Employment Law Updates in the First Month of Trump 2.0

One month into the new Presidential administration, we have seen a number of changes – some already made and some just hinting at what is to come – impacting employment law. While there have been a lot of moving pieces and the picture continues to evolve, below are a few of the more significant developments in the areas of equal employment/discrimination laws, immigration, and affirmative action, along with some tips and pointers for remaining in compliance through this volatile time.

EEOC

President Trump has made several changes in EEOC leadership, and there is currently a lack of quorum of commissioners which will make further policy changes difficult until the openings have been filled. Actions that the EEOC has taken so far reflect changes in policy and enforcement priorities. Andrew Rogers was recently named acting general counsel, who previously worked on policy in the Wage and Hour Division of the Department of Labor after stints at two national management-side employment firms. Following are some of the policy changes that we have seen so far in this shifting environment:

Transgender/Non-binary Discrimination Lawsuits: The EEOC has dismissed seven lawsuits alleging discrimination against transgender/non-binary individuals, citing conflicts with Trump-era policies. Individuals can still pursue these cases privately.

Pregnancy Accommodation Regulations: The EEOC may not enforce regulations under the Pregnant Workers Fairness Act due to challenges focusing on the inclusion of elective abortions as “pregnancy-related conditions.” A recent court ruling has given challengers standing. The EEOC’s lack of a quorum complicates its ability to revise or withdraw the regulations.  

“Anti-American” Discrimination: The EEOC is increasing enforcement against employers who discriminate against American workers based on national origin, including staffing agencies. This initiative aims to address potential abuses of the immigration system.

Employer Action Items: Employers should closely monitor these evolving legal interpretations and enforcement priorities and review their policies and practices related to transgender employees, pregnancy accommodations, and national origin discrimination to ensure compliance with current legal interpretations and anticipate potential changes to ensure compliance.

Immigration

A number of President Trump’s new executive orders have focused on immigration, including pronouncements of intent to significantly ramp up enforcement efforts. While it remains to be seen how far-reaching these efforts will go, employers can be best prepared by ensuring their I-9 forms are fully up to date and compliant, as civil penalties for I-9violations can reach up to $2,789 per form with greater penalties of up to$5,579 for first offenses of knowingly hiring undocumented workers, which can reach up to $27,894 per worker for repeat offenders. The immigration laws also impose criminal penalties for managers or business owners found guilty of “harboring” or concealing undocumented workers.

Affirmative Action

Affirmative Action Requirements Revoked: One of President Trump’s earliest Executive Orders revoked a 1965 executive order that had been in effect for sixty years, requiring federal contractors to engage in affirmative action for women and minorities. The OFCCP – the federal office charged with administering the affirmative-action programs over the years – has been directed to cease holding contractors responsible for taking affirmative action, placing an immediate hold on those programs.

DEI Programs Targeted: The DEI/AAP order also bars the OFCCP from promoting DEI programs that involve workforce balancing based on protected characteristics. Federal agencies are instructed to require contractors to certify they do not operate such programs. The order also encourages the private sector to end “illegal discrimination and preferences, including DEI.” In response, a number of major corporations have modified or rescinded their own DEI programs, including Wal-Mart, Starbucks, Amazon, Target, and Meta (Facebook and Instagram).

Employer Action Items: Employers who have been subject to the OFCCP affirmative-action reporting requirements under Executive Order 11246 for the last sixty years are relieved of those obligations at least for now. While enforcement of those AAP requirements is therefore at least on hold if not permanently terminated, it is important for employers to remember that affirmative action never allowed for employment decisions based on protected characteristics, and nothing about these recent changes affected the non-discrimination requirements of Title VII. Additional OFCCP guidance may be forthcoming, so employers should stay tuned while continuing with other compliance obligations, such as EEO-1 and VETS-4212 filings.