I‘m pretty confident that those of you who read Confined Space are following, with fury and/or terror, the stream of executive orders, firings, and other actions — many already challenged in the courts as unlawful and/or unconstitutional — that continue to spew from the erupting volcano that the Trump/Musk regime has shown itself to be over the past two weeks.
I won’t try to summarize and comment on each of them. Those most relevant to us are well-covered by other organizations – see, for example, the National Employment Labor Project’s Worker Policy Watch and the Economic Policy Institute’s Federal Policy Watch — that are monitoring these assaults on immigrants, federal grantees, contractors, and employees, DEI, independent government agencies and other targets. Also indispensable is Just Security’s Litigation Tracker, that on a more or less daily basis reports on legal challenges to Trump’s administrative actions, including a number of those reported below.
A few selected highlights (or, more accurately, lowlights):
The Immigrant Community
The landscape has shifted, seemingly cataclysmically, for unauthorized immigrants in this country, and their families. Immigrant communities and their advocates have started the hard work of shoring up what protections are left and finding new sources of strength and solidarity. They are bracing and preparing for the worst.
Immigrant communities are facing a very different Department of Homeland Security (DHS) from the one they worked (mostly) cooperatively with over the past four years.
The future of Deferred Action for Legal Enforcement — where DHS provides immigration relief for undocumented workers when labor agencies conduct worksite enforcement inspections at their sites — is dubious at best. There are even concerns for those who have already received deferred action through the program.
Worksite raids are back on the enforcement/deportation agenda. Schools, places of worship, hospitals, and courthouses are no longer areas subject to restricted ICE enforcement. “Expedited removal” has expanded to include rapid deportation for any undocumented person who can’t prove they’ve been in this country for two years continuously before being arrested.
The Laken-Riley bill is now law – with significant Democratic support. Under that legislation, unscrupulous employers can falsely accuse a worker of stealing, and if local officials arrest or charge that individual, ICE would be required to place them in immigration detention.
Just threatening such action gives employers enormous leverage to terrorize their workers who object to abusive conditions like unsafe workplaces or wage theft. Employers know it’s the rare immigrant worker who’s willing to risk deportation by asserting their rights.
Workplace Organizing and the NLRB
On the union organizing, collective bargaining, and concerted activity fronts, significant worker wins delivered by a forward-thinking Democratic NLRB majority and its aggressive and visionary General Counsel, Jennifer Abruzzo, will soon be only a cherished memory.
The NLRB lost its quorum last week after Trump illegally fired Democratic board member Gwynne Wilcox, whose term wasn’t due to expire until August 2028. Although she had legal protection against termination “without cause” — neglect of duty or malfeasance in office — Donald Trump nevertheless summarily removed her on January 27, via a late-night email from the White House Presidential Personnel Office.
The email said nothing about neglect of duty or malfeasance (or the right to a hearing, which is also hers by statute), only that the President believes that “heads of agencies within the Executive Branch must share the objectives of [his] administration” and that the statute’s removal protections are “inconsistent with the vesting of the executive Power in the President.”
On February 5, Wilcox sued Trump and Marvin Kaplan, the now-designated Chair of the Board, challenging her firing in federal district court in D.C. She seeks a declaration that she was unlawfully removed as a member of the Board, and an injunction ordering her reinstatement.
She notes in her complaint that she’s “the first Black woman to serve on the Board, the first Black woman to serve as its Chair, and—if the President’s action is allowed to stand—will also be the first member to be removed from office since the Board’s inception in 1935.”
With Wilcox’s removal, the Board can’t rule on cases under the NLRA, so, as Wilcox pleads in her complaint, her firing brings “an immediate and indefinite halt to its critical work of adjudicating labor-relations disputes.” (Of course, it also keeps a new Trump Board from completely eviscerating the gains of the past four years until a quorum has been appointed.)
And as expected, Trump also fired Abruzzo as well as acting General Counsel Jessica Rutter. Trump appointed William Cowen, who served as the NLRB regional director in Los Angeles since 2016 and a George W. Bush-appointed Board member, as acting general counsel. As a career Board employee, we’ll see how long he lasts, that is, whether he’ll satisfy Trump’s loyalty demands.
And it’s more than worth noting that businesses, including Elon Musk’s SpaceX, are claiming in ongoing litigation that the statutory restrictions on removing NLRB members like Wilcox unconstitutionally curtail the president’s authority. What a coincidence!
Equal Employment Opportunity
The situation at the Equal Employment Opportunity Commission (EEOC) is remarkably similar. Last week, Trump fired the Commission’s estimable general counsel, Karla Gilbride. Gilbride was head of the agency’s enforcement division and had won a record $700 million in relief for about 21,000 victims of employment discrimination.
Trump also axed EEOC Commissioners Jocelyn Samuels and Charlotte Burrows, leaving two seats on the five-member panel to be filled by his future nominations. In so doing, Trump upended the historic precedent of leaving Commissioners in place to finish their terms. Because Commissioners’ terms are staggered, the Democrats would have maintained a majority on the five-member EEOC until 2026, when Samuels’ term was set to expire.
Former Chair Burrows has indicated that she’s considering challenging her dismissal. Like the NLRB, EEOC commissioners are legally entitled to for-cause termination protections. And like the NLRB legal challenge, EEOC commissioners’ job rights are being challenged by two coalitions of Republican states led by Tennessee Attorney General Jonathan Skrmetti related to cases challenging Pregnant Workers Fairness Act regulations and enforcement guidelines on workplace harassment.
As with SpaceX’s challenge to NLRB member removal protections, these lawsuits claim those safeguards unconstitutionally limit the president’s executive authority. The Supreme Court’s right-wing majority could ultimately agree, but will have to overrule the 1935 decision in Humphrey’s Executor v. United States, which held that Congress can restrict the president’s power to oust officials at independent agencies that perform quasi-judicial and quasi-legislative functions, like those the EEOC and NLRB are responsible for.
With the loss of the Democrats’ majority at the EEOC, Trump’s acting chair, Andrea Lucas and future Trump appointees will steer the agency’s policy and litigation agenda.
The new appointees will likely challenge the EEOC’s true anti-discrimination mission, in favor of targeting diversity, equity, and inclusion, as well as gender identity protections already decimated by Trump’s hailstorm of executive orders.
As a taste of things to come, Lucas has already removed from the agency’s website several policy documents relating to protections for LGBTQ workers. When I googled her name, I arrived at this January 28 post on X, in which she says: “Biological sex is real, and it matters. Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths — or to use language like pronouns that flow from these realities, even repeatedly.”
Along the same lines, Trump has ordered federal agencies, including the Labor Department, to remove reference to pronouns from their email signatures. This one cuts somewhat deeply for me as the former Department of Labor New England Regional Solicitor. After my office had sought and received excellent gender identity training about a decade ago from a very talented law intern who is a trans man, I inserted my pronouns in my official signature block and offered the same opportunity to my staff.
Our intern and a staff attorney subsequently conducted gender identity training for the Solicitor’s Office nationwide. Among the outcomes of those trainings were decisions by many employees to include their pronouns. Those days of permitting federal employees to use their signature blocks as a way of acknowledging and respecting diversity in gender identity are apparently over — for now.)
The Department of Labor
Meanwhile, over at the Labor Department, what’s left of the Office of Federal Contract Compliance Programs will no longer be enforcing EO 11246 which Trump rescinded. That executive order, dating back to Lyndon Johnson’s presidency, had for decades prohibited the tens of thousands of companies with government contracts from engaging in workplace discrimination based on race, sex, and other protected categories.
The EO also imposed reporting requirements and required affirmative action plans for recruiting underrepresented workers. Trump has halted all pending investigations and litigation initiated by the agency. As Bloomberg reports, the roughly 2,000 companies the Biden administration had slated for OFCCP evaluations this fiscal year included Meta Platforms Inc., Google LLC , and Pfizer Inc. They all get a free pass now.
In the last decade, Bloomberg reports, OFCCP recovered over $260.8 million in monetary relief on behalf of over 250,900 employees, according to DOL data. That information was found in a link that now reads: “Page Not Found.”
It is yet to be seen what other worker protections enforced by DOL will be eroded or eliminated — on top of potentially crippling staffing reductions. Labor Secretary nominee Lori Chavez-DeRemer’s confirmation hearing before the Senate HELP committee is now slated for February 12. Confirmation seems likely, although Senator Rand Paul (R-KY) said he won’t support her because she had previously co-sponsored the pro-union PRO Act when she was in Congress, and because she wouldn’t back the nationwide right to work law that Paul is sponsoring. We’ll see how many other Republicans join Paul’s opposition.
Whatever happens there, we can expect enough Dems to vote to confirm her. The question is: will she actually be — and be allowed to be — a champion for the worker rights and protections it’s the Labor Department’s mission to uphold? Regrettably, that’s an outcome to be wished, but not expected.
And so…
Over the previous four years, we looked to the agencies noted above as friendly resources that were essential to defending workers’ rights — including immigrant workers’ — and leveraging their power.
Now, it’s highly likely that for the foreseeable future we’ll be looking elsewhere than to what’s left of the federal government for the protection of those rights. We’ll need to draw on effective strategies and tactics we’ve deployed in the past, and to innovate new ones: to support workers as they organize, to organize advocates, to create friction, to mobilize public opinion, to work with sympathetic state and local governments, and in at least some cases, win legal fights too.
The stakes have never been higher.
Deep breath. Good to be doing this work together.