Most of us can’t keep track of all the tweets issued by the President. I don’t even try. But earlier this month, he tweeted “See you in court” in response to one of the various controversies swirling around his administration. And during the campaign, we all learned about Mr. Trump’s frequent litigation. His chosen Attorney General was recently confirmed by a very narrow vote, and court challenges to his executive orders are always in the news. These and other developments got me thinking about changing legal trends. And without veering into political commentary, the national trends can give local employers some guidance on how to approach everyday litigation and employment law issues. Consider the following guidelines.
First, be prepared for increased attention on immigration compliance. Several of President Trump’s executive orders concern border security and immigration enforcement. The courts have halted the much-publicized travel ban affecting travelers from seven countries. But other orders direct increased funding and attention to immigration enforcement. Observers who follow these issues believe the administration is gearing up for workplace raids that target undocumented workers—more like what employers saw during the Bush presidency. A Reuters report from February 13, 2017, quotes the Homeland Security Secretary reporting on more than 680 arrests in recent immigration raids. If you haven’t reviewed your I-9 documentation and other compliance procedures lately, now is a good time.
Second, don’t forget about your anti-discrimination efforts. Although you must ensure your employees are authorized to work in the United States, the law forbids discrimination based on immigration status or national origin. The Equal Employment Opportunity Commission recently issued its Strategic Enforcement Plan for 2017-2021, and one of its stated priorities is “protecting vulnerable workers,” including immigrants and migrant workers. The EEOC is part of the executive branch, but it is separate from the Justice Department, and I don’t expect its priorities to change. Think about what your company is doing to promote equal employment opportunities for immigrants. And don’t neglect what should be ongoing efforts to prevent discrimination (including harassment) based on sex, race, religion, disability, veteran status, or other protected status. Although there is more than one opinion on this, we advise our clients to consider sexual orientation and gender identity protected characteristics as well. The legal parameters of LGBT protections are not well-defined, but the bottom line is employers should create a workplace where decisions are based solely on merit and no one is subjected to harassment for any reason.
Finally, a media story is starting to shape up around the Trump presidency that those who feel oppressed need to stand and fight. People are showing renewed interest in the courts as a place to vindicate rights. Even if your workplace avoids politics and is far away from the national media, you may still get swept up in national trends that are likely to produce increased civil rights litigation, including employment discrimination claims. To avoid these kinds of claims—or, if necessary, to successfully defend them—you should direct attention to the same familiar practices: review your policies, train your employees, and partner with trusted advisors. This will always be good advice, no matter who occupies the White House.
