Legal Shifts Post-Election – What Employers Need to Know

Amid a flurry of President-elect Donald Trump’s nominations for cabinet-level positions and his frequent statements about his policy plans, employers are anticipating sweeping changes to employment and immigration laws, regulations, and practices.

In their webinar “Legal Shifts Post-Election – What Employers Need to Know,” Immigration Practice Chair John F. Quill and Employment Practice Associate Corbin Carter offered a comprehensive overview of how the incoming administration is likely to impact federal agencies and regulations affecting their areas of focus and what employers can do to prepare.

On the employment front, the policymaking and enforcement priorities of the Department of Labor (DOL), US Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB) are expected to shift the balance back towards industry. Businesses will almost certainly face less federal scrutiny if the president-elect’s plans to scale back Biden-era rules and executive orders and reduce the federal workforce come to fruition. At the same time, companies may need to navigate new pro-employee laws and regulations on issues like leave benefits and anti-discrimination tenets that are passed and enforced by more progressive state and local governments, Corbin said. 

“We expect we'll see sort of a groundswell of activity from more progressive states and localities that will act as a counterbalance to some of what this new administration will be doing,” Corbin said.

Specific federal employment-related shifts companies should watch for include whether President-elect Trump’s campaign promise to eliminate federal taxes on tips for service workers is enacted, a likely abandonment of the FTC’s now-set-aside rule banning most post-employment non-competes, and the potential reinstatement of a proposed DOL rule making it easier to classify workers as independent contractors. Going forward, the DOL’s Occupational Safety and Health Administration (OSHA) is also likely to take an anti-regulatory approach under a second Trump administration while several states with OSHA state equivalents might step up worker safety regulation and enforcement, Corbin said.

Discussing how immigration policies could change under the incoming administration, John said the firm’s Immigration Practice takes some comfort in how its attorneys navigated President-elect Trump’s first term in office. Despite delays and obstacles, Mintz’s Immigration Practice was largely able to obtain approvals for employers sponsoring employees and candidates for visas, green cards, and temporary work authorization. 

Likely areas of concern going forward include potential bans on certain foreign nationals from entering the US, federal workplace raids to locate undocumented immigrants, and ICE I-9 audits to verify employees’ eligibility to work in the US. 

Quill recommended that employers develop response plans focused on each of these areas. Examples include establishing protocols for handling a Homeland Security Investigations (HSI) raid along with retaining backup counsel for employees, and proactively auditing Form I-9s with a focus on reaching full compliance. Companies with foreign national employees working outside of the US should ensure those employees are prepared to travel to the US on short notice and develop contingency plans for cases where employees or candidates are unable to obtain a US visa for an extended period of time. 

Employers should also anticipate the possible termination of some immigration benefit programs, which could create hurdles for companies employing workers in DACA, TPS, or parole status. 

“We certainly recommend that employers look out further into the future to ensure that they can react to an adverse decision from the government,” John said.

The attorneys also touched on how the judicial landscape comes into play, particularly in light of the US Supreme Court’s June 2024 decision in Loper Bright Enterprises v. Raimondo. Loper Bright overruled the Court’s 1984 Chevron v. Natural Resources Defense Council decision, after which courts had often deferred to a government agency’s reasonable interpretation of a statute. The reversal opens the door to challenges to prior and future federal rules involving a broad spectrum of employment, immigration, and other issues.

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