Takeaways
- President Trump issued a record-breaking number of executive orders in his first 100 days, many of which significantly impact labor and employment law.
- New DEI-related executive orders require employers—particularly federal contractors—to certify compliance with anti-discrimination laws and may trigger increased scrutiny of hiring practices.
- Federal agencies are moving away from the "disparate impact" theory of liability, signaling potential shifts in how employment discrimination cases are litigated and defended.
- Leadership changes at the EEOC and NLRB have left both agencies without quorums, limiting their ability to enact new rules or pursue major litigation.
On November 5, 2024, President Donald J. Trump achieved something that many did not think possible when he was elected to a second, non-consecutive term to be the President of the United States. In his campaign, President Trump promised to reshape the federal government and aggressively influence and change many areas of law with executive action. Subsequently, President Trump has issued a flurry of executive orders ("EOs") that cover a multitude of legal, administrative, and other areas of law. One area in which the EOs have had a direct impact is in the labor and employment field.
Since President Trump took his second oath of office, he signed and implemented more than 140 EOs in the first 100 days of his presidency—a number that eclipses all previous records, including former President Franklin Delano Roosevelt's record of 99 EOs in the first 100 days set in 1933. Many of President Trump's EOs are still in effect, while other of these second-term EOs are facing numerous challenges in the U.S. federal court system.
Below is a summary of the most impactful EOs issued during President Trump's first 100 days in office related to labor and employment law, along with a brief analysis on how they may impact private employers, companies, and individual workers in the employment sphere. All private employers and their human resource teams should familiarize themselves with these changes to ensure compliance with applicable federal laws, in addition to any additional U.S. local or state laws.
Diversity, Equity, and Inclusion
EO 14173: "Ending Illegal Discrimination and Restoring Merit-Based Opportunity"
On January 21, 2025, President Trump signed Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which focuses on ending illegal discrimination and reinstating merit-based opportunities in both the public and private sectors in relation to diversity, equity, and inclusion ("DEI"). EO 14173 states that "[i]llegal DEI and DEIA policies also threaten the safety of American men, women, and children across the Nation by diminishing the importance of individual merit, aptitude, hard work, and determination when selecting people for jobs and services in key sectors of American society..." EO 14173 further states that employers, the federal government, and other institutions (i.e., college and universities) have "adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called 'diversity, equity, and inclusion.'" The order also rescinded a number of President Biden's previous EOs, but it does not affect existing laws. For example, Title VII of the 1964 Civil Rights Act, as amended ("Title VII"), which, along with other federal and state laws that prohibit discrimination, is still in place and enforced.
In essence, President Trump is directing executive departments and agencies to terminate discriminatory and illegal preferences, regulations, mandates, policies/programs/guidance, enforcement actions, or other requirements, with particular focus on ensuring that any DEI in employers' policies must comply with federal equal employment opportunity laws. The order further mandates that federal contract and grant recipients must comply with all federal anti-discrimination laws and to also certify that they do not have any diversity, equity, or inclusion programs that violate these laws.
A majority of the EO is still in effect, however, on February 21, 2025, a judge in the U.S. District Court for the District of Maryland issued a nationwide preliminary injunction in Nat'l Ass'n of Diversity Officers in Higher Education v. Trump, enjoining the Trump Administration from implementing three provisions of EO 14151 as unconstitutional under the First and Fifth Amendments. While the injunction temporarily bars the enforcement of these provisions, the court did not enjoin the U.S. attorney general from pursuing enforcement actions against individual companies for their DEI programs. On February 24, 2025, the Trump administration appealed the court's temporary injunction with the United States Court of Appeals for the Fourth Circuit, meaning final resolution on the order is still within the appellate process.
Further, on April 14, 2025, a judge in the U.S. District Court for the Northern District of Illinois also issued a nationwide preliminary injunction enjoining the Trump Administration from enforcing portions of two provisions related to the certification and termination clauses included in EO 14173, and in Wasteful Government DEI Programs and Preferencing, Executive Order 14151 as unconstitutional under the First and Fifth Amendments, the court enjoined the Trump Administration from (i) enforcing the provision in EO 14173 requiring federal contractors and grantees to certify that they do not operate "illegal" DEI programs which violate federal anti-discrimination laws, and (ii) terminating an "equity-related" federal grant issued to the plaintiff. It is anticipated that the Trump administration may appeal the court's temporary injunction ruling to the United States Court of Appeals for the Seventh Circuit.1
While the direct impact of the EO on private employers is still not currently known, it is likely that private companies will be impacted in some way. For example, given existing law, there are several practices of private employers that could be at risk depending on how an employer implements and enforces their policies. As such, employers should avoid for example: (i) setting quotas or targets for specific demographics for its workforce; (ii) showing any preference hiring individuals based on their demographics; and/or (iii) making hiring or employment decisions based in whole or in part on an applicant or employee's protected characteristics.
If employers have not done so already, they should also consider reviewing and revising any DEI policies and employment practices, implementing training programs for human resource professionals and leadership on lawful practices, and auditing employment decisions regularly to confirm they are based upon objective, job-related criteria rather than demographic considerations. The focus of any review should be on identifying any elements that could implicate unlawful, demographic-based preferences or exclude any individuals based on protected categories. Employers should also make sure that employment decisions are not influenced by external preferences (clients, customers, or business partners), as blaming a third party is not a valid defense under Title VII.
For a further detailed analysis of this executive order and its relation to Trump's DEI rollbacks, please visit our Dykema employment group blog post, which summarizes this particular EO in further detail here.
EO 14281: "Restoring Equality of Opportunity and Meritocracy"
On April 23, 2025, President Trump signed Executive Order 14173, which instructs federal agencies to cease their use of the disparate impact theory of liability in federal civil rights laws, which includes Title VII for employment discrimination and discrimination in education. For those not familiar, disparate impact is a theory of legal liability that a party can use to prove a violation of civil rights law. It essentially prohibits an employer from using a facially neutral practice (for example, screening job candidates) that has a disproportionately adverse effect on a protected class of individuals.
In practice, this EO means that federal agencies are unlikely to initiate investigations or enforcement actions relying on disparate-impact theories. Additionally, federal agencies may be inclined to close or dismiss any pending actions where the underlying legal theory seeks to prove disparate-impact liability. The order also gave federal agencies the ability to repeal or amend their regulations recognizing disparate-impact liability (i.e., Equal Employment Opportunity Commission ("EEOC") or U.S. Department of Labor guidelines).
While this EO neither directly impacts private employers and private plaintiffs nor immediately affects existing disparate-impact case law, it could lead to a reconsideration of precedents upholding disparate-impact theories of liability, meaning current law could be overturned or reversed in the near future by the U.S. Supreme Court if challenged. Employers, especially those involved in frequent employment litigation, should monitor these changes as they may impact how a plaintiff must prove their discrimination case or provide new or revised defenses available to an employer in a lawsuit.
Immigration
EO: 14287: "Protecting American Communities from Criminal Aliens" and EO: 14288: "Strengthening and "Unleashing America's Law Enforcement to Pursue Criminals and Protect Innocent Citizens"
On April 28, 2025, President Trump signed two EOs related to immigration, one related to "sanctuary cities" titled "Protecting American Communities from Criminal Aliens," and another to promote executive policing titled "Unleashing America's Law Enforcement to Pursue Criminals and Protect Innocent Citizens."
The first immigration EO relates directly to "sanctuary cities," and directs the U.S. Attorney General and U.S. Secretary of Homeland Security to identify U.S. states and cities that are obstructing federal immigration enforcement, including implementing laws or rules that give preference to foreign-born persons at the expense of U.S. citizens. If a state or city obstructs such enforcement, the U.S. federal government can and will withhold federal funding from those jurisdictions as a consequence.
The second immigration EO emphasizes that the federal government has the authority to enforce immigration, national security, and foreign policy, including public safety and national security at U.S. border crossings. Similar to the order above, this EO directs the U.S. Attorney General and the Secretary of Homeland Security to identify states and local jurisdictions that obstruct federal immigration law enforcement. Again, if the state or city obstructs such enforcement, the U.S. federal government can and will withhold federal funding from those jurisdictions.
Why is this relevant to private employers? Any employers and businesses in "sanctuary areas" or "sanctuary cities" may see (and may already have seen) an increase in federal government oversight of their business and hiring activities to ensure compliance with federal immigration laws. There has already been a significant increase in Form I-9 audits conducted by the U.S. Immigration and Customs Enforcement agency with private employers. The U.S. government likely will continue to be aggressive in the enforcement of federal immigration laws. Employers should consider conducting audits of their applicable immigration policies and documentation intake. For example, revising employee handbook policies related to Form I-9 documentation and onboarding, while also confirming they are following any applicable laws related to the renewal of employee visas.
The National Labor Relations Board
On his second inauguration day, President Trump designated Marvin Kaplan, the sole sitting Republican member of the National Labor Relations Board ("NLRB"), as chair of the NLRB. At that time, the NLRB had two other members: Gwynne Wilcox, a Democrat (who had previously served as chair of the NLRB), and Democrat David Prouty. Shortly thereafter, President Trump terminated Wilcox's NLRB term prior to its scheduled expiration. Under current law, the National Labor Relations Act states that an NLRB board member can only be removed for neglect of duty or malfeasance. Wilcox challenged her termination, and while she was originally reinstated by a district court judge for the remainder of her term, the U.S. Supreme Court later issued an order reversing that injunction. So while Wilcox continues to litigate her removal, for the time being, she remains removed from the Board.
President Trump also removed former NLRB General Counsel Jennifer Abruzzo from her NLRB position. In the previous election cycle, President Biden removed the then-sitting Republican General Counsel on his first day in office, which was subsequently upheld by the U.S. Court of Appeals. As such, no legal challenge to Abruzzo's removal is expected. Former NLRB board member Bill Cowan now serves as the acting NLRB general counsel and has since rescinded almost all of Abruzzo's Biden-era policy memoranda and objections, including memoranda related to (i) excessive remedies against employers in unfair labor practice charges, (ii) non-disparagement and confidentiality provisions in settlement and severance agreements, (iii) prohibition of certain types of noncompete and non solicitation agreements, and (iv) the definition of protected and concerted activity.
The biggest impact of these changes to private employers is that the NLRB now lacks a quorum, which means the NLRB is limited in its ability to issue decisions or rules, or otherwise attempt to reverse Biden-era policies, unless and until it has a majority. However, workers can still file for union elections at their regional NLRB offices, and NLRB staff can conduct and certify union representation votes. The change at the NLRB will not significantly impact private employers from a daily employee or labor relations perspective; should an employer violate federal labor law, the regional NLRB offices will continue to demand investigations and documentation. Employers will be held to account for those decisions.
Employers generally appear to be eager for President Trump and a majority Republican NLRB to change current law and implement employer-friendly policies and regulations.
The Equal Employment Opportunity Commission
On Inauguration Day, President Trump also named then-Commissioner Andrea Lucas, a Republican, as Acting Chair of the EEOC. Shortly thereafter, President Trump removed two of the three Democratic commissioners, leaving the EEOC without a quorum, similar to the NLRB. This is unprecedented. No sitting EEOC commissioner has ever been removed from the EEOC prior to expiration of their five-year term. At least one of the removed commissioners has challenged her dismissal in federal court.
The biggest impact of these changes to private employers is that the EEOC also now lacks a quorum. In the absence of a quorum, the EEOC cannot move forward on any significant policy changes either by implementing new policies or by repealing policies of the prior administration, unless and until successors are confirmed. It also limits the agency's ability to commence high-stakes or high-profile litigation, although routine litigation may still be commenced without commission approval. Acting EEOC chair Andrea Lucas has so far followed through on her proposed initiative to root "out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women's rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement." Further implementation of Lucas' stated initiatives is expected.
President Trump also issued EO 14168 titled, "Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government," on his first day in office, which aims to "defend women from gender ideology extremism." The EO specifically states that it the policy of the United States to recognize only two sexes—male and female—and defines "sex" as each "individual's immutable biological classification as either male or female," and calls for eradicating "gender ideology," which, according to the order, "includes the idea that there is a vast spectrum of genders that are disconnected from one's sex." Trump's EO also requires all federal agencies and employees to "enforce laws governing sex-based rights, protections, opportunities, and accommodations to men and women as biologically distinct sexes." It further directs federal agencies to "remove all statements, policies, regulations, forms, or other internal and external messages that promote or otherwise inculcate gender ideology" and to "cease issuing such statements, policies, regulations, forms, communications, or other messages.
On January 31, 2025, the EEOC advised that all charges alleging discrimination on the basis of sexual orientation or gender identity would be sent to national headquarters for review to ensure that they "comply with applicable executive orders to the fullest extent possible." However, the EEOC also indicated that with respect to pending charges it will issue a notice of right to sue if asked to by a charging party "as statutorily required." New EEOC chair Andrea Lucas also has proposed to rescind and revise anti-harassment and other guidance relating to gender identity and sexual orientation that are in conflict with these EOs.
Finally, the EEOC (under Trump) also issued two question-and-answer documents, which could be helpful to employers. The documents state that Title VII does not provide any exception for DEI or "diversity interests" in prohibiting discrimination based on race, sex, or other protected category, and a general business interest in diversity or equity is insufficient to support any employment decision being made in whole or in part on the basis of a protected characteristic. One Q&A document includes examples of what an employer should do if any employee experiences discrimination related to DEI at work. The other Q&A document includes various examples of what the EEOC views as potential actionable discrimination if an employer takes into account an employee or applicant's race, sex, or another protected category in an employment-related decision. More guidance and documentation are expected from the EEOC in Trump's second term; however, the initial guidance should provide a preview of what further changes will be implemented.
Miscellaneous EOs Related to Labor and Employment
EO 14286: "Enforcing Commonsense Rules of the Road for America's Truck Drivers"
On April 28, 2025, President Trump enacted an EO titled, "Enforcing Commonsense Rules of the Road for America's Truck Drivers." This EO mandates proficiency of the English language (which President Trump designated as the United States official national language in Executive Order 14224), for all commercial motor vehicle drivers and mandates that truck drivers "should be able to read and understand traffic signs, communicate with traffic safety, border patrol, agricultural checkpoints, and cargo weight-limit station officers." The order further stated that within 60 days of this EO, the U.S. Secretary of Transportation will issue new guidance to "ensure criteria are revised such that a violation of the English language proficiency requirement results in the driver being placed out-of-service."
Current federal law provides that a commercial motor vehicle driver must be able to "read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records." 49 C.F.R. § 391.11(b)(2). This law has previously been interpreted by the Federal Motor Carrier Safety Administration as to not require drivers found in violation of the rule to be taken out of service. This will not be the case under the new Trump EO, as drivers found in violation will be removed from the road. Moreover, certain states (such as Arkansas) have laws that require English proficiency for drivers of commercial motor vehicles. Those states issue stiff penalties for drivers/employers who are not in compliance. Tennessee and New Hampshire have bills pending that seek to implement similar English-only written driver's license exams, and which prohibit the use of any translation devices or an interpreter.
If you are a trucking or logistics company/employer, you should prepare for the implementation of the order by ensuring that truck or other drivers are able to read and understand traffic signs, communicate with traffic safety, border patrol, agricultural checkpoints, and cargo weight-limit station officers. This may result in increased costs to employers related to training and compliance. For example, employers may have to invest in English language training for current and prospective employees to retain talent and ensure compliance.
EO 14284: "Strengthening Probationary Periods in the Federal Service"
On April 24, 2025, President Trump enacted an EO titled, "Strengthening Probationary Periods in the Federal Service." The EO establishes "Civil Service Rule XI," which requires federal agencies to actively certify that a probationary employee's continued employment would advance the public interest. Under this EO, probationary employees would be automatically terminated without certification from their agency. Prior to this EO, probationary employees could only be removed for issues related to performance or conduct and would otherwise automatically transfer out of their probationary status once their probationary period ended. The order also now allows an agency to "affirmatively determine that the continued employment of individuals serving probationary, or trial periods would benefit the Federal service before such appointments are finalized."
While the EO does not appear to have direct impact on private employers, there may be a ripple effect on employment hiring and retention standards. For example, with the order, federal agencies may become more cautious of an employee during the probationary period, potentially raising performance expectations to ensure only high-performing employees are retained. Moreover, agencies will also have to consider equity and bias concerns, as without a standardized criterion, the "affirmative determination" requirement could lead to uneven outcomes, with bias (implicit or otherwise) potentially influencing decisions. While public federal agencies are the target of this order, private employers should also review and consider their hiring practices and policies in case such restrictions are further brought into the private employment sphere. Most private, non-union employees are at-will (excluding those with employment agreements, for example), but similar issues related to retention and potential lawsuits are always prevalent in the private employment sector.
EO 14225: "Immediate Expansion of American Timber Production"
On March 1, 2025, President Trump enacted an EO 14225 titled, "Immediate Expansion of American Timber Production." This EO directs the U.S. Secretary of the Interior and Agriculture to issue new guidance to bolster timber production and advance forest management policy. The order revises federal policies to increase domestic timber production, arguing that existing policies have hindered domestic timber production, leading to reliance on foreign imports. The order also emphasizes the importance of timber production for the nation's well-being and economic security.
With this order, the Trump administration plans to streamline forest project approvals and to enhance domestic timber production, create jobs, and improve forest management to prevent wildfires. The EO will impact the U.S. job market for those employers engaged in timber, forest, and wildlife products. The EO is expected to increase job creation in logging and milling and provide a boost for rural and resource-based economies. As such, President Trump hopes that many areas with high unemployment or economic stagnation could see a resurgence in job opportunities, increasing local wages, and economic activity. Employer industries related to timber and wood production, such as trucking and logistics, home and commercial housing building, and more, could also be impacted by the EO. Employers in these areas should expect increased production and compliance requirements under both employment and regulatory laws.
Footnote
1. Other cases involving various challenges to EO 14173 in U.S. District Courts include: S.F. AIDS Found. v. Trump, No. 25 C 1824 (N.D. Cal.); Nat'l Ass'n of Diversity Offs. in Higher Educ. v. Trump, F. Supp. 3d, No. 25 C 333 ABA, 2025 WL 573764 (D. Md. Feb. 21, 2025);and Nat'l Urban League v. Trump, No. 25 C 471 (D.D.C.).
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