New York State Legislature Passes Amendment to the New York Retail Worker Safety Act
Although later than anticipated, the New York State Legislature has just passed an amendment to the New York Retail Worker Safety Act (S8358C/A8947C, Chapter 308) that would extend the effective date of the act’s workplace violence prevention policy, training, and notice provisions from March 4, 2025, to June 2, 2025.
While this amendment (S740/A1678) still needs to be presented to Governor Kathy Hochul to be signed into law, employers that are preparing for compliance can take note of the changes.
Quick Hits
The New York State Legislature has passed an amendment to the New York Retail Worker Safety Act that extends the effective date for workplace violence prevention policies, training, and notice provisions from March 4, 2025, to June 2, 2025.
The amendment requires employers with 500 or more retail employees statewide toprovide “silent response buttons” (SRBs) for internal alerts, adjusts training requirements for smaller employers, and mandates state model templates in multiple languages. (The effective date of the SRB requirement is still January 1, 2027.)
The amendment also modifies the following other provisions of the act:
“Panic Buttons” that would alert law enforcement are now replaced with “silent response buttons” (SRBs) that alert internal staff (security officers, managers, or supervisors).
SRBs are now required for employers with 500 or more retail employees statewide rather than nationwide.
Employers with fewer than fifty retail employees now only need to provide workplace violence training to their retail employees upon hire, and then every other year, rather than annually.
New York State model templates will now be issued in English and the twelve most common non-English languages spoken in New York (as determined by data published by the United States Census Bureau).
With the previous effective date right around the corner, this amendment, along with the extension to the compliance date to June 2, 2025, can be a breath of fresh air for employers still working on their workplace violence policies and training programs. The amendment has not changed the effective date for the SRB requirement, which remains January 1, 2027.
Because Governor Hochul was actively involved in advancing the Retail Worker Safety Act and its amendment, it is anticipated that she will sign the amendment into law.
Tariffs Paused in Mexico and Canada, but not China
What Happened
On February 1, 2025, President Trump issued three executive orders (EO) imposing new tariffs on imports from Mexico, Canada and China, each originally slated to go into effect on February 4, 2025. On February 3, President Trump agreed to suspend the tariffs against Mexico and Canada by one month after negotiations with his counterparts in each nation, but the Chinese tariffs went into effect at 12:01 am ET on February 4.
Each EO directed the Department of Homeland Security (DHS) to issue notices in the Federal Register outlining changes to the Harmonized Tariff Schedule of the United States (HTSUS) necessary to implement the tariffs. On February 5, 2025, DHS published the China notice, entitled Implementation of Additional Duties on Products of the People’s Republic of China. Absent from the Federal Register were notices for Mexico and Canada.
The EOs state that the tariffs will remain in place indefinitely once imposed, or until the President decides to remove them. The EOs also state that the President may raise the tariffs further if Canada, Mexico and China retaliate. At the same time, as evidenced by the agreements reached between the United States and Mexico and Canada, tariffs could also be delayed, rescinded, or otherwise modified or reduced before fully going into effect.
China Tariff
The China notice sets out the specific rates of duty on the import of articles that are products of China, and modifies Chapter 99 of the HTSUS to provide specific article descriptions that are subject to the new tariffs, as well as a subset of exempted items such as those related to humanitarian relief, informational materials, and personal use and baggage of people arriving in the United States. With the notice identifying HTSUS codes subject to the tariffs, Customs and Border Patrol (CBP) was able to begin implementing the tariffs against China, beginning at 12:01 a.m. Eastern Standard Time on February 4, 2025, as called for in the China EO.
Chinese articles imported into the customs territory of the United States are now subject to a 10 percent tariff, to be imposed on top of the other tariffs issued on certain Chinese goods, such as the tariffs imposed on China under Section 301 of the Trade Act issued under the first Trump and Biden Administrations (the “China Section 301 Tariffs”).
Mexico and Canada Tariffs
The tariffs announced in the Mexico and Canada EOs have been delayed until March 6, 2025. Should the Mexico and Canada EOs go into effect next month, the EOs will apply a 25 percent ad valorem rate of duty on all articles imported from Mexico and Canada, which in recent years have enjoyed duty-free trade with the United States under the United States-Mexico-Canada Agreement (USMCA), and its predecessor, the North American Free Trade Agreement. There is an exception for Canadian energy resources, which will face a 10 percent tariff.
Statutory Authority
The EOs were issued pursuant to the International Emergency Economic Powers Act (IEEPA) in response to national emergencies declared at the border related to fentanyl, synthetic opioids, drug trafficking and illegal immigration concerns. This is a stark departure from traditional tariffs such as those under Sections 201 and 301 of the Trade Act of 1974. Indeed, this is the first time a president has issued tariffs using authority under the IEEPA. The closest analog is President Nixon’s 10 percent tariff that he imposed in 1971 on all imports under a different law, the Trading With the Enemy Act, considered the predecessor statute to IEEPA. In recent years, IEEPA has been used by the executive branch to impose a wide range of economic sanctions, including trade embargos and prohibitions on imports from sanctioned countries, but the EOs are the first time the statute has been used to impose tariffs in response to a national emergency.
Tariff Mitigation Considerations
Section 1321 De Minimis Exception
The EOs explicitly state that the duty-free de minimis treatment under 19 U.S.C. 1321 shall not be available for the articles covered by the tariffs. The de minimis exception authorizes CBP to allow duty free imports when the articles are valued below certain thresholds. The most widely known de minimis exception allows products with a value less than $800 to be imported duty free—which Chinese retailers have increasingly relied on over the last 10 years to individually import products directly to customers. The exclusion of the de minimis exception in the EOs signals an awareness of e-commerce strategies to work around tariffs for retail goods.
Duty Drawback
Since the founding of the country, the government has provided domestic entities with options to recover or avoid tariffs on products that are ultimately exported out of the United States. Under duty drawback, companies can be reimbursed for up to 99 percent of the duties paid on imported products that are: manufactured and then exported, unused, or returned or destroyed. The new EOs, however, specifically prohibit duty drawback on tariffs thereunder, although duty drawback remains available for the previously imposed China Section 301 Tariffs. Companies looking to mitigate the impact of the new tariffs on Chinese imports under the EO should explore whether they can offset their other tariffs under a duty drawback program.
Foreign Trade Zone (FTZ)
Like the duty drawback, an FTZ also effectively exempts companies from tariffs on items that are exported from the US. Rather than getting a refund on tariffs, establishment of an FTZ causes a company’s facility to be treated as if it were not in the United States for customs purposes. If a product leaves the FTZ and enters the US, it is assessed tariffs. However, products that are instead exported are not assessed tariffs. There can also be benefits where the final product produced at the FTZ is substantially transformed such that it is classified differently than its inputs and potentially subject to lower tariffs. However, the EOs require that articles assessed tariffs be admitted as “privileged foreign status,” meaning that the tariffs will continue to apply to Chinese imports even if substantially transformed in an FTZ.
Temporary Import Under Bond
The EOs do not mention any changes to the treatment of merchandise entered under Temporary Importation under Bond (TIB) programs as outlined in HTSUS Chapter 98. Additional details may be provided in forthcoming technical annexes. Previous actions by the Trump Administration, including the China Section 301 Tariffs and the tariffs imposed on steel and aluminum from China under Section 232 of the Trade Expansion Act, permitted importers to continue using TIB, though the required bond amount had to reflect the higher duty rates.
Other Potential Tariff Actions
Businesses should anticipate continued uncertainty and potential escalation in the coming days and weeks as China retaliates against the United States or negotiates a pause to the dispute, as is currently the case with Mexico and Canada. At the time of this writing, China has already announced some retaliatory tariffs. It is also possible that the tariffs on imports from Mexico and Canada will be reinstated in a month’s time.
The three executive orders indicate that the United States may raise its tariffs further if the targeted countries retaliate. Additionally, the President has recently raised the possibility of tariffs against other economies, including the European Union and BRICS member countries (Brazil, Russia, India, China, South Africa, Egypt, Ethiopia, Indonesia, Iran and the United Arab Emirates). Beyond country-specific tariffs, President Trump has also suggested the possibility of new global tariffs on semiconductors, pharmaceuticals, oil, steel, aluminum and copper.
These actions illustrate the new Administration’s willingness to use tariffs to pressure other countries over policy disputes that extend beyond traditional trade policy concerns, including national security concerns. Historically, the United States has reserved the use of tariffs for trade disputes. However, President Trump is now adopting an expansive approach to tariffs, treating them as potential tools to address foreign policy disputes generally. Further, the imposition of tariffs on Mexico and Canada indicates that free trade agreement partners may not be immune from these actions, raising questions about the reliability of trade commitments previously made by the United States, including those made under the USMCA.
New FTC Chairman Signals Change
Andrew Ferguson officially took over as Chairman of the Federal Trade Commission (FTC) on January 20, 2025.
The former Solicitor General for the Commonwealth of Virginia was initially sworn in as an FTC Commissioner last April after being nominated by President Biden to fill one of the FTC’s two vacant Republican seats. Chairman Ferguson’s term expires on September 25, 2030.
Before his promotion, Commissioner Ferguson was openly critical of actions taken under the prior FTC leadership. By way of example, shortly before becoming Chair, Commissioner Ferguson dissented (joined by fellow Republican Commissioner Melissa Holyoak) from the FTC’s issuance of the replacement of the 2016 Antitrust Guidance for Human Resource Professionals, declaring that it was a “senseless waste of Commission resources” for the Biden-Harris FTC to be “announcing its views on how to comply with the antitrust laws in the future. . . .”
In one of his first press releases following the effective date of his promotion, Chairman Ferguson announced an “end [to the] previous administration’s assault on the American way of life. . . .” Time will tell as to the scope of the change of direction of the FTC under his leadership and whether it will, as many of his prior statements suggested, include a return to enforcement under a more traditional approach to competition law.
Employer Reminder: Ontario Election 2025—Employees’ Right to Time Off to Vote Under the Election Act
On January 28, 2025, Ontario Premier Doug Ford requested that Lieutenant Governor Edith Dumont dissolve Ontario’s Legislative Assembly, triggering an election for Ontarians to elect Members of Provincial Parliament. That election is due to be held on February 27, 2025.
Quick Hits
Premier Doug Ford has called for an Ontario provincial election to be held on February 27, 2025, requiring employers to provide eligible employees with three consecutive hours of paid time off to vote if their work schedules do not already allow for it.
Employees must be Canadian citizens, eighteen years of age or older, and residents of Ontario to be eligible for voting time off. An employer can choose when the three hours are taken if an employee qualifies.
Employers must grant job-protected leave for employees volunteering as poll officials with proper notice, and failure to comply with these provisions can result in significant fines or imprisonment.
Employers must give eligible employees three consecutive hours of paid time off in order to vote while polls are open. This right is provided in Ontario’s Election Act, unlike most leaves of absence provided for employees in Ontario’s Employment Standards Act, 2000.
To be eligible for the three hours, an employee must be eligible to vote. This means the employee must be a Canadian citizen, eighteen years of age or older, and reside in the Province of Ontario.
An employee is not eligible to receive time off to vote if the employee already has three consecutive hours off outside of working hours. Polls will be open from 9:00 a.m. to 9:00 p.m. (EST), and 8:00 a.m. to 8:00 p.m. (CST) on election day. This means that if an employee works from 9:00 a.m. to 5:00 p.m. on election day, the employee will have three consecutive hours available after his or her working hours and will not be entitled to the time off. On the other hand, an employee working a ten-hour shift from 10:00 a.m. to 8:00 p.m. on election day would not have three consecutive hours available outside of working hours and would be eligible for three hours of paid time off.
Where an employee is eligible for time off, the employer may choose when the three consecutive hours are taken.
When an employee volunteers as a poll official for Elections Ontario, and the employee requests a leave of absence with at least seven days’ notice to the employer, the employer must grant the employee job-protected leave to perform his or her poll official duties under the Election Act. An employer is prohibited from dismissing or disciplining an employee who elects to take this leave. While an employer is not required to compensate an employee for the time taken for a leave relating to poll official duties, such a leave must not be deducted from an employee’s vacation entitlement.
Where an employer denies an eligible employee the three consecutive hours of time off to vote or infringes an individual’s right to serve as a poll official, the employer may face a fine of up to $5,000 for contravening the Election Act. If a judge determines that this denial was done knowingly, a person may be liable for a fine up to $25,000, or imprisonment for up to two years less a day.
Workplace AI – Presidential Change and Unknown Expectations for Retail Employers
The use of Artificial Intelligence (“AI”) in the workplace has spread rapidly since President Trump left the White House in early 2021. In recent years, retail employers have started using AI technology in a variety of ways from automating tasks, to implementing data-driven decision making, to enhancing customer experience. Though the Biden administration started to grapple with the use of AI in the workplace, the second Trump administration could mark a dramatic shift in the federal government’s response to these issues.
The Biden administration took a somewhat cautious approach to the proliferation of AI in the workplace. In response to criticism, including the possibility of AI technology allegedly exhibiting implicit biases in hiring decisions, President Biden issued an executive order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” which established parameters for AI usage and directed federal agencies to take steps to protect workers and consumers from the potential harms of AI.
President Trump repealed the Biden Executive order on January 23, 2025, but has not yet implemented his own policy. The Trump Executive Order directs the Assistant to the President for Science and Technology and other administration officials to develop an “Artificial Intelligence Action Plan” within 180 days of the order to advance the administration’s policy to “sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.” The specifics of the “Artificial Intelligence Action Plan” remain unclear. President Trump signed an executive order regarding AI during his first term in 2019 which encouraged AI research and implementation, however, the technology has since developed rapidly. Given the Executive Order’s statement that previous government action constituted “barriers to American AI innovation” it is likely the “Artificial Intelligence Action Plan” will promote the development and use of AI rather than create new red tape for employers.
In the wake of the Trump Executive order, federal agencies have taken down the limited guidance regarding the use of AI in the workplace they had released during the Biden administration. The Equal Employment Opportunity Commission (“EEOC”), for example, released guidance documents outlining the ways in which AI tools in the workplace could violate the ADA or Title VII of the Civil Rights Act, particularly with respect to hiring. The Department of Labor also issued guidance addressing wage and hour issues related to AI and laying out best practices for implementing these tools to ensure transparency in AI use and support workers who are impacted by AI. Both these documents have been pulled from their respective agencies’ websites.
President Trump’s decision to appoint David Sacks as an “AI & Crypto Czar” also signals what retail employers can expect from the administration moving forward. Sacks is an entrepreneur and venture capitalist who has espoused pro-industry stances on his podcast, “All-In.” He also has a personal stake in AI being utilized as employers as the owner of “Glue” a software program that integrates AI into work place chats as a rival to platforms like Slack or Teams.
If the federal government does not regulate AI’s use in the workplace, states may attempt fill this vacuum of regulation with legislation addressing emerging issues or counteracting the Trump administration’s actions. This could lead to a patchwork of different compliance standards for employers from state to state. New York City’s Local Law 144 creates obligations for employers including conducting bias audits where automated tools play a predominant role in hiring decisions. Illinois has prohibited employers from using AI in a manner that causes a discriminatory effect. Other states may further complicate this landscape in attempts to correct perceived issues with the use of AI in the workplace.
While President Trump’s stance encourages the use of AI, retail employers should remember that existing anti-discrimination statutes may still provide a vehicle to challenge employers’ use of AI. For example, if AI used in hiring disadvantages a certain race, the employer could still face liability under Title VII. Retail employers should be on the look-out for further actions from the Trump administration and developments regarding AI in the coming year.
Maine is Ready for Energy Storage. Are Energy Storage Developers Ready for Maine?
Maine has statutory goals for energy storage projects – 300 megawatts by the end of this year and 400 megawatts by the end of 2030. To help reach those goals, the state is beginning the process of developing and evaluating an energy storage procurement program for up to 200 megawatts of cost-effective energy storage in Maine. Companies interested in participating in any procurement program that Maine adopts should start the initial development process early to allow sufficient time to address some potential local zoning challenges that they may face.
In 2023, the Maine Legislature passed An Act Relating to Energy Storage and the State’s Energy Goals, which directed the Governor’s Energy Office, in consultation with the Maine Public Utilities Commission (Commission), to evaluate designs for a program to procure commercially available utility-scale energy storage systems connected to the state’s transmission and distribution systems.
The Commission is now reviewing a recommendation from the Energy Office for a program to procure up to 200 megawatts of cost-effective energy storage for Maine that increases grid resilience, lowers electricity costs, maximizes federal incentives, and advances Maine’s clean energy goals and statutory requirements. While it is not yet clear what process the Commission will undertake to design and implement a storage procurement program, it is reasonable to expect that this program will be offered before Governor Mills’ term ends in two years.
One of the major challenges for energy storage projects in other states has been local governments enacting zoning bylaws that preclude construction of battery energy storage facilities. These zoning bylaws are often inconsistent with a state’s renewable energy goals. Some states, such as Massachusetts, allow for state exemption of local zoning bylaws if, among other reasons, the bylaw is not consistent with the public interest to meet renewable energy goals. See Pierce Atwood’s November 2024 alert on this subject.
Maine has a long-standing tradition of home rule, enshrined in the constitution, that allows municipalities to enact laws on any topic that is not prohibited to them by state or federal law.
This means that municipalities can adopt all types of zoning rules and other performance standards to regulate energy storage projects. This could include traditional zoning, by limiting where such projects can be located, as well as various standards related to, among other things, fire safety, noise, visual screening, and buffering.
Maine’s municipalities can also impose moratoria, which temporarily prevent planning boards and code enforcement officers from even processing, let alone approving, certain types of projects while the municipality enacts more stringent regulations to address the perceived impacts of the project.
So, what do energy storage project developers need to do about municipal permitting in Maine?
Because of home rule, the rules potentially vary in every one of Maine’s 488 municipalities. Developers need to analyze the permitting process in each municipality where they are considering siting a project. Some municipalities will naturally favor energy storage projects, while some will not. Key questions include:
How does the municipality classify energy storage as a use and where is it allowed? Many local zoning ordinances may not have contemplated energy storage as a type of use, and thus it is likely prohibited in many cases.
What are the dimensional standards, such as minimum lot size and setbacks, that apply to energy storage?
Are there separate performance standards that apply to energy storage? These might be in a variety of ordinances, such as zoning, site plan, subdivision, or other ordinances.
Is there a specific ordinance applicable to energy storage or renewable energy projects?
Has the municipality adopted a moratorium?
By statute, a municipality can stop project development if it determines that existing ordinances are inadequate to prevent serious public harm from development. Although this sounds like a high standard, in practice it isn’t, and it is often used to pause review of controversial projects, such as solar projects, while municipalities adopt stringent requirements to either prevent or restrict development.
Because of Maine’s unusual deference to municipal regulation, it is critical to understand that a moratorium can be imposed to stop development even after all permits for the project have been issued. This is because of Maine’s deferential view of vested rights, allowing changes in laws to apply retroactively more or less right up until the moment that actual construction begins.
At the same time, there are options for developers to explore, including.
Consider proposing amendments to the applicable ordinance in question to clarify how energy storage projects fit into the ordinances.
Pursue a contract zone agreement, whereby the municipality rezones the specific parcel in question to allow the proposed project. This is done through a contract, approved by the legislative body of the municipality, that often exacts a benefit from the developer in exchange for the favorable zoning treatment.
Consider proposing a bill to enact something akin to what Massachusetts did for energy storage projects – provide an exemption for local zoning from the Legislature to ensure localized interests do not unduly prevent the state from accomplishing its energy storage goals. (Maine already provides a local zoning exemption in 30-A M.R.S. § 4352(4) that primarily applies to transmission lines, but an entirely new statutory scheme would be needed in Maine to establish a local land use exemption for storage.)
As with any development project, in addition to permitting and regulatory issues, energy storage projects in Maine require expertise, diligence, and planning to address real estate, title, and tax issues.
President Trump Issues New “10-to-1 Deregulation” Order
On January 31, 2025, President Trump signed an executive order titled “Unleashing Prosperity Through Deregulation.” This order mandates that federal agencies identify at least 10 existing rules, regulations, or guidance documents to repeal whenever they seek to introduce a new rule or regulation. Additionally, the order stipulates that the Director of the Office of Management and Budget (OMB) will ensure standardized measurement and estimation of regulatory costs. For fiscal year 2025, the total incremental cost of all new regulations must be significantly less than zero, accounting for offsets from the elimination of costs associated with the ten repealed regulations.
The executive order criticizes the costs of regulation, stating that overregulation discourages entrepreneurship, consumer choices, individual liberty, and harms small businesses. It references Executive Order 13771 which President Trump signed during his first term in which he required agencies to eliminate two regulations for each new regulation issued—a policy rescinded by former President Biden on his first day in office. The order notes that the Trump Administration had previously eliminated five and a half regulations for every new regulation issued.
The order also directs the Director of the OMB to provide agency heads with guidance on implementing the order, including standardizing methods for determining costs. Furthermore, it revokes OMB Circular No. A-4 (“Regulatory Analysis”) and reinstates the Memorandum of Agreement (MOA) between the Department of Treasury and the OMB from April 11, 2018, regarding the review of tax regulations under Executive Order 12866.
OMB Circular No. A-4 provided guidance to federal agencies on developing regulatory analysis, including assessing costs and benefits of regulatory actions. The revocation of this circular aims to streamline the regulatory process and reduce perceived burdens on businesses.
The MOA between the Department of Treasury and the OMB established a framework for reviewing tax regulations, ensuring economic analysis while maintaining timely tax guidance. Executive Order 12866, signed in 1993, set principles for regulatory planning and review, emphasizing the need for cost-benefit analysis and coordination among federal agencies.
This new executive order represents a significant shift in regulatory policy. Keller and Heckman will continue to monitor any new executive orders issued by the new administration that affect the federal government, particularly those related to the administrative state and regulated industries.
Legislators Introduce Feed Lot Testing Bill
On February 3, 2025, Senator Cory Booker and Representative Rosa DeLauro introduced a bill to provide FDA the authority to collect microbial samples at feed lots during foodborne illness outbreaks or when there is a public health need.
The bill is a response to the recent spread of H5N1 (bird flu), as well as persistent foodborne illness risks. According to Rep. DeLauro, the bill, titled the Expanded Food Safety Investigation Act, will “ensure FDA has the power to investigate corporate agribusinesses, respond effectively to public health threats, and protect American consumers.”
The goal of the bill, which is endorsed by several non-governmental organizations, is to allow FDA to enter feed lots, which have been linked to outbreaks involving fresh produce due to water runoff adjacent to irrigation canals causing contamination of crops.
The full text of the bill is not yet available. Keller and Heckman will continue to monitor the bill, along with other food safety legislation.
Bill Proposed to Block USDA from Using Funds to Implement Proposed Salmonella Framework
Last month, Representatives Steven Womack (Arkansas) and Tracey Mann (Kansas) introduced a bill which, if passed, would prevent USDA from finalizing, implementing, administering, or enforcing the proposed rule “Salmonella Framework for Raw Poultry Products.” 89 Fed. Reg. 64678 (Aug. 7, 2024).
Under the proposed rule, raw poultry containing 10 or more colony forming units (CFU) of any Salmonella and any detectable level of Salmonella serotypes of public health significance would be considered adulterated under the Poultry Products Inspection Act. If the standard is finalized, it would also be accompanied by routine USDA sampling and verification testing for Salmonella. The proposal would also require that poultry slaughter establishments develop and implement written procedures to prevent contamination by enteric pathogens throughout the entire slaughter and dressing operations and maintain records documenting those procedures.
The bill was introduced the same week that the Government Accountability Office (GAO) issued a report noting that USDA’s Food Safety and Inspection Service (FSIS) had paused work on several microbial adulterant standards to work on the Salmonella framework and recommending that the agency develop a plan to prioritize its proposals and determine which standards are needed.
DEI Dead at the EEOC: What’s Next for EEOC Enforcement Priorities After Trump Administration Actions
President Donald Trump has made several significant and sudden changes at the Equal Employment Opportunity Commission (“EEOC” or “the Commission”), the agency responsible for enforcing Title VII of the Civil Rights Act of 1964.
First, he appointed current Commissioner Republican Andrea Lucas as new Acting Chair and then removed Karla Gilbride (a nominee of former President Biden) from her role as EEOC General Counsel. Both of these decisions were routine and unsurprising for the start of a new presidential administration. President Trump then removed Commissioners Jocelyn Samuels and Charlotte Burrows, two of the three Democratic commissioners. This move was far from routine and is likely to be challenged in court.
These sweeping changes initiated by President Trump at the EEOC should be seen as a critical element of an ever-expanding goal of government-wide elimination, not just of DEI, but of all forms of affirmative action. This remaking of the EEOC should be viewed in parallel with Trump’s firing of two Democratic Members and the General Counsel at the National Labor Relations Board, revocation of Executive Order 11246, which contractually required covered federal government contractors and subcontractors to meet certain affirmative action obligations, and the possible elimination of the Office of Federal Contract Compliance Programs (“OFCCP”).
The shakeup at the EEOC – particularly, the removal of Samuels and Burrows – is intended to clear the road of challenges that might have inhibited Acting Chair Lucas’s pursuit of her (and President Trump’s) enforcement priorities, including what she described as “rooting out unlawful DEI-motivated race and sex discrimination,” a goal that aligns with Trump’s Executive Orders targeting Diversity, Equity, and Inclusion (DEI).
Prior to Samuel’s and Burrow’s removal, the EEOC had a Democratic majority, which would have limited Acting Chair Lucas’s authority to press her (and President Trump’s) priorities until at least mid-2026. The EEOC has a statutorily bipartisan structure, headed by five members appointed by the President and confirmed by the Senate. The President can appoint up to three members of his own party as staggered vacancies arise. The designated Chair is elevated over other Commissioners, each of whom is independent. With President Trump’s actions, there is currently no quorum and only an Acting General Counsel. This will halt issuance of new guidance and impact EEOC litigations on behalf of private sector employees. Even without a majority, Acting Chair Lucas can press her enforcement goals by bringing Commissioner Charges independent of her fellow Commissioners. Indeed, Acting Chair Lucas is quite familiar with this tool, having filed the most Commissioner Charges of any of her colleagues in the 2022 (12 charges), 2023 (15 charges), and 2024 (11 charges) fiscal years. She has already taken other actions as well, including removing the X gender marker during the intake process for filing a charge of discrimination, deleting gender ideology materials from the Commission’s internal and external websites and other platforms, and removing a feature that allows Commission employees to opt to identify pronouns next to their names within e-mails and internal messages.
Lucas’s Priorities and President Trump’s Related Executive Orders
Lucas has outlined several key priorities for her tenure, including, in her words:
“rooting 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.”
Notably, Samuels, Burrows, and Kalpana Kotagal (remaining Democratic Commissioner) issued a joint statement on X defending DEI practices after Acting Chair Lucas’s appointment.
In particular, Lucas’s statements regarding DEI programs align with President Trump’s Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “DEI EO”), that targets DEI programs by eliminating them in the federal government and encouraging the private sector to drop them, too. (Read our Insight for more about the DEI EO.)
Additionally, Lucas’s priority to defend “the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work” is consistent with President Trump’s Executive Order entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the “Biological Sex EO”). This EO states that “[i]t is the policy of the United States to recognize two sexes, male and female” and, among other directives, instructs federal agencies to adopt and apply these definitions and to “remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages.”
The Biological Sex EO instructs agency heads with enforcement power (including Lucas and the EEOC General Counsel) to prioritize investigations and litigation to enforce the “rights and freedoms” it identifies. Additionally, the EO also calls for the prompt rescission of the EEOC’s Enforcement Guidance on Harassment in the Workplace (the “Enforcement Guidance”). In what was perhaps a foreshadowing of the looming dispute over the extent of the President’s authority over the EEOC, on January 28, 2025, the EEOC added the following message to the Enforcement Guidance web page: “This document was approved by the Commission on April 29, 2024, by a 3-2 vote. Any modification must be approved by a majority vote of the Commission.”
Other language in the Biological Sex EO aimed at the Attorney General could further impact the EEOC’s guidance and enforcement actions against private employers. Specifically, the Biological Sex EO instructs the Attorney General to issue guidance to:
“…correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020),” wherein the U.S. Supreme Court held that discrimination on the basis of a person’s gender or sexual orientation is a violation under Title VII of the Civil Rights Act (“Title VII”). The EO states that the Biden Administration interpreted Bostock as requiring “gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act” and that “this position is legally untenable and has harmed women.” The Biological Sex EO further instructs the Attorney General to “issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.”
“ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.”
While Acting Chair Lucas did not specifically mention the Pregnant Workers Fairness Act (PWFA) when announcing her enforcement priorities, she has in the past criticized the EEOC’s final regulations on the enforcement of the PWFA, which we discussed here. At the time, she took issue with the EEOC’s definition of “related medical conditions” covered by the law’s provisions that includes abortion, along with pregnancy and childbirth.
What’s Next for the EEOC?
President Trump is expected soon to nominate a new EEOC General Counsel, who is likely to be a staunch foe of DEI and affirmative action plans and who could litigate claims based on charges alleging harm from such policies, programs, or plans. Along with Acting Chair Lucas, there is one remaining Democrat – Kotagal, whose term expires in July 2027. There are now three open seats (those vacated by Samuels and Burrows, and one left open by Keith Sonderling, who President Trump recently named Deputy Labor Secretary). President Trump will likely seek to fill the empty seats with candidates who will press his and Acting Chair Lucas’s enforcement priorities.
In the meantime, however, Samuels and Burrows are expected to challenge their removal in court. Burrows has already retained counsel. There is no provision in Title VII giving the President authority to remove an EEOC Commissioner. Samuels and Burrows will undoubtedly rely upon Humphrey’s Executor v. Federal Trade Commission, a 1935 opinion in which the Supreme Court of the United States (SCOTUS) analyzed the propriety of President Hoover’s removal of a Commissioner from the Federal Trade Commission (FTC). SCOTUS held that the FTC Act only allowed the President to remove an FTC Commissioner prior to the end of their term on specific grounds, which did not apply, and that a President cannot remove, or oust, a confirmed appointee of an independent commission or board without specific authority. SCOTUS wrote:
We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.
SCOTUS had a chance to revisit Humphrey’s Executor precedent last term in Consumers’ Research v. Consumer Product Safety Commission; however, it denied certiorari. SCOTUS will likely have another bite at this issue in the near future, given the anticipated legal challenge to Burrows’ and Samuel’s removal, as well as that of President Trump’s similar recent removal of Members of the National Labor Relations Board, as we wrote about here. Justices Thomas and Gorsuch have expressed the view that Humphrey’s Executor should be overruled. Further, Samuels and Burrows potential reliance on Humphrey’s Executor as it stands, may be vulnerable in light of President Trump’s view regarding the effect of Seila Law v. Consumer Financial Protection Bureau; in particular, that the case gave him the authority to remove Gwynne Wilcox and Jennifer Abruzzo from the NLRB.
For now, there have been no changes to the EEOC’s guidance, and existing litigations and investigations will continue and new charges can be processed. Employers should stay informed about potential shifts in EEOC policy and work with counsel to ensure they remain compliant with federal guidelines.
Epstein Becker Green Staff Attorney Elizabeth A. Ledkovsky contributed to the preparation of this article.
The First Wave: U.S. Imposes Tariffs on Canada (or not?), Mexico (or not?), and China (well, yeah, probably so)
On February 1, 2025, President Trump issued three executive orders imposing tariffs on nearly all imports from Canada[1], Mexico,[2] and China.[3] However, on February 3, the President said on social media that the tariffs on Canada and Mexico will be suspended for one month while the countries discuss potential agreements to reduce or rescind the tariff imposition.[4] A subsequent federal register notice provides details of the China tariffs.[5]
So, at the time of this publication, only one of the three new sets of tariffs have gone into effect: those adding a 10% duty on nearly all imports from China to the United States. Under the executive order, the 10% additional duty is added to “any other duties, fees, exactions, or charges applicable” to goods from China.
1. The China Tariffs[6]
While the U.S. tariffs on China appear to be a continuation of President Trump’s first-term (Trump I) measures against Chinese imports, they bear some notable differences that may show us much about the tactics and effects of this renewed trade war.
1.1 The Consumer Impact
In 2018, the first Trump administration’s tariffs on China (imposed under Section 301 of the Trade Act) were estimated to have added an additional cost of $14 billion to domestic consumers and importers in that year alone.[7] So we expect that, in the short term, we will see a rise in consumer product prices as importers pass the costs of paying the tariffs on to their customers.
Moreover, many consumer items imported directly from China were protected from the Section 301 tariffs by application of the standard de minimis rule on imports. Under that rule, any import valued at less than $800 is not normally subject to tariffs. The application of that rule to the Section 301 duties eased the effect on many consumers, including the vast quantity of Chinese-origin goods that Americans purchase through e-commerce channels.
By contrast, the executive orders implementing these new tariffs expressly state that the de minimis protection will be unavailable. Moreover, it appears from our reading of the orders that the de minimis rule will be unavailable for the older Section 301 tariffs in addition to the new tariffs. As a result, total tariffs of up to 35% on goods from China (up to 25% Section 301 duties from Trump I, plus the 10% tariffs now imposed in the new administration), will apply to all subject Chinese imports, regardless of how small the value. A trade association has noted that without de minimis the average $50 package would more than double the delivery cost. That means the tariffs are more likely to show up in the bottom line of U.S. households, which purchase billions of dollars in Chinese consumer goods each year.
1.2 National Security Concerns
You may recall that in the first Trump presidency, we reported on several rounds of China tariffs (in fact, we kept a China Trade War Scorecard . . . which will need some updating). As we noted above, those tariffs were imposed under Section 301 of the Trade Act of 1974, which allows the executive branch to respond to foreign countries’ unfair trade practices by imposing measures including substantial tariffs.
Interestingly, President Trump has invoked a different law for the current wave of tariffs: the International Emergency Economic Powers Act (IEEPA).[8] Traditionally, IEEPA is used to impose export controls and economic sanctions to protect U.S. national security. Unlike other tariff laws[9] which impose time-consuming procedural steps, IEEPA allows the president to impose measures quickly and easily, requiring only a declaration of a national emergency under the National Emergencies Act (NEA) and an annual renewal.
But IEEPA has never before been used to impose tariffs. For that reason, President Trump’s use of IEEPA for these tariffs may face legal challenges. Some reports have indicated that certain Trump administration personnel were cautious to impose tariffs under IEEPA, reportedly citing the possibility that opponents of the measure could seek injunctions. However, courts have generally been deferential to a president’s use of national security powers for trade measures.
1.3 Exclusions and a Few Other Details
Humanitarian and Communications Imports. Humanitarian donations, informational materials, and personal baggage are exempted from the tariffs. This is because IEEPA prohibits its use to regulate or prohibit any personal communication “which does not involve a transfer of anything of value”, humanitarian donations, informational materials, and any “transactions ordinarily incident to travel”.
Duty Drawback Unavailable. The Executive Order implementing the China tariffs notes that no duty drawback will be available for duties paid under this Order.
U.S. Foreign Trade Zones. The Order also states that goods subject to the China tariffs and admitted into a U.S. Foreign Trade Zone (FTZ) fall under a “privileged foreign status”. Thus, the new tariffs will not apply until and unless the articles are later withdrawn from the FTZ for consumption.
Entry of Mail. The federal register notice states formal entry would be required for all mail shipments from China and Hong Kong. After suspending service for those regions, the U.S. Postal Service (USPS) announced it would resume accepting inbound mail and packages from China and Hong Kong. USPS posted a notice that it was working with Customs and Border Protection to “implement an efficient collection mechanism for the new China tariffs to ensure the least disruption to package delivery”.
2. The Canada and Mexico Tariffs
2.1 Canada (10% on energy and energy resources and 25% on all other goods of Canadian origin effective March 4, 2025)
Imports from Canada will be subject to an additional 25 percent tariff on “all articles that are products of Canada” other than “energy or energy resources”, which will be subject to a 10 percent rate of duty. See Executive Order Imposing Duties To Address The Flow of Illicit Drugs Across our Northern Border (February 1, 2025). Energy and energy resources means “crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals”. See Executive Order 14156 (January 20, 2025). The effective date of these tariffs was delayed from February 4 to March 4. See Executive Order Progress on the Situation at Our Northern Border (February 3, 2025).
The federal register notice was initially posted, but later withdrawn.
2.2 Mexico (25% on goods of Mexican origin effective March 4, 2025)
Imports from Mexico will be subject to an additional 25 percent tariff on “all articles that are products of Mexico.” See Executive Order Imposing Duties To Address The Situation At Our Southern Border (February 1, 2025). The Department of Homeland Security (DHS) will publish a Federal Register notice shortly with additional details and an update to the Harmonized Tariff Schedule of the United States (HTSUS), but these tariffs appear to apply to all items country of origin Mexican imported into the United States. The effective date of these tariffs was delayed from February 4 to March 4. See Executive Order Progress on the Situation at Our Southern Border (February 3, 2025).
Because of the temporary suspension of the two tariff regimes, we will save further details of those prospective tariffs for another article.
3. International Reactions
3.1 China – Retaliatory Tariffs and More
On February 4, 2025, China announced its own set of countermeasures. Effective February 10, 2025, China will impose a 15 percent tariff on liquefied natural gas and coal and a 10 percent tariff on crude oil, pickup trucks, agricultural machinery and large-displacement cars.
China will also impose additional export controls on several critical minerals essential to U.S. economic or national security including tungsten, tellurium, bismuth, molybdenum and indium.
Other U.S. companies may also get caught in the cross-hairs. China’s State Administration for Market Regulation announced an investigation into a U.S. company and China’s Commerce Ministry placed two additional U.S. companies on its unreliable entities list.
3.2 Canada – Measures to Precipitate a Suspension of Tariffs
On February 1, 2025, Canada announced imposing a 25 percent tariff on an initial list of American goods to be effective February 4, 2025. A second extended list was also reportedly under consideration. Other retaliatory measures were in the process of being implemented in different provinces, such as a ban on American alcohol. However, Prime Minister Trudeau announced that Canada would increase personnel at its border with the United States to combat the flow of fentanyl. Trudeau will also appoint a fentanyl czar and list cartels as terrorists. It appears that those actions precipitated a suspension of the U.S. tariffs which resulted in Canada pausing its retaliatory tariffs.
3.3 Mexico – Measures to Precipitate a Suspension of Tariffs
While Mexican President Claudia Sheinbaum did not initiate any retaliatory tariffs, Sheinbaum announced the deployment of 10,000 National Guard members to Mexico’s northern border to reduce illegal migration and drug trafficking. That action appears to have precipitated a suspension of the U.S. Tariffs on Mexico.
4. What Comes Next
The ever-changing landscape will make it difficult for companies to insulate supply chains from the impact of these new tariffs. The new tariffs may lead to alternative sourcing from non-targeted countries. But for products like batteries, machinery, and toys, we might not see these tariffs soften Chinese imports. We also expect to see CBP increase enforcement on circumvention attempts regarding declared country of origin.
We may expect to see further tariff developments over the next month should the Trump administration determine that the Canadian and Mexican cooperative actions are not sufficient.
In fact, there could be more tariffs on other countries in the horizon.[10] We will continue to monitor developments in tariffs and report them here. For a broader scope on all of Trump’s Executive Orders, please see our dedicated tracker.
FOOTNOTES
[1] Executive Order Imposing Duties To Address The Flow of Illicit Drugs Across our Northern Border (February 1, 2025).
[2] Executive Order Imposing Duties To Address The Situation At Our Southern Border (February 1, 2025).
[3] Executive Order Imposing Duties To Address The Synthetic Opioid Supply Chain in the People’s Republic of China (February 1, 2025).
[4] In fact, we apologize for the delay in publishing this article, but we kept having to go back rewrite the piece a fair few times over the course of 24 hours!
[5] Implementation of Additional Duties on Products of the People’s Republic of China, available here.
[6] We note the executive order and federal register notice imposing tariffs and other measures on China include Hong Kong.
[7] Amiti, Redding, and Weinstein; The Impact of the 2018 Tariffs on Prices and Welfare; Journal of Economic Perspectives vol. 33, no. 4, Fall 2019
[8] 50 U.S.C. 1701 et seq.
[9] Section 301 of the Trade Act of 1974, Section 201 of the Trade Act of 1974, Section 232 of the Trade Expansion Act of 1962, and Section 338 of the Tariff Act of 1930. We note that Section 122 of the Trade Act of 1974 does not require any related investigation or procedural steps, but only allows the president to impose up to a 15 percent tariff on imports for 150 days.
[10] President Trump has recently threated 100 percent tariffs on countries that are members of the BRICS coalition (which includes Brazil, Russia, India and China) should they follow through with their plans to create a gold-backed currency alternative to the U.S. dollar.
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The Opening Act: Significant Developments in Trump’s First Two Weeks
During the first two weeks in office, President Donald Trump’s administration released many policies impacting employers in areas like immigration, labor, and workplace safety, and reshaping federal regulatory and enforcement policies regarding artificial intelligence (AI) and unlawful employment discrimination and harassment.
Here is a roundup summarizing the key provisions of the executive orders and other policies from the first two weeks of the new administration.
Quick Hits
Changes to immigration policy included stopping entry of refugees and restricting birthright citizenship.
The federal government now recognizes only two genders, male and female. This policy included removing previous guidance that protected LGBTQ workers from discrimination and harassment.
Immigration Policy
On January 20, 2025, President Trump issued an executive order (EO 14160) limiting birthright citizenship. The executive order asserts that children born in the United States on or after February 19, 2025, who do not have at least one lawful permanent resident or U.S. citizen parent, will not have a claim to birthright citizenship.
On January 23, 2025, a federal judge in Seattle, WA, blocked enforcement of this executive order in response to four states (Washington, Illinois, Arizona, and Oregon) seeking a temporary restraining order. Two weeks later, on February 5, a Maryland federal judge issued a nationwide preliminary injunction blocking the executive order in response to a request by five pregnant undocumented women who argued that the order is unconstitutional and violates several federal laws[SF1] .
A different executive order revisits and reviews the United States-Mexico-Canada Agreement (USMCA) and other U.S. trade agreements. The United States’ participation in the UMSCA makes the TN professional work visa available for citizens of Canada and Mexico.
A separate executive order aims to utilize in-depth vetting and screening of all individuals seeking admission to the United States, including obtaining information to confirm any claims made by those individuals and assess public safety threats.
Another executive order suspended the entry of refugees into the United States under the United States Refugee Admissions Program (USRAP). That order took effect on January 27, 2025.
A separate executive order tightens enforcement of border policies. That includes:
detaining undocumented people “apprehended on suspicion of violating federal or state law,” and removing them promptly;
pursuing criminal charges against undocumented people and “those who facilitate their unlawful presence in the United States”;
terminating parole programs for Cubans, Haitians, Nicaraguans, and Venezuelans; and
utilizing advanced vetting techniques to determine familial relationships and biometrics scanning for all individuals encountered or apprehended by the U.S. Department of Homeland Security (DHS).
LGBTQ+ Employees
On January 20, 2025, President Trump issued EO 14168, which states that the federal government recognizes only two genders: male and female. The federal government will no longer use nonbinary gender categories in compliance and enforcement actions.
On January 28, 2025, U.S. Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea R. Lucas rolled back much of the EEOC’s Biden-era guidance on antidiscrimination and antiharassment protections for LGBTQ+ employees.
On January 27, 2025, President Trump removed Democratic EEOC commissioners Charlotte A. Burrows and Jocelyn Samuels and discharged EEOC general counsel Karla Gilbride.
Labor
President Trump also took the unprecedented move of removing National Labor Relations Board (NLRB) Member Gwynne Wilcox, a Democratic appointee whose term was not set to end until August 2028. The president also discharged NLRB general counsel Jennifer Abruzzo before the end of her term and later tapped William Cowen, who was serving as the regional director for the NLRB’s Los Angeles Region Office (Region 21), as the new acting general counsel.
The discharge of the general counsel was expected after former President Biden discharged the general counsel who served during President Trump’s first term, which was upheld in the courts. However, the removal of a sitting NLRB member was surprising and leaves the Board without a quorum to hear cases. Former Member Wilcox has filed a lawsuit challenging her removal, which is likely to lead to a lengthy court case that could ultimately land before the Supreme Court of the United States.
Workplace Safety
The Occupational Safety and Health Administration’s (OSHA) proposed Biden-era rules on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” and the “Emergency Response Standard” appear to be on the chopping block following President Trump’s “Regulatory Freeze Pending Review” issued on January 20, 2025. The presidential memorandum directed the agency to refrain from issuing or proposing any new rules until a department or agency head designated by the president has had a chance to approve it.
Higher Education and Title IX
On January 31, 2025, the U.S. Department of Education announced that it would not enforce Title IX of the Education Amendments of 1972 in accordance with a 2024 Biden-era rule that had expanded the definition of “on the basis of sex” to include gender identity, sex stereotypes, sex characteristics, and sexual orientation, and mandated that schools allow students and employees to access facilities, programs, and activities consistent with their self-identified gender.
Instead, the department said it will enforce the protections under the prior 2020 Title IX rule. The change aligns the department with EO 14168 and follows federal court decisions that have vacated or enjoined the 2024 Title IX final rule, finding that it violated the plain text and original meaning of Title IX.
Artificial Intelligence (AI)
President Trump is also reshaping federal policy on artificial intelligence, moving away from the Biden administration’s focus on mitigating potential negative impacts on workers and consumers.
On January 23, 2025, President Trump signed EO 14179, “Removing Barriers to American Leadership in Artificial Intelligence.” The order states, “[i]t is the policy of the United States to sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.”
The EO came after President Trump, on his first day in office on January 20, 2025, rescinded President Biden’s EO 14110, which was signed in October 2023 and had sought to implement safeguards for the “responsible development and use of AI.”
Next Steps
President Trump’s recent executive orders and other actions over the first two weeks in office have disrupted labor and employment law and created uncertainty for employers, at least in the near term. It remains to be seen what the lasting effects could be, particularly as it appears the administration has more changes in store. However, some of the executive orders and other actions are being challenged, or are expected to be challenged, in the courts, which could answer questions about the constitutional authority of the president and other statutes creating federal agencies. It is unclear what the outcome of the court cases will be.