With the recent restrictions on Diversity, Equity and Inclusion (DEI), a heightened focus on I-9 Worker Eligibility requirements, and the enaction of multiple state and local leave laws it is now more important than ever for companies to ensure that their policies and procedures are in line with the current laws governing their business.
From a DEI standpoint, President Donald Trump has revoked Executive Order 11246, a long-standing order that established antidiscrimination requirements for federal contractors and subcontractors. This action shifted the focus from evaluating employment decisions on the basis of achieving diversity or “placement” goals to prioritizing merit, first and foremost. One of the explicit ramifications of this order includes the rescission of federal government contractors’ requirement to maintain and annually certify Affirmative Action Plans (AAP). Although the Executive Order revokes the AAP for women and minorities, the requirement to develop and maintain an AAP for protected veterans and individuals with disabilities still remains. Now, rather than reporting on efforts to expand recruiting to attract and employ women and minorities, federal government contractors instead must certify that they do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws. While the Executive Order mainly targets federal agencies and federal government contractors, the EO has the potential to indirectly impact private employers.
On a broader scale, its counterpart, EO 14173, encourages both private and public employers to focus on inclusion over previously commonplace Diversity, Equity, and Inclusion (DEI) and related programs, policies, and procedures. While EO 14173 has the force of law, it does not revoke or prohibit Title VII of the Civil Rights Act, state anti-discrimination laws, accommodations under the Americans with Disabilities Act (ADA), the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRA), or related laws. The Equal Employment Opportunity (EEO-1) data collection and the Veterans’ 4212 reporting requirements also still remain intact.
To date, five (5) states have filed lawsuits challenging the constitutionality of the recent EO. In Maryland, a nationwide preliminary injunction against the President’s Order was paused by the Fourth Circuit Court of Appeals. In Illinois, the District Court granted a preliminary injunction against the Department of Labor, which has had far greater implications. This injunction prohibits the Department of Labor’s (DOL’s) certification requirement of federal contractors to attest that they refrain from operating DEI-related programs in violation of Federal anti-discrimination laws. Employers should remain attuned to the outcomes of the pending state proceedings, as they will serve to provide further guidance and clarification regarding the Order.
Other areas of development in employment law under the Trump administration include a heightened focus on immigration enforcement and employment authorization. Currently, nine (9) states have laws that require employers to utilize E-Verify to electronically validate an individual’s authorization to work in the US (often referred to as Form I-9). In response to the speculation regarding the increase of Immigration & Customs Enforcement (ICE) I-9 audits and raids, 12 other states have proposed legislation that would require employers to utilize E-Verify. Another focus of the current administration involves unlawful bias against American workers. The Equal Employment Opportunity Commission (EEOC) recently announced that it will be shifting its focus from ensuring the fair treatment of historically marginalized groups (illegal aliens, migrant workers, visa holders, or other legal immigrants) throughout employment to preventing anti-American bias.
From a leave perspective, it is imperative that employers regularly monitor state and local laws for compliance where employees work. For example, a company headquartered in Maryland with employees working remotely in California and the District of Columbia must comply with the employment laws of those states in addition to the federal requirements. There are also approximately 15 states that currently require paid sick and safe leave, and many counties have additional paid leave requirements. Several states have also enacted family and medical leave act requirements that differ from the federal Family and Medical Leave Act (FMLA).
One of the best ways to ensure compliance with the myriad of leave laws, the current DEI restrictions, and heightened focus on I-9 worker eligibility requirements is to review and update your company’s employee handbook and/or conduct an HR compliance audit on your company’s internal HR policies and procedures. Please contact a FosterThomas advisor today if you have any questions or if you are interested in our handbook update and HR Compliance Audit services.
Credible Source Links:
Congress.gov summary: https://shorturl.at/gxzAL
SHRM – Adjust DEI Initiatives: https://shorturl.at/fvBLM
SHRM – EEOC & Anti-American Bias: https://shorturl.at/jEKR6
JD Supra – DEI Legal Update: https://shorturl.at/wFKY7