Employment Law: Understanding the Changes

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The Trump Administration’s second term has brought significant changes to employers across the United States. Two key areas of focus include employer compliance with the Form I-9 process and awareness of noncompliance impacts, and heightened scrutiny of Diversity, Equity, and Inclusion programs, as well as Diversity, Equity, Inclusion, and Accessibility programs.

These changes carry significant implications for HR professionals, corporate leaders, and employers tasked with ensuring their organizations remain compliant while managing the risks and challenges these reforms present.

Key changes related to Form I-9 enforcement

By announcement of various executive orders and policy changes, the Trump Administration has enacted measures aimed at identifying those unlawfully present in the U.S. Without status, employers maintaining those individuals on payroll are violating I-9 rules. Mistakes in completing or maintaining Form I-9s (or failing to do so) carry elevated risks, including steep fines, potential legal penalties, and reputational damage.

Several executive orders have emphasized a strict interpretation and enforcement of immigration laws. The Protecting the American People Against Invasion Executive Order revokes previous immigration enforcement priorities and emphasizes civil and criminal enforcement priorities for those found in violation. This increased enforcement is aimed at an individual lacking authorization to remain in the U.S., which is needed to legally work in this country.

The administration also acted to terminate certain Temporary Protected Status designations, such as the 2023 designation for Venezuelans, in addition to parole status for Cubans, Haitians, Nicaraguans, and Venezuelans impacting certain employees' ability to continue lawful employment. These changes have been met with litigation, making it important for employers to seek legal counsel about potential impacts on work authorization.

I-9 challenges for employers

With programs ending, enforcement priorities changing, and lawsuits determining the future of certain work authorization, it’s increasingly difficult for the most well-meaning employer to know whether their I-9s have been completed correctly. Legal landmines and risk are more prevalent than ever.

Employers must remember that by signing Form I-9, they attest that:

1. They have examined the documentation presented by the employee, and
2. The documentation appears to be genuine and to relate to the employee named,
3. To the best of their knowledge, the employee is authorized to work in the United States,
4. The information they enter in Section 2 is complete, true, and correct to the best of their knowledge, and
5. They are aware that they may face civil or criminal penalties provided by law and may be subject to criminal prosecution for knowingly and willfully making false statements or knowingly accepting false documentation when completing Form I-9.

Civil penalties for I-9 paperwork errors now range from $288 to $2,861 per violation, while knowing employment of unauthorized individuals carries fines up to $28,619 for repeat offenses. Working closely with legal counsel to assess HR processes and conduct a privileged audit are key measures to mitigate risk.

Mitigation strategies for immigration compliance

To minimize risk, here are several preventive actions employers should consider:

• Regular I-9 Audits: Partner with legal counsel for abr comprehensive review or spot audit of I-9s and related processes, with attorney-client privilege to ensure proactive risk mitigation. Identifying errors early can reduce exposure to penalties.
• Stay Updated with Changes: Monitor policy updates, such as revisions to the DHS Handbook for Employers (M-274), to ensure compliance with the latest requirements.
• Train Employees: Invest in training for HR staff and compliance officers, leveraging resources such as USCIS Employment Eligibility Webinars or customized on-site training conducted by legal counsel.
• Maintain Accurate Records: Ensure all Form I-9s are completed correctly and stored securely and separately from personnel records. Regularly audit your records to identify and correct any discrepancies or outdated information. Proper record-keeping not only ensures compliance but also protects the organization in the event of an audit or investigation.
• Consult Legal Counsel: Seek guidance from experienced immigration and employment law attorneys to address complex compliance questions. Their expertise can help your organization stay ahead of regulatory changes and avoid costly mistakes.

DEI/DEIA programs under the microscope

In addition to its actions on immigration, the Trump Administration also issued executive orders targeting DEI programs, including an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” This Executive Order, and subsequent memos and other documents published by federal agencies, have focused on terminating DEI initiatives in government workplaces.

Nevertheless, although executive orders govern federal agencies, their implementation can significantly impact federal contractors and grant recipients, as well as private employers. For instance, the executive order directed agencies to require federal contractors and grantees to certify that they do not promote “illegal” DEI programs and asked them to identify “the most egregious and discriminatory DEI practitioners” for potential civil compliance investigations. The Attorney General’s memo has expanded this directive, urging agencies to identify private employers for potential criminal investigations.

The administration has not clearly defined what constitutes an “illegal” DEI program. As acknowledged by recent EEOC guidance, DEI remains an undefined term under existing law. In litigation pertaining to the administration’s initiative, multiple federal courts have criticized the lack of definition and clarity around what constitutes “illegal DEI.”

Despite the ambiguity, existing federal antidiscrimination laws that governed DEI programs prior to January 20, 2025, remain unchanged. Nevertheless, given the rhetoric used by the administration to describe DEI, some organizations have opted to terminate their DEI programs or remove DEI-related content from public platforms to preempt potential legal complications.

However, such actions carry risks, including employee complaints, discrimination claims, or public criticism. Organizations contemplating the future of their DEI initiatives should proceed with caution. To mitigate risks, employers should:

• Be aware of state-level legal frameworks, as some states may not align with federal directives.
• Document the lawful purpose of your diversity and inclusion programs, and work with legal counsel to ensure that the purpose is lawful, as intended.
• Ensure that hiring, promotion, and other employment decisions are well-documented, merit-based, and free from unlawful discrimination.
• Conduct a thorough review of diversity policies, training materials, and public-facing communications. When possible, perform these reviews with legal counsel to maintain attorney-client privilege.
• Prepare both internal and external messaging to align with your organization’s values while mitigating legal risks.
• Consider removing or modifying specific components if they could be legally problematic.

As immigration and DEI policies evolve, preparation and informed decision-making will become indispensable for employers. Proactively addressing compliance vulnerabilities and adapting workforce strategies can safeguard businesses from legal pitfalls. At the same time, promoting diversity and inclusion despite external challenges will resonate strongly with employees and stakeholders alike.

Lynn O'Brien, Martha J. Zackin, and Ashley Kutz Kelley are attorneys with Womble Bond Dickinson (US) LLP.