Employment

The Trump Administration issued its latest Executive Order entitled Restoring Equality of Opportunity and Meritocracy (the “EO”) on April 23, 2025.  The EO focuses on “disparate impact” discrimination and is the latest in a string of orders impacting the workplace – the effects of which American workplaces are still digesting.

As summarized in detail here, President Trump’s recent executive order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”) takes aim at non-compliant Diversity, Equity and Inclusion (“DEI”) programs in both the public and private sectors.  With the prospect of “civil compliance investigations” and other actions, the Order is a warning to private employers that have allegedly “adopted and actively use[d] dangerous, demeaning, and immoral race-and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.” Many private employers have struggled with how to respond to the Order, particularly given the Order’s vagueness and contradictory state and local laws.  One of the questions that has emerged is how the Order impacts employers’ commercial free speech rights given the U.S. Supreme Court’s view that such rights are critical to the “uninhibited marketplace of ideas[.]” 

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) released joint “technical assistance documents” (i.e., non-binding interpretive guidelines for enforcement agents) which identify specific diversity, equity, and inclusion (“DEI”) practices that those agencies may consider “illegal” and “discriminatory.” 

As part of the Trump Administration’s significant efforts to roll back the Biden Administration’s policies, the Acting General Counsel of the National Labor Relations Board (the “NLRB”)  recently rescinded, via Memorandum GC 25-05, more than 30 Biden Administration memoranda.  Chief among the rescinded memoranda is the NLRB’s 2023 guidance regarding non-disparagement and confidentiality provisions included within non-managerial employees’ severance agreements, which followed the NLRB’s February 21, 2023 decision in McLaren Macomb. 

As of this writing, the Trump administration has implemented a 25% tariff on most Canadian goods imported into the United States. Canadian governments at all levels are preparing relief programs for local businesses, but these may not mitigate the potentially material adverse effects on the Canadian economy. Canadian employers may be faced with difficult decisions respecting personnel, including changing employment terms and conditions, temporary layoffs, and reductions in force. Here are some important legal concepts for employers to keep in mind when navigating these challenges.

President Trump’s executive orders aimed at Diversity, Equity and Inclusion (DEI) programs and policies, including the executive order titled “Ending Illegal Discrimination and Restoring Merit Based Opportunity” (Executive Order 14173), are impacting the way publicly traded companies approach their DEI-related disclosures.  Although enforcement of the executive orders was recently temporarily halted (as we wrote about here), as calendar year end public companies begin to file their Form 10-K Annual Reports for the fiscal year ended December 31, 2024, we have seen, and expect to continue to see, a shift in new DEI disclosures as compared to prior years.  Companies are paying consideration to whether they want to include such disclosures, how comprehensive such disclosures should be, and what language should be employed to strike an appropriate balance.  

President Donald Trump has swiftly signed several immigration-related executive orders and implemented other immigration initiatives since his inauguration.  These executive orders and policy changes have the stated intent to further the President’s policy objectives of deploying “the largest domestic deportation operation in American history” and targeting undocumented immigrants.  Their reach is vast and varied, including pausing refugee resettlement to those who had been vetted and approved; ending humanitarian parole that had temporarily allowed over 500,000 migrants from Cuba, Haiti, Venezuela and Nicaragua to enter and work in the U.S.; and launching efforts to find, apprehend and remove millions of unauthorized immigrants.  However, their impact extends beyond these groups and have significant implications in the workplace.  Employers need to prepare and establish practices and procedures to prepare for government raids, enforcement actions, regulatory changes and compliance challenges. 

A federal district court in Maryland has temporarily enjoined enforcement of several key aspects of two recent DEI-related executive orders from the Trump Administration – Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) and Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity, discussed further here) (together, the “Executive Orders”). In this post, we briefly summarize the court’s decision and outline the implications for employers. 

President Trump’s executive order entitled Removing Barriers to American Leadership in Artificial Intelligence (the “Trump AI Order”) seeks to create “a path for the United States to act decisively to retain global leadership in artificial intelligence.”  The Trump AI Order purports to “revoke[] certain existing AI policies and directives that act as barriers to AI innovation,” although it does not shed light on any specific policies and directives that are revoked by virtue of the order.  The Trump AI Order also comes in the wake of President Trump’s earlier Executive Order revoking several Biden-era orders, most notably including President Biden’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the “Biden AI Order”), which had directed federal agencies to undertake various initiatives and studies regarding the uses, benefits, and potential pitfalls of AI.  While the Trump AI Order broadly impacts AI-policy on multiple levels, this advisory focuses on its impact on the U.S. workforce.    

As we previously summarized, President Trump recently issued a number of wide-ranging executive orders intended to transform the social and regulatory landscape, including in the workplace.  One of the most comprehensive of these executive orders is entitled: Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government (the “Order”).  The Order takes aim at what it terms “gender ideology,” makes clear that the federal government will recognize only male and female biological sexes (not gender or gender identity), and directs the federal government to “enforce all sex-protective laws to promote this reality” by creating and implementing the Order’s strict definitions.  While the Order is overtly targeted at erasing policies, practices, and procedures that acknowledge or support gender identity or transgender individuals across the federal government, its reach goes beyond the public sector and has broad implications for private employers as well.   

Section 3 of President Trump’s Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” addresses the federal contracting process and revokes Executive Order, EO 11246, a long-standing order that imposed affirmative action requirements on federal contractors and recipients of federal grants. This post covers the impact of EO 11246’s revocation.

On January 23, 2025, a coalition of Attorneys General from ten states, led by AG Ken Paxton of Texas, penned a letter to six major U.S. financial institutions, warning that their embrace of “race-and-sex-based quotas” and investment decisions made “in the furtherance of political agendas” might run violate of federal and state laws. AG Paxton invited these firms to answer a series of questions regarding their policies, but nevertheless reserved the right to take “enforcement actions to vindicate federal or State laws.” This letter comes on the heels of President Trump’s recent executive orders including one entitled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”, which we wrote about previously here. What does the letter say, and what, if anything, should other companies do in response? We explore these questions and offer some guidance about them below.

In a flurry activity, President Trump dismissed the General Counsel for the Equal Employment Opportunity Commission (EEOC), the General Counsel for the National Labor Relations Board (NLRB), and the initial acting General Counsel of the NLRB who temporarily filled in the General Counsel role.  President Trump also removed a Biden-appointed NLRB Board member and two Biden-appointed EEOC Commissioners.  These actions are likely to disrupt operations at these agencies, including with respect to any ongoing formal matters and in the dissemination of general guidance and oversight they provide. 

In the wake of President Trump’s “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” Executive Order (the “Executive Order”) (discussed further here), many companies are in the process of revisiting their existing diversity, equity, and inclusion (“DEI”) programs and initiatives to reconfirm their legal viability. Close examination of the Executive Order reveals that the Administration hopes to rely on the False Claims Act (“FCA”) as another statutory weapon aimed at eliminating what it perceives as a scourge of “illegal,” “demean[ing],” and “immoral” DEI programs. The False Claims Act, 31 U.S.C. §3729, is a whistleblower statute intended to prevent companies from defrauding the government. Its inclusion in the Executive Order opens federal contractors and federal grant recipients to the possibility of substantial criminal and/or civil liability where they operate DEI programs deemed to violate the law. We discuss the FCA and its impact under the Executive Order more below.

Pay transparency laws have taken the country by storm over the last few years, and 5 additional states (Illinois, Minnesota, Massachusetts, New Jersey, and Vermont) have debuted or will debut their own versions in 2025.  These laws aim to close discriminatory-based pay gaps.  This shared goal, however, is one of the only similarities in the now-15 state-specific laws promoting pay transparency.  Among other differences, there are myriad differences among the laws’ employee coverage thresholds, job posting requirements, and remedies, meaning employers must remain hyper-aware of any compliance obligations – some of which may be triggered by merely advertising a remote position that could feasibly be performed in states where the employer does not otherwise have a physical presence.  

Shortly before the Trump Administration started, the U.S. Department of Labor (DOL) issued an opinion letter clarifying the “substitution” provision under the federal Family and Medical Leave Act (FMLA) when it intersects with a state or local paid family and medical leave program.

A recent Ontario Court of Appeal (“ONCA”) decision signals a pressing need for Canadian employers to review and consider updating their contractual termination of employment provisions. Otherwise, employers are at risk of incurring higher than expected liabilities.

The United States Supreme Court recently held in E.M.D. Sales, Inc. v. Carrera that the “preponderance of the evidence” burden of proof applies in determining whether an employee is exempt under the federal Fair Labor Standards Act (FLSA).  In issuing its unanimous opinion, the Supreme Court rejected the employee’s argument that the higher “clear and convincing” evidence standard should apply.

President Trump has issued a flurry of wide-ranging executive orders intended to shake up the employment landscape.  One of those orders, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Executive Order”), takes aim at non-compliant DEI programs and policies.  It also creates a momentous change in the federal contractor landscape by revoking Executive Order 11246, which has, for the past sixty years, served as the foundation for non-discrimination and affirmative action requirements in the federal contracting space.  Although the Executive Order’s mandates are vague in many places and raise more questions than they answer, at bottom, the Executive Order appears designed to attempt to effectively stamp out DEI programs and policies in the federal workforce, while putting private sector employers on notice and pushing them to proactively modify, narrow or even end their DEI initiatives.  But as we’ll discuss more below, these developments do not compel private employers to rescind their DEI programs and policies entirely; instead, employers should use the Executive Order as an opportunity to review their existing programs and policies to ensure that they (i) continue to align with their mission and organizational goals, (ii) are legally compliant in light of the change in administration, and (iii) whether subsequently modified or not, thereafter are effectively communicated to stakeholders. 

The most recent amendment to New York’s Workers’ Compensation Law, which went into effect on January 1, 2025, permits any employee to seek workers’ compensation benefits when they experience a “mental injury premised upon extraordinary work-related stress incurred at work.”