency went beyond its statutory authority in promulgating them. The FTC has begun the process of appealing that decision. A Republican FTC will certainly abandon this appeal and leave the regulation of non-competition agreements to state courts and legislatures, as historically has been the case.
Immigration
Election years bring a degree of uncertainty that can affect various aspects of business operations, especially in terms of employment law, particularly immigration.
With a change in administration, there could be a host of new regulations and executive orders that may have a significant impact on the immigration landscape. Although major policy initiatives generally require approval by the legislative branch, executive orders have significant influence over the internal affairs of government, deciding how and to what degree legislation will be enforced and how to deal with emergencies, and in general, can fine-tune policy choices in the implementation of broad statutes.
As we’ve seen in the past, the Trump administration used executive orders to further its agenda. Although it faced many hurdles during the first administration, this Trump administration will seek swift action.
A Trump administration will likely revisit many of his former policies. For example, the administration is anticipated to revisit the idea of “mass deportations,” likely to disrupt the workforce. During his presidency, Trump also pursued increased immigration enforcement that led to an increase of border apprehensions and lowered access to asylum, and resulted in revised guidance on worksite enforcement priorities for Immigration and Customs Enforcement (ICE). These policies created uncertainty as they limited prosecutorial discretion and advised Department of Homeland Security (DHS) personnel to faithfully execute the immigration laws of the United States, which left little room for valid claims for visa approvals, while possibly creating violations of international law regarding asylum seekers.
A new Trump administration is likely to revisit this type of enforcement with renewed vigor in carrying out its agenda to “secure the border” as a way of publicly demonstrating its policy rather than prioritizing enforcement that is in the interest of removing those who present a danger to public safety. To meet these visible enforcement efforts, the administration is proposing to give authority to ICE to expeditiously hire an additional 10,000 agents, officers, and staff to effectuate the mass deportations President-elect Trump has promoted on the campaign trail, similar to measures proposed in the defunct bipartisan immigration bill this past year.
As such, we expect to see an increase in I-9 audits and raids, and as a result, worksite enforcement is anticipated to rise. To further support enforcement efforts there will likely be an increase in immigration judges, and possible reduction in staffing for federal agencies involved with benefits processing, such as the U.S. Citizenship and Immigration Services and Department of State through U.S. Consulates and Embassies abroad. Such staffing level changes will likely have a negative impact on an employee’s ability to obtain timely work authorization, creating disruption and uncertainty for employers and prospective employees causing lack of the workforce availability needed to meet business objectives.
One of the biggest impacts on immigration during Trump’s presidency was the “Buy American, Hire American” (BAHA) executive order, which sought to promote domestic manufacturing and protect U.S. jobs by prioritizing American workers and businesses. Part of the BAHA order included tightening visa regulations with the intent of ensuring that highly skilled workers are prioritized for jobs and to prevent the expanded use of the system by companies hiring foreign workers. In addition to BAHA, one of the measures that affected U.S. immigration included the mandate for in-person immigrant visa interviews. This mandate aimed to strengthen government control on immigration and enhance security screening. Although previously some categories for immigrant visas were able to have the interview waived, the mandate required interviews for all applicants. These changes, although possibly beneficial in terms of added security vetting, created a larger backlog by delaying visa issuance. It is likely that we will see a version of the BAHA order under a new Trump administration.
Additionally, the recission of deference to prior case approvals was a major setback in the immigration world during the first Trump administration, specifically for employment-based visa renewals, such as H-1B visas. Previously, the USCIS policy was for adjudicating officers to give deference to prior decisions when reviewing visa extension requests, unless there were material changes or clear evidence of error in the original approval. The recission of deference also added to the backlog in visa adjudication as officers were required to review all applications as if it were a new application, even if there were no changes to the applicant’s employment conditions or eligibility. As a result of the additional review process, there was an increase in scrutiny requiring employers and beneficiaries to prove their eligibility every time despite having previous approvals. If implemented again, this has the potential to disrupt a business’ ability to maintain a steady workforce if it relies on foreign workers.
Under proposals to revamp the H-1B program, the Trump administration previously sought to tighten policies for this visa. Between 2017 and 2020, there was an uptick in H-1B visa denials as the administration worked behind the scenes to update adjudication priorities and revise guidance to U.S. Citizenship and Immigration Services officers on how to review and adjudicate employment-based visa applications, including the removal of the deference policy, mentioned above, on prior adjudications by the same agency when extension petitions are filed by the same beneficiary with the same employer, without change. The changes were implemented with the intent of supporting U.S. workers. We anticipate the Trump administration will revisit similar types of restrictions on visa applications, not necessarily just H-1Bs, and also expect it again to eliminate the deference policy that had been reinstated by the Biden administration.
Under a similar premise, we anticipate seeing a change to the current prevailing wage system as it applies to the H-1B and PERM-based green card processes. Prevailing wage guidelines overseen by the Department of Labor govern how H-1B employees and employment-based green card holders are paid. These guidelines protect American workers by ensuring that hiring a foreign worker will not adversely affect the wages or working conditions of similarly situated U.S. workers. There are only four wage levels, and they are divided according to the tasks, knowledge, skills, and educational or vocational preparation required to succeed in the required role. Despite advanced educational backgrounds, many recent graduates fill roles that fall into the lowest Level I or Level II wage categories for entry and qualified workers. Level I is the lowest experience level and Level IV the highest, in a 4-tiered level review. The new administration has proposed to eliminate the two lowest wage levels, which would exclude most foreign-born graduates from these job opportunities, to ensure only the most highly skilled workers remain in the United States.
In addition to the administration-specific changes, we are left to see how the Trump administration utilizes the new directive under the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo, where courts now hold the upper hand. Under the prior doctrine, as articulated in the Supreme Court decision Chevron v. Natural Resources Defense Council, courts were required to give deference to administrative interpretations of statutes. The Supreme Court in Chevron set out a two-step test for federal court review of agency interpretation. The first step required a federal court to review an agency interpretation to assess whether congressional intent in drafting the statute was clear, and if it was, the inquiry ended there. However, if the statute was ambiguous, the reviewing court would proceed to step two and consider whether the agency’s interpretation was reasonable. If the agency’s interpretation was clear, the reviewing court would have to defer to it. The logic behind this decision was that agencies have special expertise and knowledge of their subject matter that federal courts lack.
Under the new standard set in Loper Bright, the Chevron doctrine was overruled and now courts are directed to exercise independent judgment in interpreting statutes, even if they are ambiguous. Agency interpretations, however, may still be considered in the reviewing court’s analysis. As this is a recent change, it remains to be seen how the administration, or those opposing administrative changes, will utilize the court’s authority. This will create a more activist role for the judicial branch in interpreting immigration statutes and regulations.
In general, we can expect to see a change in the immigration landscape and only time will tell how previous immigration policies from each administration will be revamped and morphed into new policy changes.
State Law Impact
The slim majorities in the U.S. House and Senate are expected to give rise to federal legislative gridlock and increased state and local activity. Democratic trifecta states and progressive localities are expected to dominate the field in enacting labor and employment-related legislation. Below is our forecast of labor and employment trends in key markets that are likely to gain traction and face resistance from the employer community.
Wage and Hour
Minimum Wage Increases and Decreases
Bills to raise the federal minimum wage have stalled in Congress. However, two state ballot measures raising the minimum wage were passed this election season: In Alaska, voters approved an initiative that will increase the minimum wage to $13 per hour in 2025, $14 per hour in 2026, and $15 per hour in 2027. Voters in Missouri approved a measure increasing the minimum wage to $13.75 per hour in 2025 and $15 per hour in 2026.
A California ballot measure, which would increase the hourly minimum wage to $18 on January 1, 2025, remains too close to call, as of the publication of this report. The minimum wage for employers with 25 or fewer employees would have increased to $17 on January 1, 2025, and $18 on January 1, 2026. Voters in Massachusetts similarly defeated a ballot measure that would have increased the minimum wage for tipped employees over the next five years from the current rate of $6.75 per hour to 100% of the state’s minimum wage for all workers, currently $15 per hour. And in Arizona, voters rejected a ballot initiative that would have amended the state’s constitution to allow tipped workers to be paid 25% less than the regular minimum wage as long as their hourly wage, with tips, is $2 above the regular minimum wage.
In Ohio a proposal to raise the minimum wage to $15 per hour did not get enough signatures to make it on the 2024 ballot, but proposal backers say they are planning to continue signature-gathering to try and get it on the 2025 ballot. An Oklahoma proposal to increase the state minimum wage garnered sufficient signatures but did not receive final approval to appear on the ballot in time for the 2024 general election. The measure will instead appear on the ballot in the state’s June 2026 primary election.
Paid Leave
Voters in three states, Alaska, Nebraska, and Missouri, passed ballot initiatives providing paid sick leave to employees. The laws allow full-time employees to earn one hour of paid sick leave for every 30 hours worked. For employers with 15 or more employees, Alaska and Missouri laws allow employees to accrue up to 56 hours of paid sick leave per year. The Nebraska law provides a maximum of 40 hours of paid leave per year for employers with fewer than 20 employees, and a maximum of 56 hours of paid leave per year for employers with 20 or more employees.
Impact of Other Ballot Measures
In some key states, certain ballot measures with hot-button, sociocultural issues likely drove voter turnout and impacted other measures and candidates’ performance in those states. For example, ballot measures protecting or expanding abortion rights in seven states passed, including: Montana, Nevada, Arizona, Colorado, Missouri, New York, and Maryland. But voters in Florida, Nebraska, and South Dakota rejected similar amendments. Additionally, voters in three states voted on marijuana legalization. Those measures failed in Florida and North Dakota. As of this publication, the votes are still being counted in South Dakota.
Artificial Intelligence
While a number of bills concerning AI have been introduced in Congress, none have yet passed. In the absence of federal legislation, 45 states considered almost 700 legislative proposals this year, according to BSA/The Software Alliance. In the meantime, at least 17 states have enacted bills regulating AI. Colorado, which became the first state to enact comprehensive AI legislation that is scheduled to go into effect in 2026, also established a 26-member task force to revise the new law and address concerns by the business community “that an overly broad definition of AI, coupled with pro-active disclosure requirements, could inadvertently impose prohibitively high costs on them, resulting in barriers to growth and product development, job losses, and a diminished capacity to raise capital.”
Although the California legislature was unable to pass its comprehensive AI bill in 2024, state agencies are looking to fill the gap. Earlier this year the California Civil Rights Department released new proposed regulations for employers’ use of AI and automated decision-making systems to address concerns about potential discrimination caused by the use of automated systems. Recent revisions to the draft regulation narrow the scope of potential liability for discrimination for the use of such systems.
Post-election we can expect more state legislation and regulations on the issue, particularly regarding high-risk uses of AI, and continued concerns regarding the impact of such laws. Among other things, just two weeks before the election, the Future of Privacy Forum announced the expansion of the Multistate AI Policymaker Working Group (MAP-WG) to include a bipartisan coalition of over 200 state lawmakers from more than 45 states. Their goal is to help states create a uniform framework to regulate AI.
Pay Transparency
While federal pay transparency legislation has been proposed, but not yet passed, several states, including California, Colorado, Connecticut, Hawaii, Maryland, Nevada, New York, Rhode Island, Washington, and the District of Columbia, have wage transparency laws currently in effect. These laws, which aim to reduce pay disparities based on factors like gender, race, and ethnicity, generally require employers to disclose the wage scale or salary range for open positions posted externally and internally. Other states, including Illinois, Massachusetts, Minnesota, and Vermont have enacted pay transparency laws that will go into effect in 2025. Most recently, On September 26, 2024, the New Jersey legislature passed a pay transparency law that would go into effect in 2025. New Jersey governor Murphy has until November 10 to sign the bill, which he is expected to do.
Child Labor Laws
State laws regulating the hours of work for minors and the industries in which they can work have been amended recently, with some states loosening restrictions and other states tightening them. For example, in 2024 Florida, Iowa, Indiana, passed legislation increasing the hours of work allowed for minors. On the other hand, other states, such as Alabama, Colorado, Illinois, Oregon, and Virginia, have enhanced protections for employment of minors or increased penalties for child labor violations in 2024. The future of pending legislation on child labor will also no doubt be impacted by the outcome of the election. For example, a bill pending in the Pennsylvania state house, with representatives of all districts up for election, would regulate the employment of minors in the creation of digital content, such as video, audio, and photo sharing on online platforms. Although Democrats obtained their first house majority since 2010 in 2023, after winning three special elections, as of the publication of this report, it appears that the Pennsylvania state house may flip back to Republican, though the race still remains too close to call. The Pennsylvania Senate race has been decided and it remains Republican.
Labor Management Relations
Captive Audience Meeting Bans
Laws banning mandatory employer-sponsored meetings in which employers voice concerns about union membership have gained momentum in states with Democratic governors or Democratic legislative majorities. So-called “captive audience meeting” bans are currently in effect in Connecticut, Hawaii, Maine, Minnesota, New Jersey, New York, Oregon, Vermont and Washington. The U.S. Chamber of Commerce has filed suit challenging the Connecticut law and business groups are challenging the law in Minnesota. An Illinois ban, scheduled to go into effect in January 2025, has also been challenged in federal court, by the Illinois Policy Institute and the Technology & Manufacturing Association.
Most recently, at the end of September 2024, California Governor Newsom signed a bill into law that will subject most employers to a civil penalty or civil action starting January 1, 2025, if they require employee attendance at such meetings. Similar bills have been introduced in Massachusetts and Rhode Island, which will remain Democratic trifectas, and will likely pass captive audience meeting bans, along with other trifecta states. A similar ballot measure, which voters in Alaska approved, has been opposed by the Alaska Cabaret, Hotel, Restaurant and Retailers Association, known as CHARR, and supported by union organizations.
Workplace Standards Boards
Workplace or labor standards boards are state- or city-mandated organizations that typically include representatives from local government, workers, and employers to set labor standards, wage rates, and benefits across sectors, occupations, and regions. Unions have been supporting them, and an increasing number of states and cities have established such standards boards across a range of industries.
For example, in 2023, California Governor Newsom signed the Fast Food Council law which increased the minimum wage for fast food workers to $20.00 per hour effective April 1, 2024. The law also established a Fast Food Council to make future increases to the minimum wage and to adopt other minimum employment standards for fast food restaurants in the state. Similarly, the California State Assembly recently passed a bill that would have empowered a seven-member council to set regulations around workplace conditions for janitors. Following industry pushback, the bill was ultimately amended to establish a commission to study unsafe workloads in the industry.
Currently, the Minneapolis City Council is considering a proposal, co-authored by three city council members and supported by the Service Employees International Union (SEIU), for a labor standards board that would make recommendations for new regulations on all aspects of business in the city. The proposal will come before the full city council at its November 14th meeting, and a vote is expected before the end of the year.
In 2023, the Oregon legislature considered a bill supported by the SEIU to create a workforce standards board for the long-term care industry. Although the bill died in committee, unions and organizations like the Oregon Center for Public policy are continuing to advocate for creation of a standards board for home care workers.
Other Union Initiatives on the Ballot – Sectoral Bargaining
Sectoral bargaining is bargaining for a labor agreement that covers all workers in an industry or sector of the economy, rather than a labor agreement that covers a single employer or workplace.
A ballot measure was approved in Massachusetts that creates a system of sectoral bargaining for drivers at ride-sharing companies to form a union to collectively bargain for wages, benefits and working conditions. Currently, the drivers are hired as independent contractors, which means the NLRA, which grants employees the right to organize, does not apply to them. Massachusetts is the first state in the country to allow ride-hailing drivers to unionize. A similar bill in Connecticut died in committee in 2021. Given voter approval in Massachusetts, other progressive states may seek to pass similar legislation.
Conclusion
Employers and employees may be eager to put the 2024 election behind them, but given the likelihood of challenges and the unknown turns of current events, it may be weeks or even months before we may comfortably do so. What is without question is that 2025 will bring a host of changes to the workplace, both logistically and legally. It is crucial that these changes take a holistic view of the workplace and those operating within it. WPI will continue to monitor how national and state leaders and policymakers approach the numerous challenges before them, and ensure the employment community has a voice in the process.
