EEOC and NLRB changes puts HR in chaos – Mary T. O’Sullivan

by Mary T. O’Sullivan, MSOL, contributing writer, business

“When we are no longer able to change a situation, we are challenged to change ourselves.”- Viktor Frankl, Holocaust Survivor

In the last month, chaos has reigned in the federal government. Thousands of workers no longer have jobs, some of those jobs were critical to national security. These workforce reductions are particularly impactful when civil rights are at stake. The arrows struck the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB), both agencies charged with protecting workers.

According to its website, “The Equal Employment Opportunity Commission (EEOC) enforces laws that make discrimination illegal in the workplace. The commission oversees all types of work situations including hiring, firing, promotions, harassment, training, wages, and benefits.” With the firing of three Democratic commissioners in the EEOC, leave the commission without a quorum to vote on decisions regarding enforcement of Title VII of the Civil Rights Act of 1964.

The new acting EEOC chairperson said in a recent statement her first priorities include “rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work.” These priorities are aimed directly at transgender people and foreign workers, in particular the H1-B visa holders, who are specialty workers from other countries. The most common occupations for H-1B visa holders are in the fields of technology, healthcare, and engineering. 

The Society of Human Resource Management (SHRM) reacted to these EEOC changes by first questioning the term “illegal discrimination” used throughout the Executive Order. Upon close scrutiny, SHRM has determined that the change in the Executive Order is “no different from existing federal law, because establishing “quotas” has always been unlawful under Title VII.” However, SHRM goes on to say the new Executive Order goes beyond simply restating the obvious. It has defined all DEI policies as part of an “unlawful, corrosive, and pernicious identity-based a spoils system.”  It goes so far as to prohibit the Office of Federal Contractor Compliance Programs, which regulates organizations with federal contracts, from promoting any anti-discrimination and diversity tactics at all.

Workplace posters have also been changed meaning HR has to make sure the new government mandate posters are visible to all employees. However, this Executive Order is largely ineffective because the Civil Rights Act is still in effect as federal law, including its amendments. And there is no relief from reporting on the organization’s demographics which most large employers submit to the government in the second quarter of each year.

And while all these changes will impact employers specifically, nothing in the Executive Order states that employees can’t bring discrimination suits forward on their own. The difference is the federal government won’t back up the employee as they once did. Some advocacy groups like the ACLU, ADL, SPLC, Civil Rights.org, etc., may take a case, but barring that, people will have to go it alone.

Like the EEOC, the National Labor Relations Board (NLRB) also now lacks a quorum to make decisions  due to firings of appointees of the previous administration.  As a result, operating without a quorum stymies the NLRB’s ability from resolving cases and setting labor policy. The lack of a functioning board literally halts the resolution of any labor dispute before it, and delays further direction regarding labor relations issues, creating uncertainty for employers and employees alike. The NLRB was created in 1935 when the National Labor Relations Act (NLRA) was passed by Congress.

Earlier NLRB rulings may also be in jeopardy. In SHRM’S words, the existing rule says, “if an employee could reasonably interpret the work rule to have a coercive meaning, the NLRB general counsel would have met their burden to prove that the rule has a reasonable tendency to chill employees from exercising their NLRA rights.” Under the new administration’s policies, standards established by earlier case law and enacted by the NLRA, could be facing extinction. Union formation and election policies are among them.

While existing rulings will stay on the books for now, any new appeal to the NLRB will go nowhere with only a two-person commission. Injunctions for unlawful terminations due to union organizing, will grind to a halt, as well as adjudicating union election disputes, including many other NLRA rules and stipulations under dispute. Since among the massive firings, the NLRB’s existing general counsel (GC) was swept away in January 2025. Predictions from lawyers and HR organizations are that when a new GC is appointed, the mission of the NLRB will shift away from its traditionally pro-labor stance.

Where does HR fit in with all these dramatic changes?

SHRM suggests strong communication with employees helps prevent the spread of rumors, misunderstandings or misinformation. HR needs to take a closer look at the organization’s company handbook to ensure that it’s up to date and addresses any mandated changes. The unpredictable nature of these decisions means HR has to work to keep the company’s employee relations strategy intact. HR can help leadership understand the implications of the new “sheriff” in town. While many rulings will stay in place, expect the NLRB to become more “employer” friendly and make establishing a union more difficult.

Fasten your seatbelts because these developments are just the beginning.  Expect a variety of changes to federal labor and employment policies. As these unprecedented changes continue, employers need to revisit internal policies related to anti-discrimination, DEI programs, labor relations, and union activity. Employee handbooks especially need to be updated. No company wants to be out of compliance with these ever-evolving federal positions.

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Read all Mary’s columns here: https://rinewstoday.com/mary-t-osullivan-msol-pcc-shrm-scp/

Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas.

Member, Beta Gamma Sigma, the International Honor Society.

Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University.

Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.