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How the Administration Aims to Change the Workplace · C-Suite Perspectives

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  Welcome to C-Suite Perspectives, a signature series by The Conference Board.
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  I'm Steve Odland from The Conference Board and the host of this podcast series.
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  And in today's conversation, we're going to talk about the US administration's
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  approach to governing the workplace.
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  Joining me today is Camille Olson, a partner at Seyfarth.
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  Camille, welcome.
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  Thank you so much.
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  It's great to be here.
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  Camille, you've written this great new paper that I've read multiple times
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  because there's so much depth to it.
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  And it talks about the administration's approach to governing the workplace.
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  This may sound like a silly question, but why did you write the paper?
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  Because it seems like most of the administration's approach has been to
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  the federal workforce but it does have application in the private sector.
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  So is that the primary driver?
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  A great question, Steve.
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  I really wrote this paper because we've now reached a point where the
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  administration's directives, as well as its actions, provide a really clear
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  picture of its approach to the workplace.
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  At the end of the first 100 days, most attention was centered on diversity,
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  equity & inclusion (DEI) but now, more than 280 days in, we see a broader
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  pattern emerging, a coordinated whole-of-government approach that
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  extends across multiple agencies.
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  I believe that at this point, the landscape is far more defined
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  and comprehensive than it was when many of us first discussed
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  this topic earlier this year.
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  So I wanted to provide an analytical framework for understanding how the
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  Trump administration is governing the workplace in its second term.
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  And I think that to your point of much of the administration's activity-- whether
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  it's through executive orders, agency directives, and enforcement priorities--
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  is focused on the federal workforce.
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  It has been influencing the private sector and influencing the private
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  sector directly has been a key priority of this administration.
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  I would say that in addition to executive orders, the
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  administration is using contracting requirements, grant conditions,
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  and even negotiated settlements to shape private sector action.
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  In regulatory actions in this too.
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  So it's spilling over.
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  It's clear they have a philosophy that they're trying to deploy
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  broadly throughout the country.
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  Now you talk about this unitary executive theory.
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  And we've talked about this structure of the government and how this
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  works because the government is set up by the Constitution, with
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  three equal branches of government.
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  There are checks and balances, and so forth.
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  And some people are going, wait a minute, this is coming out of the
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  executive branch but shouldn't laws come out of the congressional actions?
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  And then the courts are weighing in.
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  So you got a lot of stuff going on here.
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  But the actions of the administration follow this unitary executive theory.
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  Talk about all that.
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  Yeah, so it's a great question.
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  So the president can't make a law.
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  Executive orders are not laws, they are actions that a president can take,
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  that are consistent with existing laws, that direct either the federal
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  workforce, federal contractors, or federal grantees to act in a certain way.
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  You mentioned the unitary executive theory.
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  That rests on Article 2 of the Constitution.
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  And that doctrine really describes all executive power within Article
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  2 as residing in the president.
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  So a visible aspect of the theory in practice is the president's removal
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  powers, which have made it all the way to the Supreme Court this term, specifically
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  in the case Trump v. Slaughter.
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  There were many different removals by President Trump, including removals
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  of members of the National Labor Relations Board (NLRB), the Federal
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  Trade Commission, the Merit Systems Protection Board, the Equal Employment
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  Opportunity Committee (EEOC), the Federal Labor Relations Authority,
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  as well as the Federal Reserve.
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  Those issues are before the court and it'll be very interesting to
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  see whether, in fact, the president has the power to remove members of
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  various commissions or whether that does violate the separation of powers.
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  And if so, whether Humphrey's Executor v. United States and a longstanding
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  Supreme Court case should be overturned.
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  It's interesting because all the agencies that are regulatory in nature
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  sit in the executive branch, as well.
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  And there've been a lot of court challenges to the executive actions,
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  proclamations, and so forth.
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  But most of them have held up and most of these actions now are
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  spilling over to the private sector.
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  DEI is one example of that.
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  Their priority was to eliminate what they called, "illegal DEI" activities and
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  deprioritize the disparate impact theory.
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  Talk about that as an example of what's happening in, certainly
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  the federal government, but the spillover to the private sector.
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  Yeah, it's interesting.
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  I happen to be with former Office of Federal Contract Compliance
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  Programs (OFCCP) Director Catherine Eschbach earlier this week.
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  She was the OFCCP director who was confirmed earlier this year under this
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  administration, who's now moved over to the EEOC as acting deputy general counsel.
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  But she spoke about the OFCCP and the various actions that she did
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  while she was there this year.
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  Specifically in June, she issued on June 27th a letter to federal contractors
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  describing all of the different DEI programs that they should really
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  be looking at and things that they should be considering as to whether
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  or not they needed any tweaks to be in conformity with federal law.
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  And she made a point of saying all private employers should be reviewing
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  their own employment practices in the context of the letter that she
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  sent to the federal government.
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  And what I would say to you is what we are seeing is first, the federal government
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  is acting in terms of federal employees and federal grants, federal contractors.
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  And that includes questions regarding certifications for federal
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  contractors, that their programs are in compliance with federal law,
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  including their DEI compliance issues.
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  We're also going to see, and it just happened again on Monday of this week,
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  that we now have a quorum at the EEOC.
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  There are now three confirmed, sworn-in commissioners who will now
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  have the authority to both initiate systemic litigation, to issue
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  guidance, and also to pass regulations with respect to the workplace.
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  Yeah.
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  Now, a lot of people say the administration, they don't
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  have the authority to do this.
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  Congress has the authority to do this.
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  What have the courts said about it so far in the challenges?
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  In terms of the removal of heads of various agencies, none of
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  those challenges have really held in terms of the workplace.
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  It's interesting because you have to look at the different agencies both
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  as quasi-judicial bodies and those would be agencies that are actually
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  issuing judicial decisions, like the NLRB or the Federal Trade Commission.
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  Then you've got agencies that have enforcement rules or policy
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  rules, and that's the EEOC or the Federal Labor Relations Authority.
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  But generally, the courts have allowed, during this period, for most of those
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  removals to remain, to be this status quo while this issue is going to be
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  litigated at the Supreme Court this term.
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  And you've seen the private sector companies already take action on DEI and
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  say, "Oh yeah we're not doing illegal DEI." I'm not sure anyone intended to but
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  the term DEI itself became so politicized that most of them said, "Hey, we're not.
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  It's become a light socket, let's not stick our finger there," and have
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  reworded it, have reprioritized things.
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  I'm not sure anybody's given up on their values per se, but
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  it has moved the language, at least around the private sector.
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  Yes, it has.
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  And there has been a reset.
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  It's interesting in a conversation just a week ago with the acting chair of
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  the EEOC, Andrea Lucas, she didn't talk about illegal DEI in terms of counseling
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  employers and businesses about the issue.
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  Instead, she moved to different language.
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  She said, look, can't we all agree that race and sex discrimination
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  is illegal under Title VII?
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  And if we all agree to that, what I'm doing is asking you to look at
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  your policies and your programs and ensure they don't have preferences.
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  Ensure they don't exclude individuals based on a protected status.
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  Look at people as individuals.
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  And I think we are going to see the administration moving to talking
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  about these issues now, away from the illegal DEI label that was initially
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  prevalent everywhere, to really focus on the direct link to the law as folks
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  are trying to understand now how to implement these policy priorities.
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  Yeah, and it's a really interesting time.
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  We've talked about how it spills over the federal borders into
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  other areas of the economy.
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  And you've talked about contracting requirements and so forth.
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  But there's also been litigation around the False Claims Act that
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  you talked about in the paper.
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  What was, what's that all about?
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  The False Claims Act litigation really relates to any private
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  employer who receives government funds, either because they're a
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  government contractor and they've got a government contract, or because they
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  receive grants from the government.
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  And basically, as part of your contract in receiving those monies, the administration
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  requires you, when you receive one of the forms, to certify that, in fact,
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  your operating programs that are not illegal DEI and, in fact, that they're
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  all in compliance with federal laws.
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  And that form also says that certification or that representation is a material
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  term to receiving that money from the federal government, which is really the
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  hook for the False Claims Act, which allows the Department of Justice and
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  private parties to sue an individual if in fact they have operated programs
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  that are not in compliance with that material term of that federal contract.
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  That opens up a whole can of worms because if you're under a threat of litigation,
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  regardless of whether you disagree with either the policy or the legality of
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  the administration being able to what do what you do, it's a risk aversion
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  strategy that you need to undertake.
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  Yeah.
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  And there are different risks, Steve, that folks are looking at.
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  People are looking at legal risk.
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  Do I have legally compliant programs?
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  And then they look at even if they're legally compliant, am I describing
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  them in ways that provide regulatory risk in terms of the administration's
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  current priorities on these issues?
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  So that risk I have to determine, I may be doing everything lawful,
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  but are there ways to minimize the risk of regulatory action?
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  And then there are reputational risks, both internal for employees
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  and external for clients and for shareholders regarding your own culture,
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  your values, and ensuring that, as you mentioned, you're true to those
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  while also staying legally compliant.
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  Yeah.
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  You also talk about, and we've talked a little bit, just in
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  our conversation so far, you've talked about the non-traditional
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  levers to drive compliance.
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  The president has a bully pulpit and the administration is the president
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  writ large and so always used the levels of influence and so forth.
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  But you're talking about other nontraditional levers to drive compliance
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  on these priorities that they've set up.
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  Talk about, what is it that they're doing that you view as
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  non-traditional, first of all?
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  And then are those actions actually legal?
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  Yeah.
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  So it's interesting, I call it the whole-of-government approach, and
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  that phrase is being used a lot.
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  Instead of looking to how workplace policy is being shaped through guidance and
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  actions, enforcement actions by the EEOC and the NLRB and the OFCCP, the Trump
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  administration is saying, we're going to look at other levers such as executive
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  orders, such as cross-agency coordination.
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  So that if your business is going to be going through a merger or an acquisition
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  and that needs government regulation through that process, we're also
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  going to take a look at your workplace policies and programs and determine
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  whether we believe they're in compliance before we say yes or no in terms of
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  that particular regulatory request.
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  There's also a difference here, is uniform enforcement.
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  You've got the Office of Management and Budget (OMB) and you've also got
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  the Department of Justice issuing memos to all federal agencies to play by
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  the same specific playbook that will implement each of the executive orders,
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  in connection with their own activities.
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  You've also got what I describe as deconstructing the administrative state.
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  You've got agencies spending less money than Congress has appropriated,
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  sometimes referred to as impoundment with respect to certain initiatives.
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  And I just want to stop and mention, the director of OMB is somebody
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  named Director Russell Vought.
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  And Director Voght looks, whenever he gives a presentation or talks
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  to businesses about this issue, he has a moving clock next to him.
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  And what he says is, we are always paying attention to the clock.
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  We have to have fast, decisive, immediate action because the clock is ticking.
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  And he often quotes a sentence from If by Rudyard Kipling that says, "If you
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  can fill the unforgiving minute with 60 seconds worth of distance run." And
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  then he stops and he looks at his staff and says, where are we in that clock?
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  Are we at the 11 o'clock hour?
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  Because this administration is looking to move quickly, decisively, and
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  across many different methodologies to implement its policies.
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  And it believes it needs to do that not in four years, not in two years,
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  but before the midterm elections.
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  And it's not just a policy change, but the administration is
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  looking at some of these issues.
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  If it's the way AI is being viewed or the way apprenticeships are being used
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  and value of skills versus perhaps a college education as a credentialing
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  item, it believes that it's gotta get that ingrained early to be able to roll
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  it out through many different agencies.
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  We're talking about the administration's approach to governing the workplace.
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  We're going to take a short break and be right back.
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  Welcome back to C-Suite Perspectives.
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  I'm your host Steve Odland from The Conference Board.
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  And I'm joined today by Camille Olson, who's a partner at Seyfarth.
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  So Camille, we were talking before the break about the
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  approaches of the administration to a lot of workplace things.
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  We focused heavily on DEI but it's not just DEI that's
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  what's gathered the headlines.
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  But there's also AI, immigration, and so forth.
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  Talk about some of the other areas or the other priorities that the
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  administration is honing in on and the relevance to the private sector?
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  Sure.
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  If we think of the administration's priorities, I think of it
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  around an organizing principle that is America First.
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  I've identified five policy priorities that I believe have used multiple
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  approaches to advance America First.
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  One is eliminating illegal DEI, focusing on merit and equal opportunity.
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  And the tools being used in that regard are executive orders, EEOC
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  assistance, letters to law firms, Attorney General Pam Bondi's
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  guidance memos, cross agency actions.
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  AI literacy and upskilling infrastructure and deployment: here, the administration
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  treats AI as a strategic growth engine, not as a compliance risk.
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  As a result, what it is looking to do is to upskill, in multiple different
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  ways, the workforce on AI, both upskilling for all employees, as well
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  as a focus on upskilling with respect to the specific jobs that will be
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  the most important to continuing the development and growth of AI dominance
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  that this administration is looking for.
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  It has also been a priority of the administration to deregulate.
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  And I actually expected a lot more change to have come down by this point.
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  And maybe it's because they're so focused on trade and tariffs
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  and some of the other issues.
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  But what do you see in the regulatory field?
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  What's being relaxed and then what's the implication of that for companies?
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  Yeah.
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  In the workplace, I'll say, we haven't seen the regulatory actions yet.
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  Those are generally going to take probably at least six to 12 months because
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  most of these regulatory actions, for example coming out of the Department
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  of Labor, require advice and comment.
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  And then that's all has to be reviewed.
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  But I will tell you the Department of Labor has announced that it has, I
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  believe it's 52 specific regulations under consideration in terms of new regulations
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  that are going to be coming out while at the same time stating in various memos
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  and guidance documents that it will no longer follow the existing regulations
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  that were put forth in many areas.
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  Whether that be minimum wage, whether that be white-collar exemptions,
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  the independent contractor rule, and guidance that was previously issued
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  with respect to the joint employer.
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  For the EEOC, on the issues of non-discrimination, without a quorum,
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  which just came in place on Monday, the EEOC was really guided just by the
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  actions of the acting chair, Andrea Lucas.
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  And all she was able to do would be to issue press releases, to issue
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  technical assistance, which we saw, and also to have what I would describe
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  as the bread and butter work of the EEOC continue in the district offices.
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  She didn't have the right to issue any new guidance or regulations or approve
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  litigation that would require significant outlays of resources from the EEOC.
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  It's interesting.
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  The other thing that started out at the beginning of the administration was
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  their desire to shrink the government.
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  All we heard about was the Department of Government Efficiency (DOGE),
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  DOGE and Elon Musk and all of that.
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  And then, at one point it seemed like they were going to discontinue or
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  eliminate many agencies and downsize.
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  That kind of has gone by the wayside.
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  Maybe with the shutdown they're trying to do some more of it.
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  But it hasn't turned out to be as widespread and all encompassing as they
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  made it out to be at the beginning.
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  Do you agree with that?
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  And if so, do you expect that to change as we go forward?
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  And then, how does that spill over into the workplace?
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  So it's interesting.
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  There have been incremental decreases in the workforce but I don't believe
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  that the overall impact is that we're going to see a smaller government.
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  I do believe we're going to see a more centralized and selective government.
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  For example, some executive orders that have issued, have consolidated
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  agencies and moved budgets into areas in where there may be economies of scale.
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  I think overall companies are experiencing fewer day-to-day compliance
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  interactions, fewer audits, for example from the Department of Labor, slower
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  investigations, fewer new regulations coming out of probably Occupational
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  Safety and Health Administration (OSHA), Wage and Hour, and the Department
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  of Labor for the present time.
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  And that has reduced some administrative burden and operational flexibility.
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  But I would say that if anybody thinks that the EEOC isn't going
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  to be filing big lawsuits against companies because of the reductions
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  that we've heard, you're mistaken.
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  It is.
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  They may not be based on the theory of disparate impact, but there are
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  going to be significant lawsuits that will be filed, I believe, over the
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  next six months that relate to issues of national origin, of religious
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  discrimination, and that relate to AI but relate to AI in connection with
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  the issue of disparate treatment.
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  That's really interesting.
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  Another area, of course, that they're focused on is immigration enforcement
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  and you've got Immigration and Customs Enforcement (ICE) running around.
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  And that's having an impact on employers around the country.
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  It does.
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  And companies are doing more work than ever to prepare for the potential
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  arrival, to understand what their rights are and also what the rights
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  of employees are in that context.
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  To not obstruct appropriate actions but to ensure that they're
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  living within their rights.
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  And what employers are doing are also making sure that they're auditing some of
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  their existing I-9 and other practices to make sure that they're ready and they're
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  prepared for any reviews that take place.
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  But these aren't new laws.
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  I ran companies, I run a company.
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  You have to have E-Verify in place.
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  You have to make sure that the paperwork's done.
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  You have to employ legally able people to be employed.
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  So it's not like there's new stuff here, it's just more enforcement, which means
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  there needs to be greater vigilance and companies need to really check their
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  processes and enforcement internally.
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  That's absolutely correct.
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  And we see more work being done in this area, Steve, than I've seen
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  over the last probably five years.
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  And it's important work because it can eliminate a lot of issues
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  and a lot of uncertainty when someone comes to your door.
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  And what we've seen in terms of audits and unannounced appearances by federal
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  government agents on immigration issues is that those are happening.
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  There's not one area of the country.
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  There's not one type of employer and there's not one industry.
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  You really can't say, "Look, don't worry. They're really focused on the
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  restaurant industry or it's on big employers." We see it from our practice
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  across the gamut of small to large employers and all different industries.
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  And that's delivered on their part because they want everybody to be vigilant.
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  And I guess if you said, "What's your one piece of advice on avoiding
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  immigration issues?" with the federal government, it would be follow the law.
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  It is not that -- I'm certain that some folks are breaking the law deliberately
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  because of cost of labor, yada, yada-- but it comes back to what you were saying,
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  which is the vigilance and the processes and making sure that you're tracking and
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  you're screening and you're doing the right things in your employment practices.
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  Absolutely.
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  And it's a serious issue in terms of the potential impact on business
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  operations if there is a problem.
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  So elevating immigration compliance as an enterprise risk management
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  issue is what I'm seeing today.
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  Really important and it's important for boards as well.
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  Now, another issue that is really tough for employers is to deal not
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  only with this changing environment from a federal perspective but then
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  you've got state and local regulations and laws, which oftentimes are not
• 24:27
  consistent with the federal rules.
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  And then you go, "Whoa, who's having charge here? Which, which
• 24:32
  rule do I follow? Or do we, can we just pick a card, any card?" How do
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  you advise companies to deal with conflicting regulations and laws?
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  It's an important issue and it exists with respect to national employers and
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  businesses as well as global ones who have other laws that also, especially with
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  respect to their boards of directors and their executive management teams, may also
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  impose other requirements in particular relating to, for example, DEI reporting.
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  And what every employer that is really, I think, trying to manage
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  their compliance risks is doing, that I'm aware of, is they're performing
• 25:14
  jurisdictional risk mapping.
• 25:16
  And that's what I describe it, which really is by issue, where
• 25:21
  are there requirements and where are there prohibitions?
• 25:27
  You want to make sure that you're obviously meeting all the requirements
• 25:30
  but if there are any overlapping prohibitions, how are you going to
• 25:35
  be able to meld those two issues so that you don't have an inconsistency?
• 25:40
  And what some companies are doing is they're saying, look, there
• 25:43
  really aren't, states are requiring a lot that the federal government
• 25:47
  doesn't require, but the federal government isn't prohibiting it.
• 25:52
  So then the question becomes, if I've got three or four states
• 25:55
  that requires something, is that going to be a national practice?
• 25:59
  So a lot of companies are saying, given the people working from home and given
• 26:03
  the broad reach of recruitment efforts, how am I going to decide what our
• 26:11
  company policy will be in light of the different restrictions and the different
• 26:16
  requirements in the various states?
• 26:18
  And your point was it goes outside of our borders here.
• 26:22
  Yes.
• 26:22
  It's international and it's very hard for multinational companies to navigate
• 26:27
  this because there are the laws but then there are your own internal
• 26:30
  practices and values and everything.
• 26:32
  And you want to be consistent across your company so that you're
• 26:35
  one culture in one set of values.
• 26:38
  But that may conflict with certain territories or other laws and everything.
• 26:43
  So it's a very complicated morass to deal with.
• 26:47
  And what I would say, Steve, on that issue is most companies are
• 26:51
  first of all, trying to harmonize.
• 26:53
  Where can I harmonize so I can have practices and policies
• 26:56
  and initiatives that are okay everywhere where we have employees?
• 27:01
  But if I can't harmonize and I'm required, let's just say, in Canada to do certain
• 27:07
  things that would not be acceptable in the US because of our non-discrimination laws,
• 27:12
  am I going to carve out certain employee populations from some of our practices.
• 27:19
  And make it very clear in our documentation-- and documentation
• 27:23
  is more important than ever -- so that the administration understands
• 27:27
  how you are implementing and where you are implementing your practices.
• 27:31
  But that's what I'm seeing.
• 27:32
  The goal is generally to harmonize and when not able to harmonize,
• 27:36
  to carve out explicitly.
• 27:39
  That's very helpful.
• 27:40
  Any last thoughts before we wrap up?
• 27:43
  I would just say that even though a lot has happened this year, we're not done.
• 27:48
  There are many actions that are going to be taking place on the horizon over
• 27:52
  the next three months and the next six months, both at specific agencies as
• 27:58
  well as the federal government, because certain strategic enforcement plans have
• 28:02
  been drafted that are going to relate specifically to private employers that
• 28:08
  have not seen the light of day yet.
• 28:10
  We don't know what industries or what practices or what investigative ways
• 28:16
  in which the federal government is going to address private business.
• 28:19
  But we know the plans from all the agencies went to
• 28:21
  the White House on May 21st.
• 28:24
  So stay tuned for that.
• 28:25
  And that's just one example.
• 28:27
  So I would say stay current.
• 28:29
  And I know that The Conference Board is a great job in terms
• 28:32
  of helping businesses do that.
• 28:35
  You need to get your advisors lined up because generalities fall
• 28:39
  apart and no business is the same.
• 28:41
  And Seyfarth is a great source of that.
• 28:43
  Your paper goes into much more detail on all of these subjects.
• 28:47
  We barely skim the surface on any of them.
• 28:50
  Share with our listeners where they can find your paper if they
• 28:53
  want to go into greater depth.
• 28:55
  It is available on our we website.
• 28:57
  I'll also send you a separate PDF if you want, would like it to be available, and
• 29:03
  also attached to this particular podcast if folks would be interested, Steve.
• 29:07
  Be happy to do that.
• 29:08
  So it's on the Seyfarth website and the title is the Trump Administration's
• 29:13
  Approach to Governing the Workplace.
• 29:15
  Camille Olson, thanks for being with us today.
• 29:17
  Thanks so much for the conversation, Steve.
• 29:20
  And thanks to all of you for listening to C-Suite Perspectives.
• 29:23
  I'm Steve Odland, and the series has been brought to you by The Conference Board.