Other Federal Agency Updates
Discussion
SCOTUS Expands Presidential Power to Fire Members of Independent Agencies
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APPLIES TO All Employers |
EFFECTIVE JUN 26, 2026 |
QUESTIONS? Contact HR On-Call |
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Discussion
On June 26, 2026, the U.S. Supreme Court issued a landmark decision in Trump v. Slaughter, substantially expanding presidential authority to remove members of independent federal agencies. While the case centered on the Federal Trade Commission (FTC), the ruling’s implications extend far beyond that agency, with likely consequences for other independent agencies critical to the workplace, including the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC).
As background, in 2025, President Trump fired two Democratic FTC Commissioners without articulating cause. One of them, former Commissioner Rebecca Kelly Slaughter, challenged her termination as unlawful and was reinstated by a federal district court. The Trump administration appealed, arguing that the FTC Act’s statutory removal protections were unconstitutional. Those protections allow commissioners to be removed only for “inefficiency, neglect of duty, or malfeasance,” and had been upheld as constitutional in the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States. The Humphrey’s Executor case had determined that FTC commissioners performed “quasi-judicial and quasi-legislative” duties that placed them beyond the President’s unilateral removal power.
Notwithstanding, the Supreme Court held that the FTC Act’s removal protections violate the separation of powers and that the President may remove his subordinates at will. Writing for the majority, Chief Justice Roberts explained that today’s FTC “performs tasks that fall well within the heartland of executive power” and enforces around 80 federal laws central to the U.S. economy. The Court concluded that subordinates who exercise the President’s power must remain accountable to the President in order for the President to remain accountable to the people. In reaching this conclusion, the majority overruled Humphrey’s Executor, finding it tethered to an outdated and “almost fictional” view of the FTC’s role.
Although Trump v. Slaughter directly concerned the FTC, the overruling of Humphrey’s Executor is expected to have ripple effects across other independent agencies with similar for-cause removal protections, particularly the NLRB and EEOC. Employers should anticipate that the FTC, NLRB, and EEOC may become more directly responsive to the sitting administration’s policy priorities going forward, with enforcement approaches potentially shifting more significantly between administrations. This is particularly relevant given the FTC’s expanding role in employment-related issues such as noncompetes, labor market antitrust concerns, worker classification, and employee data privacy.
Action Items
- Monitor developments regarding the composition and enforcement priorities of the FTC, NLRB, and EEOC.
- Consult with legal counsel regarding pending matters before the NLRB or EEOC, in light of the agencies’ evolving structural posture.
EEOC Rescinds Guidance on Permissible Affirmative Action
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APPLIES TO All Employers |
EFFECTIVE JUN 30, 2026 |
QUESTIONS? Contact HR On-Call |
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Discussion
On June 30, 2026, the EEOC announced that it had rescinded two documents relating to permissible affirmative action under Title VII: (1) its regulatory guidelines on “appropriate” affirmative action, and (2) Section 607 of its Compliance Manual, which addressed those guidelines and the agency’s enforcement position on affirmative action plans.
The rescinded guidance had explained that voluntary affirmative action plans were only lawful under federal EEO law when designed to remedy past or present discrimination, or to address manifest imbalances in traditionally segregated job categories, and only if narrowly tailored, temporary, flexible, and structured to avoid unnecessarily disadvantaging non-beneficiaries. Perhaps most significantly, the guidance provided a safe harbor under Section 713(b)(1) of the Civil Rights Act, allowing employers to defend against an unlawful employment practice claim by demonstrating good-faith reliance on the EEOC’s written guidance. With this rescission, that defense is no longer available to employers relying on the now-rescinded documents.
Importantly, the rescission does not overturn the Supreme Court’s decisions in United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987), which recognized that Title VII may permit certain voluntary affirmative action plans in limited circumstances. Whether those precedents remain good law is a question only the Supreme Court can resolve, notwithstanding the EEOC’s position that rescission is “consistent with the text of Title VII and Supreme Court precedent.” Nonetheless, this action is consistent with other recent EEOC and Trump administration efforts to scrutinize the consideration of race and sex in employment decision-making.
Action Items
- Review existing voluntary affirmative action plans and practices with legal counsel.
- Continue to monitor related EEOC guidance affecting affirmative action and DEI-related practices.
- Have appropriate personnel trained on updated compliance obligations.
DOJ Opinion Letter on EEOC Disparate Impact Guidelines
On June 9, 2026, the Department of Justice’s Office of Legal Counsel issued an opinion concluding that the EEOC’s disparate-impact liability guidelines under Title VII are unconstitutional, finding they improperly pressured employers to engage in racial discrimination. The opinion, which implements Executive Order 14281, clarifies that employers may use job-related hiring practices (such as aptitude tests, background checks, and standardized test scores) without fear of Title VII liability simply because they produce different outcomes across demographic groups, so long as the practice is reasonable or serves a valid business purpose. The opinion also raises the bar for disparate-impact plaintiffs, who must now show both that a specific practice directly caused the unequal outcome and that an equally effective, less discriminatory alternative exists. Employers should be aware that this is a DOJ/EEOC interpretive opinion rather than a change in the text of Title VII itself, and that state-level disparate impact protections remain unaffected.
New “Faster Labor Contracts Act” Advances to Senate
On June 9, 2026, the U.S. House of Representatives passed the Faster Labor Contracts Act (HR 5408), which would significantly accelerate first-contract bargaining timelines by requiring employers to begin negotiations within 10 days of union certification, imposing a 90-day bargaining period, and mandating mediation followed by binding interest arbitration if the parties fail to reach agreement. The bill now moves to the Senate, where it will likely need 60 votes to overcome a filibuster. Because this legislation remains pending, employers should monitor its progress for now.
ILO Adopts a Convention Governing Platform Workers
On June 12, 2026, the International Labour Organization (ILO) (the tripartite U.N. agency that brings together governments, employers, and workers from 187 member states to set international labor standards) voted to adopt the “Decent Work in the Platform Economy Convention,” establishing an international framework for laws governing digital platform work, including minimum wage guarantees, protections against unlawful termination, and rights related to automated management and data protection. The United States was among eight countries voting no, and the Convention is unlikely to be ratified domestically, though it is expected to be ratified by numerous other member countries, including several in the European Union. U.S. employers with international operations should monitor ratification developments in the countries where they operate.
Senate Committee Advances NO FAKES Act to Protect Against Unauthorized AI Likeness Use
On June 18, 2026, the Senate Judiciary Committee unanimously advanced the NO FAKES Act (S. 4591), which would create a new federal intellectual property right allowing individuals to control the use of AI-generated “digital replicas” of their voice or likeness, and would establish a notice-and-takedown process for unauthorized use. The bill now heads to the full Senate, with a companion bill still pending in the House. Employers, particularly those in media, entertainment, marketing, or that use AI tools involving employee or public likenesses, should monitor its progress.
EPA Aligns with OSHA 2024 Hazard Communications Standard
On June 22, 2026, the EPA finalized a rule aligning its Emergency Planning and Community Right-to-Know Act (EPCRA) hazardous chemical inventory reporting categories with OSHA’s 2024 Hazard Communication Standard, allowing facilities to use their OSHA-compliant safety data sheet (SDS) hazard classifications directly for EPCRA Tier I/Tier II reporting rather than maintaining separate categorization systems. The rule takes effect August 21, 2026, but facilities have until January 1, 2028 to come into compliance. Core EPCRA obligations (SDS/chemical list submissions, annual inventory reporting, and the March 1 Tier II deadline) remain unchanged. Facilities with hazardous chemical inventories should begin reviewing SDS classifications, updating reporting workflows and software, refreshing written EPCRA procedures, and coordinating with state/local emergency planning authorities ahead of the compliance deadline.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2026 ManagEase