A change of presidents always brings some uncertainty with it, even if the incoming president—like Donald Trump—has been in the Oval Office before. What’s certain is that there will be changes that impact the workplace. These will not only involve immigration, legal experts say, but could also pertain to overtime, labor relations, and even paid family leave.
Trump’s first term holds clues as to what lies ahead. Many expect Trump’s second term will reverse course on many of the priorities of Presidente Joe Biden’s administration.
Workplace Immigration
Expect to see the next administration implement returns to the policy priorities and approaches of Trump’s first term, says Leon Rodriguez, an attorney with Seyfarth in Washington, D.C., who served as director of U.S. Citizenship and Immigration Services (USCIS) under President Barack Obama.
“This time, [Trump’s team] will come into office with the benefit of prior governing experience and with a greater emphasis on recruiting loyal political appointees,” he says. “As they have already promised, they will return to a focus on interior immigration enforcement, perhaps with intensified workplace enforcement and a broadening of categories of individuals prioritized for deportation.”
The construction, agriculture, hospitality, and manufacturing industries will be most impacted.” —Jorge Lopez
A second Trump administration will be a continuation of many of the policies from the first go-around, agrees Patrick Shen, an attorney with Fragomen in Washington, D.C.
“Extreme vetting” will make a comeback, with increased interview requirements and higher scrutiny of visa applications before USCIS decides the outcome of a case, he predicts. The agency’s Fraud Detection and National Security officers may also be more involved in what are typically routine visa adjudications, Shen adds.
Because the first Trump administration leveraged anti-discrimination laws against companies that purportedly prefer foreign workers on temporary work visas over U.S. citizens, employers may see the U.S. Department of Justice’s Immigrant and Employee Rights (IER) Section enforce those laws more aggressively, Shen says. They should also expect increased worksite enforcement, including more Form I-9 audits.
There may also be an increase in so-called workplace raids to find out whether companies employ unauthorized workers, according to Littler’s Workplace Policy Institute Election Report 2024.
“The construction, agriculture, hospitality, and manufacturing industries will be most impacted,” says Jorge Lopez, an attorney with Littler in Miami.
Employers should “sit and talk with front-desk people” so they know what to do and who to call when federal immigration authorities pay a visit, according to Mahsa Aliaskari, an attorney with Seyfarth in Los Angeles, speaking at the SHRM Workplace Law Forum 2024 in Washington, D.C., on Nov. 20, 2024. “Immigration is very personal,” she notes, urging HR professionals to “think thoughtfully and not make decisions out of fear.”
The focus of immigration enforcement will also likely include the following, Shen says:
The U.S. Department of Labor (DOL) will enhance enforcement of the labor condition application for specialty occupations with the H-1B, H-1B1, and E-3 visa programs, in addition to permanent labor certification regulations.
The IER Section will aggressively investigate individual charges, as well as alleged patterns and practice of discrimination by employers that hire foreign nationals on nonimmigrant visas, or who petition for immigration visas on behalf of their nonimmigrant employees. “IER can look to job vacancy announcements, as well as recruitment methods, to find evidence of discrimination,” Shen says. “This is in addition to the more conventional IER enforcement on behalf of noncitizen employees or job applicants who claim discrimination in the hiring and onboarding process.”
There will be prolonged processing time, either because of heightened or slower vetting. “The first Trump administration implemented a number of policies to ensure integrity of the adjudicative process, which slowed down the process and disincentivized visa sponsorship,” Shen says.
Employers should prepare for increased scrutiny of their employment-based immigration practices and take steps now to ensure proactive compliance regarding their in-house immigration programs, he adds. They should also keep in mind the 2024 Republican Party platform’s pledge to prioritize putting U.S. workers first and supporting “merit-based immigration, ensuring those admitted to our country contribute positively to our society and economy.”
Overtime
Overtime pay was the subject of much attention in 2024, but a decision toward the end of the year may have paved the way for the Trump White House to step back from the overtime rule issued under Biden.
Legal experts predict the new administration will not defend the Biden administration’s overtime rule, which, at press time, the U.S. District Court for the Eastern District of Texas vacated nationwide.
Under Biden, the DOL’s two-part approach to implementing its overtime rule raised the Fair Labor Standards Act’s (FLSA’s) annual salary-level threshold for white-collar exemptions to overtime requirements from $35,568 to $43,888, effective July 1, 2024. As a result of the rule, as of Jan. 1, 2025, the annual salary threshold was set to rise to $58,656. In addition, there were automatic increases to the salary threshold every three years, according to the regulation. In vacating the rule, the court criticized the regulation’s rise in the salary threshold as displacing the duties test for white-collar exemptions by being too steep.
Littler notes that the white-collar overtime and independent contractor status rules issued during the Biden administration replaced regulations from Trump’s first term. “A second Trump administration will likely repeal Biden-era rules and restore Trump-era policy, or, where Biden regulations are struck down by the courts, allow those lower-court decisions to stand and not appeal them,” Littler’s report states.
The Trump administration might formally repeal the Biden White House’s overtime rule or revisit parts of it, adds Jim Paretti, an attorney with Littler’s Workplace Policy Institute in Washington, D.C.
In addition, Trump favors ending all taxes on overtime pay, notes Robin Samuel, an attorney with Baker McKenzie in Los Angeles. Trump also supports ending taxes on tipped wages.
State Trends to Watch over the Next Four Years
As federal agency regulations get tied up in litigation or halted altogether due to legal challenges, state legislative efforts will take the lead, predicts Robin Samuel, an attorney with Baker McKenzie in Los Angeles.
Samuel has seen states carve out their own path in several areas, including:
Artificial intelligence regulation.
Pay transparency, including salary and wage disclosures in job postings and increased reporting requirements for employers.
Severe restrictions on noncompete agreements and other restrictive covenants between workers and employers.
Predominant state law developments in 2025 may include:
States continuing to determine how they’ll regulate employer-worker noncompete agreements.
More states introducing pay transparency laws.
More states regulating the use of AI in the workplace, similar to laws enacted in Colorado and Illinois.
More states restricting “captive-audience” meetings, where employers require employees to attend gatherings to hear the companies’ views on unions.
Labor Relations
There will be a quick decision to terminate National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo and appoint someone who is not viewed as so clearly allied to the labor movement, predicts Daniel Johns, an attorney with Cozen O’Connor in Philadelphia. This will resemble what happened under Biden when he fired former NLRB General Counsel Peter Robb and appointed Abruzzo.
The Senate declined to reconfirm former NLRB Chair Lauren McFerran, a Democrat, to the board at the end of 2024, meaning the Democrats’ majority on the NLRB likely will end sooner than many expected. Without McFerran, Democrats hold a 2-1 majority at the NLRB. That means Trump, once in office, might quickly nominate two Republicans for consideration by the Senate, which will be controlled by Republicans.
Once there is a change in board membership under Trump, the NLRB will likely take a less aggressive enforcement approach to existing workplace rules, says Brian Shekell, an attorney with Clark Hill in Detroit.
Also, Trump probably will return to his prior administration’s focus on limiting the role of unions in the workplace, Samuel says.
However, Sean O’Brien, the president of the Teamsters union, supported Trump’s nomination of Rep. Lori Chavez-DeRemer, R-Ore., to be secretary of Labor. She was one of a handful of Republicans to co-sponsor the Protecting the Right to Organize Act, which would make it easier for workers to unionize.
“We continue to be in a moment where we will see increased organizing,” Johns says. “HR professionals need to be cognizant of the law, constantly review policies from an NLRB perspective, and keep current on employee engagement if they want to avoid organizing.”
Paid Leave
While paid-leave proposals have advanced at the state level, for years Congress has declined to provide paid leave nationwide to private-sector workers. Consequently, up to this point, federal paid leave policy has failed to maintain its relevance in today’s workplace in the private sector. Some legal experts think the issue might surface again during the second Trump administration.
“Trump has supported some level of paid leave in the past and could circle back to an issue that receives some bipartisan support,” Rodriguez says. Trump signed a bill that created paid parental-leave rights for federal workers as part of the National Defense Authorization Act in 2019.
“Many want uniformity to avoid the patchwork currently in place as states scramble to fill the federal gap in this area,” Rodriguez says. “Who will pay for any program is an outstanding issue. In the past, Trump looked to having states fund paid leave through unemployment insurance.”
Action on the paid-leave tax credit could help drive attention to other leave proposals.” —Ann Marie Breheny
State actions, however, sometimes lead to movement at the national level. Thirteen state paid-leave programs are paying or will soon pay benefits to virtually all workers in California, Colorado, Connecticut, Delaware, Maine, Mary- land, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, and Washington when a qualifying need arises. (Washington, D.C., has similar requirements.) Additionally, companies may also enact their own paid- leave programs.
Paid family leave might have the best chance of winning bipartisan support. As Littler notes in its election report, although Republicans control the Senate, they do not have the 60 votes necessary to bypass any legislative filibuster. But, the Littler report states, the long-term fate of the filibuster remains unclear.
Over the last two years or so, there has been a steady stream of bipartisan work in Congress regarding paid family leave, according to Joshua Seidman, an attorney with Seyfarth in New York City. In 2024, a House of Representatives working group released a legislative framework containing a nonexclusive list of possible legislative options for paid family leave.
The simple existence of House and Senate bipartisan working groups on paid family leave offers a foundation to the new administration that has not been available to previous administrations, Seidman says. This, in turn, “increases the possibility of some form of federal paid family leave being enacted over the next four years.”
However, details remain murky, and there are potential roadblocks.
“The makeup of a federal paid family leave program—employee eligibility; employer coverage, including for small employers; the amount of leave; scope of covered absences and family members; how the program would be funded; how the program would interact with employer leave and time off policies, etc.—remains unclear,” he says.
Seidman also notes that any paid family leave legislation would need to reconcile with the existing patchwork of paid family, paid medical, and paid family and medical leave laws currently in place at the state level.
“Action on the paid-leave tax credit could help drive attention to other leave proposals,” says Ann Marie Breheny, senior director, senior legislative advisor at WTW in Arlington, Va. However, she adds that the expected focus on tax reform in 2025 “could draw attention away from other proposals.”
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