With Donald Trump headed back to the White House, expect major shifts at the National Labor Relations Board (NLRB). The Board, responsible for setting the tone on workplace rules and organizing rights, is on track for a conservative overhaul.
While Trump may not take as much personal interest in labor policy as Joe Biden, his administration is likely to focus on rolling back Biden-era NLRB decisions, restoring employer-friendly rules, and redefining workplace standards. These changes could be significant and affect employers, employees, and labor organizers.
One of the first moves anticipated is a leadership shake-up. In 2021, Biden dismissed General Counsel (GC) Peter Robb on Day One, setting a new precedent. GC Jennifer Abruzzo, known for her pro-worker initiatives, will likely face a similar exit under Trump. Her replacement would align with Republican interests, prioritizing cases that challenge recent rulings and tilt the balance toward employers.
Trump can be expected to immediately name Marvin Kaplan as the new NLRB Chair, and nominate a new member to replace the Biden nominee Lauren McFerran, whose term will expire in December. Assuming he’s not confirmed during the lame duck session of Congress, Trump should also be expected to renominate Josh Ditelberg for the seat vacated by John Ring in 2022. He could go even further, though that is less likely.
Since the new Senate will have a Republican majority, Trump should have fewer issues getting nominees seated. If he does face obstacles (for example, if somehow Lauren McFerran is confirmed during the lame duck session) he still has options. NLRB Board members can only be removed for “neglect of duty or malfeasance,” but some conservative legal minds argue these protections may be unconstitutional. If Trump’s administration tests this theory, it could lead to early dismissals of Democratic appointees. While legally uncertain, this move would strongly signal a realignment with traditional Republican priorities.
A new GC would likely issue a memo revising the list of mandatory submissions to the Division of Advice, targeting policies for potential change. Here’s some of what could be on the Trump chopping block:
- Stericycle & McLaren Macomb: These cases currently impose strict rules on confidentiality and non-disparagement, limiting employers’ control over employee speech. Expect a rollback to a more employer-friendly standard.
- Lion Elastomers: This ruling protects workers engaged in offensive “protected” activity, barring disciplinary action. A conservative NLRB could tighten these protections, giving employers more leeway to discipline workers.
- Micro Units: Allowing unions to organize small “micro-units” within companies has been a union-friendly strategy that a conservative NLRB would likely restrict.
A conservative NLRB under Trump signals a return to traditional, employer-friendly policies. Employers may gain greater flexibility, while employees and labor organizers could see a rollback of Biden-era protections. In labor law, the stakes are high, and with Trump’s second term, the rules of the game are set to change—again.
