President Donald Trump’s return to the White House has already had a profound and immediate impact on the labor-law landscape. Through his first six months in office, the President issued a flurry of executive orders, coupled with significant overhauls at the executive agency level. Meanwhile, the Republican-controlled Congress is actively considering legislation that would mark significant changes to wage and hour laws.
With more executive orders, changes to regulations and legislation expected, the President’s policies and agenda are sure to create new challenges for employers on both a practical and legal level. While many of the President’s stated priorities, along with policies already enacted, are expected to be largely pro-employer, the fast-moving pace of the new administration will require employers to stay informed and develop new and creative strategies.
The current administration has made clear that potentially unlawful DEI practices and policies in the workplace are a key area of interest. To that end, the President has already signed multiple executive orders addressing the use of DEI in employment at the federal level. As early as January 28, 2025, the President signed executive orders barring federal agencies and federal contractors from considering race, color, sex, sexual preference, religion, or national origin in their employment practices.[1] That same day, the President signed two separate executive orders rescinding policies (1) imposing equal opportunity and DEI requirements on the federal government and (2) prohibiting discrimination against federal employees because of their sexual orientation or gender identity.[2] These new executive orders further direct agencies to investigate whether DEI practices of private employers violate federal civil rights laws.
Guidance from executive agencies under the current administration has followed suit. In March, the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) issued a joint press release announcing two pieces of EEOC guidance for employers relating to DEI initiatives in the workplace.[3] Specifically, the EEOC guidance created new avenues for employees to bring claims for hostile work environment or retaliation, noting that "[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim' and that "[r]easonable opposition to a DEI training may constitute protected activity" that would prohibit employer retaliation.[4] The EEOC’s guidance document, entitled "What You Should Know About DEI-Related Discrimination at Work," highlights how employees can bring claims based on their employer’s DEI-related activities and clarifies that the protections of Title VII "apply equally to all workers" and not solely to "minority group[s]." The guidance further notes that an employer’s business interest in "diversity" does not justify practices that would otherwise be prohibited by Title VII.[5]
On July 29, 2025, the DOJ published a memorandum from Attorney General Pamela Bondi titled "Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination," which includes guidance clarifying the application of federal antidiscrimination laws to DEI programs utilized by entities receiving federal funds.[6] The DOJ memo provides several examples of "unlawful practices," including race-based scholarships or programs, preferential hiring or promotion practices, and access to facilities or resources based on race or ethnicity, including designated "safe spaces." The memo further clarifies the administration’s stance on the use of "unlawful proxies," which the administration has defined as the use of "ostensibly neutral criteria that function as substitutes for explicit consideration of race, sex, or other protected characteristics." According to the DOJ’s latest guidance, examples of unlawful proxies include "cultural competence" or "lived experience" requirements, geographic or institutional recruitment strategies and "diversity statement" requirements. The DOJ’s guidance also addresses "unlawful segregation" and "unlawful DEI training programs," which the DOJ has defined to include practices such as race-based training sessions and trainings that "promote discrimination based on protected characteristics," such as training related to "toxic masculinity" or "white privilege." While the memorandum is directed at federal agencies and recipients of federal funding, it notes that all entities subject to federal antidiscrimination laws, including private employers, "should review this guidance carefully to ensure all programs comply with their legal obligations."
While uncertainty remains regarding the extent to which agencies will investigate or initiate actions against private employers’ DEI practices, there is little doubt that the recent mandates and guidance will increase the likelihood of litigation related to DEI policies. Employers should accordingly take proactive steps to align any DEI policies and practices with Title VII and agency guidance to maximize compliance and minimize legal and reputational risks. Such steps should include, but are not limited to: (1) conducting DEI and EEO policy assessments to identify areas of risk, (2) reviewing communications and policies to ensure consistency, (3) emphasizing commitments to equal employment opportunity and considering the nomenclature used to emphasize commitments, (4) reviewing any DEI trainings to minimize potential litigation exposure, and (5) ensuring your directors and officers and employment practices liability policies include the broadest terms and conditions to maximize coverage for possible government agency investigations and enforcement actions and the “reverse discrimination” claims that are on the rise from DEI policies.[7]
The current administration’s overhaul of leadership at the agency level is almost certain to lead to profound policy changes that directly impact employers at a variety of levels. Replacing leadership at agencies like the National Labor Relations Board (NLRB), Department of Labor (DOL) and the EEOC directly affects the policy initiatives, enforcement priorities and guidance at those agencies. These changes, in turn, have significant policy implications for employers in areas such as organized labor, collective bargaining, the Fair Labor Standards Act (FLSA), Title VII enforcement and more.
At the EEOC, new Acting Chair Andrea Lucas has stated that her new priorities for the agency "will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism, and remedying other areas of recent under-enforcement."[8] As a result of these priorities, employers may expect a rise in reverse discrimination charges filed with the EEOC.[9] However, after layoffs at the agency and across the federal government, employers may also have a delay in investigations at the EEOC. This could cause the agency to take longer to make its decisions.
The President’s nomination of Jonathan Berry to be the DOL’s solicitor of labor is also highly likely to lead to shakeups in the agency’s policy priorities. Berry has previously called for a significant overhaul to the FLSA, including changes to provisions on overtime pay and independent contractor rules, as well as a shift in the focus of the DOL from enforcement to compliance assistance for employers.[10]
Policy and leadership changes at other executive agencies that do not traditionally deal with workplace-related issues may nevertheless have significant implications for employers. For instance, on April 28, 2025, the President signed an executive order directing the Secretary of the Department of Transportation (DOT) to take steps to ensure that drivers of commercial motor vehicles operating in interstate commerce meet an English language proficiency (ELP) standard.[11] On May 20, 2025, DOT Secretary Sean Duffy issued new guidance to enforce this executive order, which requires such drivers who do not meet the ELP standard to be taken out of service beginning on June 25, 2025.[12] The policy requires that inspectors for the Federal Motor Carrier Safety Administration (FMCSA) conduct roadside inspections in English to enforce compliance. As a result, businesses employing commercial vehicle drivers will be forced to ensure their drivers meet the ELP standards or risk their drivers being placed out of service.
As with all new administrations, employers may expect a swath of new policies, regulations and guidance to be issued by executive agencies operating under new leadership. Many of these policy and enforcement changes are likely to rescind or reverse the policy priorities of the previous administration. As a result, it is paramount that employers stay informed of new guidance and regulations issued by the relevant agencies to ensure compliance and minimize both legal and reputational risks.[13]
The first seven months of the current administration have demonstrated that the President is willing to make significant modifications to longstanding policies, to change course and to overhaul agencies. The fast-paced nature of the administration thus far makes it more important than ever for employers to stay up to date on recent developments and changes to the relevant laws and regulations.
Employers, especially multi-state employers, should ensure that they are familiar and complying with the federal, state and local regulations. With the federal government rolling back regulations, changing enforcement priorities and engaging in layoffs, it is important to be aware of relevant state and local laws and how they might differ from some of the changing federal requirements. Areas such as discrimination laws, wage and hour regulations, restrictive covenants and DEI are among the issues to consider in this context.[22]
Navigating the flurry of political and regulatory changes instituted by the new administration may pose challenges for employers. Many of the President’s enacted and expected policies suggest a reorientation of labor-law priorities toward employer interests, emblematic of the "swinging pendulum" of labor law that employers have become accustomed to with each changing of the guard. Employers must nevertheless scrutinize existing policies, trainings and hiring practices for compliance with updated regulations and guidance in order to minimize legal and reputational risks.
Employers also should consider the litigious nature of the U.S. and therefore continue to work with their insurance brokers and claims advocates to review relevant management liability policies, including employment practices liability coverage. By familiarizing themselves with these policies before a claim arises, employers will better understand how their policies will and should respond in such circumstances. An employment practices liability policy covers certain claims by employees and various third parties as well as regulatory investigations for allegations of discrimination, which includes reverse discrimination claims. Such matters should therefore be noticed to the employer’s carrier as soon as that demand for relief is made, whether it be monetary or non-monetary. Notice is critical in the "claims-made" space, which is the trigger for timely notice in most, if not all, management liability policies. Therefore, employers should know how their policy defines a claim and a wrongful act, as well as what their notice and consent obligations are, in order to preserve their ability to obtain and maximize policy benefits for such claims when they arise.
WTW hopes you found the general information provided here informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, WTW offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).
This article may contain information or materials created or provided by third parties over whom Willis Towers Watson has no control or responsibility. These third-party information or materials are not under Willis Towers Watson’s control, and Willis Towers Watson is not responsible for the accuracy, copyright compliance, legality, or any other aspect of such third-party information or materials. The inclusion of such third-party information or materials does not imply endorsement of any third parties by Willis Towers Watson or any association of Willis Towers Watson with any third parties.
