With the advent of a second Donald Trump administration, I had expected significant policy and enforcement changes at the Department of Labor (“DOL”). However, the President’s selection of Lori Chavez-DeRemer as his nominee to lead the DOL has caused many observers at both ends of the political spectrum to scratch their heads. I’ll count myself among the befuddled.

 As a Republican Member of Congress, Ms. Chavez-DeRemer stood out from her fellow Republicans when she supported a couple of pro-labor initiatives. And she has received a strong endorsement from the Teamsters union. Indeed, a number of Senate Democrats have cautiously welcomed her nomination while some Republicans have expressed skepticism.

 Thus, while I originally planned to write a blog that anticipated dramatic policy changes at DOL, I now think it’s conceivable that, if she’s confirmed, Ms. Chavez-DeRemer will oversee a course change at DOL—but not an about face. The devilish details will emerge in the coming months, but here are some thoughts about what may lay ahead:

 Cooperation with labor unions: I’ll start with DOL’s relationship with organized labor. Earlier this year, I blogged about a partnership between DOL’s New Orleans office and the Southeast Louisiana Building and Trades Council. https://www.awrcounsel.com/blog/2024/3/13/a-thumb-on-the-scale-department-of-labor-establishes-partnership-with-union  A few weeks ago, I thought I had heard the sound of that deal being ripped up and expected that the closest organized labor would get to DOL would be a picket line on Constitution Avenue. While we likely won’t hear Ms. Chavez-DeRemer belting out the lyrics of “Solidarity Forever” anytime soon, there’s no question that her history of working with unions will mean that labor could have some sway at DOL.

Abandoning litigation: The Biden Administration has been fighting a number of lawsuits challenging the validity of the government contractor minimum wage executive order as well as the recent increases to the salary basis test and the modification of the independent contractor test. The first Trump Administration walked away from defending challenges to Obama initiatives. We can expect that again. For example, I doubt the Trump Administration will pursue an appeal of the decision that invalidated the Biden Administration’s increase of the threshold for the salary basis test. More on that that decision here. https://www.awrcounsel.com/blog/2024/11/20/oh-its-just-politics-texas-federal-court-vacates-biden-administration-increase-to-flsa-salary-threshold. Likewise, I don’t expect the new administration to challenge recent rulings that enjoined enforcement of the federal contractor minimum wage regulations. However, unlike the recent decision invalidating the salary basis increase on a nationwide basis, the contractor minimum wage has been upheld in some regions or its impact has been restricted to the specific litigants. This leaves contractors with a patchwork of court decisions that will be a pain for firms that employ workers around the country. 

Repealing regulations (or not): Again, when I first started to write this blog following Trump’s victory, I thought we could expect the Trump Administration to repeal or revise a number of the Biden Administration’s changes to wage and hour regulations. I still expect that the Biden-modified independent contractor test probably will be jettisoned in favor of a return to the Trump version. The future of the salary threshold regulation is a bit murky. As I noted, the increased salary threshold has been invalidated by a Texas court and I doubt the new administration will pursue an appeal. However, it’s possible that the incoming administration might entertain a more modest increase in the threshold. The future of the government contractor minimum wage is also unclear. The first Trump Administration left President Obama’s minimum wage executive order intact, which suggests that there might be no change to the Biden order. Presently, the minimum wage executive order remains intact except in several localities with respect to specific plaintiffs. The least resistant path for eliminating this patchwork would be to repeal the contractor minimum wage rather than waiting for litigation to run its course. Regardless, all of these regulations will remain on the books for the time being because changes take time given the requirement to issue rulemaking notices, entertain comments, and then publish the final rule thereafter.

Bottom Line: As much as I’d like to be able to predict the future, I think that’s a fool’s errand after all is said and done. However, I feel confident about predicting the overall course—there’ll definitely be changes in heading, but no u-turn.