President Trump’s Executive Orders and The Impact to Environmental Rules and Regulations
President Donald Trump began his first week in office by signing a multitude of Executive Orders “Orders,” some of which impact federal environmental laws or policies. Here is a partial list of the laws affected by the Orders:
Freeze funding from the Inflation Reduction Act and Infrastructure Investment and Jobs Act
Certain funding disbursements from the two laws are pending a 90-day review of spending recommendations. Certain funds may be released after consultation with the Office of Management and Budget.
60-Day Moratorium on New Rules
All agencies and departments must refrain from proposing or issuing new rules not yet published in the Federal Register.
Agencies must also postpone for 60 days the effective date for rules that have been published but haven’t yet taken effect.
Declare a National Energy Emergency
A groundbreaking measure that could unlock new powers to suspend certain environmental rules or expedite permitting of certain mining projects.
Offshore Drilling
Attempt to reverse Biden’s ban on offshore drilling for 625 million acres of federal waters.
Repeal of Tailpipe Pollution Regulations
Begin the repeal of Biden-era regulations on tailpipe pollution from cars and light trucks, which have encouraged automakers to manufacture more electric vehicles.
Rollback Energy Efficiency Regulations
Roll back energy-efficiency regulations for dishwashers, shower heads, and gas stoves.
Open the Alaska wilderness to more oil and gas drilling.
Restart reviews of new export terminals for liquefied natural gas (“LNG”).
This was paused by the Biden Administration in early 2024 to study the environmental impacts of LNG exports.
Offshore Wind Farms
Halt the leasing of federal waters for offshore wind farms.
Eliminate Environmental Justice Programs
Across the federal government. These programs were aimed at protecting poor communities from excess pollution.
PFAS Rule No Longer Listed as Under Review
A Pending Rule meant to set discharge limits on certain PFAS is no longer listed as being under review on the government’s regulatory calendar site.
The Review of Energy-Related Regulations and Rules
All agencies must conduct an “immediate review” of actions believed to “impose an undue burden” on the development and use of certain energy sources. The order calls for identification of any regulations, policies, guidance documents, or other materials that would negatively impact the development or use of oil, gas, coal, hydropower, biofuels, nuclear energy, or critical minerals.
Paris Agreement Withdrawal
Federal agencies, including the EPA, will need to submit a plan for how to “revoke or rescind policies” related to budgeting for or implementing aspects of the Paris Agreement.
Greenhouse Gas Working Group Disbanded
The Interagency Working Group on the Social Cost of Greenhouse Gases created during the Obama administration will cease operations.
Federal Hiring Freeze
Vacant federal civilian positions won’t be filled, and no new positions will be created. The freeze includes the United States Environmental Protection Agency. This Order also ends remote work for federal employees.
OFCCP Welcomes New Acting Director Amidst Policy Shift
In a significant move, the Office of Federal Contract Compliance Programs (OFCCP) has appointed Michael Schloss as the new acting director and deputy director of policy. This appointment comes as part of the Trump administration’s broader strategy to reshape the agency’s mission following the issuance of executive order (EO) Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which revoked EO 11246. Schloss is tasked with guiding OFCCP as it shifts focus toward enforcing Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).
Quick Hits
OFCCP has appointed Michael Schloss as the new acting director and deputy director of policy, as part of the new administration’s overall strategy to reshape the agency.
Schloss previously served as director of the Office of Field Administration at the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA).
Schloss will now guide OFCCP’s focus on enforcing Section 503 of the Rehabilitation Act and VEVRAA.
Acting Director Schloss transitions to OFCCP from the U.S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA), where he served as Director of the Office of Field Administration. In that role he oversaw EBSA’s ten regional offices and three district offices, ensuring the execution of enforcement, outreach, education, and assistance programs related to Employee Retirement Income Security Act (ERISA) requirements. His responsibilities included overseeing fiduciary standards, prohibited transactions, and group health plan requirements, as well as coordinating efforts across EBSA’s regions and other DOL program offices. Acting Director Schloss’s background in benefits law and EBSA operations suggests he is new to OFCCP policy.
Stay tuned for further updates as the OFCCP navigates this transition under Schloss’s leadership.
The Domestic Worker Bill of Rights: A Guide for Employers
The Domestic Worker Bill of Rights (California Assembly Bill 241 and Senate Bill 1015), enacted in 2013, is a California law that grants overtime pay rights to personal attendants who were not previously entitled to overtime pay under California law. Personal attendants covered by this law are entitled to overtime pay at 1.5 times their regular rate of pay for any hours worked in excess of nine hours in a day or 45 hours in a week.
Which Employers Are Covered?
The Domestic Worker Bill of Rights defines a “domestic work employer” as any person, including corporate officers and executives, who directly or through an agent (such as temp services or staffing agencies) employs or controls the wages, hours, and working conditions of domestic workers. However, certain employers are excluded from this law. Excluded employers include domestic worker registry or referral agencies that satisfy specific requirements under the Civil Code and Unemployment Insurance Code.
Who is Considered a Domestic Worker?
Under the law, a domestic worker is defined as someone who provides services related to the care of people in the home or maintains private households or their premises. This includes nannies, childcare providers, caregivers, personal attendants, housekeepers, cooks, and other household workers.
Who is a Personal Attendant?
A personal attendant is someone employed by a private household or any third-party employer recognized in the healthcare industry to work in a private household. The duties of a personal attendant include supervising, feeding, and dressing a child or person who needs assistance due to advanced age, physical disability, or mental deficiency. If a domestic worker spends more than 20 percent of their time performing work other than supervising, feeding, and dressing a child or person who needs supervision, they are not considered a personal attendant.
Overtime Protections for Personal Attendants
Personal attendants are entitled to overtime pay for any hours worked over nine hours per day or over 45 hours per week. However, there are certain exclusions. For example, family members (parents, grandparents, spouses, siblings, or children of the employer), individuals under the age of 18 employed as babysitters, and casual babysitters – those who babysit on an irregular or intermittent basis – are not covered by this law.
Trump 2.0 Executive Orders; Shock and Awe
Overview
Since his inauguration on 20 January 2025, President Donald J. Trump has signed dozens of executive orders and presidential memoranda on topics including, but not limited to, energy and the environment; immigration; international trade; foreign policy; diversity, equity and inclusion (DEI); transforming the civil service and federal government; and technology. These presidential actions include recission orders of Biden-era regulations, withdrawal orders from international organizations and agreements, and orders implementing the administration’s affirmative policy objectives. These actions are indicative of the broader “America First” policy agenda set forth by President Trump throughout his campaign and signal key priority areas for his administration in the coming months.
End of the Biden Era
It is typical for an incoming president to issue a series of executive orders rescinding prior executive actions that conflict with the new administration’s agenda. For example, in former President Biden’s first 100 days in office, he reversed 62 of President Trump’s executive orders from his first term in office. In his first week back in office, President Trump has rolled back over 50 of President Biden’s executive actions. These Biden-era policies included topics such as ethics requirements for presidential appointees, COVID-19 response mechanisms, the enactment of health equity task forces, labor protections for federal workers, and efforts to mitigate climate change, among others.
In addition to rescinding former President Biden’s executive orders, President Trump issued a series of orders that temporarily suspended pending rules and programs of the Biden administration. First, President Trump instated a regulatory freeze pending review on all proposed, pending, or finalized agency rules that have not yet been enacted. The freeze includes finalized rules that went unpublished in the Federal Register before the end of the Biden administration, published rules that have not yet taken effect, and any “regulatory actions . . . guidance documents . . . or substantive action” from federal agencies. President Trump also issued a hiring freeze on any new federal civilian employees, exempting military and immigration enforcement positions.
Moreover, the Office of Management and Budget (OMB) issued an internal memo on Monday temporarily pausing federal grants, loans, and other financial assistance programs. However, the OMB later clarified that the pause only applies to programs implicated by seven of President Trump’s executive orders, and was particularly meant to target, among other things, ending policies such as “DEI, the green new deal, and funding nongovernmental organizations that undermine the national interest.” Shortly before it was to take effect, a temporary stay was issued by the U.S. District Court for the District of Columbia through 3 February 2025. On Wednesday, OMB announced that the original memo has been rescinded in light of widespread confusion on its potential implications. The seven individual EOs originally mentioned still remain effective.
Looking Ahead: President Trump’s Agenda
Through this round of executive actions, President Trump has demonstrated his intention to utilize the full power of the presidency, in tandem with Republican control of Congress, to quickly enact his “America First” agenda. President Trump has identified key policy areas he plans to address in his second term, which primarily include energy dominance, immigration enforcement, global competition, undoing “woke” Biden-era policies, and American independence.
In keeping with these campaign priorities, he has ordered the end of DEI within the federal government and directed federal agencies to investigate DEI efforts in the private sector, declared national emergencies on energy and immigration, ordered a review of U.S. trade imbalances in preparation for widespread tariffs, delayed the ban on TikTok, withdrew from the World Health Organization and Paris Climate Agreement, elevated domestic artificial intelligence (AI) technology, and renamed the Gulf of Mexico to the “Gulf of America.”
Conclusion
Although the Trump administration has a clear and focused policy and regulatory agenda, and can work alongside a Republican-led Congress, narrow margins of majority remain in both chambers which will, at times, necessitate bipartisanship. As such, we expect President Trump to continue working to take action on issues in which he can act unilaterally so as to narrow the scope of policies that congressional Republicans must work to either enact via the budget reconciliation process, or build consensus with their Democrat counterparts.
Additional Authors: Lauren E. Hamma, Neeki Memarzadeh, and Jasper G. Noble
President’s Termination of NLRB General Counsel and Member – What Does This Mean?
As expected, the Trump administration has shifted the National Labor Relations Board (“NLRB”) into a new era marked by notable changes that will reshape the Board.
The first and most significant of these changes is the termination of Board Member Gwynne Wilcox. The second is the termination of General Counsel Jennifer Abruzzo. The removal of Wilcox leaves the NLRB down to two Members, a Democrat and a Republican, and without a quorum for decision making and other actions until the President fills at least one of the three current vacancies. These changes raise many questions as to what is in store for the NLRB and its ability to perform its main functions.
As discussed further below, employers should consider the impact of these decisions on pending cases before the Board, consider asserting affirmative and procedural defenses early and often, and stay aware of rapidly developing changes expected to take effect over the coming months.
The Termination of Board Member Wilcox
President Trump’s unprecedented termination of Board Member Gwynne Wilcox is significant for several reasons. Wilcox was one of the two Democratic Members of the Board following the expiration of the terms of former Chair Lauren McFerran, who the Senate failed to confirm for a new term last month, and the vacancy created by the expiration of Member John Ring’s term in December 2022. Wilcox began her most recent term in September 2023, which was set to terminate in August 2028. Her termination after serving less than two years has left many questions as to the validity of her departure and the future of the Board.
The National Labor Relations Act (“NLRA”) permits the removal of a Board Member upon notice and a hearing for “neglect of duty or malfeasance in office, but for no other cause.” Such a statutory restriction on removal from office was affirmed by the Supreme Court in 1935, in Humphrey’s Executor v. United States. Certain news outlets have reported that the White House offered its legal position on the termination in a private letter dated January 28, 2024 by the Office of Presidential Personnel. The Letter argued that the limitation in the NLRA to remove a Board Member conflict with the President’s Article 2 Constitutional duty to take care that laws are faithfully executed. Trump’s position in the letter cites to the Supreme Court’s 2020 decision in Seila Law LLC v CFPB, which held that removal shields are applicable to multi-member agency boards that are balanced on partisan lines and perform legislative and judicial functions, but that do not exercise executive powers. The White House argues that the NLRB is not balanced on partisan lines and exercises executive power, so the statutory protection is therefore not effective for the NLRB.
Abruzzo Out, Rutter In (for now)
In the early morning of January 28, 2025, Abruzzo was terminated from her role as General Counsel of the NLRB. While many expected Trump to terminate Abruzzo on his first day in office, her termination was nevertheless expected and came as no surprise. Abruzzo was one of the most aggressive General Counsel in recent memory, pushing her union-friendly agenda with a Democrat-majority Board. Her pro-labor policy memos sought to make “captive audience” meetings unlawful (GC 22-04 ), limit employers’ use of restrictive covenants GC 23-05, GC 23-08, GC 25-01), and expand the types of relief available to workers in unfair labor practice cases in a manner far more extensive than at any time in the NLRB’s ninety year history (GC 21-06, GC 21-07 & GC 24-04). Many of her positions have been adopted by the Board in its decisions, so reversals will need to be sought by way of future Board decisions.
Abruzzo memorialized her departure in a statement posted on the NLRB website. In her statement, Abruzzo also announced Jennifer Rutter as the now Acting General Counsel of the NLRB. Rutter was previously appointed as Deputy General Counsel in November 2024, by Abruzzo. If history is any predictor of what comes next, there is a good chance that the President will remove Rutter from the Acting General Counsel role in the near future. For now, we will wait to see who the Administration will appoint as the new General Counsel. Whoever the Administration appoints, it is likely the new General Counsel will seek reversal of many of the decisions reached by the NLRB that adopted Abruzzo’s policies and otherwise eliminated longstanding Board precedents.
Lack of a Board Quorum
With only two remaining Board Members, the NLRB currently lacks a quorum, and as a result, cannot issue decisions or carry out many other actions unless and until at least one more Member is nominated by the President and confirmed by the Senate.
Under New Process Steel, L.P. v. N.L.R.B., the Supreme Court majority held in 2010 that Section 3(b) of the NLRA requires that a delegee group must maintain a minimum membership of three Members in order to exercise the delegated authority of the Board, noting that the two Board Members in office at that time could not exercise delegated authority.
The NLRB is the only independent federal agency that does not have a mandated partisan structure, and yet, has managed to maintain one for years. Traditionally, the Board is composed of five Members, with a 3-2 balance between Members of the President’s party and a minority of Members from the opposition. Unlike the FTC and the SEC, there is no statutory requirement that the NLRB maintain bipartisanship, although each appointment would need to be approved by the Senate which could, through the approval, process continue the longstanding practice.
It remains to be seen if Trump will end the tradition of the bipartisan Board and seek to make it wholly Republican, or perhaps choose to not fill any of the vacancies and instead leave the Board without a quorum while the issue of the NRLA’s constitutionality is pending.
Impact on Employers Going Forward
The dramatic changes taking place at the Board raise numerous questions for how employers should address pending and future cases at the NLRB. We advise employers to be mindful of the following potential issues and strategies moving forward:
Anticipate Pending Actions. Employers may be wondering about the fate of their pending cases or election petitions. Until there is at least one additional Board Member nominated by President Trump and confirmed by the Senate, there will not be any new decisions coming from the Board. Whenever that occurs, we can expect to see a wave of employer favorable decisions from the GOP majority (perhaps super majority) controlled Board.
Assert New or Additional Affirmative Defenses to Preserve Them. Until issues as to the legality of Wilcox’s termination and the appointment of a new Board Member, which would allow the NLRB to act with a quorum, and new General Counsel are finally resolved, employers should plead affirmative defenses challenging the authority of the Board to act in order to preserve (and not waive) the issues for later assertion and argument. Similarly, in the election context, employers should assert objections pre and post-election to the Regional Director’s authority to act on behalf of the Board to process election petitions, conduct elections, rule on election objections and certify election results while the Board currently lacks a quorum of at least three Members, and arguably may be without a lawfully appointed quorum even once Wilcox’s seat is filled by President Trump. Depending on how the President chooses to fill the General Counsel’s vacancy, challenges may also be appropriate to the authority of the Acting or Appointed General Counsel.
Stay Aware of Changes. When President Trump appoints a new General Counsel and restores the Board to a quorum (lawful or not), employers can expect to see drastic changes that will likely dismantle the NLRB’s decisions and regulations under General Counsel Abruzzo and the Biden nominated majority Board. Still, some of these changes will take time to accomplish or undo. For example, it takes time to revise and implement changed rules and regulations under the process required by the Administrative Procedures Act and there are often court challenges to implemented rule changes, etc. Also, it will take time for the new Trump appointed General Counsel to find and litigate new test cases to the Trump majority appointed Board to reverse the precedent of the Board’s decisions under President Biden. We advise employers to remain cognizant and prepared to adjust to these changes accordingly.
EEOC Acting Chair Rolls Back Guidance Related to Unlawful Discrimination and Harassment Based on Gender Identity
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 related to issues of gender identity discrimination and harassment against LGBTQ+ individuals, marking a policy shift aligned with President Donald Trump’s recent executive order (EO) on gender.
Quick Hits
EEOC Acting Chair Andrea R. Lucas rolled back much of the EEOC’s guidance on gender identity, leaving in place certain documents that were issued with majority approval of the five-member Commission.
In line with President Trump’s recent executive order on gender, the EEOC’s policy shift prioritizes biological definitions of “sex” in compliance and enforcement actions, removes gender identity–related resources, and ends the use of non-binary gender markers and honorifics in EEOC processes.
The EEOC’s January 28, 2025 announcement outlined a shift in sexual harassment and sex-based discrimination compliance and enforcement policy under Acting Chair Lucas, whom President Trump tapped for her new role on January 21, 2025.
The EEOC is now moving away from what is being referred to as “gender ideology,” aligning with President Trump’s EO 14168, titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which the president signed on January 20, 2025, Inauguration Day. That EO directed federal agencies to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.”
The EEOC confirmed it is removing materials on such concepts from its internal and external websites and references from other public documents, including webpages, statements, social media, forms, and training.
The announcement came a day after news broke that President Trump had removed Democratic Commissioners Charlotte A. Burrows and Jocelyn Samuels from the EEOC and discharged EEOC General Counsel Karla Gilbride.
Removing Gender Identity
To implement EO 14168, Acting Chair Lucas has:
made defending biological and binary definitions of sex and related rights an agency priority for compliance, investigations, and litigation;
removed the agency’s “pronoun app” for network profiles, which had enabled EEOC employees to identify and display their pronouns in both internal and external communications;
removed the “X” gender marker for filing a discrimination charge and the prefix “Mx.” as an option for filing discrimination charges and related forms;
initiated a review of the EEOC’s “Know Your Rights” poster, which was last revised in June 2023 and lists “sexual orientation” and “gender identity” as bases for unlawful discrimination;
removed information “promoting gender ideology” from the EEOC’s internal and external websites and media platforms; and
added banners to publicly accessible documents explaining why they “cannot be immediately removed or revised” and have “not yet brought into compliance.”
The EEOC noted that certain documents, despite being subject to the EO 14168, could not be removed or modified unilaterally since they had been approved by a majority of the Commission. Currently, the EEOC lacks a quorum to act following the removals of Commissioners Burrows and Samuels, and it will continue to lack a quorum until new Commissioners are confirmed. Those documents include the EEOC’s:
“Enforcement Guidance on Harassment in the Workplace,” which was issued by a 3–2 vote in April 2024;
“Strategic Plan 2022–2026,” which was issued by a 3–2 vote in August 2023; and
“Strategic Enforcement Plan Fiscal Years 2024–2028, which was issued by a 3–2 vote in September 2023.
New Priorities
In recent years, the EEOC has issued several guidance documents interpreting the Supreme Court of the United States’ 2020 holding in Bostock v. Clayton County, Georgia, in which the court held that protection against discrimination as a result of firing an employee on the basis of sex pursuant to Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation and gender identity.
Acting Chair Lucas reiterated her opposition to the portions of the EEOC’s “Enforcement Guidance on Harassment in the Workplace” to the extent that the guidance took the enforcement position that unlawful harassment under Title VII included the “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity” and the “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”
Acting Chair Lucas said in her statement, “It is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms or other similar facilities which implicate these significant privacy and safety interests. And the Supreme Court’s decision in Bostock v. Clayton County does not demand otherwise: the Court explicitly stated that it did ‘not purport to address bathrooms, locker rooms, or anything else of the kind.’”
Next Steps
The EEOC’s recent policy shift prioritizes biological definitions of sex in compliance and enforcement actions, removing resources related to gender identity and ending the use of non-binary gender markers. The change contrasts with the previous administration’s stance, particularly following the Bostock decision.
Moreover, while Acting Chair Lucas is unable to rescind guidance previously approved by the majority of the five-member Commission, President Trump’s recent removal of two commissioners (with new commissioners due to be nominated and confirmed) may ultimately provide the votes needed to rescind all the EEOC’s guidance regarding gender identity. Without the removals, the Democrats would have retained a majority on the Commission through the end of Commissioner Samuels’s term in July 2026.
President Trump’s Immigration-Related Executive Orders: Potential Impact on Employers
Following his inauguration on Jan. 20, 2025, President Trump issued a number of immigration-related Executive Orders (EOs) sure to have impact on employers and their business operations. So far, the focus in the media has been on border security, asylum, refugees, removal of undocumented aliens (deportation) and birthright citizenship. However, there are other aspects covered by the EOs that will have far more impact on U.S. employers and could potentially impact business operations. While we anticipate court challenges to some or all of the EOs, we anticipate that many of the EOs will withstand litigation and will be implemented substantially. Below is a summary of the EOs:
Banning Birthright Citizenship
This EO directs federal agencies to refuse to recognize U.S. citizenship for children born in the U.S. to mothers in the country without authorization or who are present in the United States on nonimmigrant visas, if the father is not a U.S. citizen or green card holder. The order will deny U.S. citizenship, including passports, to children born in the United States 30 days from Jan. 20, 2025, if at least one parent is not an American citizen or green card holder. It is not clear what immigration status, if any, these children would hold at birth or if these children would be issued U.S. birth certificates.
Please note: Several lawsuits have been filed challenging this EO. Following a suit filed in U.S. District Court in Seattle by the attorneys general of Washington State, Oregon, Arizona and Illinois, Judge John Coughenour enjoined enforcement of this order, calling it “blatantly unconstitutional.”
Potential Impact on Employers if Upheld
Increased visa sponsorship costs if the employer covers dependent visa legal and filing fees;
Potential travel delays for visa employees traveling with family for holidays or vacations as U.S.-born children will require passports of the parents’ home country, dependent visas issued by U.S. consular posts abroad and outbound visas to visit and transit countries that do not typically require visas for U.S. citizens; and
These children will lose lawful immigration status at age 21, the age at which children are no longer deemed dependents for immigration purposes, potentially impacting long-term colleague retention. This could be a particular concern for visa employees from countries like India and China, where foreign-born children often age-out due to lengthy green card backlogs.
Enhanced Visa Vetting
President Trump has signed an order to enhance vetting and screening of undocumented aliens, suspend entry of migrants from countries of particular concern and re-establish a uniform baseline for visa screening and vetting standards and procedures consistent with the baseline that existed during the last Trump administration. During his first administration, President Trump banned travel from countries, including Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days with certain exceptions. The bans were challenged in court, but the Supreme Court ultimately upheld them.
Potential Impact on Employers
Lengthy visa processing delays related to background checks for traveling work visa employees;
Disrupted business travel for citizens of banned countries, preventing them from leaving the U.S. for fear of becoming stranded outside the country;
Difficulty filing extension of status and change of status petitions for citizens of these countries; and
Disrupted business travel for all visa employees with temporary work visas.
Recission of President Biden’s EO Designed to Limit Requests for Evidence and Denials
One of President Trump’s EOs revoked 78 Biden EOs, including President Biden’s EO Number 14012 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans) which established USCIS deference to prior decisions in certain cases, for instance H-1B extensions; streamlined the naturalization process; and reduced the number of Requests for Evidence and denials received by employers and individuals applying for immigration benefits. The Trump EO will lead to reinstatement of USCIS adjudication practices in place during the first Trump administration.
Potential Impact on Employers
Increased scrutiny of employer visa petitions and denials, including the end of deference to prior adjudications/decisions;
Increased costs and processing times associated with non-immigrant and immigrant visa petitions;
Limited number and scope of individuals employers are able to sponsor for immigrant and nonimmigrant visas;
Disrupted HR and other internal operations;
Increased Requests for Evidence, Notices of Intent to Revoke or Deny. Denials can create uncertainty about visa employees’ ability to remain with the business and, in some cases, impact an individual’s work authorization;
Anticipated changes to the H-1B program such as re-defining “specialty occupation,” increasing wage requirements, and prioritizing H-1B cap registrations based on compensation levels could further limit employers’ ability to sponsor foreign nationals for H-1B visas; and
Anticipated restrictions on F-1 Optional Practical Training (OPT), termination of certain work authorization programs, such as H-4 EADs might force employers to reevaluate their talent acquisition pools and strategies.
Potential Recission of Humanitarian Parole and Temporary Protected Status
President Trump signed an EO on enforcement of U.S. immigration laws which, among other focus areas, aims to limit Humanitarian Parole to individuals who demonstrate “urgent humanitarian reasons for a significant public benefit derived from their … continued presence in the United States.” The EO also seeks to ensure “that designations of Temporary Protected Status are consistent with the provisions of section 244 of the INA (8 U.S.C. 1254a), and that such designations are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute.” Furthermore, the EO seeks to ensure “that employment authorization is provided in a manner consistent with section 274A of the INA (8 U.S.C. 1324a), and that employment authorization is not provided to any unauthorized alien in the United States.”
During President Trump’s initial term, he attempted to terminate TPS designations for Sudan, Nicaragua, Haiti, El Salvador, Nepal and Honduras. These terminations faced court challenges that resulted in injunctions against the termination of TPS designations.
If President Trump attempts to terminate TPS designations for any of the currently designated countries, similar legal challenges and injunctions are anticipated.
Individuals granted Humanitarian Parole and TPS are permitted to live and work in the U.S. in usually granted one-year increments.
Potential Impact on Employers
Employees authorized to work pursuant to Humanitarian Parole may be unable to renew their parole and related work authorization or they may receive Requests for Evidence requesting evidence of their need for Humanitarian Parole. (Renewal of Humanitarian Parole is within DHS’s discretion.) Barring legal challenges or work authorization through alternative avenues such as a pending asylum application, these workers may be terminated for lack of work authorization.
Workers from countries facing TPS termination would need to monitor pending litigation, including when and how to renew TPS. Relevant information about pending litigation, injunctions and steps DHS takes to comply with injunctions is communicated through Federal Register Notices for each country, available at Temporary Protected Status | USCIS.
Employers would need to monitor employment authorization expiration dates, including automatic extensions, for TPS holders that may be impacted by litigation and conduct I-9 re-verifications accordingly.
Creating “Homeland Security Task Forces”
President Trump has signed an EO to establish “federal homeland security task forces” to enable federal, state and local law enforcement to cooperate in removing gang members, criminals and undocumented individuals. The EO also prioritizes execution of the immigration laws against all inadmissible and removable aliens.
We also anticipate increased ICE enforcement actions, including I-9 audits and investigations, employer site visits and raids at workplaces or in immigrant communities to find undocumented workers.
Employers should have an action plan in place in the event of an ICE enforcement action. This is particularly true for employers in industries that employ large numbers of workers who may be undocumented or who have temporary work authorization.
Potential Impact on Employers
Worksite disruptions and absences as undocumented workers or those living in mixed-status families may be concerned about coming to work;
Workers fear detention under the new Laken Riley Act because they have had prior arrests, have been charged with a crime — even if they have not been convicted, or are under investigation for a criminal offense;
In the event of an I-9 audit or investigation, an employer could face civil fines up to $2,789 per form and up to $5,579 for knowingly hiring undocumented workers, for a first offense;
Criminal charges and penalties of up to 10 years and fines of up to $250,000 for harboring undocumented workers;
Debarment from federal contracts; and
Operational disruptions and public relations challenges.
UPDATE: US DOL Order Directing Departments to Cease Enforcement of Affirmative Action Requirements of EO 11246
Following President Trump’s Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” on January 24, acting U.S. Department of Labor (DOL) Secretary Vincent Micone issued an agency Order instructing DOL employees to cease and desist “all investigative and enforcement activity” under Executive Order 11246 (Equal Employment Opportunity) as the Secretary said the DOL “no longer has any authority” under the rescinded order. The Secretary further stated that the order applies to “all DOL employees, including the OFCCP, OALJ, and ARB.”
Specifically, the order instructed all DOL employees to:
Cease and desist all investigative and enforcement activity under the rescinded Executive Order 11246 and the regulations promulgated under it. This includes all pending cases, conciliation agreements, investigations, complaints, and any other enforcement-related or investigative activity.
And to:
Notify all regulated parties with impacted open reviews or investigations by January 31, 2025, that the EO 11246 component of the review or investigation has been closed and the Section 503 and VEVRAA components of the review or investigation are being held in abeyance pending further guidance.
The Secretary’s Order follows an official statement issued on January 23 by the Office of Federal Compliance Programs (OFCCP) reiterating President Trump’s revocation of EO 11246 and adding that Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025 for 90 days from the date of Trump’s Order. OFCCP also emphasized that that a federal contractor’s obligations under Section 503 of the Rehabilitation Act, 29 U.S.C. 793 (Individuals with a Disability), and the Vietnam Era Veterans’ Readjustment Assistance Act, or VEVRAA (Veterans), 38 U.S.C. 4212, which are separate statutes, “remain in effect,” noting that both laws are “enforced by OFCCP.”
While contractors’ affirmative action obligations related to women and minorities are no longer required, the Secretary’s Order indicates that compliance reviews under Section 503 and VEVRAA (Protected Veterans) are on hold until further notice. Acting Secretary Micone appears to be examining the application of President Trump’s Order with respect to VEVRAA and Section 503. While any interpretation of EO 11246 that broadly expands the Order to VEVRAA and Section 503 almost certainly is an overreach, the use of OFCCP’s authority to investigate and enforce a contractor’s obligations under each law is within the Secretary’s purview. This suggests – but remains to be confirmed – that OFCCP will not require contractors to continue with an open VEVRAA or Section 503 compliance review or check. We think this does not mean a contractor’s obligation to comply with VEVRAA and Section 503 is no longer required, or that OFCCP will necessarily be prohibited from enforcing these and other anti-discrimination laws (more is likely to come). As noted in the General Services Administration’s (“GSA”) January 22 memorandum, Federal contractors must still comply with all nondiscrimination requirements under existing federal laws, which includes VEVRAA, the Rehabilitation Act, Title VII of the Civil Rights Act, the ADEA, the ADA and others.
Questions remain about how OFCCP will manage contractor’s employee data it has collected to date (including affirmative action analyses and EEO-1 data) as well as what effect the Secretary’s ‘cease and desist’ order will have on OFCCP’s response to cases involving EEO-1 freedom of information requests, for example, by the Center for Investigative Reporting (see related court orders in this case here). While we can safely say EO 11246 is no longer in effect, it may be best to wait for additional guidance from the DOL before drawing any final conclusions regarding the procedural and practical implementation of the Order’s revocation as well as further action by the GSA, Department of Defense (DoD) and/or NASA to issue directives and ultimately modify the Federal Acquisition Regulation (FAR) labor standards under FAR Subpart 22.8. GSA has already indicated in its memorandum that “it intends to take immediate action to begin forbearing enforcement of all contract clauses, provisions, terms, and conditions, related to ‘diversity, equity, and inclusion (DEI)”.
New York Data Breach Notification Law Updated
New York Governor Kathy Hochul recently signed into law several bills (S2659B and S2376B) modifying the state’s data breach notification law. The amendments revise the timing requirements for notice to affected individuals, expand the list of regulators to be notified, and add new data elements to New York’s definition of “private information.”
Timing Requirements: Before the amendment, New York’s breach notification law required notification to affected New York residents “in the most expedient time possible and without unreasonable delay.” As of December 21, 2024, the law requires affected individuals to be notified no later than 30 days after discovery of the breach, except “for the legitimate needs of law enforcement.”
Additional Regulator Notice Requirements: Also effective December 21, 2024, the law now requires notice to the New York Department of Financial Services. Previously, the law required notice to the New York State Attorney General, the New York Department of State, and the Division of State Police.
Revised Definition of “Private Information:” Effective March 25, 2025, the definition of “private information” subject to the law’s notification requirements will include (1) medical information (i.e., any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional) and (2) health insurance information (i.e., an individual’s health insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the individual or any information in an individual’s application and claims history, including, but not limited to, appeals history).
HIPAA Exemption: Pursuant to the law’s HIPAA exemption, a breach of protected health information would not trigger additional notification requirements to affected individuals. However, the law still requires notice to certain regulators, including the New York State Attorney General, the New York Department of State, and the Division of State Police. Notably, the HIPAA exemption was not amended and does not reflect the law’s new general requirement to notify the New York Department of Financial Services.
The Impact of AI Executive Order’s Revocation Remains Uncertain, but New Trump EO Points to Path Forward
On January 20, 2025, President Trump revoked a number of Biden-era Executive Orders, including Executive Order 14110 on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (“EO 14110”). We previously reported on EO 14110. The full impact of this particular revocation is still being assessed, but Trump’s newly published Executive Order on Removing Barriers to American Leadership in Artificial Intelligence (“Trump EO”), issued on January 23, specifically directs his advisors to “identify any actions taken pursuant to Executive Order 14110 that are or may be inconsistent with, or present obstacles to, the policy set forth in . . . this order.”
EO 14110, issued by President Biden in 2023, called for a plethora of evaluations, reports, plans, frameworks, guidelines, and best practices related to the development and deployment of “safe, secure, and trustworthy AI systems.” While much of the directive demanded action from federal agencies, it also directed private companies to share with the federal government the results of “red-team” safety tests for foundation models that pose certain risks.
Many EO 14110-inspired actions have already been initiated by both the public and private sectors, but it is unclear the extent to which any such actions should be or have already been halted. It is also unclear whether final rules based, even in part, on EO 14110’s directives—such as the Department of Commerce’s Framework for Artificial Intelligence Diffusion and Health & Human Services’ Health Data, Technology, and Interoperability: Certification Program Updates, Algorithm Transparency, and Information Sharing—are or will be affected.
The as-yet unnumbered Trump EO, issued on January 23, directs the Assistant to the President for Science and Technology, the Special Advisor for AI and Crypto, and the Assistant to the President for National Security Affairs, to “review, in coordination with the heads of all agencies as they deem relevant, all policies, directives, regulations, orders, and other actions taken pursuant to the revoked Executive Order 14110 . . . and identify any actions taken pursuant to Executive Order 14110 that are or may be inconsistent with, or present obstacles to, the policy set forth in section 2 of this order.”
Section 2 of the Trump EO provides: “It 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.” Hunton will continue to monitor for more specific indications associated with Executive Order 14110’s revocation and the Trump EO’s implementation and will share updates accordingly.
President Trump Enacts Regulatory Freeze and Halts Public Communications for Federal Agencies
On January 20, 2025, President Donald Trump signed a memorandum titled, “Regulatory Freeze Pending Review,” imposing a regulatory freeze on all federal agencies.
The key points of the regulatory freeze are as follows:
Do not Propose or Issue Any New Rules: Agencies cannot propose or issue any new rules in any manner, including sending them to the Office of the Federal Register (OFR), until they are reviewed and approved by a department or agency head appointed by the President.
Automatically Withdrawing Unpublished Rules: Any rules that have been sent to the OFR but have not yet been published must be immediately withdrawn to be reviewed by a department head or agency head appointed by the President.
Delay Effective Date of Already Published Rules: For rules that have been published but have not yet taken effect, agencies are to consider postponing their effective date for 60 days to review any questions of fact, law, or policy. During this period, agencies may open a comment period for public input and consider further delaying the rules if necessary.
The freeze applies not only to rules but also to any substantive agency action, including Advanced Notices of Proposed Rulemaking (ANPR), Notice of Proposed Rulemaking, notices of inquiry, and any agency statement of general applicability that sets forth a policy on any regulatory or technical issue.
This freeze will impact all recently proposed rules by requiring them to undergo a review process, which may lead to the rules being withdrawn, modified, or delayed in implementation. The following recently proposed rules or finalized but not yet effective rules issued by FDA include:
Revoking the use of red dye No.3 in food and ingested drugs;Proposed rule regarding front-of-package nutrition labeling;Final rule on the nutrient content claim “healthy”; and
Final rule on requirements for additional traceability (FSMA 204).
Alongside the regulatory freeze, President Trump has directed federal agencies to temporarily stop all public communications. This includes press releases, social media updates, and other public statements. The pause is in effect through February 1.
Keller and Heckman will continue to closely monitor any changes made to pre-existing proposed or finalized rules and any new executive orders or rules promulgated by the new administration.
Massachusetts Enhances Regulatory Oversight of Health Care Transactions on For-Profit and Private Equity Investments
Massachusetts has expanded regulatory oversight of health care transactions by imposing False Claims Act liability on health care owners and investors for changes including failure to disclose violations. On January 8, 2025, Governor Maura Healey signed into law H.5159, An Act enhancing the market review process (the Act). Among other matters, the Act aims to strengthen oversight of private equity investors and related entities in the health care industry, including the expansion of the investigatory and enforcement powers of the Massachusetts Attorney General as they relate to health care activities. The Act also intends to fill perceived gaps in regulatory oversight, that many view as contributors to the Steward Health Care bankruptcy and related hospital closures across Massachusetts, by directly addressing regulation of for-profit health care entities and private equity ownership.
The following Act provisions expand the authority of the Massachusetts Health Policy Commission (HPC), Center for Health Information and Analysis (CHIA), and Attorney General’s Office (AGO) to oversee private equity investors and related entities, including through expansions of HPC’s existing oversight authority and extension of the Commonwealth’s state False Claims Statute (MA FCA) to owners and investors of violators. The Act also contains myriad changes impacting the health care industry. It strengthens regulatory oversight over private equity, pharmacy benefit managers, real estate investment trusts (REITs), management service organizations (MSOs), and other industry participants.
Expansions of HPC and AGO authority under the Act:
Establish new definitions for entities involved in, or related to, private equity operations [1]:
“Health care real estate investment trust,” a real estate investment trust, as defined by 26 U.S.C § 856, whose assets consist of real property held in connection with the use or operations of a provider or provider organization.
“Private equity company,” any company that collects capital investments from individuals or entities and purchases, as a parent company or through another entity that the company completely or partially owns or controls, a direct or indirect ownership share of a provider, provider organization or management services organization; provided, however, that “private equity company” shall not include venture capital firms exclusively funding startups or other early-stage businesses.“Significant equity investor,” (i) any private equity company with a financial interest in a provider, provider organization, or management services organization; or (ii) an investor, group of investors, or other entity with a direct or indirect possession of equity in the capital, stock, or profits totaling more than ten percent of a provider, provider organization, or management services organization; provided, however, that “significant equity investor” shall not include venture capital firms exclusively funding startups or other early-stage businesses.“Management services organization,” a corporation that provides management or administrative services to a provider or provider organization for compensation.
Revise the composition, necessary expertise, and responsibility for appointments to the HPC Board [2]. While the Board will continue to consist of 11 members, the Commissioner of Insurance is now a required member, as are appointed individuals with expertise in representing hospitals and hospital systems and in health care innovation, including pharmaceuticals, biotechnology, or medical devices. However, the HPC will no longer require membership of the Secretary for Administration and Finance, a Primary Care Physician, and an individual with expertise as a health insurance purchaser representing management. Finally, the auditor is no longer responsible for appointments to the HPC Board; all members, other than the Secretary of Health and Human Services and Commissioner of Insurance, will now be appointed solely by the Governor or Attorney General. These changes may reflect a shift in priorities for regulatory oversight of hospital administration, health care innovation, and health care insurance.
Expand the HPC Notice of Material Change process [3]. As previously required, every provider or provider organization must provide notice of a “material change” not less than 60 days before the date of the proposed change.
The previous statutory Notice of Material Change reporting requirements only covered:
mergers or acquisitions of hospitals or hospital systems;
a corporate merger, acquisition or affiliation of a provider or provider organization and a carrier;
an acquisition of insolvent provider organizations; and
mergers or acquisitions of provider organizations which will result in a provider organization having a near-majority of market share in a given service or region [4].
The Act expands the above-referenced statute mandating the reporting of “material change” requiring notice to the applicable government agencies to also include the following as examples:
significant expansions in a provider or provider organization’s capacity;
transactions involving a significant equity investor which result in a change of ownership or control of a provider or provider organization;
significant acquisitions, sales, or transfers of assets including, but not limited to, real estate sale lease-back arrangements; and
conversion of a provider or provider organization from a non-profit entity to a for-profit entity.
The Act also changes the current material change reporting threshold for mergers or acquisitions of a provider organization, which will result in a provider organization having a near-majority market share in a given service or region to provide that the standard is whether the provider organization will have a “dominant market share in a given service or region” (and not a “near-majority”).
Adoption of implementing regulations. While the Act does not include financial thresholds for reporting, the Act does direct the HPC to adopt regulations for administering the section, conduct cost and market impact reviews, and allow filing thresholds to be adopted in the regulations, subject to annual adjustments based on inflation [5].
Expands the HPC Cost and Market Impact Review process as follows:
HPC may now require significant equity investors, as well as other parties involved, in a given transaction to submit documents and information in connection with a Notice of Material Change or Cost and Market Impact Review [6].
HPC may require submitting certain information regarding the significant equity investor’s capital structure, general financial condition, ownership and management structure, and audited financial statements.
HPC may require submitting certain post-transaction data and information for up to five years following the material change date. Such data collection significantly expands the power and task, including the ability to assess post-transaction impacts.
Expands the factors HPC may consider as part of the Cost and Market Impact Review by also reviewing [7]:
the size and market share of any corporate affiliates or significant equity investors of the provider or provider organization;
the inventory of health care resources maintained by the DPH; and
any related data or reports from the Office of Health Resource Planning.
Expands the scope of the HPC’s examination of costs, prices, and cost trends, as follows [8]:
The HPC cost trends hearings will include an examination of any relevant impacts of significant equity investors, health care REITs, and MSOs on costs, prices, and cost trends. Stakeholders from these organizations associated with a provider organization will now be required to testify at the HPC’s annual cost trends hearing concerning: “health outcomes, prices charged to insurers and patients, staffing levels, clinical workflow, financial stability and ownership structure of an associated provider or provider organization, dividends paid out to investors, compensation including, but not limited to, base salaries, incentives, bonuses, stock options, deferred compensations, benefits and contingent payments to officers, managers and directors of provider organizations in the commonwealth acquired, owned or managed, in whole or in part, by said significant equity investors, health care real estate investment trusts or management services organizations.”
The HPC will utilize new data collected as part of the Registered Provider Organization process. The Act revised this process to require submissions from significant equity investors, health care real estate investment trusts, and management services organizations regarding ownership, governance, and organizational information.
Given the broad, sweeping nature of the changes, additional regulations and guidance should be expected.
[1] To be codified at MGL 6D, s. 1.
[2] To be codified at MGL 6D, s. 2.
[3] To be codified at MGL 6D, § 13.
[4] CITE TO EXISTING NMC FORM
[5] To be codified at MGL 6D, s. 13.
[6] To be codified at MGL 6D, s. 13.
[7] To be codified at MGL 6D, s. 13.
[8] To be codified at MGL 6D, ss. 8 and11.