Regardless of the outcome of the presidential election, the push and pull of diversity, equity and inclusion (DEI) 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 which party wins the presidency or Congress, the push and pull will continue into the next presidential administration. 
• Executive orders: A Harris administration will likely stay the course laid out by President Biden in his EO 13985, which states the policy of pursuing “a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.” Trump, on the other hand, is likely to reinstate Executive Order 13950 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 Harris presidency will continue to center issues of importance to the LGBTQIA+ community. In any administration, we will likely see employers who embrace DEI as necessary to win the war for talent, clients and customers and those who purport to retreat from it. 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. 

• Federal Minimum Wage: Control of Congress will shape the prospects of the Raise the Wage Act. Harris would sign it. Trump has not indicated a position, although Project 2025 proposes to eliminate the Davis Bacon Act which sets a prevailing wage for certain federal contractor employees. 
   
• Overtime: New DOL leadership under a Trump administration would likely opt not to continue the 2024 minimum salary rule, which is under challenge, and its sharp 01.01.25 increase to the exempt employee minimum salary floor. 
   
• Tips: While eliminating taxes in earned tips has garnered media attention, it’s unclear how much traction either candidate’s measure would get given Congress’ role in the issue.

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

A second Trump administration is expected to rescind the DOL’s 2024 rule defining “independent contractors” under the FLSA.  The 2024 rule is already 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.

• Harris: Her administration is expected to continue Biden’s pro-labor agenda, which seeks more union and employee-friendly policies, continue overturning Trump-era NLRB decisions, revive the PRO Act, and continue/expand federal contracting/PLA requirements. 
   
• Trump: He is advocating 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 is expected regardless of who wins the election.

• Harris: The EEOC will likely continue ramping up their aggressive enforcement of federal pay equity laws and will continue to focus on potential class actions and novel cases it can use as the basis for litigation. A Harris Administration is also very likely to pursue a pay data collection as the EEOC did in the Obama Administration.
   
• Trump: While the EEOC may have a 3-2 Democratic majority during the beginning of his term, it will be less likely to pursue a pay data collection and other priorities of the Biden/Harris Administration. 
   

• NLRB: The NLRB will maintain a 3-2 Democratic majority, suggesting a continuation of Biden’s pro-labor policies if Harris is elected. If Trump is elected, he will appoint a Republican board member in 2026 when the next Democratic vacancy is open to reverse the majority. 
   
• OFCCP: If Harris wins, expect to see continued legal challenges to administrative enforcement and requirements for federal contractors enacted through executive power. If Trump wins, 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 the first Trump administration can also be expected. 
   
• OSHA: Under Harris, OSHA will proceed apace. If the Democrats retain the Senate, they will likely move to confirm commissioners to the OSHRC to permit a quorum to decide its backlog of cases.  With 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.

• Harris: Her comments suggest she may replace FTC chair Lina Kahn, the architect of the now “set aside” FTC final rule banning non-competes. Democratic VP candidate Tim Walz’s staunch support as governor for a Minnesota law outright banning non-compete clauses could signal a Harris administration’s willingness to introduce federal legislation restricting non-competes or to impose limitations through agency action. 
   
• Trump: He will presumably replace Lina Kahn as well. If non-compete agreements makes it on his administration’s radar, it will likely be through bipartisan federal legislation of the sort introduced repeatedly over the years.