How the Administration Aims to Change the Workplace

Steve Odland: Welcome to C-Suite Perspectives, a signature series by The Conference Board. I'm Steve Odland from The Conference Board and the host of this podcast series. And in today's conversation, we're going to talk about the US administration's approach to governing the workplace. Joining me today is Camille Olson, a partner at Seyfarth. Camille, welcome.

Camille Olson: Thank you so much. It's great to be here.

Steve Odland: Camille, you've written this great new paper that I've read multiple times because there's so much depth to it. And it talks about the administration's approach to governing the workplace. This may sound like a silly question, but why did you write the paper? Because it seems like most of the administration's approach has been to the federal workforce but it does have application in the private sector. So is that the primary driver?

Camille Olson: A great question, Steve. I really wrote this paper because we've now reached a point where the administration's directives, as well as its actions, provide a really clear picture of its approach to the workplace. At the end of the first 100 days, most attention was centered on diversity, equity & inclusion (DEI) but now, more than 280 days in, we see a broader pattern emerging, a coordinated whole-of-government approach that extends across multiple agencies. I believe that at this point, the landscape is far more defined and comprehensive than it was when many of us first discussed this topic earlier this year. So I wanted to provide an analytical framework for understanding how the Trump administration is governing the workplace in its second term.

And I think that to your point of much of the administration's activity-- whether it's through executive orders, agency directives, and enforcement priorities-- is focused on the federal workforce. It has been influencing the private sector and influencing the private sector directly has been a key priority of this administration. I would say that in addition to executive orders, the administration is using contracting requirements, grant conditions, and even negotiated settlements to shape private sector action.

Steve Odland: In regulatory actions in this too. So it's spilling over. It's clear they have a philosophy that they're trying to deploy broadly throughout the country.

Now you talk about this unitary executive theory. And we've talked about this structure of the government and how this works because the government is set up by the Constitution, with three equal branches of government. There are checks and balances, and so forth. And some people are going, wait a minute, this is coming out of the executive branch but shouldn't laws come out of the congressional actions? And then the courts are weighing in. So you got a lot of stuff going on here. But the actions of the administration follow this unitary executive theory. Talk about all that.

Camille Olson: Yeah, so it's a great question. So the president can't make a law. Executive orders are not laws, they are actions that a president can take, that are consistent with existing laws, that direct either the federal workforce, federal contractors, or federal grantees to act in a certain way.

You mentioned the unitary executive theory. That rests on Article 2 of the Constitution. And that doctrine really describes all executive power within Article 2 as residing in the president. So a visible aspect of the theory in practice is the president's removal powers, which have made it all the way to the Supreme Court this term, specifically in the case Trump v. Slaughter.

There were many different removals by President Trump, including removals of members of the National Labor Relations Board (NLRB), the Federal Trade Commission, the Merit Systems Protection Board, the Equal Employment Opportunity Committee (EEOC), the Federal Labor Relations Authority, as well as the Federal Reserve. Those issues are before the court and it'll be very interesting to see whether, in fact, the president has the power to remove members of various commissions or whether that does violate the separation of powers. And if so, whether Humphrey's Executor v. United States and a longstanding Supreme Court case should be overturned.

Steve Odland: It's interesting because all the agencies that are regulatory in nature sit in the executive branch, as well. And there've been a lot of court challenges to the executive actions, proclamations, and so forth. But most of them have held up and most of these actions now are spilling over to the private sector.

DEI is one example of that. Their priority was to eliminate what they called, "illegal DEI" activities and deprioritize the disparate impact theory. Talk about that as an example of what's happening in, certainly the federal government, but the spillover to the private sector.

Camille Olson: Yeah, it's interesting. I happen to be with former Office of Federal Contract Compliance Programs (OFCCP) Director Catherine Eschbach earlier this week. She was the OFCCP director who was confirmed earlier this year under this administration, who's now moved over to the EEOC as acting deputy general counsel. But she spoke about the OFCCP and the various actions that she did while she was there this year.

Specifically in June, she issued on June 27th a letter to federal contractors describing all of the different DEI programs that they should really be looking at and things that they should be considering as to whether or not they needed any tweaks to be in conformity with federal law. And she made a point of saying all private employers should be reviewing their own employment practices in the context of the letter that she sent to the federal government.

And what I would say to you is what we are seeing is first, the federal government is acting in terms of federal employees and federal grants, federal contractors. And that includes questions regarding certifications for federal contractors, that their programs are in compliance with federal law, including their DEI compliance issues.

We're also going to see, and it just happened again on Monday of this week, that we now have a quorum at the EEOC. There are now three confirmed, sworn-in commissioners who will now have the authority to both initiate systemic litigation, to issue guidance, and also to pass regulations with respect to the workplace.

Steve Odland: Yeah. Now, a lot of people say the administration, they don't have the authority to do this. Congress has the authority to do this. What have the courts said about it so far in the challenges?

Camille Olson: In terms of the removal of heads of various agencies, none of those challenges have really held in terms of the workplace.

It's interesting because you have to look at the different agencies both as quasi-judicial bodies and those would be agencies that are actually issuing judicial decisions, like the NLRB or the Federal Trade Commission. Then you've got agencies that have enforcement rules or policy rules, and that's the EEOC or the Federal Labor Relations Authority. But generally, the courts have allowed, during this period, for most of those removals to remain, to be this status quo while this issue is going to be litigated at the Supreme Court this term.

Steve Odland: And you've seen the private sector companies already take action on DEI and say, "Oh yeah we're not doing illegal DEI." I'm not sure anyone intended to but the term DEI itself became so politicized that most of them said, "Hey, we're not. It's become a light socket, let's not stick our finger there," and have reworded it, have reprioritized things. I'm not sure anybody's given up on their values per se, but it has moved the language, at least around the private sector.

Camille Olson: Yes, it has. And there has been a reset. It's interesting in a conversation just a week ago with the acting chair of the EEOC, Andrea Lucas, she didn't talk about illegal DEI in terms of counseling employers and businesses about the issue. Instead, she moved to different language. She said, look, can't we all agree that race and sex discrimination is illegal under Title VII? And if we all agree to that, what I'm doing is asking you to look at your policies and your programs and ensure they don't have preferences. Ensure they don't exclude individuals based on a protected status. Look at people as individuals. And I think we are going to see the administration moving to talking about these issues now, away from the illegal DEI label that was initially prevalent everywhere, to really focus on the direct link to the law as folks are trying to understand now how to implement these policy priorities.

Steve Odland: Yeah, and it's a really interesting time. We've talked about how it spills over the federal borders into other areas of the economy. And you've talked about contracting requirements and so forth. But there's also been litigation around the False Claims Act that you talked about in the paper. What was, what's that all about?

Camille Olson: The False Claims Act litigation really relates to any private employer who receives government funds, either because they're a government contractor and they've got a government contract, or because they receive grants from the government. And basically, as part of your contract in receiving those monies, the administration requires you, when you receive one of the forms, to certify that, in fact, your operating programs that are not illegal DEI and, in fact, that they're all in compliance with federal laws.

And that form also says that certification or that representation is a material term to receiving that money from the federal government, which is really the hook for the False Claims Act, which allows the Department of Justice and private parties to sue an individual if in fact they have operated programs that are not in compliance with that material term of that federal contract.

Steve Odland: That opens up a whole can of worms because if you're under a threat of litigation, regardless of whether you disagree with either the policy or the legality of the administration being able to what do what you do, it's a risk aversion strategy that you need to undertake.

Camille Olson: Yeah. And there are different risks, Steve, that folks are looking at. People are looking at legal risk. Do I have legally compliant programs? And then they look at even if they're legally compliant, am I describing them in ways that provide regulatory risk in terms of the administration's current priorities on these issues?

So that risk I have to determine, I may be doing everything lawful, but are there ways to minimize the risk of regulatory action? And then there are reputational risks, both internal for employees and external for clients and for shareholders regarding your own culture, your values, and ensuring that, as you mentioned, you're true to those while also staying legally compliant.

Steve Odland: Yeah. You also talk about, and we've talked a little bit, just in our conversation so far, you've talked about the non-traditional levers to drive compliance. The president has a bully pulpit and the administration is the president writ large and so always used the levels of influence and so forth. But you're talking about other nontraditional levers to drive compliance on these priorities that they've set up. Talk about, what is it that they're doing that you view as non-traditional, first of all? And then are those actions actually legal?

Camille Olson: Yeah. So it's interesting, I call it the whole-of-government approach, and that phrase is being used a lot. Instead of looking to how workplace policy is being shaped through guidance and actions, enforcement actions by the EEOC and the NLRB and the OFCCP, the Trump administration is saying, we're going to look at other levers such as executive orders, such as cross-agency coordination. So that if your business is going to be going through a merger or an acquisition and that needs government regulation through that process, we're also going to take a look at your workplace policies and programs and determine whether we believe they're in compliance before we say yes or no in terms of that particular regulatory request.

There's also a difference here, is uniform enforcement. You've got the Office of Management and Budget (OMB) and you've also got the Department of Justice issuing memos to all federal agencies to play by the same specific playbook that will implement each of the executive orders, in connection with their own activities.

You've also got what I describe as deconstructing the administrative state. You've got agencies spending less money than Congress has appropriated, sometimes referred to as impoundment with respect to certain initiatives. And I just want to stop and mention, the director of OMB is somebody named Director Russell Vought. And Director Voght looks, whenever he gives a presentation or talks to businesses about this issue, he has a moving clock next to him. And what he says is, we are always paying attention to the clock. We have to have fast, decisive, immediate action because the clock is ticking. And he often quotes a sentence from If by Rudyard Kipling that says, "If you can fill the unforgiving minute with 60 seconds worth of distance run." And then he stops and he looks at his staff and says, where are we in that clock? Are we at the 11 o'clock hour?

Because this administration is looking to move quickly, decisively, and across many different methodologies to implement its policies. And it believes it needs to do that not in four years, not in two years, but before the midterm elections.

And it's not just a policy change, but the administration is looking at some of these issues. If it's the way AI is being viewed or the way apprenticeships are being used and value of skills versus perhaps a college education as a credentialing item, it believes that it's gotta get that ingrained early to be able to roll it out through many different agencies.

Steve Odland: We're talking about the administration's approach to governing the workplace. We're going to take a short break and be right back.

Welcome back to C-Suite Perspectives. I'm your host Steve Odland from The Conference Board. And I'm joined today by Camille Olson, who's a partner at Seyfarth.

So Camille, we were talking before the break about the approaches of the administration to a lot of workplace things. We focused heavily on DEI but it's not just DEI that's what's gathered the headlines. But there's also AI, immigration, and so forth. Talk about some of the other areas or the other priorities that the administration is honing in on and the relevance to the private sector?

Camille Olson: Sure. If we think of the administration's priorities, I think of it around an organizing principle that is America First. I've identified five policy priorities that I believe have used multiple approaches to advance America First. One is eliminating illegal DEI, focusing on merit and equal opportunity. And the tools being used in that regard are executive orders, EEOC assistance, letters to law firms, Attorney General Pam Bondi's guidance memos, cross agency actions.

AI literacy and upskilling infrastructure and deployment: here, the administration treats AI as a strategic growth engine, not as a compliance risk. As a result, what it is looking to do is to upskill, in multiple different ways, the workforce on AI, both upskilling for all employees, as well as a focus on upskilling with respect to the specific jobs that will be the most important to continuing the development and growth of AI dominance that this administration is looking for.

Steve Odland: It has also been a priority of the administration to deregulate. And I actually expected a lot more change to have come down by this point. And maybe it's because they're so focused on trade and tariffs and some of the other issues. But what do you see in the regulatory field? What's being relaxed and then what's the implication of that for companies?

Camille Olson: Yeah. In the workplace, I'll say, we haven't seen the regulatory actions yet. Those are generally going to take probably at least six to 12 months because most of these regulatory actions, for example coming out of the Department of Labor, require advice and comment. And then that's all has to be reviewed. But I will tell you the Department of Labor has announced that it has, I believe it's 52 specific regulations under consideration in terms of new regulations that are going to be coming out while at the same time stating in various memos and guidance documents that it will no longer follow the existing regulations that were put forth in many areas. Whether that be minimum wage, whether that be white-collar exemptions, the independent contractor rule, and guidance that was previously issued with respect to the joint employer.

For the EEOC, on the issues of non-discrimination, without a quorum, which just came in place on Monday, the EEOC was really guided just by the actions of the acting chair, Andrea Lucas. And all she was able to do would be to issue press releases, to issue technical assistance, which we saw, and also to have what I would describe as the bread and butter work of the EEOC continue in the district offices. She didn't have the right to issue any new guidance or regulations or approve litigation that would require significant outlays of resources from the EEOC.

Steve Odland: It's interesting. The other thing that started out at the beginning of the administration was their desire to shrink the government. All we heard about was the Department of Government Efficiency (DOGE), DOGE and Elon Musk and all of that. And then, at one point it seemed like they were going to discontinue or eliminate many agencies and downsize. That kind of has gone by the wayside. Maybe with the shutdown they're trying to do some more of it. But it hasn't turned out to be as widespread and all encompassing as they made it out to be at the beginning. Do you agree with that? And if so, do you expect that to change as we go forward? And then, how does that spill over into the workplace?

Camille Olson: So it's interesting. There have been incremental decreases in the workforce but I don't believe that the overall impact is that we're going to see a smaller government. I do believe we're going to see a more centralized and selective government. For example, some executive orders that have issued, have consolidated agencies and moved budgets into areas in where there may be economies of scale. I think overall companies are experiencing fewer day-to-day compliance interactions, fewer audits, for example from the Department of Labor, slower investigations, fewer new regulations coming out of probably Occupational Safety and Health Administration (OSHA), Wage and Hour, and the Department of Labor for the present time. And that has reduced some administrative burden and operational flexibility.

But I would say that if anybody thinks that the EEOC isn't going to be filing big lawsuits against companies because of the reductions that we've heard, you're mistaken. It is. They may not be based on the theory of disparate impact, but there are going to be significant lawsuits that will be filed, I believe, over the next six months that relate to issues of national origin, of religious discrimination, and that relate to AI but relate to AI in connection with the issue of disparate treatment.

Steve Odland: That's really interesting. Another area, of course, that they're focused on is immigration enforcement and you've got Immigration and Customs Enforcement (ICE) running around. And that's having an impact on employers around the country.

Camille Olson: It does. And companies are doing more work than ever to prepare for the potential arrival, to understand what their rights are and also what the rights of employees are in that context. To not obstruct appropriate actions but to ensure that they're living within their rights. And what employers are doing are also making sure that they're auditing some of their existing I-9 and other practices to make sure that they're ready and they're prepared for any reviews that take place.

Steve Odland: But these aren't new laws. I ran companies, I run a company. You have to have E-Verify in place. You have to make sure that the paperwork's done. You have to employ legally able people to be employed. So it's not like there's new stuff here, it's just more enforcement, which means there needs to be greater vigilance and companies need to really check their processes and enforcement internally.

Camille Olson: That's absolutely correct. And we see more work being done in this area, Steve, than I've seen over the last probably five years. And it's important work because it can eliminate a lot of issues and a lot of uncertainty when someone comes to your door.

And what we've seen in terms of audits and unannounced appearances by federal government agents on immigration issues is that those are happening. There's not one area of the country. There's not one type of employer and there's not one industry. You really can't say, "Look, don't worry. They're really focused on the restaurant industry or it's on big employers." We see it from our practice across the gamut of small to large employers and all different industries.

Steve Odland: And that's delivered on their part because they want everybody to be vigilant. And I guess if you said, "What's your one piece of advice on avoiding immigration issues?" with the federal government, it would be follow the law. It is not that -- I'm certain that some folks are breaking the law deliberately because of cost of labor, yada, yada-- but it comes back to what you were saying, which is the vigilance and the processes and making sure that you're tracking and you're screening and you're doing the right things in your employment practices.

Camille Olson: Absolutely. And it's a serious issue in terms of the potential impact on business operations if there is a problem. So elevating immigration compliance as an enterprise risk management issue is what I'm seeing today.

Steve Odland: Really important and it's important for boards as well. Now, another issue that is really tough for employers is to deal not only with this changing environment from a federal perspective but then you've got state and local regulations and laws, which oftentimes are not consistent with the federal rules. And then you go, "Whoa, who's having charge here? Which, which rule do I follow? Or do we, can we just pick a card, any card?" How do you advise companies to deal with conflicting regulations and laws?

Camille Olson: It's an important issue and it exists with respect to national employers and businesses as well as global ones who have other laws that also, especially with respect to their boards of directors and their executive management teams, may also impose other requirements in particular relating to, for example, DEI reporting. And what every employer that is really, I think, trying to manage their compliance risks is doing, that I'm aware of, is they're performing jurisdictional risk mapping. And that's what I describe it, which really is by issue, where are there requirements and where are there prohibitions?

You want to make sure that you're obviously meeting all the requirements but if there are any overlapping prohibitions, how are you going to be able to meld those two issues so that you don't have an inconsistency? And what some companies are doing is they're saying, look, there really aren't, states are requiring a lot that the federal government doesn't require, but the federal government isn't prohibiting it.

So then the question becomes, if I've got three or four states that requires something, is that going to be a national practice? So a lot of companies are saying, given the people working from home and given the broad reach of recruitment efforts, how am I going to decide what our company policy will be in light of the different restrictions and the different requirements in the various states?

Steve Odland: And your point was it goes outside of our borders here.

Camille Olson: Yes.

Steve Odland: It's international and it's very hard for multinational companies to navigate this because there are the laws but then there are your own internal practices and values and everything. And you want to be consistent across your company so that you're one culture in one set of values. But that may conflict with certain territories or other laws and everything. So it's a very complicated morass to deal with.

Camille Olson: And what I would say, Steve, on that issue is most companies are first of all, trying to harmonize. Where can I harmonize so I can have practices and policies and initiatives that are okay everywhere where we have employees? But if I can't harmonize and I'm required, let's just say, in Canada to do certain things that would not be acceptable in the US because of our non-discrimination laws, am I going to carve out certain employee populations from some of our practices. And make it very clear in our documentation-- and documentation is more important than ever -- so that the administration understands how you are implementing and where you are implementing your practices. But that's what I'm seeing. The goal is generally to harmonize and when not able to harmonize, to carve out explicitly.

Steve Odland: That's very helpful. Any last thoughts before we wrap up?

Camille Olson: I would just say that even though a lot has happened this year, we're not done. There are many actions that are going to be taking place on the horizon over the next three months and the next six months, both at specific agencies as well as the federal government, because certain strategic enforcement plans have been drafted that are going to relate specifically to private employers that have not seen the light of day yet.

We don't know what industries or what practices or what investigative ways in which the federal government is going to address private business. But we know the plans from all the agencies went to the White House on May 21st. So stay tuned for that. And that's just one example. So I would say stay current.

And I know that The Conference Board is a great job in terms of helping businesses do that.

Steve Odland: You need to get your advisors lined up because generalities fall apart and no business is the same. And Seyfarth is a great source of that. Your paper goes into much more detail on all of these subjects.

We barely skim the surface on any of them. Share with our listeners where they can find your paper if they want to go into greater depth.

Camille Olson: It is available on our we website. I'll also send you a separate PDF if you want, would like it to be available, and also attached to this particular podcast if folks would be interested, Steve.

Steve Odland: Be happy to do that.

So it's on the Seyfarth website and the title is the Trump Administration's Approach to Governing the Workplace. Camille Olson, thanks for being with us today. Thanks so much for the conversation, Steve. And thanks to all of you for listening to C-Suite Perspectives. I'm Steve Odland, and the series has been brought to you by The Conference Board.