The push and pull of diversity, equity and inclusion initiatives will continue in terms of federal and state legislation, executive order activity and general discourse. 

• States: In 2023, 14 Republican attorneys general published an open letter to Fortune 100 companies promising to hold them accountable for continuing to support DEI efforts. Within days, 21 Democratic attorneys general signed a letter to Fortune 100 companies applauding their DEI efforts and encouraging them to stay the course. More recently, 22 red-state attorneys general signed an open letter to Nasdaq threatening to investigate its rules encouraging board diversity in the companies listed on its exchange. States continue to enact pro-DEI and anti-discrimination laws, with 15 states requiring pay transparency, over half of states prohibiting discrimination based on hairstyles, and many more states covering additional protected characteristics in their employment discrimination laws. Regardless of the new Congress’ composition, the push and pull will continue into Trump’s administration. 
• Executive orders: Trump is likely to reinstate Executive Order 13950 from late in his first administration that, among other things, prohibited federal contractors and subcontractors from providing certain workplace diversity training and programs or discussing “divisive” topics in workplace trainings. We also anticipate that Trump will revoke Biden administration executive orders that promote diversity and expand discrimination protections for LGBTQIA+ people. 
• General discourse: A second Trump presidency is likely to bring more of the same as his first: In 2017, the Trump White House removed all LGBTQIA+ references from its website the day after inauguration, deprioritizing issues relating to sexual orientation and gender identity discrimination by removing them from the conversation. 

Employers could see a return to business immigration regulations from Trump’s prior term, most of which the courts had blocked at the time or the Biden administration eliminated. Those rules may: make it more difficult to bring in highly skilled workers; increase unannounced inspections; reinstate travel bans; end access to TPS and DACA; and create longer backlogs.

The second Trump administration is expected to rescind the DOL’s 2024 rule defining “independent contractors” under the FLSA. The 2024 rule is being challenged in five pending lawsuits that effectively seek to restore a rule issued at the tail end of the first Trump administration that some argue made it easier to classify workers as independent contractors.

To date, Trump has advocated an agenda similar to his first administration’s: Overturn recent employee-friendly decisions, limit unions’ influence; appoint a new NLRB GC. 

With momentum gaining in Congress for bipartisan support of family-friendly policies in some form — paid leave insurance-like programs, child tax credits, tax incentives for businesses — action on this issue in some form is expected.

While the EEOC may have a 3-2 Democratic majority during the beginning of his term, Trump will be less likely to pursue pay data collection and other priorities of the Biden/Harris administration. 
 

• NLRB: The NLRB will maintain a 3-2 Democratic majority until Trump gets to appoint a Republican board member in 2026 when the next Democratic vacancy is open to reverse the majority. 
   
• OFCCP: Under Trump, expect to see receding use of executive authority, likely starting with rescission of executive orders issued under Presidents Obama and Biden for federal contractor minimum wage. Changes to OFCCP guidance and enforcement initiatives, much like we saw under his first administration, can also be expected. 
   
• OSHA: Under Trump, we can expect the proposed Heat Illness and Injury Prevention standard (which is currently in the public notice-and-comment period) to get a second look and likely be substantially revised or withdrawn. Other regulatory initiatives may also be dismantled.

Beyond presumably replacing Lina Kahn, no immediate agenda is known. If non-compete agreements make it on his administration’s radar, it will likely be through bipartisan federal legislation of the sort introduced repeatedly over the years.

• Federal Minimum Wage: During prior election cycles, then-candidate Trump indicated support for a federal minimum wage increase, but he was more reticent during the 2024 campaign. He may govern from a more conventional Republican stance that pro-growth economic policies, not wage mandates, will increase workers’ pay and that any changes to the minimum wage should be addressed by the states. Nonetheless, the prospects of a minimum wage increase will rely on Congressional action, which depends on control of Congress. 
   
• Minimum Salary Rule: The USDOL Final Rule increasing the minimum salary level for exempt employees is being challenged in several cases; decisions are expected soon. If a district court invalidates the 2024 minimum salary rule, the Trump DOL likely will opt not to file an appeal. If the district court upholds the rule, however, the DOL may withdraw it and undertake new rulemaking to rescind the increases or propose a more modest increase. The Trump DOL may also push for an amendment to the FLSA to allow private-sector employees to take paid time in lieu of overtime. 
   
• Tips: Democrats introduced the TIPS Act in Congress this year. The bill would eliminate income taxes on tips and abolish the tip credit for tipped employees. Republicans proposed the No Tax on Tips Act, which also would eliminate taxation of tips but keep the tip credit intact. (Another Republican bill would exclude tips not exceeding $20,000 per year.) It remains to be seen whether either measure would garner enough votes if introduced in the next Congress. If so, President-elect Trump, who voiced support on the campaign trail for eliminating taxes on tips, likely would sign the Republican version but probably would not agree to sign a bill that also would eliminate the tip credit.