• Private employers with 100 or more employees.
• Businesses with under 100 employees, if they are part of a group with a combined total of 100 or more employees.
• Institutions with at least 50 employees that manage government funds or handle U.S. savings bonds and notes.
• Federal contractors with 50 or more employees and a contract of $50,000+.

• Paperwork Violations: $230 - $2,292 per form
• Knowingly Hiring Unauthorized Workers:

First offense (per worker): $573 - $4,586

Second offense: $4,586 - $11,463

Third or subsequent offenses: $6,878 - $22,927

• Document Fraud (I-9 Fraud or Misuse):

First offense: $400 - $3,195

• Section 1, checkbox #4, has been renamed to “An alien authorized to work.”
• USCIS has revised the descriptions of two List B documents in the Lists of Acceptable Documents.
• The DHS Privacy Notice has been revised to reflect updated statutory language.

Who Needs to File?

• Private employers with 100+ employees.
• Businesses with under 100 employees if they are part of a group with a combined total exceeding 100 employees.
• Institutions with at least 50 employees that manage government funds or handle U.S. savings bonds and notes.
• Federal contractors with 50+ employees and a contract of $50,000+

Action Steps:

Need Help With EEO-1 Reporting?

• In odd-numbered years (2025, 2027, etc.):
  • EEO-3 and EEO-5 reports are due on February 1.
• In even-numbered years (2026, 2028, etc.):
  • EEO-4 reports are due on February 1.

• 1st offense: Warning
• 2nd offense: Fine up to $500
• 3rd offense: Fine up to $1,000
• 4th and subsequent offenses: Higher penalties under Section 27(c) of Chapter 149

Legal Guidance For Your Employment Law Needs

I. Federal Contractors and Subcontractors

In accordance with the Orders, the Office of Federal Contract Compliance Programs (“OFCCP”) must immediately stop: (i) promoting diversity, (ii) requiring federal contractors and subcontractors to comply with affirmative action, and (iii) encouraging federal contractors and subcontractors to maintain balanced workplaces based on race, color, sex, sexual preference, religion, or national origin.

Federal contractors and subcontractors may not consider race, color, sex, sexual preference, religion, or national origin in ways that violate federal civil rights laws in their employment, procurement, and contracting practices.

Furthermore, federal contractors and grant awards must include language stating that the contractor agrees to comply with applicable federal anti-discrimination laws. The contractor must also certify that it does not operate any programs promoting DEI in violation of federal anti-discrimination laws.

II. Private-sector Employers

The Attorney General must, within 120 days, provide a report to the Assistant to the President for Domestic Policy with recommendations to encourage private sector employers to end illegal discrimination and preferences. Among other things, the report must provide a strategic enforcement plan that: (i) identifies key areas of concern, (ii) identifies the most egregious and discriminatory companies in each area of concern, (iii) provides strategies to deter illegal discrimination and preferences, and (iv) identifies litigation that would be appropriate for federal lawsuits, intervention, or statements of interest. Each relevant agency must list up to nine potential civil compliance investigations of publicly traded corporations, large non-profits, foundations with assets of $500,000,000 or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion.

III. Educational Institutions

Within 120 days after the issuance of the Orders, the Attorney General and the Secretary of Education must provide guidance regarding measures and practices to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) which found that race-based affirmative action plans used for college admissions (except military academies) violated the Equal Protection Clause of the Fourteenth Amendment.

IV. Exceptions

The Trump Executive Orders indicate a possible exception in the case of employment and contracting preferences for veterans. They also do not prevent state or local governments, federal contractors, or federally-funded state and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech, and they do not prohibit federally-funded institutions of higher education from teaching, advocating for, endorsing, or promoting unlawful employment or contracting practices prohibited by the Trump Executive Orders.

V. Takeaways

Because the scope of the Trump Executive Orders is quite broad, employers should, with assistance from legal counsel, carefully review all their Human Resources practices (e.g., hiring, promoting, mentoring, etc.) to identify any policies, procedures or practices that may be perceived as including illegal discrimination and preferences under federal law. In addition, employers should continue to monitor guidance from the federal government regarding the scope and application of the Trump Executive Orders and perform regular training for managers and supervisors accordingly.

If necessary, Human Resources practices should be modified, with advice from legal counsel, to comply with the Orders. However, employers should be mindful that other federal statutes, such as Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Dodd-Frank Act, and individual state anti-discrimination laws still apply. Employers should train managers and supervisors so that they understand that, even though affirmative action and DEI initiatives may not be permitted, Title VII and other federal, state, and local statutes still apply.

Complying with Title VII may not be as straightforward as it has been in the past. Discrimination claims may become more complex. For example, a company promotes a woman instead of a man. The man files a complaint because he feels he deserves/merits the promotion more than the woman because he has more education or went to better schools. The company hired the woman even though she does not have as much education because she has more job-related experience. Employment decisions will need to be carefully documented to demonstrate that such actions are based on merit and/or other factors unrelated to race and sex and not based on illegal discrimination or preferences. To mitigate potential litigation, employers should carefully document Human Resources actions by explaining the business need for such action.

In the past, employers have made decisions because one individual is a better fit based on personality. This is a purely subjective opinion and should be carefully documented to demonstrate that the decision is not discriminatory.

Furthermore, employers may face more litigation if individuals who were not historically protected by anti-discrimination laws may now be able to file claims of discrimination based on their race or sex.

VI. Conclusion

The Trump Executive Orders will have a significant impact on federal contractors and subcontractors, private employers, and educational institutions. The scope of the changes will be clearer when guidance is issued. In the meantime, many private employers should review their programs in case they become the subject of an audit or investigation. Such a review would also be beneficial in case of litigation.

Learn More About Our Employment Law Practice

• I-9 paperwork violations: $281 to $2,789 per Form I-9
• Knowingly employing unauthorized alien:
  • First Offense $698 to $5,579 per violation
  • Second Offense: $5,579 to $13,946 per violation
  • Third or Higher Offense: $8,369 to $27,894 per violation
• E-Verify Employers – Failure to inform DHS of continuing employment following final non-confirmation: $973 to $1,942 per relevant employee

1. complete Section 2 of the Form I-9 within three business days of the employee’s first day of employment;
2. examine original, unexpired documents presented by the employee that establish both identity and authorization to work in the United States;
3. retain completed Form I-9s for at least three years from the date of hire or one year after the termination of employment, whichever is later; and
4. in the case of certain non-citizen employees, timely reverify employment authorization no later than the date on which employment authorization expires.