As we close out 2024 and look to 2025, I polled members of Spilman, myself included, to get their take on some of the biggest labor and employment developments from 2024 that have or will impact employers. You can find more details on these issues in prior editions of SuperVision. Many of these issues will continue to be relevant to employers as we move into 2025. Rest assured, we will keep an eye on these and other issues so that we can keep you updated on the legal and regulatory issues impacting your business.  

1. Second Trump Term - The incoming administration will indeed have a real impact on issues facing employers in the L&E arena. Despite a seemingly more pro-labor DOL appointee, labor relations, in general, should return to a more balanced environment, including reversing generalized efforts that assisted union organizing. Government oversight of workplace safety issues will also likely be relaxed. Immigration reform will likely make for a tighter workforce pool overall, including tightening up on highly skilled foreign workers. We also expect a much easier path to classifying workers as impendent contractors, including reimplementing DOL rules on the subject. – Eric W. Iskra   
2. Expansion of Adverse Action – In Muldrow v. St. Louis, decided on April 17, 2024, a unanimous Supreme Court addressed the standard proving an adverse action under employment discrimination laws like Title VII, ADA, and ADEA. Rather than a substantially material harm, there must only be some harm. Rather than focusing on the materiality of the harm, moving forward, it should shift the focus to whether the action taken vis-à-vis the employee is based on their protected characteristic. We anticipate that employees will raise complaints about a wider variety of conduct and that courts will find that an increasing array of conduct will satisfy this “new” adverse action standard. – Carrie H. Grundmann
   
3. Less Federal Deference – On June 28, 2024, the Supreme Court issued its decision in Loper Bright Enterprises v. Raimondo, overturning what is known as Chevron deference, a doctrine in existence for nearly 40 years that gave a high level of deference to federal agencies (like the Department of Labor, National Labor Relations Board, and Equal Employment Opportunity Commission) in their interpretations of ambiguous federal laws. Under the newly announced standard, courts will need to exercise their own independent judgment on whether agencies act within their statutory authority. We expect to see a significant increase in challenges of agency regulations, with lawsuits asking courts to exercise their own independent judgment over the actions and decisions of the various federal agencies that enforce federal employment laws such as Title VII, ADA, ADEA, the Fair Labor Standard Act, the Family and Medical Leave Act, and the Pregnant Workers Fairness Act, among others. – Eric E. Kinder
   
4. Pressure On Restrictive Covenants – In April 2024, the Federal Trade Commission announced a final rule to ban all non-compete agreements nationwide. While a Texas federal court invalidated that rule in August 2024, this is just the latest attack at both the state and federal levels to restrict the use of non-compete agreements. The General Counsel of the National Labor Relations Board and multiple states have also been addressing such restrictive covenants. While the FTC ban has since been struck down, employers must be more mindful than ever of when and how they utilize non-competes and other types of restrictive covenants (NDA or non-solicitation) to limit their employees’ post-employment. Employers must be mindful to use such agreements judiciously, ensuring the employees subject to such agreements and the scope of them is only as broad as necessary to protect legitimate business interests. – Jeffrey D. Patton
   
5. Increased Unionization – In October 2024, the National Labor Relations Board (NLRB) released data indicating that union representation elections have doubled since 2021 (and were up 27% percent from 2023 to 2024). Much of this increased unionization is due to liberalization of standards and policies of enforcement by the NLRB and its General Counsel, Jennifer Abruzzo. This democratically controlled NRLB addressed a number of issues in pro-employee ways, including neutral workplace rules, confidentiality and nondisparagement provisions, solo protests, disciplining employees for derogatory language, union elections, and most recently, captive audience meetings. While we expect a Republican administration will pull back some of these more pro-employee/union policies and will likely remove Ms. Abruzzo shortly after Trump takes office, unionization efforts will likely continue through at least the next year as the new Board pulls back policies and possibly through 2026 if the Senate confirms a third democratic member to the Board before the newly elected legislature takes office in 2025, which would secure a democratic majority through December 2026. – Kevin L. Carr.

Honorable mention for this Top Five of 2024 goes to the topic addressed by my colleague Julian Harf in the winter edition of SuperVision concerning the November 2024 decision by a federal district court in Texas invalidating the DOL’s proposal to increase the salary threshold for exempt employees from $35,568/year to $58,656 by January 1, 2025. With a Republican administration, we do not expect to see much movement on this issue over the next four years, which is likely welcome relief for many employers who have been trying to navigate how to implement these substantial salary increases proposed by the current DOL.

As you can see, 2024 has been an incredibly active year on the labor and employment front. We expect nothing less from 2025! If you have interest in any of these (or other) labor and employment topics, please contact a member of Spilman’s Labor and Employment Team.