Americans across the country are anxiously awaiting the results of the upcoming presidential election, including those in HR.

Regardless of whether Vice President Kamala Harris or former President Donald Trump wins next week, there will be a change in administration in January. How much the employment law landscape will change is likely to weigh on the minds of many HR leaders.

At a recent virtual roundtable, leaders of an employment law firm Smaller shared their perspectives on the biggest changes likely to happen in HR after Election Day—and why it’s not just the presidential race that people leaders should be paying attention to this election.

Work activity

Not surprisingly, if Harris is elected, we’re likely to see a “continuation of a very pro-union administration” or a “slowing down of those efforts” under Trump, says Michael Lotito, co-president of Littler’s Workplace Policy Institute, the firm’s institute. government relations and public policy arm. Lotito predicts that while the vice president would likely “broadly follow in (President Biden’s) footsteps,” when it comes to unions, it will be important to watch her approach to government contractors.

“We saw in some of the statutes under Biden, huge amounts of money given to certain business segments that came with union strings,” Lotito says.

A key related development will be changes to the leadership of the National Labor Relations Board. If Harris wins, the board will remain under Democratic control, allowing him to advance ongoing initiatives — though whether General Counsel Jennifer Abruzzo and Chairwoman Lauren McFerran will remain in those roles remains to be seen.

Abruzzo, Lotito says, would likely be fired on Trump’s first day in office.

“This will slow some of the dramatic changes initiated by Abruzzo and the council,” he says.

Immigration

A key campaign issue for both candidates, changes to federal immigration policies will have a direct impact on compliance, employment and more, says Jorge Lopez, a Littler shareholder and chair of the firm’s global immigration and mobility practice.

Take, for example, the application at work. Raids to apprehend undocumented workers are virtually “nonexistent” under Democratic administrations — there was one under former President Obama and none under Biden, Lopez says. He expects that trend to continue under Harris, but the raids would “become very much a part of the Trump administration.”

These actions will align with a fundamental difference in law enforcement: Republicans will focus on “supply-side” enforcement, focused on removing undocumented immigrants from the workforce, while Democrats will invest in “demand-side,” concerned by employers who — intentionally or unintentionally — hire undocumented workers.

I-9 audits could be another angle to pursue, Lopez says. The Biden administration conducted fewer than 400 audits last year, compared to 12,000 in Trump’s final year in office and nearly 4,000 in Obama’s. Given the increased focus on immigration this election cycle, Lopez predicts Harris will be “more strict” than Biden on I-9 audits.

If Trump wins, Lopez says, his administration — which would build on procedural lessons from his first term in office — would likely move quickly with a “basic border closure almost immediately” and stepped-up audits. There is concern, he notes, about how this could stifle employment in industries such as agriculture, hospitality, manufacturing and construction — the latter of which could hamper rebuilding efforts following recent weather disasters.

Similarly, the Trump administration would move to “hire American” over foreign talent, slowing the process of legal immigration considerably. Meanwhile, Harris’ administration would focus on “procedural improvements” to make it easier to process legal immigration, which could have a particular impact on hiring foreign talent for high-tech industries.

Personal

Political appointees typically tender their resignations when an administration of the opposite party takes over — and Trump “certainly” would accept them en masse immediately, says James A. Paretti, Jr., a Littler shareholder and former adviser principal EEOC.

“Anyone who doesn’t will get their resignations,” he says.

The situation could be slightly different if Harris wins — there hasn’t been a transition to a new administration of the same party since 1988, when George HW Bush succeeded Ronald Reagan.

Cabinet secretaries will likely all be replaced, but Paretti says some subcabinet roles, such as those overseeing the Labor Department’s Wage and Hour Division, are less clear.

There could be “significant changes” along with “some carryovers,” he says.

Current legal challenges

At least a half-dozen significant challenges to the Biden administration’s proposed labor legislation are currently tangled in court — including cases related to white-collar overtime exemptions, individual contractor status, OSHA solutions, and highly publicized FTC non-compete.

Trump’s administration will stop the calls the Biden administration started, while Harris’ administration would “significantly align” with Biden’s positions.

Importantly, some of these cases could see district court rulings before the new president takes office.

“Between now and inauguration day,” says Paretti, “a lot can change.”

State initiatives to follow

While all eyes will be on the presidential race, there are ballot initiatives, legislative proposals and legal challenges across the country that HR should also keep on their radar, says Shannon Meade, executive director of Littler’s Workplace Policy Institute.

This could become especially critical if, as many political experts predict, the presidential administration differs in party from at least one house of the US Congress. States is “where all the action is going to be,” she says.

“Unless the 119th Congress is aligned with the new administration, we are in divided government and there will be federal legislative gridlock for the next four years, which will give rise to increased state and local activity” , says Meade. “Undoubtedly, state and local will be the determinants of employer and employment law.”

Areas to keep in mind include:

Salary and hours

Although Harris has indicated he strongly supports raising the federal minimum wage to $15, the legislation has consistently failed, prompting many states to step up.

That election will include ballot initiatives to raise the minimum wage to $18 in California — which would be the highest in the nation — and incremental increases to $15 in Alaska and Missouri.

Elsewhere, Meade says, the FLSA tip credit is under fire in places like Massachusetts, which has a proposed initiative to raise the minimum wage for tipped employees and phase out the use of the credit, while a reverse proposal to “enshrine, essentially tip credit’. in the state constitution” is on the Arizona ballot.

Paid leave

Voters in Nebraska, Alaska and Missouri will consider ballot initiatives to mandate paid sick leave, Meade notes.

Importantly, Vice Presidential candidate Gov. Tim Walz has voiced his support for a national paid leave program — and signed a bill as governor to give most Minnesota workers 20 weeks of sick and family leave paid annually.

“This could be an area in the next Congress where we see bipartisan support,” Meade says.

Regulation of AI

Despite the growing importance of AI in the workplace, few federal proposals for govern artificial intelligence have gained traction — prompting “a growing interest in states to establish some simple legal guardrails around the use of AI,” says Meade.

There have been more than 700 different proposals in 45 states this year, she says, with Colorado passing the most comprehensive law to regulate AI. After the election, she predicts, more states will follow suit.

Labor management relations

Captive audience meetings—essentially designed to discourage workers from unionizing—have long been the norm in American labor law; however, in recent years there has been a move, Meade says, to recognize such mandatory meetings as coercive and impermissible. Most recently, California passed a law that subjects most employers who use such techniques to penalties starting in January.

Similar proposals are also moving forward, Meade says, in Illinois and Massachusetts.