One Month into the New Administration, Employers Have a Lot to Think About

This past week marked the one-month anniversary of the new Trump Administration, and there have been many developments — including in just the past week — to which employers need to pay attention.

• Secretary of Homeland Security revokes Temporary Protective Status (TPS) for Haitians and certain Venezuelans. The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country’s that temporarily prevent the country’s nationals from returning safely. Currently, 17 countries have been granted TPS. Those granted TPS are entitled to work authorization (“EAD”). On February 1, 2025, Secretary of Homeland Security Kristi Noem decided to terminate TPS under the 2023 designation for Venezuela. If the termination stands, on April 7, 2025, a certain category of Venezuelans (approximately 350,000 people) previously granted TPS will lose status to remain in the U.S. And, on February 20, 2025, Secretary Noem revoked TPS for Haitian nationals (approximately 500,000 people) effective August 3, 2025. Unless revoked or blocked through court litigation, on the above dates, Venezuelans and Haitians here on TPS will lose their work authorization. Any employer who continues to employ a worker without valid work authorization can be subject to civil and criminal prosecution. It is possible workers from these two countries may have other legitimate bases, such a pending asylum petition, to remain in the country and remain employed. Employers who employ foreign nationals from these two countries should review each employee’s situation and determine strategies and/or options to keep them lawfully employed. In addition, employers should review their employees on TPS designation and stay vigilant other revocations in the weeks and months to come.
• NLRB’s Acting General Counsel Revokes Certain Memos Issued by his Predecessor. On February 14, 2025, National Labor Relation Board (NLRB or “Board”) Acting General Counsel William B. Cowen issued a memo revoking various memos issued over the past three years by then NLRB General Counsel Jennifer Abruzzo, whom President Trump fired shortly after taking office. The general counsel (GC) of the NLRB supervises the regional offices and plays a key role in directing enforcement and persuading the NLRB members on policy issues. Of the many memos rescinded were the prior memos calling for “full relief” (including various types of compensatory damages and not just back pay when violations were found) as well as a memo suggesting noncompetes violate workers’ rights and guidance about the NLRB’s decision Cemex Construction Materials Pacific, LLC, which made it more difficult for employers to avoid representation elections. The revocation of the prior memos indicates an immediate and dramatic shift away from the pro-employee and union positions of the prior GC and Board under the Biden Administration.
• President Trump Issues Executive Order requiring Independent Regulatory Agencies to Submit to Presidential Oversight. On February 18, 2025, President Trump issued an executive order entitled “Ensuring Accountability for All Agencies.” This order requires so-called independent agencies, such as the NLRB and perhaps the EEOC as well, to submit to more oversight from the White House on budgetary and regulatory matters and limits the legal positions they can take. Should this executive order stand the legal challenges that are likely to come, the president will be able to directly influence policy and enforcement activities more directly at these employment enforcement agencies.
• Acting EEOC Chair Seeks to Protect Workers From Anti-American Bias. Signaling another dramatic shift in enforcement priorities at an employment related government agency, on February 19, 2025, U.S. Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas announced “The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop. The law applies to you, and you are not above the law. The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.”
• EEOC’s Final Rule Under the Pregnant Workers Fairness Act Under Attack. Acting Chair Lucas also issued a statement describing her opposition to certain parts of the Commission’s Final Rule implementing the Pregnant Workers Fairness Act (PWFA). The acting chair does not agree with the Commission’s interpretation of the phrase “pregnancy, childbirth, or related medical conditions” and the contrivances the Commission used to arrive at its construction of the statute. Related to this, on Thursday February 20, 2025, the Eighth Circuit Court of Appeals issued a decision holding that attorneys general from 17 Republican-majority states have the right to sue the EEOC over the same PWFA rule, reviving their challenge to abortion-related components of the regulations.

Currently, both the NLRB and EEOC lack a sufficient quorum to enact any changes since President Trump fired members from both those agencies. It is clear that the Trump Administration will be issuing many more changes in enforcement strategy and implementing policies that will be directly affecting employers. Stay tuned!