Legal Shifts from the White House – What Employers Need to Know

Rapid changes across the federal government are creating tremendous ambiguity for the private sector, particularly around employment and immigration issues.

To help employers address the quickly evolving landscape and prepare for likely policy shifts, Mintz Immigration Practice Chair John Quill and Employment Associates Corbin Carter and Emma Follansbee hosted a webinar on February 25 in partnership with the Association of Corporate Counsel (ACC) Northeast. They explored the potential impacts of the Trump administration in relation to a broad spectrum of issues, including wage and hour law, workplace safety, DOL investigations, EEOC matters, diversity, equity, and inclusion (DEI) initiatives, union organizing and labor activities, immigration, potential travel delays, and travel bans.

Along with the expected favoring of business interests and the scaling back of Biden-era executive orders, the attorneys anticipate an increase in regulatory activity at the state level.

Companies need to comply with workplace safety regulations mandated by California, Washington, and other jurisdictions, for example, despite a regulatory freeze that put some proposed federal OSHA rules on hold, Emma said.

She also urged businesses to track and adopt strategies to address the extensive network of state non-compete laws amid the likely Trump administration rollback of Biden-era attempts to ban most non-competes nationwide.

“The non-compete landscape is highly, highly state-specific….It is something you should be looking at on the state level for now,” Emma said.

Conservative states are also taking action, including a coalition of Republican attorneys general who recently sent letters to major financial institutions questioning whether they’re using illegal DEI practices, Corbin said.

On the immigration front, John said he expected international travel difficulties once the administration releases its promised travel ban, increased workplace raids to seize undocumented immigrants, and the likely termination of temporary immigration programs.

He emphasized that advanced planning and preparation are critical for all immigration issues. Companies that may be subject to ICE audits should designate areas to bring workers for interviews with agents. Since ICE has the authority to enter a wide range of public places, companies can limit intrusion by marking some areas of the company as “private” or “for employees only.” For foreign nationals living abroad but working for American companies, being ready to travel on short notice is vital. Companies with documented immigrant workers need to monitor the eligibility of employees working under temporary immigration statutes disfavored by the administration.

“For employers that have employees in those statuses, I would say the time is now to see if there are other options for those workers,” John said.

In addition, companies should have policies in place in the event that an employee cannot return to the US following international travel due to delays in visa processing.

The administration’s evolving regulatory approach to artificial intelligence could also create hurdles for businesses. Emma noted that while the EEOC has quietly removed Biden-era AI guidance from its website, companies are still subject to federal, state, and even local laws governing how the technology is used in hiring and other employment processes.

The EEOC’s changing priorities on discrimination also create potential minefields. While the agency is expected to be less aggressive about pursuing certain types of discrimination or harassment claims (including those focused on LGBTQ+ issues), it is also likely to prioritize enforcement of claims involving religious discrimination and allegations of reverse discrimination, Corbin said.

Companies that want to maintain DEI programs amid the administration’s focus on these programs need to think about objectives and initiatives in terms of inclusivity instead of exclusivity for particular groups.

“You need to understand your business’s risk tolerance, too. . . . That’s going to be based on target consumer, corporate culture… All of this has to be evaluated.”
 

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