While making changes in employment laws has not been a priority for the Trump Administration in 2026, that does not mean that there is nothing new to watch. First, ICE announced last month that certain clerical errors in completing I-9 forms which formerly could be corrected in the future now constitute substantive violations which could result in substantial fines. Second, OSHA announced last week an increased enforcement of workplace heat hazards, starting immediately. Finally, affirmative action requirements for veterans and the disabled remains fully in place due to the underlying statutes, but the Trump Administration has again proposed moving enforcement from OFCCP (which would be defunded) to the Office of Civil Rights.
Last month, ICE issued enforcement
guidance for employers explaining how ICE conducts I-9 form inspections and
the ramifications for employers with sloppy records and/or failure to correct
technical and other failures. It is happily well written. It confirms that employers have 3 days to
produce I-9 forms requested by ICE. “An
employer may receive a monetary fine for all substantive violations and
uncorrected technical or procedural failures.”
Following an inspection, the employer will receive one of three types of
notices which reflect the outcome of the audit. It also includes a list of “substantive
paperwork violations,” (i.e., missing or incomplete fields) which now include
the failure to fully complete certain areas of the I-9 form, such as the
employee’s date of birth, the date the employee signed the form, incomplete
information about the translator (if any), date of hire, date of employer
certification, etc. It also lists
examples of technical failures and a description of how fines are calculated.
Last week, OSHA updated its National
Emphasis Program for indoor and outdoor heat hazard prevention which
provides additional guidance to avoid citations and expands the list of
targeted industries. This will be
particularly important during heat waves.
Among other things, OSHA will conduct random inspections of targeted industries
during heat waves to ensure compliance. This
initiative began in 2022. The OSHA
new release explained “OSHA identified industries with high rates of
heat-related illness and industries with employers that have received
heat-related citations or hazard alert letters.” The target lists includes
farming, various manufacturers, sawmills, metal production and processing foundries,
grocery and related product merchant wholesalers, department stores, air
transportation, general freight trucking, couriers, messengers, and delivery
services, warehouses, landscapers, community food and housing, automotive
repair and maintenance, construction, greenhouses and nurseries, and restaurants.
Trump’s proposed
budget again intends to defund OFCCP entirely, which will require
amendments to the underlying statutes for Section 503 and VEVRAA, as well as
the applicable regulations, which assign enforcement to OFCCP. This was also proposed in last year’s budget,
but was not adopted by Congress. Employers should remember that although Executive
Order 11246 (women and minorities) was rescinded in January 2025, the
affirmative action obligations for the disabled and veterans remain fully in
place.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
