The TroopHR Podcast

Ep 27. Navigating Employment Law in 2025: Trends, DEI Backlash, and HR Challenges with Julie Werner, Partner at Lowenstein Sandler LLP

• Season 2 • Episode 2

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Listener's Note: For context, this episode was recorded one week before President Trump assumed office, which is why he is referred to as President-elect.

In this episode of The TroopHR Podcast, Taylor Bradley sits down with Julie Werner, an experienced employment lawyer with over 27 years at Lowenstein Sandler LLP, to unpack the critical trends shaping employment law in 2025. Together, they explore the ramifications of recent legal decisions and political shifts on HR practices, including the FTC's proposed non-compete ban, “reverse discrimination” cases reaching the Supreme Court, and the rollback of affirmative action in workplaces.

Julie offers a deep dive into the evolving landscape of diversity, equity, and inclusion (DEI) initiatives amidst political pushback and shareholder activism. The conversation also covers practical advice for HR leaders navigating regulatory compliance, from changes in labor standards to potential immigration crackdowns under the new administration.

For more resources, including upcoming events and ways to join our community, visit troophr.com.

Credits

TroopHR Founder: Tracy Avin

Show Producer: Nicole Fealey

Show Host: Taylor Bradley

Note: Transcripts generated by AI.


 From an employment law standpoint, I think the biggest issue or one of the biggest issues in 2024 was the Federal Trade Commission. The FTC had proposed a rule that if it had become effective, would have banned non compete and it's, it's, it's nationally subject to extremely limited exceptions.

And so that caused a lot of angst for a lot of our corporate clients who rely heavily on non competes in the right circumstances to protect their interests. And it was really until the very last minute as much suspense as a, you know, a lawyer can have in some of these situations. I realize this is all you know, Watching paint dry to, to some other people, but in legal speak, right, waiting to see whether the non compete rule was going to become effective, whether the court was going to enter an injunction preventing it, which is ultimately what ends up happening.

Several courts actually ruled, including one court that ultimately issued a national injunction, a ban on the rule becoming effective. So that is now up on appeal. And sort of segwaying into 2025 with the new political administration, it seems pretty unlikely that the FTC now, once it becomes a Trump administration, it seems pretty likely that they will abandon the appeal and that the role will die on the vine pretty definitively.

But that was probably, I would say, the biggest issue for 2024 for employment law geeks was whether or not that non compete ban was going to become effective. 

I was at a summit earlier this year where we were able to speak to Lena Khan, the current FTC commissioner. And she had some quite ambitious goals for the FTC heading into the at that point was supposed to be the second Biden term.

Are there any other rulings or precedent changes that we're expecting now in the Trump administration?  

So it is interesting, as you mentioned, Lena Khan and a lot of people were waiting to see what was going to happen to her because it actually, interestingly, Matt Gaetz came out with a brief he had filed fully in support of Lena Khan and the FTC rule, but we see what happens to Matt Gaetz now, and I think J.

D. Vance actually had So she said some things potentially supportive. So, so that clearly, you know, I think is taken a turn and, and I'm sure she'll land somewhere nicely and probably be a very effective lawyer or professor or whatnot, and probably more to come from her in the future.  You know, it was pretty young and very successful in what she was able to do during the Biden administration, notwithstanding this specific issue.

In terms of 2025, I do think what's been getting a lot of press, particularly is this pendulum swing on DEI.  And both from a legal standpoint, there increasingly have been cases where employees, job applicants, people have challenged where they feel that they are alleged, they feel that they were treated unfairly.

in the sense of oftentimes what's referred to as a reverse discrimination. And in fact, a case that's pending before the U. S. Supreme Court that is to be decided well is to be heard. I think oral argument is to be heard in late February. Probably you'll be decided by the end of the term. Typically, the end of June is what is the legal standard for a reverse a discrimination claim.

So that is a key case that will be, you know, before the Supreme Court. In addition, there have just been cases that have been pending throughout the country where employees or job applicants feel that they were mistreated. Essentially often, not always, but often white men who are saying they were mistreated in favor of somebody else who was of a different race or a different gender or that they were encouraged to make certain decisions.

With respect to hiring people and that they were penalized because they didn't follow what they had been told they were supposed to do. And so that's an area where there is increasingly case law there. You see in the business side, just businesses looking at it from sort of a cultural or sort of you know, you see, you know, I guess even stepping back, right?

So in 2020, after George Floyd was killed, there was a host of business activity where it almost felt like each. Company one more than the next was trying to say all we're doing this and another one said, I'm doing more than this. And it was, you know, everybody sort of was going on that bandwagon. I'm a bit of a cynic as you can hear, and some of them were, you know, some of them were very meaningful and earnest and I think genuine.

And some of them, I think we're a little bit of, you know, I guess jazz hands and trying to optically look like they were doing things. But you see significantly, I'd say in the past 6 to 8 months. Yeah. A significant shift in that regard. It appears increasingly that a lot of companies because of threats, active shareholders or just active you know, activists challenging businesses in terms of in the boardroom, the business decisions being made by a lot of companies.

And so there's a whole host of companies that have said that they are scaling back their D. I. Initiatives. And so I think that's another big area for 2025, where like I said, in terms of the case law, in terms of the business activity, there is also a bill that is pending in Congress. And we'll see whether that gets any traction to dismantle DEI.

That's the name of the bill. I think it's called the dismantle DEI, you know, and again, the, the name, the name is probably half the sensationalism of it. But I do think that that is a big area where we will see a lot of activity that's coming here. 

So let's talk about that a little bit. First off, a one of the concepts that I've been discussing over the past two years is something called HR drift, where I do feel maybe even well intended HR is overcorrected in some areas.

And a classic example that I gave  Is a team that I'm aware of removed a vice president of infrastructure engineering from an executive talking panel for an all hands of the company, specifically in Slack, they were talking back and forth because he was a white male and I understand what they were trying to achieve, but it's those types of things that I do think are going to end up in a court.

And it sounds like there are cases that are making their way through the system where maybe Well intended diversity initiatives are leading to legal hot water for some corporations. Are you seeing more of those types of cases come forward or are they still novel cases at this point?  

Well, I think that's just to step back and, and what I believe really always has been the case is we know under Title VII of the Civil Rights Act that we are not to discriminate based on various characteristics, including race.

And therefore, if we're not to discriminate based on race or gender or other various protected characteristics,  really what that means is we should not be making decisions.  White, black, purple, green, orange based on on race and so I do think again  You know what? I don't know your phrase was HR drift. I mean, there's this shift I guess is kind of what you're saying.

Yeah, I don't think it would be correct to include somebody exclude somebody What regardless of their race, so I don't know the specific situation that you're referring to but if somebody were excluded a white man simply because of his race or his gender that seems to me improper and You know, again, there's more to be having a claim than just being excluded from a chat or whatnot.

Right? I mean, there has to be some type of adverse action. And I don't know, being excluded from a chat alone would rise to that legal standard. But certainly, optically, if people are making decisions on bases like that, that seems problematic to me. And I do think, you know, again, in this, call it HR drift or shift or whatnot, I do think people are increasingly sensitive to those types of issues. 

So on a, a small group, I was able to attend at the CNBC CEO summit in July of last year. You had Mike Johnson present as well as some senior echelon from the GOP house majority and they made it clear  and no uncertain terms that they did not view the responsibility.

Of companies to be advocating for what they view is ideological opinions. And if they remained in the house majority as well as if they picked up the presidency, because again, this was in July of last year, they were going to pursue legislative objectives. It sounds like there's one bill that you had mentioned, but what are there other types of mechanisms?

Should HR leaders be looking out for of legal implications of the type of DEI work? 

I mean, look, on the other hand, there is a valid basis historically and. Courts have recognized certainly in the educational space and in other areas of for affirmative action. Now, the affirmative action area you know, took a shift in July or I guess it's late June of 23 when the U. S. Supreme Court invalidated the affirmative action plans that Harvard and the University of North Carolina had been using.

And so, but I think inherent in that is a recognition that and that is what in what affirmative action has always been intended to do is that historically, to the extent that there have been disproportionately impacted groups. And you know, there have been a variety of cases, especially more so in the public sector, where police departments and fire departments and other areas, more of the case law historically, especially before the U.

S. Supreme Court and affirmative action has been initiated. It seems to be more in the public realm. I want to say public. I mean, again, like firefighters and police departments and things of that nature, not public companies per se. So, but I do think everybody recognizes that there has been this historical, you know, that there has been a valid basis.

I think the question is, At what point, if any, have the, have the wrongs been rectified and or is there a continuing obligation? And, you know, there is a legal burden for a company to, to, to use affirmative action and inherent in that. And that is part of the issue that is pending now before the Supreme Court, this case about reverse discrimination.

There have been cases that say where the majority of the workforce historically has been, you know, Typically, let's say white male that companies in an effort to remedy those past, you know, that past representation has the legal right to change it. So there is already established law historically to that point.

I think the question is more of a reckoning. Like, are we at that point or not? Right. So, and I don't know, you know,  I'm not the person necessarily to be able to answer that. But from a political standpoint, and again, I don't profess to speak for for any one politician or candidly understand what their perspective is, but to just say we're going to eradicate any kind of ideology, I think is an ideology, like the very fact that they're taking that position is their ideology, right or wrong, you know,  to say that there's no ideology doesn't really seem accurate.

Yeah, from the, the audible gasp in the room when the GOP representatives shared that, and this was a room filled with Fortune 100 CEOs, so this is a pretty staunch crowd, and  I think it, either way, legislation or not, had an intended chilling effect, especially with the outcome of the recent election.

These cases that you're referring to on the reverse discrimination it does seem that it's just tying back to existing precedent, is discrimination on the basis of sex or something that's already been well established, I guess, in stare decisis, right? 

So yes and no. Again, this, the legal standard has varied by federal circuit.

So our, our appellate courts across the country at the federal level, they're various, what they call circuit courts and different circuit courts have established different standards about what is the standard for. In other words, if you are historically in the majority, which typically a white male would be considered historically to have been the white majority for particular business.

Bye.  It is, it is a different legal standard depending on whether you're in Ohio or you're in California, for example, and because there is a split in the circuits, that is typically when a case when the Supreme Court is more interested in taking a case when there is a split. So when you say precedent or stare decisis, there is different precedent in different circuits.

And that's why typically the case, you know, the Supreme Court is interested in taking a case when there's a split, so it will give an opportunity for the Supreme Court to weigh in at a national level what should be the standard for a plaintiff to be able to prove reverse discrimination. And I think.

Recognizing the composite of this court, I think many can likely predict that they will likely be sympathetic to to, to a plaintiff, a white male, for example, who was alleging that they have been discriminated based on their race and or gender. You know, we don't know exactly obviously how the court predict what the court will do.

But I think recognizing the composite of this court, I think most people recognize that the court will be more sympathetic to somebody in that situation. And therefore, if the court does rule in favor of this person ultimately it will have a national impact to your point. And likely that's something we would know by the end of the term, which would be the end of June. 

And to many of our listeners, I'm sure they recognize that the Supreme Court of the United States, the makeup of it historically, or at least for the past while, has been liberal leaning. And it has now switched to a more conservative. So when Julie is reiterating that the new composition of the court may have an impact, it's, a lot of changes have come through.

Our precedent has been overturned by the new composition of the Supreme Court. One other case that I'm curious if it does have a connection into all the regulations that our organizations face was, the precedent change of, the Chevron doctrine my understanding is this.

changes the way that certain agencies can regulate. Will that have an impact on us as people leaders?  

So historically agencies, administrative agencies, which are part of the executive branch, right? So typically Congress is our legislative branch that passes laws and the administrative agencies that fall under the executive branch are typically More specialized areas.

So, for example, the Department of Education or energy or labor or whatnot. And so each of those agencies will issue regulations. That correspond essentially to a law that was passed that the legislator legislation, you know, that was passed by the Congress and signed into law by the president. And so what happened was typically because those agencies were viewed to be experts in their various areas, they were afforded more deference.

In terms of how they interpret the law, their regulations and, and to really have a, the breadth and scope of how far they're willing to go and, and, and where people have pushed back or challenges to say, firstly, there's so many and they're very lengthy and long and nobody can possibly understand them and they're very complex, but also just the, the level of Intrusion, I guess, you know, how, how far they can go in imposing their will.

And so while historically there was, they had a lot of deference in terms of how they could interpret the law and how far they could regulate the case that you're referencing that came out last year, basically overruled that and said, we're not going to give deference to these agencies basically in terms of interpreting their laws and how far they can go in implementing these regulations.

So that is interesting. Obviously yeah. You know, in terms of that case that came out last spring, now you have in a new political administration and you have Elon Musk and whatever this doge thing is or whatever, right, where they've said, we want to cut red tape and we want to cut regulation and we want to cut government spending. 

You know, that is an area and how much of that plays out in practice. It's hard to say, but for HR professionals. In the Department of Labor typically is where we see a lot of these things, or even, for example, when you think about the EOC comes out with this rule, you have to file this thing by this day, and you have to list the number of employees and all these various statistics, right?

I mean, those are cumbersome things that on the one hand, you might say are well meaning and gathering  Perhaps leads to, you know, making sure that there's a sense of equal opportunity or fairness or things that that's where that's supposed to be the mission of that organization. On the other hand, one may say, well, who, who gave them the right to say, I have to create all these EO1 forms and all these other charts and things and file all this data that seems very cumbersome and to what end?

So you could see things like that potentially being rolled back, which I do think most HR professionals probably would be pleased about probably would prefer, you know, again, not to say that they, they certainly they support as most of us do equal opportunity for people's for people. But the question is whether or not all this so called, you know,  paperwork of sorts, does that, how does that further the mission?

And so then there's going to be less deference for, for those kinds of rules, which may be helpful and HR professionals.  be happy about, about that fact. Likewise, even the Department of Labor had  also the last year increased the, the salary threshold for employees to be considered exempt under the Fair Labor Standards Act.

And ultimately, right, so the salary increased Last July, and then it was supposed to increase again this coming January. And then in December a Texas court issued again a national injunction saying that the Department of Labor had overreached in increasing the salary threshold in July and that the new salary increase for January also didn't have to go into effect.

Now, Mind you, these dollar amounts are pretty low to begin with. And so you know, that is the issue when you have a national standard. And I do think one of the other things that HR people, professionals should expect is the states and cities are obviously going to step in in areas So even if there's a rollback at the federal level, even on things, I mean, candidly, to be able to say that 36, 000 is so cumbersome, you know, and I  guess it depends where you are in the geography really varies, but if you're in a place like New York or California, for example, the salary threshold is already  pretty much close to double that in any event.

So you know, even if HR professionals do see a rollback at the federal level,  that's not going to end the story. I think candidly, you're going to just see a ramp up more so at the state and local level in response.  



The other question that I have, and just a couple more as we now start to approach coming in for a landing is. Donald Trump, or President elect Donald Trump, is, I would charitably say, is spontaneous. And so are there any executive orders that you're expecting or keeping an eye on that may switch or change on January 20th? 

I personally can't say that I'm aware of anything that will have an immediate impact from an employment law standpoint, other than I'm not an immigration expert, but obviously there's been talk, including even in the past week about H one, you know, HB one visas and Elon Musk weighing in one way and others weighing in another way.

I do think it increased generally, and I don't know that it's a January 20 thing, but the climate around immigration is also obviously A big issue for the country and you know,  companies that historically have been more lax in their hiring, in current in terms of looking the other way or their I nines or.

Sometimes companies will hire people as independent contractors for various reasons, including that you don't need to get an I 9 or confirm legal status of somebody who is a consultant. So where companies may have been more lax in the past on things like that, I do expect not necessarily on day one, but it does.

I think seem that there will be a big shift this coming year. And so companies on the one hand, it is a little bit interesting in terms of the inconsistency, right? We just said we're to expect less regulation, less strict measures on on a bunch of areas. Yet on the flip side, on the immigration side, I think there is obviously the talk is going to be increased regulation, increased scrutiny,  and therefore companies should be careful about their hiring practices, making sure they No, who is on board that whether or not people have documents that may have expired and sometimes they don't always, you know, you're supposed to, I guess, sort of calendar these things, right?

Even if somebody is legally authorized to work here for a two or three or five year period. Sometimes people don't always update those things with, through HR and, and, you know, that may be an area where people want to go back and start just kind of looking a little more closely under the hood to be prepared.

Because that is an area where I expect in 2025 we're likely to, to see more on you know, HR professionals should be prepared for that.  

Yeah, and I think one, maybe reassuring part heading into the next four years is we've been through this before and in the prior Trump administration, one thing that we did have is a lot of delays in processing or certainly more scrutiny and felt like every case that we had was getting a request for additional evidence on a personal state.

My wife, who is an immigrant We expected her visa or green card processing time to be, it was at the, like a year or so at the time, but it was ended up being multiple years. So at a minimum, we should be expecting delays and certainly be consulting with your immigration counsel, proactively would probably be a good. 

Now, for the rest of 2025, is there anything that you would encourage HR executives and leaders listening to this podcast to maybe keep in mind that we haven't already discussed from an employment law standpoint?  

Well, the other big area I think that companies continue to struggle with is this whole notion of return to work and remote work and finding the right balance.

And so that is, you know, I do think I was not surprised to see the increase in return to work efforts by a lot of companies because I do think in terms of the job market, you know, when it was more of an employee market, when companies were desperate to hire people earlier on. You know, they were more accommodating as companies increasingly were doing layoffs and they could be stricter in terms of their approach.

It seems that the stricter approach then is to require people to be in the office. Obviously there's pros and cons that could be a whole separate discussion about the benefits of remote work versus you know, hybrid and, and, and full on You know, in the office work. But I do think that as we see hiring and layoffs and those sort of fluctuations, I do think has a correlation now with remote work in the likelihood.

And also just in general, now that we've had a couple more years of, of, of all of those sort of variables, seeing how that plays out in terms of the talent, loyalty of employees, I think that's, You know, I think a lot of, on the one hand, employees working remotely may feel appreciative. On the other hand, may feel less loyal to their employer because they feel less of a connection and those kinds of things.

So I do think that is still an area where there is, you know, even just in the past couple months, I guess Amazon was the biggest company to we heard about, but certainly there were plenty of others. And I do think that is something that we'll be closely watching in 2025 as well.  

Completely agree. And employment law aside, one thing that our listeners will have heard me say before is you got to remember high quality talent has options.

So be mindful of that when you're putting ultimatums on the table or pushing for a certain aspect. I really do think people enjoy flexibility and if you're able to provide that. But I also believe in a company's right to make decisions best for their business. So certainly keep that in mind.  Final thing that I want to get into is I really enjoy when I get to meet a professional like you and just get some insight into the career that you've built.

You've been at the same law firm for some time. What would be one thing that you learned along the way that you wish you would have knew on day one when you started with them?  

Well, I can tell you I've been at my firm. It's funny you say that for over 27 years and it, it, It, it, it shocks me even just to use those words because we have young lawyers who are starting with us who are probably not even 27 years old.

So it really shocks me to be on this side of things. So, so again, what  I think taking initiative, I, I would always tell people, and I think one of the things that has worked really well for me, even finding my way into employment law. Is to take initiative to see what you're interested in, to find the people in, and this is true for law, this is true for any area.

I think it's to find the right people, to see what kind of work people are doing that you find interesting to, to make the effort to reach out to them, to speak to them, to offer, to be helpful to them, to take ownership of your career. I think people who sit back and just kind of let work come to them are not going to necessarily get the kind of work that they want or be satisfied with it.

And so that's one of the things I think that has worked best for me. I guess the other piece of advice I wish I had known on day one was just to sort of relax a little more to try to enjoy it a little more. But I do have to say, I've been very lucky. I really have enjoyed and continue to enjoy what I do.

And, and Work with some great people. Really enjoy employment. Look, I mean, when you talk about issues about employment law, you know,  it's the human element of it. And even including, you know, the cultural issues that we talk about. You know, I think is really interesting and makes it really fun for me and makes me happy to go to work every day. 

And have you been focused on employment law this entire time? 

I have, I have. I, I, like a lot of law students before I started at my firm, I did have a clerkship for a year. I worked for the appellate, an appellate division judge in New Jersey. And one of the benefits I tell all young law students. is when you clerk in the courts each week, you just handle whatever case is coming up before the court.

And what that does is it gives you so much exposure to so many different kinds of cases. And candidly, it was almost by a process of elimination. I said, Oh, that doesn't, you know, this contract case doesn't sound very interesting. You know, this criminal case, I don't see I could do myself doing that. And a few employment cases came up and I said, Oh, that sounds really interesting.

And it just I was attracted to it. And so Like I said, I kind of by a process of elimination found my way and then I was very fortunate when I started at my firm. That there were great mentors available to me who really kind of took me under their wing and taught me a lot. And so really grateful that I've had those experiences and I try to, you know, now impart that on other people as well.

And it's been fun. I've been, I've been very happy.  

I can clearly, and the listeners will too. You can hear the passion in your voice when you discuss not only the passion, but the expertise that comes along with it. And it's been thrilling to learn about a final fun question for you here.  Do you have a pet peeve or a thing in movies when lawyers are represented, they just get wrong that you just want to set the record straight.

Well, it's funny you say that. I you know, I watched suits like a lot of people last year and you know, the two things that stood out to me, it was like the lawsuit was filed in the morning and by the afternoon they were like on trial or something like that. I thought that that was interesting and. You know, I do also think that law increasingly is a specialized area.

There's so many different topics that, you know, again, I'm an employment lawyer at my firm. We have over 350 lawyers and who are experts in so many different areas. You watch a TV show like Suits. You know, the guy I forgot his name in the morning. He's doing, he's in court in the afternoon. He's doing a merger, you know, I, and so I think the expectation that you're going to have a lawyer that is a jack of all trades, so to speak, I don't think is realistic these days either.

I think really getting to a specialist and there are some, you know, obviously law is a very intricate area. And so getting to a specialist of whatever type You know, so those are the two things, I guess, in watching Suits. I thought those were, I thought it was a fun show. You know, I just used that as a recent example.

Those were the two things that stood out to me.  

Two things that stand out to me as well. The other thing that I've always found interesting in law shows is how the lawyer in the courtroom will always walk up to the witness on the stand and speak to him. It's just like, usually you got to sit behind your desk.

You can't go up and do that. So Julie, if folks want to reach out to you, what's the best way to get connected with you? 

Oh, that's great. Sure. My email address is, so my name is Julie Werner. J. Werner, W. E. R. N. E. R. at Lowenstein, L. O. W. E. N. S. T. E. I. N. dot com. Lowenstein Sandler. We're a firm with over 350 lawyers around the country.

I sit primarily in New York and New Jersey, and we represent a lot of tech startups, hedge funds, life science companies. So typically company side startups through large size companies. Happy to talk if anybody would like to reach out.  

Julie, thank you so much for your time today.

Thank you. Nice to talk to you.  Take care.