There's been a torrent of activity in Washington lately.
We have seen the start of the 119th Congress, with Republicans retaining the House of Representatives in the slimmest majority in nearly a century (218 to 215 with two vacancies) and Republicans gaining the majority in the Senate (49 Republicans to 47 Democrats with four independents).
The White House has, so far, issued 42 executive orders on a broad range of topics, both foreign and domestic in scope.
Meanwhile, the Supreme Court of the United States is still hearing oral arguments, including some likely challenges to some of the recent output from the other two branches of government.
The rapidity and extent of the changing of the guard has left many scrambling to keep up with the latest rule of the land, including workplace safety professionals who continue to make sure employees go home in the same, if not better condition, that they arrived to work.
To help make sense of it all, EHS Today spoke with a few attorneys, including:
- Daniel Birnbaum, a partner in the labor and employment specialty at Seyfarth Shaw LLP
- David Jones, one of the co-chairs of Fisher Phillips' Immigration Practice Group. Jones and his colleagues have established a Rapid Response Team to help companies prepare for—and react to— Department of Homeland Security enforcement actions, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) raids and audits
We asked these lawyers about what actions employers could start taking, tweak or stop taking in order to keep workers safe while also remaining compliant and minimizing risk exposure.
EHS Today will continue to update this article as more leaders, agencies and organizations get settled in the Beltway and more details emerge. We encourage you to submit your questions in the comments section below.
Under the Biden administration, OSHA proposed and pursued new rules and emphasis programs. Do you think those will continue, or will they be walked back?
Birnbaum: It is likely that proposed rules and emphasis programs will be walked back during the current administration, and, in fact, this is already happening—OSHA has already terminated its rulemaking related to COVID-19. Other rulemaking that may be on the chopping block given the Administration’s position on certain issues could include OSHA’s ongoing heat illness rulemaking. The current administration may also consider rescinding OSHA’s recent rule promulgated last year regarding walkaround rights for non-employee, third-parties.
What do you expect from federal OSHA under the Trump administration? What do you expect from state OSHA plans?
Birnbaum: While it is anticipated that OSHA enforcement at the federal level may be scaled back, roughly half of the states regulate safety compliance through state plans, all of which have rules that are at least as effective as the federal government, if not more so. Certain states have enacted standards that are more restrictive than what is required at the federal level, including those related to emerging issues such as workplace violence, ergonomics, or heat illness. Companies can expect these states to continue to enforce their respective regulations, including for emerging issues in the modern workplace.
With the new administration poised to remove many regulations that are perceived as hindering business growth, any ideas on how to combat this narrative? How should we talk about any changes to employees, our customers and the community at large?
Birnbaum: Regardless of what regulatory requirements are in place or rolled back, ensuring employee safety must remain a top concern for employers. There is no greater responsibility than ensuring the health and safety of our colleagues and making sure they can go home safe to their families every day. In addition to the obvious safety concerns, workplace health and safety issues have the potential to impact all other areas of a business. A deficient safety culture can result in numerous issues, including low employee morale that may lead workers to seek third-party representatives to bargain on their behalf, employee work stoppages, a less efficient worksite with disrupted production, a negative public image to clients and customers, and difficulty in obtaining new work.
What are you anticipating or watching out for in the coming days and months? Are there any court cases you’re tracking or precedents you're taking a second look at?
Birnbaum: The regulatory legal landscape is very different now than it was during the first Trump Administration, due in large part to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. There, the Supreme Court held that courts, not agencies, are best situated to interpret ambiguous statutory provisions, even in areas of agency expertise. In doing so, the Supreme Court’s decision will likely rein in agencies, like OSHA, from effectuating their enforcement agenda based on the agency’s own interpretations of its regulations. We will be watching out for legal decisions related to Loper Bright Enterprises and how it applies to OSHA enforcement.
What should companies generally expect when it comes to operating under a second Trump Administration?
Jones: Employers should be fully ready and prepared for a renewed focus on immigration enforcement.
President Trump’s "Border Czar," Tom Homan, will drive immigration enforcement strategy, which will likely include a repeat of the "zero tolerance" policy he championed during the previous Trump Administration. And he has consistently advocated for workplace enforcement to target undocumented workers and the businesses that hire them. He has stated that U.S. Immigration and Customs Enforcement (ICE) will target public safety threats first—but will eventually pursue non-criminal, undocumented workers and the employers that harbor them. The recent Executive Orders that were issued since Inauguration Day are all in line with this staunch stance towards immigration enforcement.
The most common way a business might end up interacting with immigration enforcement is through an ICE audit, most often initiated when an ICE officer issues a Notice of Inspection either by mail or hand delivered—requiring the submission of Form I-9s that the company has for employees.
ICE can also show up at a place of business to conduct what’s called a "raid." This is where an ICE agent appears at the worksite with a judicial warrant, allowing them to search the premise and / or seize documentation, property, or people.
Is there anything businesses can do to be proactive and reduce the chances and/or be prepared in the event of an ICE inquiry?
Jones: Yes, and I’ve been advising my clients to prioritize these important compliance steps.
- Establish I-9 Compliance: Ensure every employee hired after November 6, 1986, has a complete and properly filled out Form I-9 on file. Use payroll records to verify that all required forms are on hand. And train your managers and HR staff on how to complete I-9 forms, recognize document issues, and take appropriate action if they suspect an employee may lack proper work authorization.
- Conduct Regular I-9 Audits: Regularly auditing I-9 forms is key to identifying and remedying any discrepancies. Working with outside counsel to conduct periodic, thorough audits will help ensure that your records are accurate and up to date.
- Consider Using E-Verify: Although not mandatory for all employers, using the E-Verify system can bolster compliance and demonstrate due diligence in verifying employee work eligibility—and perhaps even provide you a safe harbor or a ticket to reduced penalties if a violation is found.
And we are also advising companies to establish a "Rapid Response Plan" to be deployed at moment’s notice if ICE comes knocking to conduct a raid. Such a plan should designate a trained "raid team" to handle ICE visits, including contacting immigration and employment counsel, monitoring compliance with warrants, and tracking actions taken by ICE agents. Fisher Phillips has created a Rapid Response Team for DHS Raids that employers can contact to ensure that they have all the resources needed to properly handle the raid as well as minimize disruption to businesses. Employers in your audience should not hesitate to contact me or another member of the Employers’ Rapid Response Team by sending an email to [email protected] or calling the hotline at 877-483-7781.
Aside from making sure they have a plan in place, what should companies know if ICE shows up to conduct a raid on their workplace?
Jones: Raids are highly disruptive, often involving immediate inspections and potential detentions, but there are certain things businesses need to keep in mind if ICE comes knocking at their door.
If ICE agents show up to conduct a raid, here are the steps I recommend to stay compliant while, at the same time, minimizing the disruption and operational risks.
- Request and Examine the Warrant: Verify the search warrant’s validity, ensuring it is issued by a federal court and signed by a judge. Immediately provide a copy to legal counsel. If ICE officials have a search warrant when they come knocking on your door, they will take the position that they are entitled to immediate access to your premises and records. There is no three-day period to gather documents, and ICE agents will not wait for your attorney to arrive before commencing their search.
- Don't Allow Scope Creep: Review the scope of the warrant and try to keep the ICE agent within what is outlined as permissible activity. This may mean providing access to certain listed areas or documents, but not giving access to other areas and items that are not listed or requested.
- Monitor but Don’t Interfere: Assign a representative to observe and document ICE’s actions while maintaining a cooperative stance. Do not obstruct or engage in hostile actions, which could worsen legal outcomes.
- Avoid Actions that Could be Construed as Harboring: Instruct managers not to hide employees, shred documents, or provide false information. Employees should be free to speak to ICE agents if questioned but are not required to do so without legal counsel.
- Document and Report Seized Property or Records: Track all items and information taken by ICE and share this information with legal counsel immediately.
- Manage Public Relations: In reaction to the raid, determine whether a public statement is necessary and consider working with your communications team to limit risks and minimize exposure.
What other immigration-related developments are you predicting might be of particular interest to our readers?
Jones: The situation remains fluid and we expect many more immigration-related developments that will impact the workplace in the coming days and weeks. Some of the more significant developments we’ll be monitoring include:
- Mandatory E-Verify? Border hawks have long pushed for the mandatory use of E-Verify for all employers. This web-based tool maintained by the Department of Homeland Security (DHS) and the Social Security Administration (SSA) is used to confirm the work authorization of new hires. After gathering information from employees in the completion of the required I-9 Employment Eligibility Verification process, employers input information from the I-9 into the E-Verify site and receive near-immediate government confirmation of work eligibility. Forcing employers across the country to use the system would be quite the administrative undertaking and could not happen overnight, so stay tuned for possible developments.
- US.-Mexico-Canada Pact (USMCA) Realignment Another longer-term development to monitor is the future of the USMCA—the free trade agreement that replaced NAFTA and modernized trade relations with respect to labor, digital trade, and environmental standards. A day-one executive order calls for a full review of the USMCA in preparation for a scheduled joint review of the agreement in 2026. If the U.S. chooses to pull out of the accord (which could happen over a 10-year period), it would impact American workers, farmers, ranchers, service providers, and other businesses—not to mention the availability of H-2A, H-2B and TN work visas.
What are you anticipating or watching out for in the coming days and months? Are there any court cases you’re tracking or precedents you're taking a second look at?
Jones: One of Trump’s executive orders, "Protecting the Meaning and Value of American Citizenship," seeks to end Birthright citizenship. Per that EO the federal government will no longer recognize the U.S. citizenship of babies born after February 19, 2025, on U.S. soil, if the baby’s mother is unlawfully present or has temporary lawful status, and the baby’s father is not a U.S. citizen or green card holder. Multiple states have file Lawsuits challenging the EO, and District Court in Seattle enjoined the EO for 2 weeks.
Another EO, "Protecting the American People," directs DHS to end Biden-era parole programs it deems to be impermissible uses of the president’s parole authority, such as those for Cubans, Haitians, Nicaraguans, and Venezuelans. It also calls for review of Temporary Protected Status (TPS) designations made by the Biden administration. There are over 800,000 TPS holders in the US, and an estimated 130,000 work in essential critical infrastructure.
Similarly, while the Trump administration has recently indicated support for Deferred Action for Childhood Arrivals (DACA), it remains to be seen how the administration will handle it. DACA is an Obama era program for the children who were brought to the US unlawfully by their parents. Trump sought to end DACA during his first term, only to be overturned by the Supreme Court in a 5-4 decision. This was followed by challenges from individual states, resulting in the Southern District of Texas declaring the DACA policy "illegal." The court vacated the DACA memorandum issued by DHS and remanded the memorandum to DHS for further consideration.
The court further issued a permanent injunction prohibiting DHS’s continued administration and reimplementation of DACA without compliance with the Administrative Procedure Act. Part of the injunction was then stayed for individuals who obtained DACA on or before July 16, 2021, including individuals with renewal requests.
There are nearly 400,000 DACA holders in the workforce. Were that program to end, it would impact a lot of employers.
