The Government Goes Back to Work

To quote a former President of the United States who once lived a few blocks from where I sit writing this, at last our long national nightmare is over—the federal government is now getting back to work after being shut down for a record 41 days, although it will take some time to get it up to the same level of activity it had before the shutdown. Some agencies were prepared to hit the ground limping and lurching forward, while others seem to be ready to explode out of the blocks.

For businesses, one of the most immediate impacts to be felt will arise from the U.S. Department of Transportation, where the initial efforts are aimed at getting air transportation back to normal by ramping up staffing of air traffic controllers and government airport personnel, including the employees and contractors working for the Transportation Security Administration.

Look for the controversy over commercial driver’s license (CDL) holders who drive interstate busses and trucks and cannot comprehend English to heat up as well, including the costly feud between Secretary of Transportation Sean Duffy and California Governor Gavin Newsom over the issue.

Also expect to see increased cooperation between the Department of Homeland Security (DHS), DOT and state highway patrols (at least in red states) to stop these drivers for additional enforcement activities, including possible deportation if they are found to be illegal immigrants.

The Administration’s efforts in regard to CDL enforcement will be supported by Derek D. Barrs, who was confirmed as administrator of the DOT Federal Motor Carrier Safety Administration (FMCSA), and was sworn in after the shutdown began. He is the former chief of the Florida Highway Patrol and has given every indication that he will act as a strong supporter of the Administration’s position.

Barrs was at Duffy’s side when the secretary announced expansion of the department’s nationwide crackdown on CDL violations to include targeting shippers and freight brokers at a press conference on October 31.

He also was at Duffy’s side when he announced that California had canceled 17,000 CDLs it had issued in violation of the national standards. Earlier this year during his Senate confirmation hearing, Barrs stated, “Ensuring drivers are qualified and safe has got to be of the utmost importance of what we’re doing with commercial vehicle safety.”

One agency that is primed and ready to go is the Equal Employment Opportunity Commission (EEOC), which can now act because it has enough members—two Republicans and one Democrat—to form a quorum, which is legally required if it wishes to vote to approve policy changes and decide individual complaint cases that set precedents.

The EEOC gained that quorum six days after the government shutdown began. Brittany Panuccio was confirmed by the Senate on Oct. 7, joining Acting Chair and already sitting commissioner Andrea Lucas and Democrat Kalpana Kotagal.

The currently constituted EEOC intends to play a lead role in the Trump Administration’s crusade to stamp out diversity, equity & inclusion (DEI) programs in both the public and private sectors, Lucas declared earlier this year. This includes reduced processing of certain transgender-related charges (by limiting them to only processing complaints involving hiring, discharge, or promotion), moving to dismiss gender identity cases the agency previously had been pursuing, and a de-prioritization of claims based on a disparate impact theory of liability, according to attorney Lisa M. Brauner of the Whiteford Taylor & Preston law firm.

EEOC Targets Employers

Brauner’s advice to employers is to review DEI programs and training to ensure they comply with all federal, state and local anti-discrimination laws. She also recommends that employers make sure that job screening, hiring, promotion and mentorship are grounded in neutral, job-related criteria. Employers should avoid using racial and gender preferences as well as any other quotas, reserved slots, priorities, or categorical exclusions, she adds.

The commission majority also plans to target what it sees as religious discrimination, which is seen in particular in the form of the upsurge in antisemitism that arose on college and university campuses following Israel’s invasion of Gaza, and what has been viewed as unfair workplace restrictions on the activities and speech of Christians.

In addition, remarks made by the acting chair show the EEOC is expected to back off the enforcement stance that it adopted during the Biden Administration for enforcement of federal pregnancy protections, which were beefed up in legislation passed by Congress a few years ago. A final rule that was adopted by the Biden-era commission went too far, according to Lucas.

Specifically, she says the language of that rule is so expansive that it encompasses “virtually every condition, circumstance or procedure that relates to any aspect of the female reproductive system,” including those unrelated to pregnancy. As a result, expect that any changes made most likely will limit the scope of accommodations employers must provide to pregnant women.

One agency that has not yet achieved a quorum is the National Labor Relations Board (NLRB), and any attempt by that body to overturn Biden era labor law changes will have to wait for the Senate to approve all of President Trump’s nominees to serve as members.

The board also faces an existential threat in the form of a federal appeals court decision earlier this year determining that the agency was unconstitutionally created by Congress in the 1930s. A different appeals court decision in October found the NLRB’s existence is constitutional, making it more likely that the issue will end up in the laps of the Supreme Court justices before it is finally resolved.

Another federal judge had ordered the reinstatement of former NLRB Chair Gwynne Wilcox, a Democrat member who President Trump had fired, but that judge’s decision was reversed by a federal appeals court soon afterward.

Adding to the confusion, sitting board chairman Marvin Kaplan’s five-year term expired at the end of August, and although he could have hung on as a board member for another year, he quit and joined a prominent labor law firm. That means the board currently consists entirely of Democrat David Prouty, who was appointed by President Biden.

Waiting to descend into this maelstrom by obtaining Senate approval are Trump nominees Scott Mayer, chief labor counsel for Boeing, and James Murphy, a career NLRB lawyer, who in the past served as counsel to Republican board members.

Perhaps it is a measure of the lack of importance that Trump assigns to this particular body that he didn’t bother to nominate these men until July, and still has not nominated a replacement for Kaplan. Also waiting Senate approval is Trump’s nominee for NLRB general counsel (who serves for a five-year term like the board members). In March, Trump named labor law attorney Crystal Carey for that position, which like the board member nominees, the Senate has yet to approve.

Several blue states have asserted that they have legal authority to enforce federal labor law when the NLRB is incapable of acting during this period when it lacks a quorum, an assertion that is opposed by the Trump Administration and which probably will end up being settled by the courts.