Dallas Employment Trial Lawyer Austin Campbell
This article briefly highlights parts of Project 2025 (a conservative policy wish-list that the Trump administration seems likely to implement) that would have an impact on employment law and workers’ rights.
During his campaign, Donald Trump denied having anything to do with Project 2025, a conservative policy wish-list created by the Heritage Foundation. Project 2025 openly bills itself as a toolkit for the incoming administration. Tellingly, Trump has gone on to propose multiple nominees for his administration with close ties to the creation of the document. For instance, Trump intends to appoint Russ Vought as director of the Office of Management and Budget. Vought wrote one section of Project 2025 in which he espoused deep cuts to federal programs and agencies. One way or the other, it seems that the Trump administration is likely to try to implement at least some aspects of Project 2025. So what does it have to say about employment law?
Section 18 of Project 2025 addresses the “Department of Labor and related agencies.” Initially, when it comes to employment law Project 2025 says its goal is to help “reclaim the role of each American worker as the protagonist in his or her own life.” However, the proposals that it gives top billing to seem to have little connection to that.
The document evidently places “Revers[ing] the DEI Revolution” as the primary goal. However, it spends very little time defining that other than to imply a sort of “reverse racism” policy by past administrations. Its concrete suggestions in that area are things like eliminating the EEOC’s role in collecting data on the racial makeup of the workforce or ability to enter into consent decrees, and prohibiting all claims based on a “disparate impact” theory. These things appear mostly aimed at rolling the American workforce back to what it looked like in decades past. That isn’t going to actually fix anything, in my view.
Project 2025 also spends time proposing that the Supreme Court’s decision in Bostock v. Clayton County, Georgia be limited as much as possible. That decision made it clear that discriminating against an employee because of their sexual orientation or because they are transgender is unlawful sex discrimination. At best, Project 2025 urges that the Trump administration interpret that decision to limit it to the exact facts at issue in Bostock. At worst, it can be read as calling for the administration to ignore the protection the decision gives to transgender individuals by urging agencies to “focus their enforcement of sex discrimination laws on the biological binary meaning of ‘sex.’” A cynical take on this could well be that it is setting the groundwork for a wholescale reversal of Bostock and other protections based on sexual orientation. Justice Thomas on the Supreme Court have already begun urging the Court to move in that direction.
In addition, Project 2025 advocates for rolling back a large number of agency regulations or guidance that are more employee-friendly. For instance, if its recommendations were implemented, large numbers of people would outright lose their status (and the concomitant protections) as employees, becoming independent contractors unprotected by most labor and employment laws. The project also advocates for outright exempting “small entities” from regulation, including by OSHA. In my view, however, something is no less unlawful just because a small business does it.
There are some areas where Project 2025 does actually advocate for pro-employee measures. For instance, it appears to support the implementation of the Pregnant Workers’ Fairness Act (currently enjoined in Texas), supports providing religious accommodation, and pushes for employees to be paid overtime if required to work on a “day of rest.”
The problem with that these pro-worker positions (besides being few and far between) is that they seem to be rooted not in concern for workers themselves, but either a desire to increase the influence of Christianity in policymaking, or to return America to a 1950s “nuclear family” ideal that simply isn’t plausible. And while it repeatedly emphasizes how pro-family it is, there seems to be very little about Project 2025’s policy recommendations that are truly “pro-family” outside the context of being overtly pro-life. One example is that the document advocates for passage of The Working Families Flexibility Act. That bill would grant employees some legal protections when using paid time off. On the other hand, getting protected time off essentially would require the employee choose between that time off and overtime pay. And, employers are not prohibited from simply denying the time off. That could result in situations where employees forego overtime pay to bank up PTO that they are then not allowed to use. This is a lukewarm stab at a solution at best, in my view.
While the above doesn’t cover the entire document, these are issues given top billing. Overall, if the Trump administration implements the policy recommendations of Project 2025, American workers could see an elimination of many substantive rights and a lessened ability to enforce other rights. Government protections could shift decisively in favor of employers.
If you are concerned that your employer may be violating your rights as an employee, you should contact an employment lawyer like those at Rob Wiley, P.C.