2025: How to Navigate a Deregulatory Administration Post Covid

By Camille BradburyPublished On: November 13, 2024

Regardless of the election outcome, HR compliance is increasingly challenged by frequent shifts in labor and employment law. New York Times says, in the U.S., the presidency is on the verge of changing hands for the third time in eight years, the biggest period of White House instability since the 1970s.

HRs will, once again, need to prepare for the pendulum swing from the Biden Administration to the Trump Administration. According to recent Equal Employment Opportunity Commission (EEOC) Director, Keith Sonderling, while switching political parties was once normal, today’s policy shifts are more extreme, resulting in the reversals of 30-year precedents.

Last year, it was reported that the Biden administration was “rebuilding federal agencies hollowed out by Trump and Congress.” Recently, Trump says he plans to again gut regulatory agencies that Biden has been working to reverse. Traditionally, Republican-led senates and congresses prioritize cutting federal regulations and delegating regulatory power to states to achieve cost savings.

The result? During Trump’s first term, he stripped regulatory agencies, resulting in decreased regulations from Occupational Safety and Hazard Administration (OSHA) during the pandemic. On the other side, Obama’s regulations around the Affordable Care Act put an enormous burden on employers.

Most recently, in Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the so-called 40-year Chevron deference to federal agencies’ regulations that says courts should defer to a federal agency’s reasonable interpretation of an ambiguous statute.

“Employers may have to follow fewer regulations and could be in a better position to challenge rules from federal agencies like the U.S. Department of Labor (DOL) now that the U.S. Supreme Court has overruled a 1984 decision that held courts should defer to federal agencies’ reasonable interpretations of ambiguous laws passed by Congress”. – SHRM

During his first term, President Trump was known to “shoot from the hip”, meaning he writes executive orders without planning for the execution. The strategy was to leave it to the courts and executive branches to work out. The trend has been to punt it to the next lower agency to work out the details and allow “courts to clip agencies’ wings,” according to EEOC Director Sonderling.

So what does the White House instability mean for employers? Fluctuating regulatory policies, whether it’s regulating or deregulating federal policies, requires HR to pivot often.

According to this chart, from the Regulatory Studies Center at George Washington University, regardless of a Republican or Democratic president in the executive office, we’re still seeing the same amount of pages published in the Code of Federal Regulations, increasing since the 1970s.

It’s critical to develop strategic approaches to know when to act, and understand the challenges ahead to better prepare for continued policy shifts that affect labor and employment law and HR compliance as administrations switch from one party to the other as they have done since 2016.

Looking Back to Look Ahead: Significant Challenges for Employers During the 2017 Trump Administration

Xpert HR conducted a survey in 2017 soliciting input from over 1000 HR professionals from small, medium to large employers on significant compliance challenges for employers during the Trump Administration. Here are their top findings:

Republican Administration and Federal Issues

Reduced federal oversight and regulations are pushing responsibility to states, significantly impacting workplace practices.
State and Municipal Issues

The growing patchwork of state laws and regulations creates a complex challenge for employers operating across multiple states and cities.
Cyber Breach/ Data Security

Employers can use technology to monitor their employees’ work, but this should be balanced with the right to privacy.
Workplace Violence/ Active Shooter

Variations in state gun laws can affect how employers handle weapons in the workplace and how employees are allowed to possess firearms.
Employee Leaves

The patchwork of leave laws at federal, state, and local levels continues to pose a significant challenge for employers.
ACA / Benefits

Employers face challenges due to the ACA, its mandates, and its uncertain future.
Employee Well-Being and Mental Health

Fostering a healthy and stable workforce, including addressing employee mental health, is a major priority for employers. Despite the easier recognition and handling of physical illnesses or disabilities in the workplace, it’s important to recognize that federal and state laws prohibiting discrimination encompass those experiencing mental health issues like PTSD, depression, bipolar disorder, or schizophrenia.
Employee Handbooks

According to the survey, 41% found it very or extremely difficult to keep up with new laws and trends. Managing handbooks for a multi-state employer presented a significant challenge for 36%, who cited conflicting and overlapping requirements as a major hurdle.
Cannabis and Drug Testing

The opioid crisis in America is impacting not only the millions struggling with addiction but also negatively affecting employers and workplace safety.
Diversity and Inclusion

A modern workplace requires employers to understand that diversity is not limited to race, sex, ethnicity, age, national origin, and religion. It extends to include differing work experiences, sexual orientation, educational status, marital status, socioeconomic status, physical characteristics, life experiences, background, and upbringing. A workplace where everyone feels appreciated, respected, and able to contribute to success is crucial.
Pay Equity and Salary History Bans

Pay equity for women is a major trend that’s taking the nation by storm. States like California, Delaware, Massachusetts and Oregon, along with cities like New York City and San Francisco, are enacting salary history bans to address the wage gap and ensure women receive equal pay and opportunities.
Harassment

As the issue of sexual harassment continues to rise to the forefront, employers across sectors, including government, entertainment, Fortune 500 companies, and the media, are facing greater risks. A workplace free from harassment, including sexual harassment and discrimination based on protected classes, is critical for employers due to the high stakes involved.

What Employers Can Expect in 2025

Looking back on 2018, employers are dealing with similar issues in 2024. But perhaps the biggest change for 2025, according to Trump’s 2025 agenda, are plans to bring the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) under the White House, no longer operating as separate agencies resulting in less federal regulation.

With the federal government’s reduced involvement, individual states are enacting their own regulations and the rise of remote work post-pandemic presents a new hurdle for HR compliance in 2025.

Supreme court litigation is where regulatory agencies get tied up and it leaves HR in a position to develop a strategy around a “wait and see” approach. Meaning, watch the rule play out in court and don’t act until it’s official. HR experts warn to ensure you always have a backup plan. The overtime exemption rule being one of them as employers get closer to January’s overtime exemption increase from the Biden Administration in early 2025.

Strategies for Navigating Government Policy Fluctuations

Covid’s impact on work has turned many employers into operating across multiple states and requires a strategic HR approach to keep up with the patchwork of regulations. To develop your approach, you might analyze pattern trends, schedule HR handbook updates, and determine the level of risk your current employer is comfortable with when it comes to compliance. Consider these questions to get this off your to-do list and prevent feeling overwhelmed.

HR experts say consistency in policy can become tricky in 2025. If you are like most of us, multi-state employers should prepare for extra support in 2025 to comply with state laws under a new Republican administration.

For more help, download our Post Election: Survival Guide for Multi-State Employers.