While we still have a few months until Donald J. Trump becomes the 47th President, he has already started announcing cabinet picks and signaling that he wants to make good on many of his campaign promises. We also can glean a few glimpses of his impending impact from Trump’s first stint in the White House. Trump’s first four years was a bit of a mixed bag for employers in California. So, let’s take out my crystal ball and break this down.
Expect Changes in Immigration Enforcement – As we know, Trump sounded an alarm bell far and wide during his campaign, focusing on the issues at the border and the growing threat of “migrant workers” in America. Whether he will truly turn his attack to legal immigrants remains to be seen, and officials at Immigration Control and Enforcement (ICE) have already stated they do not have the staffing to carry out all the “mass deportations” this administration has promised. Nevertheless, we know from his 2016 term, Trump targeted California for ICE raids. His obsession with California has not wavered. Assume these raids will renew.
Governor Newsom has already announced an emergency legislative session in response to the Trump victory, which he expects will unleash a swarth of “unconstitutional and unlawful federal policies” that will harm Californians or conflict with state law. Newsom said that in Trump’s previous term, California filed more than 120 lawsuits challenging Trump administration’s policies. The special session will consider increasing funding to the state’s Department of Justice to gear up for more legal battles.
But there is little California can do to stop ICE from carrying out its directives regarding workplace audits and raids. It is up to you, as employers, to prepare.
Right now, conduct those I-9 audits. Make sure you have a valid I-9 on every employee in your workplace, complete with appropriate signatures and dates. If you keep a copy of the required documentation, make sure it looks valid on its face. You can find samples of these documents (including out of state driver’s licenses) on the official state and federal sites. Check to see if the picture of the person shown looks like your employee, and if the dates of birth seem to match accordingly. Even if you are the victim of an ICE raid, if your documentation is in order, you will escape or reduce your fines dramatically. The paperwork part is within your control. Exercise it.
This is also a good time to assess your overall employment documentation protocols. How are you retaining your I-9s and other employment documents? Are you timely purging pursuant to a valid document destruction program? Are you making sure you have at least four years’ worth of payroll records (especially if you have switched payroll providers)? Can you locate signed arbitration agreements and a complete personnel file for all your current and former employees? I am still have employer clients who cannot locate personnel documents when we get these requests from opposing counsel. No matter how much I preach about these issues, I cannot maintain your employment documents for you. This is a job that falls on you.
Audit your immigration and other personnel records. Now. I cannot emphasize this enough.
Should you consider implementing E-Verify? That is an inquiry that is unique to each of you. If you do, keep in mind, you must check EVERY new applicant. You can not pick and choose when to run an E-Verify search if you commit to using it, at least at that location. Also recall that E-Verified is not required in California, but it is in several other states, including Arizona. Remember those remote employees.
Please, reach out if you need assistance on any of these issues.
Impact of a New NLRB – One area where we expect to see the most changes is with the National Labor Relations Board (NLRB). Whenever we see a change in party at the top, the policies reflected by the NLRB change accordingly. When Obama took office, his NLRB made sweeping pronouncements that countered those made under the Bush administration. During Trump’s first term, the NLRB spent much of its time revoking the Obama administration positions.
The Biden government’s NLRB has been very active the last few years, promulgating decisions impacting issues such as the language in settlement agreements to an employee’s right to record workplace conversations. Last week, the NLRB issued a decision impacting mandatory employer meetings, which, as you know, has already been addressed in SB 399, one of California’s new 2025 employment laws (and is already addressed in this year’s employee handbook update).
The Biden NLRB has also focused its sights on state laws permitting post-employment non-competition clauses. The Biden administration had proposed a national ban on such restrictive covenants. As you all know, California has a long-standing history of prohibiting such agreements, and many states have started to jump on this train. For now, it appears that this battle will remain squarely within the jurisdiction of each state.
We would normally expect a reversal of some of these Biden NLRB policies when the new Trump team takes the reign. However, the future of any of these government agencies is murky given the pledge by Trump and his new best friend, Elon Musk, to purge the federal government of “unnecessary spending” and employees.
DEI Programs Under Attack– Trump has already announced his plans to target DEI programs in the arena of education. Many experts are predicting that workplace DEI programs may be under similar attack, especially with a GOP governed Congress.
Grab some popcorn and stay tuned.
