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[.]” 

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.   

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. 

Many employers experienced whiplash in 2023 from the flurry of judicial, administrative and legislative activity aimed at restricting the use of employee non-competition, non-solicitation, and non-disclosure agreements. Can you still require your employees to sign a non-compete agreement? What about requiring your employees to assign their inventions to your business? What updates to your agreement templates are required to ensure compliance with the latest changes in your jurisdiction? We summarize the relevant legal changes below, forecast what employers can expect in 2024 (spoiler alert – expect even more change), and offer practical tips for how best to comply in the ever-changing landscape of employee restrictive covenants.

Mintz’s pro bono work for The Food Project, a nonprofit focused on youth development and reducing food insecurity, has included advising the organization on governance, real estate, employment, privacy, and litigation matters.