With the republican convention last week, there has been a lot of talk of the Project 2025 activities, especially identifying it as the possible platform of the republican party. What is it? Project 2025 is the conservative Heritage Foundation’s plan for moving forward assuming a Republican enters the White House in January 2025. The plan is culmination of a variety of Heritage Foundation proposed policies from tax to labor to environment that it has endorsed over the past 30 plus years. It requires actions by the President as well as congress to implement the recommendations of the proposals. Several aspects of Project 2025 would affect employers.
For HR professionals, the following provides a sampling of policies and actions that would impact employers if enacted.
- Project 2025 wants to playdown and/or eliminate identity politics.
Project 2025 proposes that the EEOC stop the EEO-1 demographic collection and proposes that a law be passed to amend Title VII of the 1964 Civil Rights Act to eliminate the requirement of the EEO-1 reporting. Per the report, “[c]rudely categorizing employees by race or ethnicity fails to recognize the diversity of the American workforce and forces individuals into categories that do not fully reflect their racial and ethnic heritage.” Further, the report argues with interracial marriage growing, it is difficult to put anyone into a clean bucket.
Next, Project 2025 recommends the elimination of disparate impact as a valid discrimination theory approach through congressional action. Disparate impact focuses on numbers, specifically that anything outside of two standard deviations in a bell shaped curve is an issue, not motives, and as such, numbers could be skewed in a way to show a false positive leading to inaccurate actions. For example, the larger the applicant pool, the more likely statistical significance would be found, leading to potentially baseless charges.
It also recommends the elimination of the Office of Federal Contract Compliance Programs (OFCCP). It argues that the EEOC is the appropriate agency for discrimination remedies and that OFCCP is simply a redundant agency making up novel discrimination theories to force employers to do it bidding as it is authorized by an Executive Order and not by legislation of any sort.
As for Executive Order 11246 (the affirmative action Executive Order), Project 2025 recommends that the President rescind the executive order. By doing so, they claim that federal contractors would be subject to more consistent discrimination regulation and would be less subject to the changing political whims of a President that might impose significant new costs or burdens on the contractors.
A more controversial recommendation is that “[t]he President should make clear via executive order that religious employers are free to run their businesses according to their religious beliefs, general nondiscrimination laws notwithstanding, and support participation of religious employees and employers as federal contractors and in federal activities and programs.” In other words, Project 2025 policies would permit employers to discriminate based on their religious beliefs, for example, not hiring LGBTQ workers because it violates their religious belief, using the Religious Restoration Freedom Act as a basis for such action.
- Project 2025 wants the government to create more family friendly policies.
In effect, Project 2025 desires that federal law and policy be enacted to all for workers to accumulate paid time in lieu of overtime (in other words, comp time). It recommends that congress pass The Working Families Flexibility Act to allow employees in the private sector the ability to choose between receiving time-and-a-half pay or accumulating time-and-a-half paid time off (a choice that many public sector workers already have).
Project 2025 recommends that congress should amend the Fair Labor Standards Act (FLSA) to clarify that an employer’s expenses in providing on-site childcare are not part of an employee’s regular rate of pay. It also recommends that congress should incentivize employers to provide on-site childcare. With a worker shortage being experienced, and with women now at their highest participation rate in the workforce, everything should be done to provide families with greater flexibility to participate in the workforce without having to make hard decisions when childcare is at risk.
And going back to its respect of religion in the workplace, Project 2025 recommends allowing employees of all religions to have its Sabbath day off, be it Friday, Saturday or Sunday, and anyone working that day would be paid time and a half automatically.
- Project 2025 wants teenagers to have more opportunities at factory jobs.
Project 2025 wants the DOL to amend its hazard-order regulations to permit teenage workers access to work in regulated jobs with proper training and parental consent. By doing so, it could be a move toward more apprenticeships for youth workers as a way to deal with an educational system that does not truly prepare youth for jobs current in the marketplace.
- Project 2025 wants to harmonize interpretations among various agencies on independent contractors.
Specifically, it recommends that congress should establish a bright-line test—based on the level of control an individual exercises over his or her work—to determine whether a payee is an employee or an independent contractor, across all relevant laws. This approach would allow consistency in enforcement.
- Project 2025 recommends what it believes is a better approach to overtime designations.
First, Project 2025 believes that the salary level test that is now promulgated is eventually going to make all employees overtime eligible somewhere down the road with its every three years of recalibration. Second, it believes that the salary level test of $684 per week is good enough for classifications purposes. Going much higher will create greater costs for employers and eventually on the purchasers of their products (inflationary). Finally, Project 2025 recommends that congress should clarify that the “regular rate” for overtime pay is based on the salary paid rather than all benefits provided. This would enable employers to provide additional benefits to employees without fear that those benefits would dramatically increase overtime pay.
Also, it recommends that Congress should provide flexibility to employers and employees to calculate the overtime period over a longer number of weeks as opposed to the weekly calculation of 40 hours.
This is only a few initiatives outlined in the 900+ page, highly controversial document.
For HR, there are a litany of things proposed such as apprenticeships, updated hazard regulations from OSHA, to having the NLRB return to the pre-Obama administration standards, for example, having only secret elections, not card checks. Will many of these items in Project 2025 pass muster? Unlikely. Congress also has to pass laws that would support Project 2025 initiatives and that assumes one party will have both houses with a veto proof majority.
With President Biden dropping out of the race and endorsing Vice President Kamala Harris, the election is up for grabs. Yet, both parties are pushing family friendly as well as support for women policies, like the Pregnant Worker Fairness Act, that will likely be the focus of the next administration, whoever wins in the Fall.
Source: Project 2025, Law360, 7/19/24, 7/1/24