The last decade has reshaped American life and culture, with a global pandemic, shifting identity concerns and changing work arrangements all lending a new appearance to work and life. With President-elect Donald Trump headed back to the White House and immigration issues front and center in the national consciousness, however, in many ways late 2024 feels like late 2016.
“We do expect that under a Trump administration […] There will be basically a closing of the border almost immediately,” Jorge Lopez, Littler Mendelson shareholder and chair of the law firm’s immigration and global mobility practice, told attendees at a pre-election webinar Littler held Oct. 30. An immediate, stricter approach to immigration is likely to affect industries like construction, hospitality and manufacturing, he said.
Lopez — along with Jim Paretti, Littler shareholder and former senior counsel to the acting chair of the U.S. Equal Employment Opportunity Commission, Michael Lotito, co-chair of Littler’s Workplace Policy Institute, and Shannon Meade, executive director of the Workplace Policy Institute — shared a range of other predictions for how President-elect Trump might act on employment issues on his first days in office.
1. Immigration enforcement raids will be back on the table.
Immigration reform will be “a priority,” Meade said.
At the worksite, a second Trump term will likely turn to “supply-side enforcement” of immigration law at the worksite, Lopez said — meaning raids, in which government officials arrive at a site with the intention of arresting undocumented workers, will likely be used again. The Biden administration, in contrast, used “demand-side enforcement,” Lopez said, characterized by focusing concern on “whether or not an employer is intentionally or unintentionally hiring undocumented workers.”
On the immigration front, there will likely be a sharp rise in I-9 audits as well, he said. There were roughly 12,000 I-9 audits during Trump’s last year in office, compared to around 400 during Biden’s last year, Lopez noted.
2. Agency chairs will be replaced.
The White House has limited control over agencies, Paretti noted, with commissioners and board members protected by cause. President Trump will be able to replace the chair, however — an action he is likely to take immediately.
“Plainly, on day one, a Trump administration would designate a new chair of the National Labor Relations Board, and that will almost surely be Marvin Kaplan, because he’ll be the only Republican member serving,” Paretti said. “Similarly, at the EEOC, they designate, presumably, Commissioner Andrea Lucas, who is the only Republican Commissioner serving on the agency at this time.”
While the leadership will likely change hands at several agencies, those chairs may still find themselves minority members on their own commissions, as at the NLRB and EEOC.
3. Regulatory activity will slow considerably.
Between the new overtime rule, the noncompete rule and the independent contractor rule — to name a few — employers have been met with a flurry of activity at the NLRB, EEOC and U.S. Department of Labor over the past year. While not all proposed rules have been successful at the courts, agencies have in some cases continued to push through challenges and court decisions.
“I think the first thing the Trump administration does is dismiss the appeal and withdraw the appeal,” Paretti said of pending challenges. “We’ve seen that happen in other transitions — notably, and that’s why I think it’s worth noting for the record, two significant Biden regulations, both the white collar overtime and independent contractor status, sought to repeal and replace rules that the Trump administration itself had issued.”
Paretti noted specifically that under an EEOC Chair Lucas, some of the less popular Pregnant Workers Fairness Act regulations could potentially be clawed back. “She was not quiet about her dissatisfaction or concern with the final regulations that the EEOC issued,” he said.
4. Limitations on DEI could be put in place.
DEI is an area where there will be a major shift under a second Trump term, Paretti said.
“We saw during the [first] Trump administration an executive order that sought to ban or limit certain concepts in diversity and inclusion trainings. […] That was repealed by the Biden administration. That executive order was subject to challenge in court,” he said. “But I would say in the intervening years, certainly on the Republican side, there has not been a lessening of interest here or anything. It’s sort of been drummed up a little bit more.”
An EEOC under Trump will likely take a “more narrow view of what’s permissible under DEI initiatives,” Paretti said, pointing again to public comments from Lucas on how certain programs may run afoul of Title VII of the Civil Rights Act.
“I think DEI in a Republican administration is going to be under a lot more scrutiny, a lot more limitations, by way of the government power of the purse,” he said.
