Abogado Ben Ebbink: Qué significan los primeros 100 días de Trump para su empresa

Gene Marks (00:00)

Hey, everybody, it's Gene Marks, and welcome to another episode of the Paychex Thrive Podcast. I just had a great conversation with Benjamin Ebbink. Ben is a partner in the Sacramento and Washington, D.C. offices of the law firm Fisher Phillips. He's also co-chair of the Government Relations Practice Group and chair of the Staffing Industry Group. Ben and I did a webinar recently with Paychex that talked about the president's first 100 days and all the executive orders that he's been issuing and what impact they have on businesses, particularly when it comes to discrimination, DEI, and some other areas. And we dug into that. The purpose of this conversation really was to field some questions from our webinar viewers about how to handle DEI, how to deal with equal opportunity. You know, should you still say you're an equal opportunity employer on your job listings? What about AI stuff that's coming out? What about regulations that are in the states and how do we handle them as compared to executive orders from the federal government? And what if we want to do programs that, you know, benefit or specify certain types of minority groups? Is that still allowed? All of those questions and a bunch more are the ones that I offered to Ben during this conversation. And as usual, Ben is a pro. He handled them all and gave great answers. I actually agreed and got some of them right previously when I answered some of these questions. Who knew? You'll enjoy this conversation a lot, particularly if you're running a business with employees. I know many of us are. It will give us a lot of clarity on these executive orders and what steps we should be taking to be in compliance going forward. So without further ado, let's bring on Ben, and we'll get right to it.

Announcer (01:39)

Welcome to THRIVE, a Paychex Business Podcast, your blueprint for navigating everything from people to policies to profits. And now your host, Gene Marks.

Gene Marks (01:51)

Okay, so we've got Ben here. Ben and I, we did a webinar together recently for Paychex where we talked about all these executive orders. Thousands of people Ben viewed this webinar is quite popular. You know, it's all about our good looks is what I think. There's nothing better than two bald guys.

Ben Ebbink (02:06)

On your hair, I think. Right?

Gene Marks (02:08)

Yeah, exactly right. You know, that's what attracted all the people there, you know, and a little bit about the content. The content is super important. And, you know, obviously it was. It was surrounding all of the president's executive orders and how they impact businesses. So without you recapping the stuff that's on the webinar. What the point of this conversation is to address some of the questions that viewers asked. Full disclosure, I actually personally address some of these questions in another podcast episode, but I'm not an attorney, and I think it's really important for, you know for people to hear different points of view, particularly people who know what they're talking about, which is why we have you on now. Right, so let's jump to it, and I'm going to ask you these questions, not only representing the, from the, from the webinar, but also for the fact that I am a business owner myself, and I have a lot of these questions for my own company and my clients. Okay, so DEI policies.

Ben Ebbink (03:01)

Sí.

Gene Marks (03:02)

Diversity, equity, and inclusion. So the question said, should we review or revise our DEI policies now, or should we wait until the litigation over the executive orders is resolved? And, Ben, I'm going to even add a third part to that. Should we even have a DEI policy? Is it even worth it in today's environment? Talk to us a little bit about that.

Ben Ebbink (03:23)

Very common questions. I still think it's worth having DEI policies, as we talked about on the webinar, you know, the litigation is, is still exploring, and I think the courts are grappling with what exactly do these executive orders do? What do they mean? And thus far, the courts have basically said, you know, look, when the executive orders talk about the term an unlawful DEI program or illegal DEI program, what they're talking about is a program that violates existing federal anti-discrimination law before President Trump even became inaugurated. So, I definitely think it's worth reviewing your policies now, not waiting until the litigation. But really what we're looking for in doing that is not anything that would have been different six months ago in reviewing a DEI program for compliance. You know, you want to make sure that you're not violating anti-discrimination law. You want to review those policies now under attorney-client privilege so that they're privileged and you can make any necessary changes. But, yeah, the, the, the short answer is don't wait. Thus far, it looks like the legal standard is not changing as a result of these executive orders. What's unlawful or was unlawful before President Trump was inaugurated continues to be the standard. So, it's a good time, as always, to review your DEI policies and make sure they're up to snuff.

Gene Marks (04:58)

So, you know, this reverts back to the law. You know the Affirmative Action Civil Rights Act of the 60s, you know, this, this goes back to prior to the George Floyd riots and all in 2020, there was, I mean, I had just a, you know, a handful of clients that even had DEI policies. It just wasn't a thing. You know what I mean? Then it became really important and, and now, you know, my clients are asking me, like, you know, if all this just being reverted back to the original laws from the 60s and to make sure that we're compliant with that, should we also revert our policy or get rid of these policies because, you know, we didn't really have them in the 2000 teens or before. And is it creating of a potential liability for us or risk to even have something in writing?

Ben Ebbink (05:49)

Yeah, you definitely have to consider the potential liabilities. I mean, I'm of the opinion that as long as you have a well-written, well-crafted DEI policy that you've reviewed with your attorney, you know, it can be done and it can be done properly, and you can minimize risk, but by just being careful on how you word it and what you say. I also think it's a business decision. And I know many companies continue to have DEI programs because the research that they've done and seen indicates that companies are more profitable when they have DEI programs, that it's better for business to attract a bigger applicant pool and those things. And until that bottom line changes, I think that's going to be compelling for companies to continue efforts along these lines. Obviously, we're in a different environment with the, the Trump administration, but like I said, that really what they've articulated so far is targeting programs that violate the law and would have violated the law a year or two ago. Not anything more, not anything different than that. So the lesson for me from all of that is you can still have a DEI program if your business concludes it makes business sense to do so, you just need, as always, to be careful about how you do it and not cross any lines. But that overall framework, you know, hasn't really changed until we see something different from the courts or the Trump administration. But thus far, you know, in terms of talking about unlawful DEI programs, it seems that they're talking about programs that would have violated the law last year before President Trump was even inaugurated.

Gene Marks (07:37)

Good. Okay, great. Super helpful. Okay. Another question that came in from the webinar. What are the red flag areas that may draw scrutiny from the Equal Employment Opportunity Commission or the Department of Justice?

Ben Ebbink (07:50)

Yeah, and this really comes as we mentioned. You know, there have been a couple of guidance documents that the EEOC and the DOJ have issued where they've talked about specific types of programs or areas that they're going to be focused on. And again, we haven't seen anything that indicates the underlying law or the legal standard is changing, but just maybe an emphasis on certain things that they're looking for are going to be paying attention to. So certainly, you know, any kind of hiring or promotion decision that gives explicit preferences to certain demographic groups, you know, we talked about this on the webinar. Hard caps, hard quotas, hard set-asides based on race or sex or other protected category, those are legally suspect and have been, but I think those are sort of low-hanging fruit that's going to attract attention. Similarly, you know, internships or mentoring programs that give explicit preferences to certain demographic groups. It's one thing to have mentorship programs that you want to, or internship programs where you want to, you know, increase the population that has an opportunity to work for your company, but when you're talking about very specific groups and being explicit that this mentorship program or this internship program is only for certain individuals, that's when you run into problems. And that's an area or a red flag that I think employee training that has, I would say, you know, sort of race or gender-based stereotyping is going to be problematic. And one of the EEOC/DOJ memos, in particular, talked about how potentially a poorly drafted or poorly done DEI training program could potentially create a claim for a hostile work environment from an individual. And I think this would be referring to things that make blanket generalizations about entire groups of individuals. I think can be somewhere you need to make sure you're not crossing them those lines. Affinity groups, sometimes these are called employee resource groups that are only open to certain employees with certain characteristics. I think are, are going to be a red flag for further investigation. And generally the best practice there is, you can have affinity groups focused on particular categories of employees, but they should be open to all and they should truly be inclusive rather than exclusive. Supplier diversity initiatives, a lot of businesses have those. And again here, if you're mandating certain racial or gender based quotas or limiting those only to certain demographic groups, I think that's where you can run a foul. But if you have broader language that talks about, you know, trying to increase diversity, underrepresented communities, and those sort of things, I think are going to continue to be okay. But you got to stay away from, you know, the real hard hard caps and quotas. So those are some of the areas and we'll get more sense from this administration enforcing the law as they take enforcement activity. But based on the guidance documents that they've put out so far, these are the type of areas we think that they're in particular going to be targeting.

Gene Marks (11:10)

What about what I see... I mean, I see some companies, particularly some larger companies continuing on with some of their, like, funding programs. You know, they have like a grant program for African American small business owners, you know what I mean? Or a scholarship program for, you know, Hispanic students. You know, are they, are they treading into dangerous grounds under these rules by, by offering these kinds of, these kinds of, you know, activities?

Ben Ebbink (11:35)

Potentially and obviously, you know, I would need to review the specific language in any program before, you know, giving kind of any real advice. But I do think, you know, anything that's perceived as giving specific preference or only being open to particular groups is subject to particular scrutiny and risk. So again, I think it may be better from a legal perspective to make programs open to casting a wider net, you know, without specific reference to a particular group per se. That's when you start getting in the territory of certain hard quotas. Set-asides, I think, are going to be potentially subject to some legal risk.

Gene Marks (12:17)

Good. All right. That's great. All right. Another question that was asked, and I responded this. So the question was, is it okay to still include in a job post that we are an equal opportunity employer? And my take on that was like, I think that's exactly what the administration is after. You know, it's definitely okay. But I wanted to hear your take on it.

Ben Ebbink (12:40)

Yeah, it's perfectly fine. And again, all that says is that you don't violate anti-discrimination law.

Gene Marks (12:46)

Right.

Ben Ebbink (12:46)

Open to all. And so if it's worded in that manner, in that way, I think it's absolutely fine. And you're right. I mean, that's what this administration wants. They want open to all, regardless of any protected category. And that's, that's the only message you're sending, you know, by saying you're an equal opportunity employer.

Gene Marks (13:05)

Okay. All right. That's good. That is good. You discussed a little bit in the webinar about the EEO-1. Can you revisit that? What exactly is that and what do we need to know about it?

Ben Ebbink (13:18)

Yeah, so this is a filing that the EEOC requires, you know, certain employers to file every year that contains demographic data on the workforce. And so this applies to private employers that have 100 or more employees and federal contractors with at least 50 employees. And so every year there's sort of a window where the EEOC collects these, these forms, these EEO1 forms. And so they've indicated this year. They just came out with an announcement that the window is going to be between May 20 and June 24, and that's when employers are able to submit these. Now, the only thing that's different this time around is under the Biden EEOC in reporting demographic data, there was a non-binary category. And as we talked about last time, President Trump issued an executive order on gender identity where he directed federal agencies to only talk about sex in terms of male and female. And so, following that direction, the EEOC in this year's EEO1 has taken the non-binary category off. So there are only two options on that form, but that's the only major difference. And again, that window is going to be opening pretty shortly here. May 20th and June 24th is the window for employers to submit those reports.

Gene Marks (14:49)

Okay, good. All right, great. Moving along, one of our viewers asked about set-asides for women-owned businesses. Will they no longer be permitted in federal and other government contracting? I mean, the background there is that when, when the federal government issues contracts, it's become very common nowadays to say, hey, when these contracts are issued to general contractors in particular, you need to make sure that you are using female-owned businesses or minority-owned businesses, you know, certain set-asides for those. I realize you're not, I don't know if you are consider yourself a government contracting expert per se, but what is it? What is like the wind tell you?

Ben Ebbink (15:25)

Yeah, so I'm not, I'm not a procurement attorney, but, you know, I think the tone has been set through these executive orders. And as we discussed previously, the president has more degree of control over federal contracting in terms of setting terms and conditions. This is the government's money. They've got the power of the purse. You want this contract, we are going to require you to do X, Y, and Z or refrain from doing X, Y, and Z. And not unlimited authority, but certainly I think has more authority to influence federal contracting than say the private employer. So, I would say based on the executive orders that we've seen issued in the federal contractor DEI space, the gender identity issue, I do think it's likely that set-asides for federal contractors based on sex and race may be, may be impacted here. It was, you know, notable that both of the executive orders on DEI did say that they don't apply to preferences aimed at veterans or disabled. So that's an area I think we still could see in the federal contracting realm, you know, sort of more explicit programs or set-asides. But I do think anything that's specifically or explicitly targeted at certain individuals of a certain race or a certain sex, I think are likely to be impacted. If I had to guess, I would say those are types of federal contractors that are going to be impacted by this administration.

Gene Marks (16:57)

Good. All right, that's great. Let's move on to the next one. So many of my clients, including my own company, we have employee handbooks. We know that the president issued an executive order saying that all reference to genders, when it come gender, when it comes to the federal government will be really with regard to sex. And there is only two sexes, male and female. That's for all government. Federal government communications rules, legislation, you know, all, all that sex, male, female, that's it. No more gender and different genders. So, one person runs a private company, they're nonfederal, and they're like, oh, okay, well, do I have to go back to my employee handbook and, you know, change the word gender to sex and you know, remove all references to different genders in my employee handbook? Is that a potential issue for me? What do you think?

Ben Ebbink (17:49)

My advice is generally no. We talked about how this executive order really impacts or directs how the federal government is going to interpret and enforce the law, but it doesn't change the underlying law. And the underlying law, we have a U.S. Supreme Court decision from a few years back that said Title 7, which is the federal anti-discrimination law, protects discrimination based on sexual orientation and gender identity. Now, there's some thought maybe the, the current Supreme Court would revisit that. But until they do, that's still the law of the land. It's still unlawful to engage in employment discrimination based on gender identity. So there's still a risk of private lawsuits and litigation out there. There's lots of states, California and others that explicitly protect gender identity. Regardless of what, you know, the federal government does, or even if the Supreme Court overturns that prior decision, you still have state and local laws. So, I think, you know, you still have a duty and obligation to make sure that you're not discriminated on that basis. It may mean the EEOC won't come after you with the charge of that type of discrimination, but it doesn't mean a private lawyer isn't going to. And so you should still be doing the proactive things, training employees, making sure you have policies that don't allow discrimination to protect yourselves from that liability, regardless of, you know, what the federal government is going to enforce. And, you know, things may change. Like I said, there could, this issue could come up to the U.S. Supreme Court again, and they change tack, but until they do, the law is the law, and you should still mitigate your risk as an employee.

Gene Marks (19:33)

Yeah, I agree. And it's funny, I just, I was getting used to the word gender instead of the word sex. I kind of like it better, actually. And then going back and having to change it all back in it seems a little bit overkill, at least for most of my clients. I think they're fine leaving the word gender in there. And like you said, as long as they don't discriminate against people, different sexual orientation. The whole point of this, all of this is like, don't discriminate, period, you know, regardless of who the person is. And so, you know, I do agree with what you just said. I'm glad to hear that as well. Okay, next question. There was a recent additional executive order on disparate. Disparate. Am I pronouncing that right? Disparate, disparate impact liability and employment discrimination claims. What did that order do and what does it mean for businesses? So I, I couldn't even answer this question. So let's, let's hear what you say.

Ben Ebbink (20:22)

Well, so let me give a little bit of background. So in employment discrimination law, there's really kind of two theories of liability. There's the first is called disparate treatment. And you are intentionally discriminated against someone because of a protected category. Right? You have that intent. You're treating that person with the intention to discriminate. There's also been a long standing theory of liability called disparate impact. And this is basically, you don't necessarily have a specific intent to discriminate, but you're using some type of facially neutral workplace policy or, or a tool in the workplace. And lo and behold, that policy or tool has a disparate impact. It impacts certain individuals based on protected categories more than others. And so this often comes up in the employment application screening process tools. You may have no intention of discriminating, but the people who get through that process are overwhelmingly white or males. And so there's some indication that there may be some unintentional discrimination occurring there based on the outcome. And that's been long, under federal law, long been a theory of liability. I think the big case was a case called Griggs, and this was in 1971 that first time set out this, this theory of disparate impact liability. And states have really adopted this too. So President Trump recently issued an executive order, and this will sound very similar to the gender identity executive order. But he basically directed the federal government to no longer pursue disparate impact type of claims of discrimination to really focus only on disparate treatment that intentional employment discrimination. Again, this is an executive order. It's going to impact what kind of cases the EEOC and the DOJ are bringing and maybe they won't pursue cases that are based on this, this type of discrimination. But again, it doesn't change the underlying law. And so employers could still be liable from a private lawsuit or in a different state based on state laws that utilize this theory of liability. It's interesting here. I think this may have some impact on the AI discussion because all of the discussion about use of AI in the workplace and algorithmic discrimination is really disparate impact type of discrimination. Right. Nobody is really arguing that an AI tool explicitly intentionally discriminates, but the algorithm has biases and those get built into the AI system and, and they come out with a result that they, you know, unintentionally favor one category over another. So, and lots of states are, you know, moving forward with AI regulation and strengthening employment discrimination laws. And that's all this basic disparate impact, that's the theory of liability that comes into play when you're talking about these AI tools. So again, it may impact the federal government and they may not pursue these theories of liability with respect to AI tools. But this is a hot issue in the states and disparate impact theory of liability in particular, as it applies to AI is continue going to be a hot issue and a potential area of risk in states in particular.

Gene Marks (24:02)

So let's actually dig into just a little bit more. So I just read Stanford University published, they have like an annual AI impact report and they were saying at the time of publication, which is like a month ago, there's something like 113 different either proposed or enacted, you know, legislation among the states regarding AI. You know, so I, the two big questions, I just want to make sure that, that our listeners and our viewers can take away. Number one for the most part, what are states focusing on when it comes to AI? And you just mentioned about disparate, you know, impact, but if you can elaborate on that because I think it's like hiring and employment practices as well as customer, you know, you know, misleading customers. And then the second part of that question is what your prediction where the administration will have federal legislation regarding AI or will they mostly leave it to the states?

Ben Ebbink (25:02)

Yeah, what we've seen so far is very similar to the whole consumer data privacy issue that we've seen the last couple years, which is, right, no comprehensive federal legislation on consumer data privacy. So, you have all these doing everything in California. You have the CCPA and other states doing. We've seen the last few years very similar. There's not federal comprehensive legislation around the AI issue. So you see states like Colorado, Illinois, New York City, California has a slew of bills this year, really stepping into that vacuum and issuing, you know, a ton of regulations and passing legislation and all across the board. Right. I mean we have state legislation dealing with deep fakes and, and other issues in the employment context. We really sort of see the state legislation honing in on a couple areas. One is requiring some type of notice, you know, to employees or applicants that look, we use AI in some form in the hiring process or making employment decisions. Number two, an emphasis on the discrimination aspect and algorithmic discrimination and requiring companies that use these tools to do some type of what's called a bias, bias assessment or impact or bias audit to make sure that, look, we're not intending to discriminate, but we want to make sure that we're not unintentionally excluding whole categories of workers through using AI. And then the third area we're sort of seeing some states attempting is some type of opt-out provision that enables an employee or maybe even an applicant to say, like, look, I don't want AI to make an employment decision, I want an actual human. So we're seeing some states talk about that, which I think has some feasibility challenges when you think about it. And then, you know, really what we've seen under this administration, you know, really sort of a walking back and I think the emphasis on deregulation at the federal level. So President Biden had issued a pretty comprehensive executive order on AI a year or two ago that really focused on some of the concerns and how to address those and coming up with guardrails to prevent those concerns. President Trump rescinded that executive order and issued his own in place. And really all of that executive order, the new executive order from President Trump focused on what he called, quote, global AI dominance of AI. So really the emphasis is on, if anything, we're going to invest in AI to make sure that the United States continues to dominate the technology and in the field. But really beyond that, really sort of a backing off of heavy-handed federal regulation in the space. So, I anticipate we're going to continue to see not a lot of action at the federal level in terms of comprehensive regulation. And again, this is all just going to fall down to the states, which can be complicated from a business perspective because every state does something a little bit different. And so, you have this pattern of laws. And that's very similar to what we saw on the whole consumer data privacy front, you know, the last seven or eight years.

Gene Marks (28:31)

Yeah, I mean, it seems to be, that seems to be the overall theme with the Trump administration for all of these different types of things. I mean, he is leaving, you know, a lot of these decisions down to the states. I mean, AI is one example. But all the employment laws that we've been talking about. And this will be my final question to you. I mean, you know, the president issues these executive orders. You know, Department of Labor will come out with its own regulations. EEOC will do the same, you know, tell us a little bit about state versus federal. You know, I mean, what, what jurisdiction does an executive order have over my state of Pennsylvania? Yeah. And where do you see that go? You know, I live in Pennsylvania, the minimum wage is still the federal minimum wage, but next door in New Jersey, the minimum wage is like 15 bucks an hour. And it just seems states, state laws seem to, you know, supersede federal.

Ben Ebbink (29:29)

I mean, generally, it really think mainly about the employment context. But there are a few areas where federal law controls, occupies the field. And the term is preempts, and it preempts any state from doing anything in that space. There's a few areas. Right. Immigration is one. Immigration is a federal issue. And states don't have their own immigration laws where they're granting authorization. That's a federal issue. Labor law and collective bargaining is exclusively an issue of federal law for the private sector. States can regulate basically labor relations for employees who aren't covered under that federal law. So public sector workers are all regulated by the states. Agricultural workers are all regulated by the states. But absent those areas where the federal law controls or occupies the field, everything else is basically the federal government sets the floor. But states are able to go beyond that. So in minimum wage is a perfect example, you have federal minimum wage that hasn't been increased in quite some time. In California, we have minimum wage, you know, $16.50 an hour, well above double that. Occupational safety and health as well. Federal OSHA sets the floor, but states can have their own OSHA plans and go above and beyond the federal. Same with employment discrimination. Right. Title 7 sets forth the protected categories. You can't discriminate against employees based on these characteristics. States are able to go beyond that and provide more protection to, to more categories of individuals. So in general, like I said, outside those specific areas where federal government has exclusive control of an issue, really, states are generally free to go above and beyond. They can't be weaker than the federal law, but they certainly can be stronger, more protective than the federal law allows.

Gene Marks (31:36)

Ben, every time I talk to you, I learned so much. You were just great. It's a great conversation. I'm glad we got some of these questions addressed after our webinar. I'm sure you and I will be talking again in the future as a lot of these things change, but I want to thank you so much for coming on and taking these questions. You did great.

Ben Ebbink (31:51)

Yeah, thanks for having me.

Gene Marks (31:52)

Do you have a topic or a guest that you would like to hear on THRIVE? Please let us know. Visit payx.me/ThriveTopics and send us your ideas or matters of interest. Also, if your business is looking to simplify your HR, payroll, benefits, or insurance services, see how Paychex can help. Visit the resource hub at paychex.com/works. That's W-O-R-X. Paychex can help manage those complexities while you focus on all the ways you want your business to thrive. I'm your host, Gene Marks, and thanks for joining us. Till next time, take care.

Announcer (32:22)

This podcast is Property of Paychex Incorporated 2025. All rights reserved.