Supplemental materials for LEAP 2025 session Washington Watch: Assessing Election 2024
In the 48 hours after President Trump took office on Jan. 20, he issued a torrent of executive orders and actions, many of them bearing directly on issues that matter to HR professionals and employers. For example, high-profile orders paved the way to deport roughly 11 million immigrants without legal status and increase immigration enforcement, which could eventually affect labor availability in some industries.
Other executive actions may have more immediate effects on hundreds of thousands of employers. Broadly speaking, Trump’s orders addressed actions the federal government is now authorized to take to advance the administration’s policy goals. Ultimately, many will trickle down to affect employer operations and HR.
Diversity, equity and inclusion
On the campaign trail, Trump routinely decried programs designed to foster diversity, equity and inclusion. Among his executive orders were several that:
Gender issues
Several orders addressed culture-war controversies around gender identity. Trump:
Immigration
HR professionals in industries that traditionally employ immigrant workers should pay attention to executive orders that:
Regulatory environment
One of the vaguest but potentially most far-reaching orders directed all executive branch agencies to stop issuing new regulations.
Federal workforce
Other orders directly targeted employees of the federal government. They:
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See other supplemental materials available.
Supplemental materials for LEAP 2025 session Here come the new state employment laws for 2025
A new administration always means change, with new policy agendas and new leadership at federal departments and regulatory agencies. Ordinarily, it takes months or even years for new agency rules and guidance to roll out. Not so with the Trump administration, which has adopted an aggressive, expansive and fast-moving approach to enacting change in the federal government.
That has certainly been the case for the federal contracting practices overseen by the Department of Labor’s Office of Federal Contract Compliance Programs. A White House executive order issued the day after President Donald Trump took office is already forcing companies that provide contract services to the federal government to revamp their anti-discrimination policies.
History, rooted in the Civil Rights Movement
In 1965, President Lyndon B. Johnson issued Executive Order 11246, which was meant to assure that all federal contractors followed the requirements of the Civil Rights Act of 1964, including Title VII. The order added a provision to all federal contracts requiring contractors to refrain from discrimination based on race, color, religion, sex or national origin.
In addition, the order required contractors to develop plans to make sure protected classes were not excluded from hiring—and significantly, it required contractors to take affirmative action to assure a level playing field.
In the intervening 60 years, repeated additional executive orders built on the protections written into EO11246.
The Trump executive order
On Jan. 21, Trump signed Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which specifically reverses parts of the 1965 executive order. EO14173 directs the OFCCP to cease promoting diversity and encouraging contractors “to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”
It also requires federal contractors to stop taking affirmative action to prevent discrimination and foster diversity in the workplace. In essence, it reverses the OFCCP anti-discrimination practices mandated by the 1965 executive order.
EO14173 applies to all federal contractors, subcontractors, grant recipients, state and local education agencies and institutions of higher learning that receive federal grants.
Compliance advice: The first step employers should take is to determine whether they are covered as a federal contractor, subcontractor or grant recipient. Work with your organization’s contract compliance staff to locate the contract or contracts that apply. Determine which activities or programs you have in place may be affected EO14173. Then have your attorney review the contract and your programs to determine what next steps may be appropriate.
Expect the OFCCP to soon begin reaching out to contractors to modify existing contract language to incorporate changes mandated by the executive order.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Here come the new state employment laws for 2025
States are emerging as prime sources of new employment-related laws. Congress didn’t pass much in the way of employment laws at the federal level this year. The Supreme Court largely steered clear of issuing opinions on employment-law questions (although one case did address sex discrimination).
That has left states to pick up the slack, subjecting employers to a dizzying array of new labor and employment laws. Here is a sampling of new laws scheduled to go into effect on Jan. 1, 2025, or soon after.
Background checks
Child labor
Several states have tightened their child-labor laws. Others loosened them.
CROWN Act
Domestic violence leave
Paid sick leave
Pay transparency
Several states require starting salaries to be posted with job ads.
Workplace safety
Final note: This list does not cover every new law. Check with your state department of labor for the latest minimum-wage increases and any other new laws or regulations effective in 2025.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Re: Employee Lawsuit Risks
Hiring is one of the most difficult and legally dangerous tasks for supervisors. Just a few ill-timed words in a want ad or interview can trigger a legal complaint. Here are the key liability hot spots to watch out for in the hiring process:
Employment advertisements
A help-wanted ad that directly or indirectly states a preference for applicants based on gender, age or other protected characteristic is generally unlawful.
If you participate in drafting employment ads, list only the necessary job-related skills and qualifications—for example, “must be able to lift 50 lbs.”—rather than assumptions about who can perform the functions of the position—such as “male furniture-mover wanted.”
There are a few exceptions to this general rule, such as when a “protected” characteristic is a bona fide occupational qualification (BFOQ) for the job (e.g., requesting a female to work in a women’s locker room).
Job descriptions
Although no law requires organizations to maintain job descriptions, it’s a good practice. Job descriptions can help applicants understand the job’s requirements and discourage poorly suited applicants from applying. Here are tips for drafting job descriptions:
– List the “essential functions” of the job—the fundamental job duties.
– Identify the skills, knowledge and abilities required to perform the essential functions and any special requirements for the job.
– Include a summary of nonessential functions that an employee may be asked to perform occasionally or intermittently.
– Include descriptions of the work environment, equipment and expected work habits.
– Include a disclaimer that the job description does not constitute an exhaustive list of duties and that management may revise it at any time.
– Review and update descriptions as needed so they remain accurate.
Job interviews
Written job applications and face-to-face interviews help hiring managers gather applicant information and assess their qualifications. But asking for some kinds of information may violate anti-discrimination laws. Stick to questions that assess a candidate’s skills, ability or qualifications.
Avoid questions that may trigger stereotypical assumptions about protected class status, such as:
– Marital status: Are you married? Is that your maiden or married name?
– Age: How old are you? When did you graduate from high school?
– Disability: Do you have any disabilities that would impair your ability to work? How often were you out sick in your last job?
– Religion: Which church or synagogue do you attend? What religious holidays do you observe?
– Gender/sex: Are you pregnant? What will you do with your children while you are at work?
– National origin/race: Where were you born?
Background checks
Federal law sets limits on employers’ ability to obtain background reports and demand preemployment medical examinations. Before an applicant’s references are checked, he or she should be notified in writing that the check is occurring. Obtain the applicant’s written consent to the reference checks.
When checking an applicant’s references, ask only for job-related information. Stay away from anything unrelated to how the person could perform the task at hand.
Job offers
Supervisors need to be mindful of inadvertently making promises they don’t intend to keep.
Enthusiastic managers sometimes make statements to applicants that suggest long-term or permanent employment (“You’ll always have a job here if you hit your sales quota.”) or indicate that they can only be fired for cause (“You will always be treated fairly.”). Those statements can easily become ammunition in later breach-of-contract litigation.
Avoid making unintended promises, either orally or in written communications, such as offer letters. That way, you will retain flexibility to respond to personnel issues in the most appropriate way, given the circumstances.
Hire education: 6 smart do’s and don’ts
Despite the complexity and legal risks of the hiring process, the best advice for managers can be captured in a few fairly simple rules:
1. Don’t use advertisements that directly or indirectly express a preference for (or exclude) a person of a particular protected class status (age, sex, race, religion, disability status, etc.).
2. Do draft job descriptions that accurately describe the positions and list the “essential functions.”
3. Do ask interview questions that relate only to an applicant’s ability to perform essential functions of the job. Again, avoid protected characteristics.
4. Don’t ask questions that may trigger stereotypical assumptions about applicant’s characteristics.
5. Don’t consider an applicant’s protected class status when making hiring decisions.
6. Don’t make unintended promises in conversations with applicants or in the offer letter.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Download Hiring: Craft Job Postings That Cut Legal Liability.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Employers increasingly rely on artificial intelligence-based software to manage the hiring process. Using AI algorithms to scan and screen job applications and résumés can save time and effort.
Plus, according to AI program developers, the software may even shield you from allegations that you discriminated against an applicant after discovering some protected characteristic—their age or an ethnic-sounding name, for example—when you reviewed application materials.
Turns out, that may not be the case. Critics of AI software claim discrimination may be baked into the algorithms. The EEOC recently launched an initiative looking into inherent bias in AI hiring programs. States have also begun questioning whether AI lives up to its promise of quick and non-discriminatory screening.
For example, in March, the California Fair Employment and Housing Council released draft regulation revisions that expand the definition of AI—in its terminology, automated-decision systems—to include any computational process that includes algorithms that screen résumés for terms or patterns, quizzes or other challenges that assess desired characteristics and online screening tests for cultural fit, personality or cognitive abilities. The regulations would forbid use of intentionally discriminatory programs, of course. But they would also ban AI programs that are facially neutral but have disparate impact on a protected class.
A federal court handling a California employment discrimination case just asked the California Supreme Court to decide whether pre-employment screening providers can be held liable for impermissible questions during medical screening exams. If the answer is yes, developers of AI screening and hiring software would almost certainly fall under the same category.
Advice: If you use AI software to hire, ask the developer if they have tested their programs for both intentional and disparate-impact discrimination.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session A New Day For DEI
Last summer, the Supreme Court decided in Students for Fair Admissions v. Harvard that affirmative action in college admissions violated anti-discrimination laws, so college and universities could no longer use it to decide who to admit. Although the case had nothing to do with employment law, the ruling triggered several lawsuits challenging corporate diversity, equity and inclusion programs.
These were essentially reverse-discrimination lawsuits in which plaintiffs accused employers of excluding them from hiring and promotions, fellowships and mentoring programs because of their gender, sex or other protected characteristics.
Some employers responded by opening fellowships and the like to all employees. Others eliminated DEI programs entirely. Still others are defending their policies in court, waiting to see what happens.
But a year after Students for Fair Admissions, other employers are taking different approaches, finding novel ways to diversify their workforces without resorting to specific hiring and promotion goals.
Here are some promising approaches:
Widen the applicant pool. Instead of looking for individual candidates with specific diversity characteristics, some employers are broadening the pool from which they seek qualified candidates.
For example, they’re ramping up efforts to recruit on college campuses where more diverse potential candidates study. Recruiting at historically Black colleges and universities (HBCUs) will increase the pool of Black applicants. Employers can do the same by recruiting at Seven Sisters colleges like Barnard, Vassar, Mount Holyoke and other institutions that are historically—and largely remain—women’s colleges.
Encourage word-of-mouth referrals. For decades, the old boys’ network was a recruiting mainstay. White, male hiring managers put the word out to their friends and colleagues to refer likely candidates. The predictable result: an applicant pool that trended decidedly white and male.
But the same word-of-mouth approach can work to increase applicant diversity. Consider providing referral bonuses for current employees who suggest applicants. Just make sure you offer the referral bonus to all current employees, not just those who fit a “diverse” demographic.
Consider foreign-born candidates. Asylum seekers and new immigrants who have work permits can be another source of diverse candidates. Your outreach efforts can include reaching out to organizations that help new residents find employment.
Just make sure your recruiting materials don’t specify that you prefer non-citizen candidates. That clearly would violate immigration laws that forbid discrimination based on citizenship status.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session A New Day For DEI
Last year’s Supreme Court decision in Students for Fair Admissions v. Harvard, which prohibited affirmative action in college admissions, unleashed a torrent of litigation that extends far beyond the halls of academia. Several conservative advocacy groups have filed numerous lawsuits against employers, arguing that the same reasoning the Supreme Court used to strike down affirmative action should also apply to employer initiatives designed to promote diversity, equity and inclusion in the workplace.
Especially under fire are programs like employer-sponsored mentorship programs that list specific protected characteristics as pre-requisites to participate. For example, several law firms have been sued for offering internships designed specifically to attract minority, disabled and otherwise marginalized candidates.
As a result, employers have begun reassessing their DEI programs—and sometimes abandoning them. However, many employers have responded by revamping and rebranding their DEI programs. Many no longer apply the term “DEI” to their initiatives. For better or worse, it has become a lightning-rod label for critics to attack. The hope is that avoiding it will attract less attention from outside groups inclined to file reverse-discrimination lawsuits.
More substantively, many employers no longer refer to diversity and equity as program goals, instead focusing on inclusion.
Approaches to inclusion
One approach is to emphasize the broad goal of attracting a broad pool of applicants from which to choose, rather than using numerical goals based on candidate demographics. Inclusive language is showing up in corporate documents such as shareholder communications, proxy statements and Securities and Exchange Commission filings.
Employers are also refocusing on broadening the places where they recruit talent. The desired result: to naturally and organically end up with a more diverse group of applicants from which to choose.
Many employers have responded by investing in employee resource groups aimed at supporting workers who are veterans and first-generation Americans, as well as those who face challenges around issues like balancing caregiving roles. Those distinctions are all neutral in terms of race and other protected characteristics. However, properly designed, such initiatives signal the employers’ commitment to helping members of underrepresented protected classes succeed in the workplace.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Documentation Essentials and Pitfalls: The Art of HR Record-Keeping
Download How to Document Disciplinary and Performance Problems here.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Documentation Essentials and Pitfalls: The Art of HR Record-Keeping
It happens to every manager: They sit down to prepare a staff member’s review and realize they can remember what the person has done only for the past few weeks. Or they let a single incident (good or bad) color their assessment.
Advise your organization’s managers never to rely on memory to evaluate an employee’s performance. Instead, create a simple recording system for them to use. Such performance logs don’t need to be complicated or sophisticated—a sheet of paper in a folder or a file on their computers will do. (Be sure it’s kept secure to ensure confidentiality.)
Note: A court will quickly dismiss a wrongful-termination lawsuit if performance logs clearly demonstrate a history of performance problems.
8 tips to capture the right info
Each employee should have an individual performance file. Include a copy of the employee’s job description, job application and résumé.
Advise supervisors to follow these steps when recording performance:
1. Include positive and negative behaviors. Recording only negative incidents will unfairly bias your evaluation. Make a point to note instances of satisfactory or outstanding performances, too. One way to ensure balanced reporting: Regularly update employee performance logs, instead of waiting for a specific incident to occur.
2. Date each entry. Noting times, dates and days of the week may help to identify performance patterns and problems that may cause them.
3. Write observations, not assumptions. Be careful about the language you use—your log could become evidence in court. Comments should focus only on behavior you directly observe. Don’t make assumptions about why the behavior occurred or judgments about an employee’s character.
4. Be specific. Example of poor documentation: “Employee was late three times last month.” Better: “30 minutes late on Feb. 5; cited traffic. 45 minutes late on Feb. 9; cited over-sleeping. Hour late on Feb. 23; cited car problems.”
5. Don’t use biased language. A good rule of thumb: Any statement that would be inappropriate in conversation is also inappropriate in an employee log. That includes references to an employee’s age, sex, race, disability, religion or sexual orientation.
6. Be brief, but complete. Use specific examples, not general comments. Instead of saying, “Ben’s work was excellent,” say, “Ben has reduced the number of data-entry errors to less than one per 450 records.”
7. Track trends. Note patterns and flag prior incidents of repeated behavior. Bring your observations to the employee’s attention only after you’ve defined a specific problem.
8. Be consistent. Don’t comment about one person’s behavior if you ignore the same behavior in other employees.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
