Shifting Balances: The EEOC Regains Power, NLRB Vacancies Stall Enforcement, and States Move to Fill the Gap

By Samantha Halem, Catherine Reuben, Alicia Ward, Peter Moser, Jeffrey Hirsch, Alexandra Mitropoulos   November 3, 2025

The federal labor and employment landscape is in flux. For the first time during President Trump’s second term, the Equal Employment Opportunity Commission (EEOC or the “Commission”) reestablished a quorum following Senate confirmation of a new Commissioner in October. With that, the EEOC will regain some of its essential policymaking and enforcement authoritative functions when the government shutdown ends. By contrast, the administration failed to remedy the same issue at the National Labor Relations Board (NLRB or the “Board”), leaving the NLRB powerless and national labor policy largely on hold as the Senate waits to confirm Trump’s latest nominees. In the meantime, several states are stepping in to fill the void, inviting potential constitutional challenges from the NLRB’s Acting General Counsel.

Together, these developments mark a pivotal rebalancing of federal labor policy – one agency (EEOC) poised to assert influence, another effectively sidelined (NLRB), and states testing the boundaries of federal preemption. Against this backdrop, we out outline what employers may expect as these shifts take shape.

EEOC Quorum Restored: What to Expect from the Newly Empowered Commission

As the government shutdown continues with seemingly no end in sight, the EEOC, like other federal agencies, remains closed. Unlike those other agencies, however, the shutdown hasn’t changed much of the EEOC’s operations. For much of President Trump’s second term, the EEOC lacked a quorum, rendering it unable to issue new guidance, vote on high-impact litigation, or advance regulatory initiatives. While the EEOC still had some of its powers—such as the General Counsel being able to pursue limited litigation, field offices continued day-to-day work vis-à-vis issuing subpoenas and continuing investigations, and Administrative Law Judges hearing cases on open investigations—at the national level, the Commission remained hamstrung.

That changed on October 7, when the Senate confirmed Brittany Panuccio as the newest commissioner, giving Republicans a 2-1 majority and restoring full EEOC authority. The confirmation reactivates the EEOC’s ability to issue regulations and guidance and its power to pursue or intervene in high-impact or novel litigation. While formal action will await the end of the shutdown, Acting Chair Andrea Lucas has signaled the EEOC’s future direction through recent public statements and informal guidance. Key priorities appear likely to include:

  • Narrowing the scope of the Pregnant Workers Fairness Act (“PWFA”): Acting Chair Lucas has criticized aspects of the previous administration’s regulations implementing the PWFA. In particular, she takes issue with the Commission’s interpretation of the phrase “pregnancy, childbirth, or other related conditions.” Acting Chair Lucas believes the interpretation conflates childbirth and pregnancy related accommodations with accommodations for the female biology. That is, she disagrees with the final rule’s inclusion of things like menstruation and abortion in that definition.
  • Revisiting harassment standards under Title VII: Acting Chair Lucas has made it clear that she is “removing gender ideology” from the workplace and fighting sex-based discrimination by rolling back the harassment guidelines passed by the previous administration. She says the protections go well beyond the dictates of Bostock v. Clayton County, a Supreme Court case which held that discrimination based on sexual orientation and transgender status is a form of sex discrimination under Title VII of the Civil Rights Act. 590 U.S. 644 (2020). Specifically, she disagrees with the portions of the Biden Administration guidance that define denial of gender-consistent bathroom access and repeated, intentional misgendering as workplace harassment. Rather, Acting Chair Lucas plans to align the Commission’s sex-based harassment policies with President Trump’s Executive Order on gender ideology. Already, she has changed internal EEOC policies to reflect this shift by removing the agency’s “pronoun app” and the options to select “x” gender or “Mx.” as a title from charging documents.
  • Scrutinizing DEI initiatives: Further aligning with Trump’s Executive Orders, the EEOC is expected to expand its focus on what it terms “DEI-related discrimination” in the workplace. According to informal guidance, the administration has indicated that DEI policies may violate Title VII if they cause employers to take employment actions motivated by any protected characteristics of employees. The guidance cites disparate treatment in the hiring process and “limiting, segregating, and classifying” employees based on protected characteristics to balance the workplace, as examples of DEI-related discrimination.
  • Prioritizing religious accommodation claims: The EEOC looks poised to continue acting in the area of religious discrimination, including further pursuit of litigation over failure to accommodate religious exemptions to the COVID-19 vaccine. Acting Chair Lucas said the previous administration’s approach to religious discrimination “too often took a back seat to woke policies.” She promises to restore “evenhanded enforcement of Title VII—ensuring workers are not forced to choose between their paycheck and their faith.”
  • Addressing “anti-American bias”: Acting Chair Lucas has suggested using the EEOC’s enforcement tools to challenge alleged employer preferences for non-citizen workers, signaling a likely uptick in citizenship-status-related investigations.

Although the new quorum has yet to take official action, employers should anticipate a marked shift toward textualist interpretations of Title VII, heightened scrutiny of DEI practices, and an emphasis on religious liberty and national identity themes in EEOC enforcement.

NLRB Moving Closer to Full Strength

Not to be outdone, the NLRB has had some quorum issues of their own. Unlike the EEOC, when the government reopens the Board will remain inactive, at least at a national level. While NLRB regional offices were still investigating unfair labor practice charges and working on representation cases before the shutdown, the Board itself has lacked a quorum all of Trump’s second term, meaning that it has been unable to perform many of its essential functions, like ruling on appeals of Administrative Law Judge decisions and resolving disputed issues in representation cases, since January of 2025.

Earlier this month, President Trump nominated James Murphy and Scott Mayer to fill two vacant seats on the NLRB. Murphy advanced from the Senate Committee on Health, Education, Labor, and Pensions (HELP) by a narrow 12-11 vote, while Mayer’s nomination stalled following a heated exchange with Senator Josh Hawley over the ongoing Boeing strike in St. Louis. Also advancing were Rosario Palmieri (Assistant Secretary of Labor) and Crystal Carey, nominated as NLRB General Counsel.

With the restoration of a quorum and a permanent General Counsel on the horizon, the Board looks poised to bring federal labor law in a more employer-friendly direction. Carey has signaled that her priority will be to overturn employee-friendly decisions from the Biden-era. For example, Carey takes issue with the Board’s decision in Amazon.com Services LLC, in which the Board departed from decades of precedent to ban captive-audience meetings. 373 NLRB No. 136. Until November of 2024, there was long-term precedence for the holding that captive-audience meetings, or required meetings during work hours where an employer expresses their views about unionization, were legal. See Babcock and Wilcox Co., 77 NLRB 577 (1948).

Although the nominees’ advancement foreshadows the NLRB obtaining a quorum, confirmation by the full Senate will remain pending until the Senate is back in session.

State Reactions to the NLRB’s quorum issues

Reacting to the lack of federal labor law enforcement for private-sector employees and responding to lobbying from labor unions, states have begun adopting creative (some argue questionably constitutional) laws to fill the gaps:

  • California enacted AB 288, expanding the jurisdiction of the California Public Employee Relations Board to cover private employees during periods when the NLRB lacks a quorum.
  • New York amended its State Labor Relations Act to automatically apply to private employers whenever the NLRB cannot “successfully assert jurisdiction.”
  • Massachusetts and others are considering similar approaches.

In response, on September 12th, Acting NLRB General Counsel William B. Cowen filed lawsuits against both New York and California. The complaint challenging the New York statute seeks declaratory judgement and injunctive relief, alleging that the statute “is preempted by the NLRA under the Supremacy Clause” because it “regulate[s] areas reserved for federal oversight.” On October 17, the General Counsel filed suit against California under largely the same theory.

While these lawsuits are still in a nascent stage, they are a sign of what’s to come should the NLRB remain without a quorum.

Key Takeaways for Employers

  • Expect a re-energized EEOC to reexamine DEI, harassment, and religious-accommodation policies through a more conservative lens.
  • Monitor NLRB confirmations closely. A restored quorum could swiftly undo major Biden-era precedents, particularly around union communications and protected activity.
  • Stay alert to state action. Employers with operations in California, New York, or other progressive states may face new obligations—or conflicting regimes—if state labor boards assert temporary jurisdiction.
  • Prepare for litigation flux. The combination of an empowered EEOC, a stalled NLRB, and active state legislatures creates overlapping, and at times contradictory, compliance obligations.

Notwithstanding government shutdowns and quorum issues, these agencies remain poised to advance the administration’s priorities by reshaping workplace policy. The lawyers at Hirsch Roberts Weinstein are here to answer any questions you may have.

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