Labor and Employment Law Blog
Labor and Employment
Virginia Joins the National Trend Limiting Noncompete Agreements
Employers who do business in Virginia and have employees who work in that jurisdiction need to be aware of a law which will soon be enacted limiting the use of noncompete agreements. It is no secret that there is a growing national trend towards limiting the use and enforceability of noncompete agreements, predicated upon what legislatures and courts deem to be unfair restrictions on employee mobility and freedom of competition in the marketplace. Thus, on March 4, 2026, the Virginia legislature approved Senate Bill 170, which contains a detailed regimen of restrictions imposed on employers who have employees in the Commonwealth. So, in general, what does this piece of legislation do, which is expected to be signed into law by Governor Spanberger? Well, there are a number of detailed nuances to the legislation, and they are too numerous to be enumerated here, but the following are merely highlights of the newly anticipated restrictive law: The new law, if enacted as expected, would prohibit noncompetes for any employee who is laid off without severance benefits or other monetary payment, unless such employee is terminated for “cause” (both “severance benefits” and “cause” are undefined in the law) The new law would become effective for all noncompete provisions entered into, amended, or renewed AFTER July 1, 2026, but significantly does not apply retroactively to any agreement entered into prior to July 1, 2026 Interestingly, the law applies to all employees, irrespective of their rank or station in the company, even those in senior management positions The law does not prohibit non-solicitation of customers or employees Employers who violate the provisions of the law face the possibility of being sued in a private right of action where the claimant can obtain injunctive relief, liquidated damages, backpay, and counsel fees Additionally, under the law, the Virginia Commissioner of Labor and Industry may impose a civil monetary penalty of $10,000 for each violation Employers doing business and employing individuals in Virginia need to closely monitor developments with the new law, and if enacted as expected, be prepared to carefully draft noncompete provisions in accordance with what appears to be a very restrictive legislative scheme. Because there are many open questions surrounding the details of the new law, it is strongly advised to seek qualified employment counsel when contemplating the use of noncompete provisions in the Commonwealth of Virginia.
April 1, 2026
Labor and Employment
JFK–Bessette: When an Employee Becomes the Headline—How Much Control Do Employers Have Over Public Image?
Ryan Murphy’s dramatization of the relationship between Carolyn Bessette Kennedy and John F. Kennedy Jr. offers an extreme illustration of a workplace issue that employers increasingly face—when an employee’s personal profile begins to impact the brand he or she represents. Long before becoming part of one of the most scrutinized couples of the 1990s, Bessette worked in public relations at Calvin Klein, managing celebrity relationships and helping shape the company’s public image. But as media attention surrounding her relationship with Kennedy intensified, the publicity began to compete with the brand she was responsible for promoting, creating a distraction from the very image she had been hired to help manage. While that story took place decades before social media, it highlights a question employers continue grappling with today: how much control does an employer have over an employee’s public image when it affects the company’s reputation? The answer, in most cases, is that employers have some ability to regulate conduct that legitimately affects the business, but that authority is limited. Employers, understandably, care about how their workforce reflects on the organization. In roles such as public relations, marketing, executive leadership, and client-facing positions, employees function as ambassadors for the company’s brand. When public attention turns toward an employee, whether by media coverage or viral online exposure, that attention can easily spill over onto the employer. That concern is no longer confined to celebrities or high-profile executives. In the digital era, the separation between employees’ professional and personal lives has narrowed dramatically. Social media allows posts, comments, and photographs to circulate widely within hours, and it often makes it easy to connect individuals to their employers. As a result, situations that once affected only public figures can now involve employees at every level of an organization. To manage the negative side of that risk, many companies implement policies addressing employee conduct outside the workplace. These policies include social media guidelines governing how employees reference their employer online and restrictions on public statements that could be perceived as representing the company, and confidentiality provisions protecting internal information. When employees serve as public-facing representatives of the brand, employment agreements may also include reputation or morality clauses allowing employers to respond when an employee’s conduct creates reputational risk. Nonetheless, employers’ authority to control employee conduct has limits. Even when reputational concerns are legitimate, companies must balance their interests against employee rights. For example, some states protect lawful off-duty conduct, which could limit an employer’s ability to discipline employees for activities outside the workplace that have no connection to their jobs. Similarly, under federal labor law, employees have the right to discuss workplace conditions, publicly in some instances, if those discussions constitute protected concerted activity. In addition, employers also must be mindful of discrimination risks. If workplace image policies are enforced against some employees but not others, those decisions can expose the employer to claims of disparate treatment. Consistency in enforcement is therefore critical when reputational concerns arise. The lesson for employers is not that they should attempt to control employees’ personal lives. Rather, employers should focus on clearly defining expectations that relate to legitimate business interests. Well-drafted social media policies, consistent enforcement practices, and thoughtful training for managers can help organizations navigate situations where an employee’s public image intersects with the company’s reputation.
March 30, 2026
Labor and Employment
Continued Disparities in Joint-Employer Status Laws
Updated on April 23, 2026 On April 22, 2026, the U.S. Department of Labor announced a plan to create one nationwide standard from multiple federal laws for when two or more employers can be jointly liable for workplace offenses. The proposed rule, as published in the Federal Register, would eliminate the current disparate treatment of joint employer status under various federal laws, including the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act. The proposed singular rule would reduce the previous “economic realities” tests to just four criteria: (a) the power to hire or fire, (b) the ability to supervise or control a worker's schedule, (c) the power to determine the rate and method of payment to the worker, and (d) maintaining a worker's employment records. The new rule would not eliminate the disparities present in state laws discussed in the article below but would provide important clarification and simplification of federal laws on joint employer status. The new rule could also provide more guidance which may potentially resolve conflicting rulings in federal courts. Federal law provides baseline joint‑employer standards under the National Labor Relations Act (as interpreted and enforced by the National Labor Relations Board) and the Fair Labor Standards Act (as interpreted and enforced by the U.S. Department of Labor). States, however, have increasingly adopted their own joint‑employer rules, often broader and more worker‑protective. The result is an assortment of rules in which a business may be a joint-employer under state law but not under federal law or potentially even under the Fair Labor Standards Act but not the National Labor Relations Act. National Labor Relations Act and National Labor Relations Board: Current Law The operative rule is the 2020 Trump-era “direct and immediate control” standard. The following is a summary of the key developments that led to the current framework. The 2020 standard established that to be deemed a joint employer, an entity must exercise "substantial direct and immediate control" over essential terms and conditions of employment. Workers were required to demonstrate this level of control by another entity over another entity's employees. On October 27, 2023, the NLRB published a final rule that rescinded and replaced the 2020 rule. The proposed new rule would have dramatically broadened the standard by establishing that two or more entities may be considered joint employers if each: Has an employment relationship with the employees; and Shares or codetermines one or more of the employees' essential terms and conditions of employment. On March 8, 2024, Texas federal judge J. Campbell Barker vacated the 2023 rule, holding that the test was unlawfully broad, as it would have allowed an entity to be deemed a joint employer with or without any exercise of meaningful control over the relevant employees' terms and conditions of employment. As the 2023 rule never took effect, the prior 2020 rule remained the operative rule. The NLRB formalized this by revising its regulations, effective February 27, 2026, to replace the vacated regulatory text with the 2020 rule. The NLRB had filed an appeal of the Texas court's decision in 2024, but given the change in administration and the formal February 2026 withdrawal of the 2023 rule, the broader Biden-era standard appears definitively off the table for now. Fair Labor Standards Act and U.S. Department of Labor: Current Law Similar “back and forth” changes have occurred in the U.S. Department of Labor’s joint-employer criteria. The DOL’s current joint-employer criteria under the Fair Labor Standards Act (FLSA) and other federal employment laws hinge not only on whether two or more businesses, through association, share "substantial direct and immediate control" over an employee's essential terms and conditions—specifically hiring, firing, discipline, supervision, and pay—but also on the “economic realities” of the relationship of each employer to the employees. The current DOL focus is on whether a business "meaningfully affects" a worker's employment. Key Aspects of Joint Employment (FLSA/DOL) Influence Over Essential Terms and Conditions: Includes hiring, firing, discipline, supervision, and pay. Horizontal Joint Employment: Exists when an employee works for two separate employers who are sufficiently associated (e.g., shared employees, common management). Hours worked for both must be combined for overtime pay. Vertical Joint Employment: Occurs when an employee of an intermediary (like a staffing agency) is economically dependent on another employer (the client). Key Considerations Control vs. Association: The test is not just about ownership but whether they share control. Overtime Liability: Joint employers are jointly responsible for compliance, including overtime, for all hours worked. Key Aspects of DOL Joint-Employer Criteria Control and Association: A joint employment relationship exists when employers share control over essential terms and conditions of employment, such as hiring, firing, payroll, and supervision. Totality of the Circumstances: No single factor determines the status; it is based on the entire relationship, including shared facilities, overlapping management, and interconnected business operations. Shared Personnel: An employee works for two different entities, such as two restaurant locations, in the same workweek. Coordinated Operations: Employers share managers, a kitchen, or other resources. Economic Reality: The worker is economically dependent on both potential joint employers. This pre-2020 FLSA standard now governs wage-and-hour joint-employer liability, particularly for franchisors, staffing agencies, and companies using third-party contractors. Different Applications of the FLSA by Different Courts In 2024, the Supreme Court’s decision in Loper Bright Enterprises v. Raimundo overturned the legal doctrine known as Chevron deference, meaning courts now exercise independent judgment in interpreting statutes and do not defer to agency interpretations simply because a statute is ambiguous. However, prior cases upholding specific agency actions remain good law. As a result, while DOL regulations and guidance remain influential, federal courts now independently interpret the FLSA’s joint-employer provisions, focusing on statutory text and the economic realities of the employment relationship. Consequently, employers in different federal court jurisdictions may be subject to different joint-employer criteria. Patchwork of Differing State Laws State joint-employer laws and regulations vary substantially across states. Some states coincide with or expressly follow federal standard. Other states have adopted independent and more expansive tests, with the result that some employers that are not joint employers under one or both federal laws are joint employers under one or more state laws. The broader state tests include criteria such as: Economic dependence frameworks Statutory expansions targeting industries such as franchising or subcontracting The result is a fragmented legal landscape where joint‑employer status depends heavily on jurisdiction, industry, and the specific statute(s) that apply to the employer’s operations. Industry‑Specific Joint‑Employer Rules Some states impose joint‑employer obligations in targeted sectors: Construction (e.g., wage theft statutes making general contractors liable for subcontractor wages) Janitorial services (e.g., California’s Property Service Workers Protection Act) Agriculture (e.g., state migrant worker protections) Fast food (e.g., California’s recent reforms) Federal law does not have comparable industry‑specific joint‑employer statutes. Key Practical Takeaways Under the NLRA: The narrower 2020 standard applies, requiring actual, substantial, and direct control over employment terms to establish joint-employer status. Under the FLSA: A similar pre-2020 standard governs, but joint-employer liability for wage-and-hour purposes may be more easily established based on potential or indirect control, considering a variety of relevant facts. Businesses that utilize independent contractors, including franchise business models, should remain wary of these evolving standards. This is an area of active legal and regulatory change, so consulting an employment attorney for advice specific to your situation is strongly recommended, along with regular review of federal and state laws that may apply to your operations.
March 24, 2026
Labor and Employment
Safeguarding Your Business in an Era of Restrictive Covenant Scrutiny
For years, businesses have relied on non-competes and broad confidentiality agreements to protect themselves when employees leave. That approach is changing. Courts and regulators are increasingly wary of restrictions that limit employee mobility, as reflected in the last several years of activity by the Federal Trade Commission, the National Labor Relations Board, and state legislatures. This shift, however, is not anti‑business. It is aimed at curbing overbroad restraints that prevent former employees from earning a living. In many respects, it reflects a return to the true purpose of restrictive covenants: protecting legitimate business interests and competitive advantage. As a result, employers’ litigation focus is moving away from preventing former employees from simply joining competitors and toward examining whether company information was improperly taken or used. In practical terms, protecting the business now centers on protecting its data. Importantly, restrictive covenants are not dead. Properly tailored covenants remain enforceable in most jurisdictions and continue to play a meaningful role in safeguarding legitimate interests. Courts are far more likely to enforce restrictions that are narrowly drafted, periodically reviewed, and tied to an employee’s role and access to sensitive information. Employers should therefore refine—not abandon—restrictive covenants to ensure they can withstand scrutiny. Within this framework, data protection operates as a supplement to, not a replacement for, other restrictive covenants, providing an added safeguard if contractual restrictions are narrowed or fail. Most businesses are not harmed simply because a former employee takes a new job. Rather, the harm occurs when something leaves with that employee: customer lists, pricing strategies, internal processes, technical know‑how, reports, or analytics. To qualify for protection, this information must be valuable, not generally known, and subject to reasonable safeguards. Modern disputes increasingly turn on trade secret principles under the Defend Trade Secrets Act and comparable state laws. Courts focus less on contractual labels and more on whether the company actually treated the information as valuable. Effective protection requires more than labeling information “confidential.” At hiring, employees should be clearly informed about the information they will access and the limits on its use. At departure, employers should require exit certifications confirming that devices were returned, company files were removed from personal accounts, and no information was retained or forwarded. This process alone prevents many disputes and creates a clear record if concerns later arise, allowing employers to investigate based on objective representations rather than speculation. During employment, employers increasingly rely on monitoring tools that provide objective evidence of whether files were accessed, transferred, or retained improperly. Courts are generally more receptive to such technical proof than to assumptions based solely on an employee joining a competitor. The takeaway is straightforward. Courts are becoming less concerned with where a former employee works and far more concerned with whether protected information was misused. Businesses best positioned going forward will not be those with the longest non‑compete agreements, but those that can show they identified their critical information and consistently safeguarded it.
February 27, 2026
Labor and Employment
Employer Use of AI Wage-Setting Tools: Risks, Bias Concerns, and Employer Responsibilities
As employers increasingly adopt artificial intelligence to streamline compensation decisions, the promise of efficiency must be carefully balanced against significant legal and ethical risks. AI‑driven wage‑setting tools can help analyze market data, standardize pay ranges, and reduce human error, but only when the underlying data and algorithms are reliable. When these systems rely on incomplete, outdated, or biased inputs, they may unintentionally replicate or even worsen existing disparities. For example, algorithms trained on historical pay data can reinforce gender‑ or race‑based wage gaps, regardless of an employer’s intent. Lawmakers are also signaling that wage‑setting algorithms will not operate in a regulatory vacuum. Over the last year, legislators in California, Colorado, Georgia, and Illinois have introduced bills to curb discriminatory or opaque uses of AI in compensation decisions. Several states, including Georgia, Illinois, Maryland, and New York, are renewing or expanding these efforts in 2026. Many of these proposals reflect a growing concern that businesses may rely on personal data unrelated to job duties – such as biometric characteristics, behavioral patterns, or even parental status – to generate so‑called “optimized” pay rates. Employers should remember that AI does not shield them from longstanding legal obligations. Anti‑discrimination statutes, equal pay laws, and wage‑and‑hour requirements apply regardless of whether a human or an algorithm drives the recommendation. With state activity accelerating, employers should take a proactive approach to assessing their exposure and strengthening internal controls over wage decisions. Regular pay‑equity audits, careful review of the data inputs and assumptions behind AI tools, and meaningful human involvement in all compensation decisions are essential steps to ensure employers can meet emerging legal standards and maintain fair, compliant pay practices. By reinforcing these safeguards now, organizations will be better positioned to adapt as regulatory requirements continue to evolve.
February 23, 2026
Labor and Employment
A Practical Guide to Collective Bargaining: Strategies, Obligations, and Best Practices for 2026
Collective bargaining remains one of the most important processes governing labor–management relations in the United States. For organizations preparing for negotiations in 2026 and beyond, the key to success is understanding not only the legal framework, but also the strategy, preparation, and interpersonal dynamics involved. This outline walks through the essentials of collective bargaining under the National Labor Relations Act (NLRA), along with practical techniques, negotiation tactics, and preparation tips drawn from decades of labor‑relations practice. What Is Collective Bargaining? Collective bargaining is the structured process by which an employer and a union negotiate wages, hours, benefits, and working conditions of employees represented by the union. The outcome is a Collective Bargaining Agreement (CBA), a binding contract that sets those terms for a defined period. The process is regulated by the National Labor Relations Act, which preempts state labor laws for private employers. Though every negotiation is unique, all follow a similar progression. Collective bargaining typically unfolds in several key phases: Preparation - Both sides analyze the existing CBA, gather economic and operational data, and develop proposals. Negotiation - Each party presents its proposals, discusses priorities, and responds to the other side’s demands. Agreement - Once consensus is reached, the parties draft a written agreement or memorandum of understanding. Ratification - The union’s membership votes on the agreement, and the employer formally approves it. Implementation The new CBA takes effect, often retroactively if negotiations extend past the previous contract’s expiration. The Legal Duty to Bargain Section 8(d) of the NLRA requires both parties to meet at reasonable times and negotiate in good faith over mandatory subjects such as wages, hours, and working conditions. Importantly, neither party is required to agree to any specific proposal, nor must they make a concession. Types of Bargaining Subjects Mandatory Mandatory subjects are those that “vitally affect” wages, hours, or working conditions. Examples include: Compensation and incentive pay Pension and benefit plans Paid and unpaid leave Discipline and discharge Seniority Work rules Grievance procedures Employers may not make unilateral changes to mandatory subjects without bargaining. Permissive Permissive subjects are relevant, but not central to working conditions They include definition of the bargaining unit, internal union procedures, and terms for non-unit employees. Parties may negotiate these, but neither side can be forced. Illegal Illegal subjects are topics prohibited by law, and include closed shop provisions, hot-cargo agreements, and discriminatory clauses based on race, religion, sex, age, disability, national origin, or union activity. Understanding these categories helps both sides stay compliant and focused on productive negotiation topics. Good Faith vs. Bad Faith Bargaining Good-faith bargaining is legally required and is the foundation of the negotiation process. It requires sincerity, openness, and a genuine desire to reach an agreement. What Good‑Faith Bargaining Looks Like: Meeting at reasonable times Making concessions and counteroffers Providing relevant information upon request Engaging in meaningful discussion Drafting written agreements when terms are reached Importantly, good faith does not require either party to accept proposals or make concessions they find unacceptable. Automatic Violations of Good Faith Certain actions are considered violations regardless of intent: Making unilateral changes to mandatory subjects before the impasse Bargaining directly with employees instead of the union Refusing to meet or discuss mandatory subjects Refusing to sign a written agreement reached at the table Other Signs of Bad Faith The National Labor Relations Board may also infer bad faith from patterns of behavior, such as: Delaying tactics Unreasonable demands Withdrawing previously agreed‑upon terms Failing to designate a representative with authority to bargain Attempting to bypass the union Good‑faith bargaining is not just a legal requirement—it is essential to building trust and reaching durable agreements. The Duty to Provide Information Under the National Labor Relations Act, both the employer and the union must provide information relevant to bargaining, resolution of grievances, or contract administration. Failure to provide information can result in: Unfair labor practice charges Conversion of an economic strike to an unfair labor practice strike Delayed or invalid impasse claims Even vague or burdensome requests may need to be answered, and requests cannot be ignored simply because they involve confidential information. Preparing for Negotiations Preparation is the backbone of successful bargaining. Management’s team typically includes: A chief spokesperson Financial and cost specialists HR representatives Operations experts A note‑taker Decision makers with authority The NLRA prohibits either side from interfering with the other’s choice of representatives, and employers cannot limit the size of a union bargaining team. Economic data collection is essential. Key sources include: Bureau of Labor Statistics (CPI, wages, employment data) Bloomberg Law contract settlement databases Local and industry CBA comparisons Teams should identify desired changes, anticipate union demands, prioritize issues, and prepare arguments with supporting data. Negotiation Strategies and Tactics Collective bargaining is both a legal process and a strategic exercise. Successful negotiators understand the unwritten rules, anticipate the other side’s priorities, and maintain discipline throughout the process. Experienced negotiators follow unwritten norms, such as: Neither party expects to get everything it asks for Parties begin with broad proposals and refined goals Early progress often focuses on non‑economic issues Major issues are typically addressed closer to contract expiration Common Bargaining Styles Auction bargaining - High opening proposals lowered incrementally. Trade‑off bargaining - Movement on one issue in exchange for concessions on another. Blue‑sky bargaining - Unrealistic initial demands with slow movement. Illegal Bargaining Styles Boulwarism - Presenting a single “fair, firm offer” and refusing to negotiate. Surface bargaining - Pretending to bargain with no real intent to reach an agreement. Experienced and successful negotiators operate from a realistic, “give and take” perspective that often involves some of the following tactics. Acknowledge the other party’s views Use real‑world examples Highlight points of agreement Ask open‑ended questions Keep negotiations fair, calm, and professional Build trust, rapport, and momentum Running Effective Bargaining Sessions The first meeting sets the tone and bargaining climate. Each party makes an opening statement, establishes schedules and routines, and exchanges initial proposals. Unions typically present more than they expect to receive, setting room for concessions. At the next session— usually the second meeting— the parties clarify demands, understand priorities, and begin evaluating economic impacts. This is critical for setting expectations and building negotiation strategy. For subsequent sessions as the deadline approaches sessions become more frequent, offers and counteroffers accelerate, committees may handle complex issues, and tentative agreements (TAs) are recorded clause-by-clause. Best Practices: Tips, Tricks, and Traps Collective bargaining has elements of skill. Skilled negotiators will recognize the other party’s perspective, provide clear explanations and supporting data, often ask open-ended questions, keep discussions focused and productive, and importantly remain calm and respectful. The most effective teams are well‑prepared, unified, and strategic in how they present and defend their proposals. Here are some hints and tips: Treat all early agreements as tentative until the full contract is settled. Document everything—written summaries, session notes, and caucus discussions. Never lose your temper, even if provoked intentionally. Avoid claiming you “cannot afford” a proposal, which could obligate financial disclosure. Caucus frequently to regroup or strategize. Build momentum through small agreements. Always preserve the authority and credibility of the chief negotiator. Advanced Negotiation Techniques Certain techniques may be useful for resolving conflicts and finding common ground. These include: (a) caucuses, which are private discussions of each negotiating team that are used to refine proposals, assess costs, or cool tensions; and (b) so-called “sidebar” meetings, which are private meetings between lead negotiators to break logjams or explore sensitive options. Trust is essential. If negotiations stall, the Federal Mediation and Conciliation Service (FMCS) can facilitate resolution by suggesting compromises, tradeoffs, or settlement formulas. Understanding Impasse An impasse occurs when good‑faith negotiations no longer offer a realistic path to agreement. When negotiations stall, executives and in-house counsel must navigate a complex landscape of legal standards, operational risks, and strategic considerations. Understanding impasse and mediation is essential to avoiding missteps that could escalate conflict or trigger legal exposure. After impasse is declared: Employers may implement their last, best, and final offer—but only positions already proposed before impasse Strikes and lockouts may occur The duty to bargain is suspended, not terminated Impasse may be broken by events, such as new proposals, the passage of time, strikes, or changed economic conditions. Business Decisions and “Effects” Bargaining Employers must bargain over employment-related decisions such as layoffs or production quotas, but not over core entrepreneurial decisions like closing a business unit. However, even when not required to bargain the decision, employers must bargain over the effects of that decision—timing, transition issues, severance, etc.—at a meaningful time. Key Questions for Upcoming Negotiations Collective bargaining is one of the most consequential legal processes an organization undertakes. It shapes labor stability, operational flexibility, cost structure, and long‑term workforce relations. For executives and in‑house counsel, the goal is not simply to negotiate a contract — it is to manage legal exposure, protect enterprise interests, and ensure compliance with federal labor law at every stage. Below are some key questions that may help achieve these goals. What are the union’s likely demands? Which CBA provisions are most problematic for management? What changes does the company desire? What internal or external constraints shape negotiation limits? Final Thoughts Effective collective bargaining is both an art and a science—grounded in legal requirements but shaped by preparation, data, trust, communication, and strategy. With thoughtful planning and disciplined execution, organizations can reach agreements that are fair, workable, and sustainable for both labor and management.
February 20, 2026
Labor and Employment
Severance Packages: Best Practices for Calculating and Communicating Them
Severance decisions sit at the intersection of legal risk, employee relations, and business judgment. For employers, the challenge is not simply deciding whether to offer severance, but determining how much to offer, under what circumstances, and how to communicate it without creating unnecessary exposure. From the employer-side counsel perspective, severance works best when it is approached deliberately—not reactively—and when it aligns with both the reason for separation and the employer’s broader workforce strategy. Understanding the Legal Starting Point Despite common assumptions, severance is rarely required by law. Outside of contractual obligations, collective bargaining agreements, or statutory notice requirements tied to layoffs, most severance arrangements are discretionary. Problems arise when past practice, offer letters, or outdated policies blur that line and create an expectation of entitlement where none was intended. Before discussing numbers, employers should confirm what obligations already exist and whether prior decisions have set informal benchmarks. Consistency matters, but so does clarity about when severance is offered as a business decision rather than a legal requirement. Let the Reason for Separation Drive the Analysis Not all separations should be treated the same, and severance decisions should reflect that reality. A position eliminated due to restructuring presents a very different risk profile than a termination for poor performance or misconduct. Offering severance in situations that contradict the stated reason for termination can undercut the employer’s position if the separation is later challenged. Employer-side counsel often advises against rigid formulas in favor of a framework that considers why the employment relationship is ending, how the decision was documented, and what claims the employee could realistically assert. Severance should reinforce the employer’s narrative—not weaken it. Calculating Severance With Defensibility in Mind While there is no universal formula, employers benefit from anchoring severance decisions to objective factors such as length of service, seniority, and compensation level. These guideposts help ensure internal equity and reduce the risk that severance decisions appear arbitrary or discriminatory. At the same time, employers should preserve discretion. High-risk separations may justify enhanced severance in exchange for a comprehensive release, while low-risk exits may not. The goal is not mathematical precision but defensibility if the decision is later scrutinized. Severance as a Risk-Management Tool From a legal standpoint, severance is most valuable when it is tied to meaningful protections. Employers are not simply paying for goodwill; they are often seeking certainty. A properly structured separation agreement can significantly reduce exposure by resolving potential claims before they become disputes. That tradeoff only works if the consideration offered is proportionate to the risk being addressed. Underpaying for broad releases or overpaying in low-risk situations can create problems. Thoughtful calibration is key. The Importance of Clear, Careful Communication Even well-designed severance packages can create risk if they are communicated poorly. Separation conversations are emotional, and off-the-cuff remarks can later take on outsized significance. Employers should communicate severance in a way that is respectful, measured, and precise, avoiding language that suggests fault, guarantees, or precedent. Employees should understand that severance is being offered in exchange for an agreement, and they should be given adequate time to review. A rushed or confusing process often invites second-guessing—and, in some cases, litigation. Avoiding Unintended Precedent One of the most common employer concerns is that severance decisions will set a precedent for future separations. While consistency is important, employers are not required to treat every departure identically. What matters is whether each decision can be explained based on legitimate business considerations. Maintaining internal documentation of the rationale behind severance decisions—particularly when they deviate from past practice—can be invaluable if those decisions are later challenged. Revisiting Severance Practices Over Time Severance practices should evolve alongside the business. Workforce changes, economic conditions, and developments in employment law can all affect how severance is viewed and valued. Employers who periodically review their policies, templates, and decision-making frameworks are far better positioned than those who rely on habits formed years earlier. Severance is not just an end-of-employment expense. When handled thoughtfully, it is a strategic tool that helps employers manage risk, preserve credibility, and bring closure to difficult transitions.
February 18, 2026
Labor and Employment
Pinged After Dark: Email Expectations, Burnout, and Employment Law Risk
One of the most common questions labor and employment attorneys hear from employers in the post-remote workplace is whether employees can be expected to answer emails outside standard business hours. The question seems straightforward, but it sits at the intersection of wage and hour law, workplace culture, and an evolving understanding of employee burnout. The rise of remote and hybrid work has permanently blurred the line between work time and personal time. What was once an occasional after-hours message has, for many employees, become a steady stream of evening and weekend communications. While constant connectivity can support flexibility and responsiveness, it also creates legal and operational risks when expectations are unclear or unmanaged. From a legal perspective, after-hours email expectations matter most under wage and hour laws. For non-exempt employees, time spent reading and responding to emails outside of scheduled work hours may be compensable under the Fair Labor Standards Act and similar state laws. Even brief, sporadic email activity can add up over time, creating exposure for unpaid wages or overtime if that time is not properly tracked and paid. Employers often underestimate how easily “just checking email” can become a compliance problem. For exempt employees, the analysis is different but not risk-free. While these employees are not entitled to overtime pay, constant after-hours availability can contribute to burnout, stress-related health issues, and requests for medical leave or workplace accommodations. Employers increasingly face claims tied to mental health conditions, and a culture that implicitly demands round-the-clock responsiveness can become evidence in those disputes. Oftentimes there is a disconnect between written policies and actual practice. Many employers maintain policies stating that after-hours work is not required, yet managers routinely send late-night emails or praise employees who respond immediately. Over time, this behavior creates an unwritten expectation that employees reasonably feel they must meet. In legal disputes, it is often those informal expectations — not the handbook language — that carry the most weight. Although U.S. law has not formally adopted a “right to disconnect,” global trends and employee expectations are moving in that direction. Several jurisdictions outside the United States already limit after-hours communications, and similar ideas are gaining traction domestically. Employers should assume that after-hours availability will continue to be scrutinized from regulators, courts, and employees alike. The most effective approach is clarity. Employers benefit from clearly defining when employees are expected to be available and when they are not, and from ensuring that managers understand how their communication habits affect both compliance and morale. Where business needs require after-hours responsiveness, those expectations should be deliberate, consistent, and aligned with compensation practices. Burnout is no longer just a workforce morale issue. It is a business and legal risk that can lead to turnover, leave-related disputes, and costly claims. Employers that proactively set reasonable boundaries around email use and availability are better positioned to retain talent, reduce risk, and defend their practices if challenged. After-hours email is not simply a question of convenience or courtesy. It reflects how well an organization understands its legal obligations and how seriously it takes the sustainability of its workforce. Thoughtful boundaries today can prevent significant problems tomorrow.
February 4, 2026
Labor and Employment
New Year, New Employment Laws; What Employers Must Know for 2026
As 2026 begins, employers across the United States face a wave of significant labor and employment law changes that demand immediate attention. From California’s updates to minimum wage, exempt salary thresholds, and equal pay requirements, to Illinois’ expanded workplace transparency and AI-related compliance obligations, these developments reflect a growing emphasis on employee protections, pay equity, and technology governance. Pennsylvania and Texas also introduced targeted reforms, including anti-discrimination measures, paid leave adjustments, and new standards for responsible AI use. The following provides an overview of the changes effective in early 2026 and outlines practical steps employers should take to help ensure compliance and mitigate risk. Jump to: California | Delaware | New York | Illinois | Pennsylvania | Texas California Minimum Wage Increases to $16.90 Per Hour Several cities and counties have their own required minimum wages. Employers should check their local city and county ordinances where they have employees to ensure they are paying the correct minimum wage. Forty (40) California cities and counties have minimum wage rates that are higher than the state minimum wage of $16.90. Twenty-eight (28) of those forty local cities and counties have increases to their minimum wage beginning January 1, 2026, with West Hollywood, at $20.25 per hour, being the highest. What Employers should do: Employers should check the minimum wages for any city or county where they have employees. Make sure hourly rates are updated to comply with state law and the City/County where the employee is working. Employers must pay minimum wage in the city or county where the employee works and not where the employer is located. The Salary Requirement for Exempt Employees Rises to $70,304 In order to be exempt, an employee must meet the duties test and the salary test. The California salary test requires exempt employees to earn twice the minimum wage. With the increase in minimum wage to $16.90 on January 1, 2026, the new minimum salary for California exempt employees is $70,304. What Employers should do: Make sure any California employee who is exempt has an annual salary of at least $70,304. Requirement to Allow Employees to Use Sick Leave for Jury Duty and When Appearing as a Witness Use of sick leave was expanded to allow employees to use sick leave for jury duty or when they are required to appear in court to comply with a subpoena or other court order. What Employers should do: Employers should revise their sick leave policy in their Employee Handbook and make sure that the new 2026 posters are displayed. In the alternative, employers can provide employees with the Notice linked to this Article. The revised and required notice is linked below. Poster English Spanish New Notice Requirement – California Workplace – Know Your Rights Effective February 1, 2026, and each year thereafter, employers must provide notice of employees’ rights. The Labor Commissioner has developed notices that are linked here in Spanish and English. Employers are required to keep records of each written notice provided or sent for three years, including the date provided or sent. Employers may, but are not currently required to, provide a link or show the video developed by the Labor Commissioner’s office. In addition, by March 30, 2026, employers must provide employees the opportunity to name an emergency contact and indicate whether that contact should be notified if the employee is arrested or detained. What Employers should do: Employers should distribute the Notice to employees and keep records of how and when it was distributed. In addition, employers should calendar distribution for each year and give employees the opportunity name an emergency contact if they are arrested or detained. Changes to the California Equal Pay Act The definition of “pay scale” under the California Equal Pay Act has been broadened, and the statute of limitations for claims thereunder has been increased from two (2) to three (3) years, with employees able to get relief for up to six (6) years. The definition of “pay scale” is revised to include a good-faith estimate of the salary or hourly wage range the employer reasonably expects to pay for the position upon hire. “Wages” and “wage rates” are also redefined to include all forms of pay, including, but not limited to, salary, overtime pay, bonuses, stock, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. What employers should do: Employers should ensure that they review their pay scales and document how they determined the pay scale to show that the pay scales were based on a good-faith estimate. Employment Contracts Cannot Require Employees to Pay Employers for Training (if they leave their employment) For employment contracts entered into on or after January 1, 2026, it is unlawful to include or to require an employee to execute as a condition of employment or a work relationship a contract that includes a contract term that does any of the following: Requires the worker to pay an employer, training provider, or debt collector for a debt if the worker’s employment or work relationship with a specific employer terminates. Authorizes the employer, training provider, or debt collector to resume or initiate collection of or end forbearance on a debt if the worker’s employment or work relationship with a specific employer terminates. Imposes any penalty, fee, or cost on a worker if the worker’s employment or work relationship with a specific employer terminates. This means employers cannot require employees to reimburse them for any training provided to them if they leave their employment. If this new law is violated, employees are entitled to actual damages sustained by the worker or five thousand dollars ($5,000), whichever is greater, in addition to injunctive relief, and reasonable attorney’s fees and costs. There are certain exceptions as follows: A contract entered into under any loan repayment assistance program or loan forgiveness program provided by a federal, state, or local governmental agency. A contract related to the repayment of the cost of tuition for a transferable credential that meets certain requirements. A contract related to enrollment in an apprenticeship program approved by the Division of Apprenticeship Standards. A contract for the receipt of a discretionary or unearned monetary payment, including a financial bonus, at the outset of employment that is not tied to specific job performance, provided certain conditions are met. A contract related to the lease, financing, or purchase of residential property. What employers should do: Make sure new contracts do not have provisions requiring repayment upon an employee’s termination unless they fit within one of the exceptions above. Personnel Files Must Include Education and Training Records Labor Code 1198.5 is revised to require an employer who maintains education or training records in those records in the employee’s personnel file which include the following: The name of the employee. The name of the training provider. The duration and date of the training. The core competencies of a training, including skills in equipment or software. The resulting certification or qualification. What employers should do: If employers have training or education records for employees, ensure they are placed in the employee’s personnel file. In addition, employers should ensure that electronic personnel files include all documents and are properly maintained. Revisions to California’s Baby WARN Act In addition to the prior notice requirements, employers are now required to give notice of whether the employer plans to coordinate services, such as a rapid response orientation, through the local workforce development board, the employer plans to coordinate services through a different entity, or the employer does not plan to coordinate services with any entity. In addition, employers are required to include in the notice a description of the statewide food assistance program known as CalFresh. Regardless of whether the employer chooses to coordinate services with the local workforce development board or another entity, the employer shall include in the notice a functioning email and telephone number of the board and the following description of the rapid response activities offered by the local workforce development board, and specifically: “Local Workforce Development Boards and their partners help laid off workers find new jobs. Visit an America’s Job Center of California location near you. You can get help with your resume, practice interviewing, search for jobs, and more. You can also learn about training programs to help start a new career.” If the employer chooses to coordinate services with the local workforce development board or another entity, the employer shall arrange services within 30 days from the date of the notice. What employers should do: If employers have layoffs that trigger California’s WARN Act, they should ensure they provide the information above in the notices sent to employees. Failure to give proper notice would subject an employer to a violation of WARN because the penalties are significant. California’s Transparency in Frontier AI Act California’s Transparency in Frontier Artificial Intelligence Act (TFAIA) is the first U.S. law specifically regulating frontier level AI systems. The law takes effect January 1, 2026, for covered developers. TFAIA creates the first U.S. regulatory framework specifically targeting developers of advanced, high-capacity AI models. While the law is aimed at AI developers, employers and their Human Resources representatives play a critical role because the Act requires organizational transparency, risk reporting, and safety processes for AI development and deployment. What employers must do: Ensure employees understand new responsibilities, documentation expectations, and escalation pathways and employers should review their AI practices. Determine Whether the Company Is a “Covered Developer” - Employers must determine whether the organization develops “foundation models” or “frontier models” as defined in the Act. - An employer is considered a “frontier developer” if you train or initiate training of a “frontier model,” which is defined as a model that is: (1) trained on a broad set of data, (2) designed for generality of output, and (3) can be adapted to a wide range of distinctive tasks. - A “large frontier developer” is a frontier developer whose entity (and its affiliates) had annual gross revenues exceeding US $500 million in the preceding calendar year. Large frontier developers are subject to additional obligations under the Act. Implementation of Mandatory Training Programs - Employers should develop training programs on compliance obligations, seek to define roles and responsibilities for safety reporting, and implement whistleblower protections aligned with the Act’s transparency goals. Training should cover the required documentation and transparency practices, how to identify and escalate safety concerns, and the ethical use of AI. Critical Safety Incident Reporting - A frontier developer must report “critical safety incidents.” The statute requires the company to establish a mechanism for submission by a frontier developer or member of the public. Internal Reporting & Whistleblower Channels - The Act emphasizes risk disclosure and public accountability for advanced AI systems. Employers must ensure employees know how to report safety issues or misuse, protect employees who raise concerns, and maintain documentation of reports and follow-up actions. Whistleblower Protections - Employees (“covered employees”) who assess, manage, or address frontier model risk are protected when they disclose: - a specific and substantial danger to public health or safety from a catastrophic risk - a violation of the chapter. Large frontier developers must: - Provide an anonymous internal reporting process for such disclosures. - Provide monthly updates to the whistleblower on the status of disclosure. If retaliation occurs, the burden shifts to the employer to show clear and convincing evidence that they would have taken the same action absent the disclosure. Practical Steps: - Update whistleblower policies to cover frontier AI risk disclosures. - Set up anonymous reporting channels (internal or third-party) - Train human resources, legal, and safety teams in handling such disclosures in line with the Act. Monitor Regulatory Updates & Enforcement Trends - Because SB 53 is the first law of its kind, enforcement of the Act will be unpredictable. Employers must regularly track guidance from California regulators, monitor similar legislation in other states, and prepare for potential federal alignment or preemption. California’s Transportation Network Company Drivers Labor Relations Act California’s Transportation Network Company Drivers Labor Relations Act establishes a new labor relations framework for app-based rideshare and delivery drivers. Although drivers remain classified as independent contractors under Proposition 22, the Act creates collective representation or “union” rights, minimum labor standards, and new Human Resources compliance obligations for Transportation Network Companies (“TNC”). Note that this Act does not apply to drivers who are employees. The Act allows workers to form, join, and participate in the activities of driver organizations, to bargain through representatives of their own choosing, and to engage in concerted activities for the purposes of bargaining or other mutual aid protection. To participate, drivers must meet a "20 rides in six months" threshold to ensure a more established connection to the industry. Despite the new rights allowed to gig drivers, they continue to be classified as independent contractors under California law. What employers need to know: Drivers Have New Rights to Representation - The Act allows drivers to form or join Driver Representative Organizations (DROs), which can collectively advocate for drivers, participate in sector-wide “meet and confer” processes, and raise concerns about pay, safety, and working conditions. TNCs must treat these rights similarly to traditional labor relations protections. Anti-Retaliation Rules Apply - TNCs may not retaliate against drivers for joining or supporting a DRO, participating in collective discussions, or raising safety or working condition concerns. Further, the Act emphasizes certain unfair employer practices, including but not limited to failure to provide requested information, interfering with the organization or activities of, discouraging membership, blacklisting, coercing, or otherwise inappropriately engaging with certified driver bargaining organizations. TNCs must ensure that driver deactivation decisions are well documented, performance-related actions are consistent and non-discriminatory, and that no adverse employment action appears in the New Notice and Posting Requirements TNCs must ensure that drivers receive: Written notice of their rights under the Act, information about DROs, and instructions for filing complaints or participating in representation processes. These notices must be accessible in the driver app and be provided in the driver’s primary language. Within two weeks after the end of each calendar quarter, commencing with the quarter ending on March 31, 2026, each covered TNC shall submit the following items to the board: Driver’s name, driver’s license number, and, to the extent known by a TNC, the most recent email address, local residence and mailing addresses, cellular telephone number; and The TNC driver’s first date joining the platform and the number of rides the TNC driver completed in the previous six months, for each TNC driver who has completed at least 20 rides within the State of California within the prior six months to any “union” related protected activity. Further Implications TNCs must be careful to recognize potential protected activity and avoid statements that could be interpreted as discouraging representation. They must also take steps to handle drivers’ complaints neutrally and consistently. Given the nature of the new law and its structure, encouraging interaction between drivers and TNCs, TNCs can reasonably anticipate a sharp increase in driver inquiries, including inquiries about pay transparency and working conditions, and increased scrutiny of deactivation decisions. Drivers will also likely initiate requests for meetings or mediation, creating significantly more work for involved human resource professionals. A consistent, documented process will be essential to ensure compliance. New Ordinance in Los Angeles Effective December 1, 2025, Los Angeles hotel employers with 60 or more guest rooms must provide public housekeeping training of at least six hours on topics including: Hotel worker rights and employer responsibilities. Best practices for identifying and responding to suspected human trafficking, domestic violence, or violent or threatening conduct. Best practices for effective cleaning techniques to prevent the spread of disease. Best practices for identifying and avoiding insect or vermin infestations. Best practices for identifying and responding to the presence of other potential criminal activity. What employers should do: Employers in the City of Los Angeles who have a hotel with 60 or more rooms need to provide the above training to employees. The training must be provided by a certified trainer and the employer, must be 5 ½ hours in length and the employer must pay for the training. Delaware 2025 HS 1 for HB 55: An Act to Amend the Delaware Code Relating to Prohibited Discrimination on the Basis of Military Status Signed by the Governor 7/23/25 (effective immediately) – Adds “military status” as a basis for discrimination to state public accommodation, housing, insurance, education, and employment law. 19 Del. C. Ch. 37: Family and Medical Leave Insurance Program 12/1/25 - Paid Family and Medical Leave Act contributions to the program commence for employers with 10 or more employees. 2026 19 Del. C. Ch. 37: Family and Medical Leave Insurance Program 1/1/26 – Paid Family and Medical Leave Act became effective; employees may begin taking leave under the statute. 2027 HS 2 for HB 105: An Act to Amend Title 19 of the Delaware Code Relating to Employment Practices Signed by the Governor 9/26/25 (effective 9/26/27) – Creates 19 Del. C. 709C, Pay Transparency Act, mandating that employers disclose hourly/salary compensation range plus benefits description to all applicants for employment. Notable Pending Legislation SB 63 w/ SA 1: An Act to Amend Title 19 of the Delaware Code Relating to Labor Expands workplace fraud liability to all upstream prime and general contractors (and construction managers) for workplace fraud (misclassification of employees as independent contractors) violations by downstream contractors, regardless of privity of contract. Passed by Delaware House and Senate, vetoed by the Governor 8/28/25. Future status is uncertain. SB 197: An Act to Amend Title 14 And Title 29 Of the Delaware Code Relating to Project Labor Agreements for School Public Works Contracts Introduced 6/26/25 – Imposes union-only project labor agreements on all public and charter school construction. Likely illegal as pre-empted by NLRA. Future status is uncertain. 19 DE Admin. Code 1322: Proposed Amendments to Delaware Prevailing Wage Regulations Changes proposed but not promulgated due to considerable objections, various changes exceeding statutory authority, and numerous errors and omissions. Future status is uncertain. New York New York City Earned Safe and Sick Time Act, Amendments (Int. 780 A) Effective February 22, 2026, New York City amended the New York City Earned Safe and Sick Time Act (“ESSTA”) to require private employers of any size to provide all employees with 32 hours of frontloaded, unpaid safe and sick time that is available for use immediately upon hire and each calendar year thereafter. These hours are in addition to existing paid safe and sick time hours required under ESSTA. The amendment expands covered uses of leave to include caregiving needs by an employee “caregiver” for a minor child or defined “care recipient,” workplace violence-related needs for the employee or employee-caregiver for a family member, public disasters (e.g., workplace closures, shelter in place orders, school/childcare restrictions), and benefits and housing proceedings. Although no waiting period is permitted to be imposed, employers may set a minimum increment of up to four hours per workday and need not carry over unused unpaid hours. Employers are required to track paid and unpaid leave balances (e.g., on pay statements or other written documentation for each pay period). New York State Paid Prenatal Personal Leave, NYLL § 196-b(4-a) Effective January 1, 2025, New York requires that any private sector employee, regardless of employer size, working in the state be afforded at least 20 hours of paid prenatal personal leave in any 52-week period as part of the New York State Paid Sick Leave Law. This leave obligation, which amends NYLL § 196-b to add section 4-a, is separate from and in addition to the hours of safe and sick leave already required under NYLL § 196-b. Leave under NYLL § 196-b(4-a) may be used only by the pregnant employee for prenatal healthcare services such as medical appointments, exams, procedures, testing, monitoring, and fertility treatment. Employers cannot require employees to exhaust other accrued safe and sick leave first, and the 52-week period begins the first time the employee uses prenatal leave. If an employee separates from the employer, the employer has no obligation to pay the employee for unused paid prenatal leave hours. Notably, guidance issued by the New York Department of Labor states that spouses, partners, or other support persons are not eligible to use paid prenatal leave to attend prenatal appointments with a pregnant person. Employers should update their handbooks or create a standalone policy describing eligibility, covered uses, procedures to request leave, and an anti-retaliation provision. Employers should also update their payroll or paid time off tracking systems to comply with the requirement to separately track a prenatal leave balance. New York State Paid Prenatal Leave/FAQs New York City Paid Prenatal Personal Leave, NYC Admin Code § 7-216 Effective July 2, 2025, New York City amended the New York City Earned Safe and Sick Leave Law to add the same 20-hour paid prenatal leave requirement as added by New York State earlier in the year. The city law contains additional requirements beyond the State’s law, such that employers must provide a written notice on pay stubs detailing hours used and any remaining balance for each pay period, as well as specify that “reasonable” notice for foreseeable leave is at least 7 days and that “as soon as practicable” is the standard for unforeseeable leave. The City law further requires maintaining records of leave use, dates, and amounts for at least three years, and that employers distribute an updated “Notice of Employee Rights” to new and existing employees. New York State Right to Paid Prenatal Leave/FAQs New York City Lactation Accommodation, Local Law 109 (2014 109) Effective May 8, 2025, NYC Local Law 109 of 2024 amends the New York City Human Rights Law (“NYCHRL”), primarily codified in New York City Administrative Code § 8-107(1)(b), to modify the City’s existing lactation room and policy obligations, including that employers must physically and electronically post their lactation accommodation policy and the policy must acknowledge New York State law which provides 30 minutes of paid lactation break time per pumping session. Employees may use paid break or meal time for any additional needed time. NYC Commission on Human Rights Retail Worker Safety Act, NYLL §27-e Effective June 2, 2025, employers with ten or more retail employees must adopt a retail workplace violence prevention policy that is equivalent to the model policy or more protective and train all employees annually. Notice of training must be provided at each annual session. For retailers with 500 or more employees in New York State, silent response and panic buttons, as well as training on their use, are required in covered retail locations starting January 1, 2027. NY Department of Labor/Retail Worker Safety Expanded Mental Injury Coverage, Workers’ Compensation Law § 10(3) Effective January 1, 2025, New York amended the Workers’ Compensation Law § 10(3) to allow any worker to file a claim for a mental injury caused by extraordinary work-related stress. This amendment expands workers’ compensation coverage for mental injuries from extraordinary work-related stress beyond first responders to all workers. As of June 4, 2025, the Workers’ Compensation Board may not disallow a claim simply because the stress was not greater than normal workplace stress where the claim is for PTSD, acute stress disorder, or major depressive disorder premised on extraordinary work-related stress attributable to distinct work-related events and supported by medical evidence under the DSM criteria. The mental health condition can be a standalone claim and does not need to be tied to a physical injury. New York State Medical Treatment Guidelines Reproductive Health Decision-Making, NYLL § 203-e As of January 1, 2025, employers were again required to include a notice of employee rights and remedies under NYLL § 203-e in handbooks or as a standalone policy, as the U.S. Court of Appeals for the Second Circuit vacated the prior injunction, which had eliminated the written notice requirement. There is no model policy available at present. Policies should thus be carefully crafted to note that the employer will not request or seek to access an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making, including but not limited to, the decision to use or access a particular drug, device, or medical service, without the employee’s prior informed affirmative written consent. The policy should include decisions to use contraception, fertility treatments, or other reproductive health services as covered reproductive health decision-making. A policy should also note that the employer will not discriminate or retaliate for these choices, and employees’ related medical information disclosed to the employer will remain confidential. https://www.govinfo.gov/content/pkg/USCOURTS-ca2-22-01076/pdf/USCOURTS-ca2-22-01076-0.pdf New York State COVID-19 Quarantine Paid Sick Leave New York’s COVID-19 quarantine/isolation paid sick leave mandate expired July 31, 2025. Employees may rely on the New York State Paid Sick Leave Law and, if applicable, the New York City Earned Safe and Sick Leave Law, for illness, diagnosis, treatment, or care for COVID-19, including COVID-related health conditions. Equal Rights Amendment to N.Y. Const. Art. I § 11 Effective January 1, 2025, the New York State Constitution’s equal protection clause prohibits discrimination based on ethnicity, national origin, age, disability, and sex (including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy). Employers should revise EEO statements to list the new protected classes and consider EEO training refreshers referencing the constitutional amendment. Illinois Illinois has enacted several new laws effective January 1, 2026, impacting employment agreements, workplace practices, and employee rights. Workplace Transparency Act Amendments (HB 3638) These amendments expand protections for employees and contractors, covering all violations of state and federal employment laws, not just discrimination. Employers cannot impose unilateral contract terms that shorten statutes of limitations, apply non-Illinois law, require out-of-state venues, or restrict truthful disclosures or concerted activity. Confidentiality clauses in settlement or termination agreements must include separate consideration and cannot waive future concerted activity. What employers should do: Review and update all agreements, revise confidentiality provisions, and train HR and legal teams on compliance. Human Rights Act Amendments (HB 3773) Employers must not use AI in ways that discriminate based on protected classes or use zip codes as proxies. They must also notify employees when AI is used in employment decisions. What employers should do: Audit AI-driven hiring and decision-making systems, implement clear notification processes, and train HR and IT teams. Nursing Mothers in the Workplace Act Amendments (SB 212) Employers must pay employees for lactation breaks at their regular rate and cannot require the use of paid leave for these breaks. What employers should do: Update break policies, adjust payroll systems, and communicate changes to staff. Blood and Organ Donation Leave Amendments (HB 1616) Part-time employees are now entitled to 10 days of organ donation leave, with pay calculated based on their average daily pay over the last two months. What employers should do: Revise leave policies and ensure payroll accuracy. Victims’ Economic Security and Safety Act Amendments (HB 1278) Employers cannot retaliate against employees who use employer-issued devices to document domestic or gender-based violence. They must grant access to related information on those devices and post notices explaining employee rights. What employers should do: Update device-use policies, ensure proper notice postings, and train managers on retaliation prohibitions. Pennsylvania CROWN Act During this period, the most significant statewide development was the expansion of Pennsylvania’s anti-discrimination framework through amendments to the Commonwealth’s CROWN Act, which became effective on January 24, 2026. These amendments expressly prohibit employment discrimination based on hair texture, protective hairstyles, and certain head coverings and hairstyles historically associated with religious creeds. The statute specifically identifies styles such as locs, braids, twists, coils, Bantu knots, afros, and extensions, making clear that appearance-based policies can no longer be justified where they disproportionately affect racial or religious groups. What employers should do: This change requires a careful reassessment of grooming standards, dress codes, and professionalism policies, as well as supervisor training to ensure that enforcement practices do not give rise to disparate treatment or disparate impact claims under the Pennsylvania Human Relations Act. Workplace Posting Requirements In early January 2026, Pennsylvania employers also became subject to a new workplace posting obligation aimed at increasing awareness of benefits available to veterans and their families. Effective January 3, 2026, employers with more than 50 full-time employees must post a notice prepared by the Pennsylvania Department of Labor and Industry that outlines federal and state veterans’ benefits and services. The required posting includes contact information for the U.S. Department of Veterans Affairs Crisis Line and county directors of veterans affairs. What employers should do: Although this change does not alter substantive employment rights, it adds a compliance obligation that employers must integrate into their standard posting practices, particularly those operating multiple worksites across the Commonwealth. Pittsburgh’s Paid Sick Days Act Amendments to Pittsburgh’s Paid Sick Days Act, effective January 1, 2026, increased the annual caps on paid sick leave accrual while maintaining the existing accrual rate of one hour for every 30 hours worked. Under the amended ordinance, employers with 15 or more employees must now permit employees to accrue and use up to 72 hours of paid sick leave per year, while smaller employers must allow accrual and use of up to 48 hours annually. What employers should do: These changes require Pittsburgh employers to update payroll systems, written leave policies, and employee handbooks. Texas Responsible Artificial Intelligence Governance Act (HB 149) Effective January 1, 2026, Texas’s Responsible Artificial Intelligence Governance Act establishes a comprehensive regulatory framework governing anyone who conducts business in the state or develops or deploys AI systems for use in Texas. The Act adopts a broad, technology-neutral definition of artificial intelligence systems and assigns compliance responsibilities based on whether an entity develops or deploys such systems. More specifically, the Act prohibits the development or deployment of AI intended for social scoring or discriminatory purposes, imposes baseline duties on developers and deployers, and requires governmental entities to notify individuals when they interact with AI. It also preempts local AI regulations, vests exclusive enforcement authority with the Texas Attorney General, and creates both an Artificial Intelligence Council and a first‑in‑the‑nation regulatory sandbox to support supervised testing of AI innovations. What employers should do: Audit AI tools to ensure they are not developed or deployed for any prohibited intent, update internal policies to prohibit harmful or discriminatory AI uses, and train staff on compliance with the new legal standards. Amendments to Non-Compete SB 1318, amending SB 1318, amending Effective September 1, 2025, healthcare practitioner non-compete amendments take effect under SB 1318, amending Tex. Bus. & Com. Code Ann. § 15.50 and adding Tex. Bus. & Com. Code Ann. § 15.501. Under the amendments, non-compete agreements with physicians and other health care practitioners, including dentists, professional and vocational nurses, and physician assistants, must (1) allow the physician to buy out the non-compete for no more than the physician’s annual salary and wages at the time of terminating the contract or employment, (2) not last more than one-year post-termination, (3) be limited geographically to no more than five miles of the physician’s primary practice location, and (4) be clearly and conspicuously stated in writing. The statute further caps non-compete buy-outs at the employee’s salary. The amendments apply only to new or renewed agreements after the effective date. Trey’s Law, SB 835 Effective September 1, 2025, Texas’s Trey’s Law, Senate Bill 835 adding Tex. Civ. Prac. & Rem. Code Ann. §§ 129C.001 and 129C.002, voids and renders unenforceable non-disclosure or confidentiality agreements and provisions prohibiting a person from disclosing an act of sexual abuse or facts related to an act of sexual abuse. The law covers all civil cases for sexual assault, regardless of the victim’s age or when the abuse occurred. The law applies to agreements made before September 1, 2025, but enforcing prior NDAs will now require a court order. Other parts of settlement agreements, like the monetary amount, can remain confidential.
January 26, 2026
Labor and Employment
Inclusive Holidays: Building Trust and Engagement at Work
With Lunar New Year falling on February 17 this year, employers have an opportunity to pause and think more broadly about how religious and cultural holidays are recognized in the workplace. Holiday inclusion is often treated as a year-end issue, but for many employees, meaningful observances occur well outside the traditional Western calendar. Lunar New Year is widely celebrated across East and Southeast Asian cultures and, for many individuals, carries deep cultural, familial, and sometimes religious significance. Employees may travel, participate in religious ceremonies, or spend extended time with family. When these observances are overlooked or misunderstood, employees can feel invisible or undervalued, even in otherwise well-intentioned workplaces. From an employment law perspective, holiday inclusion is not simply a morale issue. Federal and state anti-discrimination laws require employers to reasonably accommodate sincerely held religious beliefs unless doing so would create an undue hardship. While Lunar New Year itself is often cultural rather than religious, requests for time off or schedule flexibility may still implicate accommodation obligations, particularly when tied to religious practice or long-standing traditions. Problems most often arise when holiday-related requests are handled inconsistently. Approving time off for some holidays but questioning others, or celebrating certain traditions while ignoring others, can expose employers to claims of disparate treatment. These risks are heightened when managers are left to make ad hoc decisions without clear guidance. Employers can reduce both legal exposure and employee frustration by focusing on flexibility and neutrality. Policies that allow employees to use floating holidays or personal time for observances that matter to them tend to work better than rigid holiday calendars. Clear communication and manager training are also critical so that requests tied to cultural or religious observance are handled thoughtfully and consistently. Workplace celebrations require similar care. Recognizing Lunar New Year can be positive, but only when done respectfully and without assumptions about who celebrates or how. Employees should never feel pressured to participate, explain their culture, or serve as informal ambassadors simply because of their background. As workforces continue to diversify, inclusive holiday practices increasingly function as both a compliance strategy and a culture building tool. Employees notice when their traditions are acknowledged and when they are ignored. Over time, those signals can affect engagement, retention, and trust. Lunar New Year serves as a useful reminder that inclusion does not require employers to recognize every holiday on the calendar. Instead, it requires systems that allow employees to observe what matters to them without friction or stigma. Thoughtful planning now can help employers support a diverse workforce while staying aligned with legal obligations throughout the year.
January 23, 2026
Labor and Employment
The EEOC’s New Posture on DEI Under Chair Andrea Lucas: What Executives and Corporate Counsel Need to Know
The landscape of workplace civil rights enforcement is shifting — and fast. With Andrea Lucas now serving as Chair of the U.S. Equal Employment Opportunity Commission (EEOC), organizations should expect a markedly different approach to diversity, equity, and inclusion (DEI) initiatives. EEOC Chair Lucas has long expressed concerns that many DEI programs, as commonly implemented, cross the line into unlawful employment discrimination. Recent public statements and actions by the EEOC under her leadership make clear that this is no longer a theoretical stance — it is now an enforcement priority. A New Enforcement Philosophy: “Colorblind” Civil Rights Compliance Public reporting indicates that Lucas has consistently advocated for what she describes as a “colorblind” approach to civil rights enforcement, arguing that some DEI initiatives risk unlawful “reverse discrimination”. She has also emphasized heightened scrutiny of practices that classify or treat employees differently based on protected characteristics — even when the stated purpose is to advance diversity. This represents a significant departure from the more permissive posture many organizations have relied on in designing DEI programs over the past decade. Recent EEOC Actions Signal a Clear Direction In March 2025, the EEOC — under Lucas’s leadership as then-temporary Chair — sent letters to 20 major law firms requesting detailed information about their DEI related employment practices. The letters expressed concern that certain DEI programs may involve: Unlawful disparate treatment in hiring, promotion, or compensation Limiting or segregating employees based on protected traits Classifying employees in ways that could violate Title VII This is one of the most direct and public signals to date that the EEOC intends to scrutinize DEI programs not only in theory but in practice. Statements by EEOC Chair Andrea Lucas in Her Recent Reuters Interview Recent reporting from Reuters provides the most transparent window yet into Andrea Lucas’s enforcement philosophy and her expectations for corporate DEI programs. In her December 2025 interview with Reuters, Lucas made several notable statements that senior executives and corporate counsel should pay close attention to: DEI Programs Are Facing a “Reckoning” Lucas told Reuters that federal inquiries into corporate DEI programs are already underway and represent a “major shift in civil rights enforcement” under the current administration. A Shift Toward a More Conservative Interpretation of Civil Rights Law Lucas described her approach as “a more conservative view of civil rights,” emphasizing that the EEOC will prioritize cases involving discrimination against any protected group — including white men. This signals a significant pivot from prior enforcement patterns. Explicit Warning That DEI Programs Using Protected Traits May Be Unlawful According to Reuters reporting, Lucas warned that DEI initiatives that explicitly use race, sex, or other protected characteristics as “motivating factors” in employment decisions could violate Title VII and face enforcement action. Lucas expressed concern that many corporate DEI programs may cross the line into unlawful disparate treatment, even when the intent is remedial or inclusion‑focused. Enforcement Actions Are Already in Motion Lucas confirmed that the EEOC has already begun federal inquiries into corporate DEI practices, signaling that this is not merely a policy stance but an active enforcement priority. What This Means for Employers For senior executives and corporate legal counsel, the implications are significant. The EEOC’s new posture does not prohibit DEI efforts — but it greatly restricts the use of commonly implemented DEI efforts and does require a recalibration of how those efforts are structured, documented, and communicated. Key Risk Areas Organizations should pay particular attention to: Hiring or promotion goals tied to specific demographic categories. These may be interpreted as quotas or preferential treatment. Programs limited to certain protected groups. Even well‑intentioned initiatives (e.g., leadership programs for women or minorities) may be scrutinized for exclusionary effects. Use of demographic data in ways that influence employment decisions. Lucas has signaled concern about any practice that treats demographic characteristics as determinative factors. Supplier diversity requirements that impose demographic criteria. These may also fall within the scope of EEOC review. Strategic Steps for Organizations Executives and counsel should consider the following actions: Conduct a Privileged Audit of DEI Programs Review all DEI initiatives — hiring programs, mentorships, leadership pipelines, public statements, web pages, recruiting and marketing literature, supplier diversity, and training — to identify potential disparate‑treatment risks. Reframe DEI Around Compliance‑Safe Principles Focus on:Equal opportunity Barrier removal Inclusive culture Skills-based hiring Broad outreach and recruitment These approaches align with Title VII and avoid the pitfalls of demographic preferences. Ensure Documentation Reflects Legally Defensible Intent Policies, training materials, and internal communications should emphasize:Nondiscrimination Equal treatment Voluntary participation Business‑driven rationales Prepare for Potential EEOC Inquiries Given the agency’s recent outreach to law firms, other industries may be next. Organizations should be ready to respond quickly and accurately to information requests. The Bottom Line Andrea Lucas’s recent statements to Reuters confirm a decisive shift in the EEOC’s approach to DEI. The agency is moving from passive observation to active enforcement. Organizations that proactively align their DEI programs with Title VII’s equal‑treatment framework will be best positioned to mitigate regulatory and litigation risk.
January 20, 2026
Labor and Employment
Power, Proof, and Perception in the Blake Lively–Justin Baldoni Litigation
This blog provides an update on the ongoing litigation involving Blake Lively and Justin Baldoni. If the original blog explored how this case began, this chapter is about what it has become. Some lawsuits resolve disputes, and there are lawsuits that reveal systems. The litigation between Blake Lively and Justin Baldoni belongs squarely in the latter category. What began as a conflict arising out of the production of It Ends With Us has become a slow-moving but oddly illuminating seminar on how modern employment law operates when the workplace is glamorous, the parties are famous, and the stakes extend well beyond liability. At a distance, this case is often flattened into a familiar cultural shorthand. Two celebrities. Competing narratives. A public eager to assign heroes and villains before the pleadings have even settled. Up close, however, the litigation is far more interesting and far less cinematic. It is not about grand gestures or dramatic revelations. It is about burden shifting, evidentiary texture, and the unromantic mechanics of proving what the law actually requires rather than what public opinion might prefer. Lively’s claims are rooted in doctrinally orthodox territory. Hostile work environment and retaliation are not exotic causes of action, even in Hollywood. What complicates matters is not the legal framework but the context in which it must be applied. Film sets are workplaces that market intimacy, emotional exposure, and creative vulnerability as professional virtues. That does not exempt them from employment law, but it does make line-drawing more delicate. Conduct that might be clearly inappropriate in a corporate office can appear, at least superficially, normalized when wrapped in the language of art and collaboration. Juries are asked to navigate that ambiguity without losing sight of the legal question, which is not whether the environment was intense or uncomfortable, but whether it crossed a legally cognizable threshold. This is where the case becomes less about personalities and more about proof. Severity and pervasiveness are not abstract concepts. They are constructed through accumulation. Frequency. Context. Reaction. Silence or objection. Response or indifference. The text messages and communications that have emerged through discovery are legally interesting not because they are personal, but because they are contemporaneous. They are the breadcrumbs juries are trained to follow when reconstructing intent and impact long after the moment has passed. Baldoni’s defense strategy reflects a sophisticated understanding of those dynamics. His posture has not been limited to denial. Instead, it has focused on reframing. Recharacterizing interactions as misread. Suggesting that objections were unclear or retrospective. Implicitly arguing that what the plaintiff experienced as coercive or hostile was, in fact, part of a fraught but mutual creative process. This is not an argument that misconduct never occurs. It is an argument that ambiguity exists, and in civil litigation, ambiguity can be a powerful ally. The brief countersuit, though procedurally unsuccessful, fits neatly within that strategy. Its real value was never doctrinal. It was narrative. It signaled resistance rather than retreat and attempted to reposition reputational harm as a two-way street. Courts can dispatch weak claims with relative ease. Jurors, however, carry impressions with them long after motions are denied. Litigation is as much about what lingers as what survives. The retaliation component of the case may ultimately prove more consequential than the underlying harassment claims. Retaliation law is less concerned with tone and more with timing. It asks whether adverse consequences followed protected activity and whether those consequences can be explained without resort to post hoc rationalization. In industries where decisions are informal and documentation is sparse, that inquiry can quickly become uncomfortable. Silence, in these cases, is rarely neutral. Hovering over all of this is the court’s increasingly difficult task of managing relevance in an era of celebrity saturation. Discovery disputes over third-party anonymity and sealing are not merely procedural housekeeping. They reflect a more profound anxiety about what happens when litigation escapes the courtroom and becomes cultural content. The law presumes openness for good reason, but it was not designed for cases where relevance is routinely conflated with notoriety. Judges are left to perform a delicate balancing act while everyone else watches for entertainment. What makes this case compelling is not the promise of a dramatic verdict, but the way it exposes the friction between legal standards and human storytelling. Employment law is intentionally unsentimental. It reduces experience to elements and burdens and asks factfinders to be disciplined in their empathy. Celebrity culture, by contrast, thrives on immediacy, identification, and moral clarity. When the two collide, neither emerges entirely intact. By the time this case reaches a jury, if it does, much will already have been decided in quieter ways. In discovery conferences. In evidentiary rulings. In how jurors are primed to interpret ambiguity. And perhaps in how the industry itself recalibrates its tolerance for informality masquerading as creativity. This lawsuit will not end Hollywood’s reckoning with power or fix the uneasy relationship between art and accountability. The law is not built for that kind of closure. What it can do, and what this case is already doing, is force a conversation about what workplaces owe their employees, even when the workplace happens to come with a red carpet. What is perhaps most striking about this litigation is how little of it turns on dramatic moments and how much of it turns on endurance. Employment cases of this kind rarely win with a single revelation. They win through accumulation. Through patience. Through the unglamorous discipline of discovery, motion practice, and evidentiary framing. In that sense, the Blake Lively and Justin Baldoni case is an unusually pure illustration of how civil law actually functions when stripped of narrative shortcuts. The public tends to assume that credibility is something a party either has or lacks. Courts know better. Credibility is constructed incrementally through consistency, corroboration, and the absence of convenient revision. It is shaped as much by what parties do when no one is watching as by what they say once litigation begins. That is why contemporaneous documentation looms so large here, and why informal industries often find themselves at a disadvantage once formality is imposed retroactively by a lawsuit. Film production culture has long relied on trust, improvisation, and professional intimacy as operating norms. Those norms are not inherently unlawful, but they are legally fragile. They assume good faith, mutual understanding, and aligned incentives. Litigation, by contrast, assumes none of those things. It assumes conflict, misinterpretation, and self-interest. When a dispute moves from the set to the courtroom, the cultural currency of collaboration is abruptly converted into the legal currency of proof. Not all industries make that exchange gracefully. This case also illustrates the quiet but significant role of institutions that never appear in the caption. Insurers, production companies, distributors, and financiers are watching closely, not for moral lessons but for risk signals. They are asking whether existing safeguards are sufficient, whether reporting mechanisms function in practice, and whether informal authority structures create exposure that contracts alone cannot neutralize. These are not abstract questions. They affect underwriting decisions, contractual provisions, and the degree of oversight studios are willing to impose on creative leads who have historically operated with broad discretion. There is, too, a cautionary tale here about the limits of reputational self-help through litigation. Aggressive narrative counteroffensives may satisfy an immediate impulse to respond, but they also lengthen disputes and deepen entanglement. The longer litigation persists, the less control any party has over how they are perceived. The law does not reward eloquence. It rewards coherence. And it is remarkably indifferent to whether a party feels misunderstood. For lawyers, this case is a reminder that celebrity does not simplify litigation. It complicates it. Famous clients are scrutinized differently by jurors, judges, and adversaries alike. Their communications are read with suspicion. Their motives are interrogated. Their silence is rarely interpreted as restraint. Representing them requires not just technical competence but also strategic restraint and a tolerance for ambiguity, which can be difficult to maintain under public pressure. For workplaces, particularly creative ones, the lesson is not that informality must disappear, but that it must be bounded. Clarity, documentation, and meaningful response mechanisms are not bureaucratic intrusions. They are legal insulation. They protect not only employees but also leadership by ensuring that disputes are addressed early, internally, and with a record that reflects intent rather than reconstruction. And for observers tempted to treat this case as entertainment, it offers a quieter but more durable insight. The law is not a referendum on character. It is a method for resolving disputes under conditions of uncertainty. It does not promise catharsis. It promises a process. When we mistake one for the other, we misunderstand both. As this case continues its methodical progress toward trial, it will likely generate more headlines, more commentary, and more attempts to distill it into a morality play. That impulse is understandable. It is also misleading. The real work of this litigation is happening in places that do not trend. In conference rooms. In discovery disputes. In evidentiary rulings that shape what a jury will ultimately be allowed to hear. That is where outcomes are decided. Quietly. Incrementally. Without a soundtrack. Again, while the original blog examined the origins of this case, this chapter focuses on how the matter has evolved and what it has now become. Not a scandal, but a study. Not a spectacle, but a process. And for anyone interested in how the law actually mediates power, creativity, and accountability, it is a study worth paying attention to.
January 16, 2026
Labor and Employment
Cannabis in the Workplace: From Stigma to Acceptance
The recent federal policy shift, marked by Executive Order 14370: Increasing Medical Marijuana and Cannabidiol Research, reflects not only a legal development but also a broader cultural transformation. Cannabis is increasingly viewed less as a dangerous narcotic and more like alcohol — a substance that, while legal in many contexts, still requires responsible use. This evolving perception influences employee attitudes and expectations, making it critical for employers to reassess how they approach cannabis in the workplace. While cannabis remains classified as illegal under federal law, many employer obligations are driven by state and local law, where legalization and employee protections continue to develop. For employers not subject to federal contractor requirements or safety-sensitive regulations, the challenge lies in addressing impairment without overreaching into lawful off-duty conduct. This is where the alcohol analogy becomes especially useful. Most organizations do not prohibit employees from having a glass of wine at home; they prohibit being intoxicated at work. A similar framework can apply to cannabis. Rather than banning all use, employers can focus on what truly matters: performance, safety, and productivity. Policies can prohibit use during work hours, impairment on the job, and conduct that compromises workplace safety, while respecting employees’ lawful off-duty choices. However, employees should understand that while cannabis may be legal and more socially accepted, being impaired at work is never acceptable. Employers should review their drug and alcohol policies to ensure they reflect both legal requirements and company values. Consider whether a zero-tolerance approach aligns with your operational needs, or whether a policy modeled on alcohol use – prohibiting on-duty use and impairment – makes more sense. Managers should be trained to recognize signs of impairment and respond consistently and objectively. Because cannabis laws vary widely by jurisdiction, consulting legal counsel before implementing changes remains essential. Thoughtful policy design allows employers to manage risk effectively while acknowledging the reality of a rapidly changing legal and cultural landscape.
January 15, 2026
Labor and Employment
The Post-Holiday Reset: Re-Establishing Communication and Availability Norms
The weeks following the holidays often bring a familiar feeling: full inboxes, overlapping priorities, and a sudden return to urgency after a brief pause. During the holiday season, many teams naturally loosen expectations around response times and availability. The challenge in January is not simply returning to work, but resetting clear and healthy norms before old habits (or unhealthy ones) take hold again. In today’s hybrid and remote work environments, boundaries around communication are rarely self-correcting. Without intentional reset moments, employees may assume they are expected to remain as available as they were during peak periods, even when that level of responsiveness is no longer necessary or sustainable. The post-holiday return provides a rare opportunity to recalibrate. One of the most common sources of confusion is silence. When organizations do not explicitly restate expectations, employees are left to infer them based on behavior. A single late-night email or weekend message can unintentionally signal that immediate responses are once again required. Over time, these small signals shape norms that are difficult to unwind. Re-establishing healthy expectations starts with clarity. Teams benefit from shared understanding around what constitutes urgent communication versus what can wait. Not every message needs an instant reply, yet modern tools make everything feel immediate. Resetting norms means reinforcing that responsiveness should be purposeful, not constant. Manager behavior plays an outsized role in this process. Employees tend to mirror what they see, not what they are told. If leaders resume sending messages at all hours or praising rapid responses, boundaries quickly erode. Conversely, when leaders model reasonable response times and respect off-hours, those practices spread organically across teams. It is also important to acknowledge that flexibility cuts both ways. Many employees value the autonomy to step away during the day or adjust schedules as needed. That flexibility works best when paired with mutual respect for personal time. Resetting expectations is not about reducing productivity; it is about ensuring that availability aligns with actual business needs rather than habit or inertia. January is also an ideal time to address roles that genuinely require extended availability. Rather than allowing informal expectations to creep back in, organizations should be intentional about when and why off-hours communication is necessary. Clear parameters reduce frustration and help employees understand when responsiveness truly matters. Healthy communication norms do more than protect work-life balance. They improve focus, reduce burnout, and enhance collaboration. When employees are not operating in a constant state of interruption, the quality of work and decision-making improves. As teams settle back into routine after the holidays, the question is not how quickly everyone can return to being “always on.” The better question is: which norms will support sustainable performance throughout the year? A thoughtful reset now can prevent misunderstandings, protect morale, and set a tone that lasts well beyond the first quarter.
January 7, 2026
Immigration Law
The Gold Card Gamble: High Stakes for U.S. Residency
The United States Citizenship and Immigration Service has released the brand-new form I-140G – the Immigrant Petition for the Gold Card Program. This form can be used by applicants who have previously registered on www.trumpcard.gov. The form also requires a $15,000 filing fee per applicant. The USCIS also explains the “gift” requirement for the filing. Individuals filing an I-140G must provide a gift of $1 million per applicant. The per-person rule is a significant increase in the program’s anticipated costs since its initial inception. While more details of the process have emerged, significant questions and concerns regarding the program remain. What We Know About the Gold Card The Gold Card offers a $1 million payment to the United States in exchange for legal permanent residence. The 24-page I-140G form lays out the process for potential Gold Card applicants, including biographic information and the usual attestations regarding potential grounds of inadmissibility. The form includes entirely new sections on the applicant’s source of funds and net worth. The source-of-funds instructions lack the complexity of EB-5 applications and are likely to be subjected to additional screening. Further, the form includes a section for corporations to complete if they are the sponsoring entity. Lastly, the G140 form requires a potential recipient to indicate if they are seeking an immigrant visa under one of two categories: the first preference alien of extraordinary ability, or the second preference alien of exceptional ability seeking a National Interest Waiver (NIW). This path was outlined early as the proposed mechanism for gold card applications to be counted with annual immigrant visa limitations imposed by the Immigration and Nationality Act. The form and its instructions state that the entire process will be completed online with biometrics required for all applicants, even if abroad. What We Don’t Know While a form is now available, details are still lacking. Vague instructions regarding filing the case online after paying the substantial filing fee are provided, with no evidence that the online portal at MyUSCIS can actually process the cases. No timelines or processing details are provided. The Department of Homeland Security has indicated that proposed rulemaking for the employment-based immigrant petitions is scheduled for early 2026. It is possible that clarity and the creation of the regulatory framework for the gold card will be included. Significant questions remain regarding the actual program. For example, is the program authorized under the Immigration and Nationality Act? That question is still up in the air. There are some major issues with the current proposed format, as the Executive order that created the program differs from the application process as described. In addition, the authority of the USCIS to create programs is limited by its mandate from Congress. This means that, without a change in the law (not regulation) new programs cannot be created that materially impinge on existing programs such as the EB-5 investment visa. Given the major questions relating to the legal underpinning of the program, as well as the technical details of its processing, any potential applicant should consider whether to proceed very carefully. For example the stated “nonrefundable” filing fee of $15,000 per applicant would be at risk, should the program be found in violation of the will of Congress, not to mention the gifted funds should an applicant progress that far. The examination of the potential risk for loss here is critical, especially when compared to existing programs such as the EB-5 investment visa, which also involves risks but provides for a repayment of investment funds to the intending immigrant.
December 23, 2025
Labor and Employment
The Amazon v. PERB Decision: Reaffirming Federal Supremacy in Labor Law
The November 26, 2025, preliminary injunction issued by Judge Eric R. Komitee of the U.S. District Court for the Eastern District of New York in Amazon Services v. New York State Public Employment Relations Board represents a critical reaffirmation of federal preemption doctrine in American labor law. The decision found that amendments to the New York State Employment Relations Act (SERA) are preempted under the Supreme Court's holding in San Diego Building Trades Council v. Garmon. The Constitutional Context At the heart of this dispute lies a fundamental question about the structure of American governance: when a federal agency faces operational paralysis, can states step in to fill the regulatory void? New York's September 2025 amendments to SERA attempted to do precisely that, granting the state's Public Employment Relations Board (PERB) jurisdiction over private-sector labor disputes traditionally handled by the National Labor Relations Board (NLRB). The legislation emerged from a genuine governance crisis — following President Trump's removal of Board Member Gwynne Wilcox, the NLRB was left without the quorum necessary to issue decisions on union representation petitions or unfair labor practice charges. Governor Kathy Hochul signed the amendments as a stopgap measure, arguing they were necessary to protect workers' rights during federal dysfunction. The law would have allowed PERB to exercise NLRB powers unless and until the federal board obtained a court order establishing jurisdiction — effectively reversing the presumption of federal authority that has governed labor relations for decades. The Garmon Doctrine: A Pillar of Labor Law Judge Komitee's decision rested heavily on the doctrine established in the Supreme Court's 1959 Garmon decision, which holds that when an activity is even arguably subject to the National Labor Relations Act, states must defer to the NLRB's exclusive competence. This principle reflects a deliberate congressional design: to create uniform national labor policy administered by an expert federal agency rather than allowing potentially conflicting state regulations. The Garmon preemption doctrine applies not only when the NLRB has actively asserted jurisdiction, but also when the board has declined to exercise its authority. This breadth serves a critical purpose — preventing the very jurisdictional conflicts and regulatory uncertainty that New York's law threatened to create. As the court emphasized, states cannot regulate labor activities simply because the federal agency is temporarily unable to act. The Court's Rejection of "Unique Circumstances" New York and the Amazon Labor Union advanced a novel argument: that the unprecedented circumstances of the NLRB's lack of a quorum, combined with the constitutional challenge to board members' removal protections, justified an exception to traditional preemption principles. The district court firmly rejected this position, holding that temporary federal dysfunction cannot justify state legislation that directly contradicts Supreme Court precedent. This rejection is significant for several reasons. First, it establishes that preemption is not contingent on federal capacity but on federal authority. The NLRA remains the supreme law governing private-sector labor relations regardless of whether the NLRB can currently adjudicate cases. Second, it prevents states from using administrative or political crises as opportunities to expand their regulatory reach into areas Congress has reserved for federal control. Third, it maintains the principle that doctrinal exceptions must come from the Supreme Court, not from state legislatures responding to expedient circumstances. Implications for American Federalism The Amazon decision arrived at a moment when multiple states — including California, New Jersey, and Massachusetts — have proposed or enacted similar legislation attempting to fill the NLRB's vacuum. Judge Komitee's opinion serves as a warning shot to these efforts, reasserting the primacy of federal labor law even during periods of federal incapacity. While states traditionally possess broad police powers to protect workers' health and safety, labor relations have long been recognized as requiring national uniformity. The New York court's decision reinforces the principle that constitutional preemption doctrines are not suspended during administrative crises, however genuine those crises may be. Practical Consequences For employers like Amazon, the injunction prevents the nightmare scenario of navigating conflicting state and federal labor systems. Without the injunction, companies operating across multiple states could face dramatically different legal frameworks for identical conduct, undermining the uniformity that the NLRA was designed to achieve. For workers and unions, the decision is more complicated. It removes a potential avenue for expedited resolution of labor disputes at a time when the NLRB remains effectively paralyzed. Looking Forward The Amazon decision is unlikely to be the final word. New York will likely appeal to the Second Circuit, where the case could produce important appellate guidance on the application of preemption doctrine in contexts of federal administrative failure. Moreover, the underlying constitutional questions about NLRB members' removal protections remain pending before the Supreme Court, and their resolution could reshape the landscape that produced this controversy. Conclusion Judge Komitee's ruling in Amazon Services v. New York State Public Employment Relations Board is important because it reaffirms principles of federal preemption at a moment when those principles faced their most serious state-level challenge in decades. The decision prioritizes constitutional structure and legal consistency over pragmatic problem-solving, holding that even genuine governance crises cannot justify state encroachment into areas of exclusive federal jurisdiction. For labor law specifically, the decision maintains the NLRA's primacy and the Garmon doctrine's vigor, ensuring that private-sector labor relations remain governed by uniform national standards rather than fragmenting into state-by-state variations The decision leaves unresolved the deeper problem it illuminates: what happens when the federal government's institutional mechanisms fail, yet constitutional doctrine prohibits states from filling the void? This question extends beyond labor law to implicate numerous regulatory domains where federal preemption is broad but federal capacity is fragile. Judge Komitee's opinion answers the legal question decisively, but the practical and political challenges it exposes will likely persist long after this litigation concludes.
December 19, 2025
Labor and Employment
Union Types Explained: How They Impact Employer Strategy
When employers receive notice that employees have filed a petition with the National Labor Relations Board (NLRB) to unionize, one question becomes immediately important: What type of union are we dealing with? Employees might be joining a well-established, nationally affiliated union such as the Communication Workers of America or the International Brotherhood of Teamsters. Or, as has been the trend in recent years, they could affiliate with an independent union of their own creation. The answer can shape negotiation strategy, resource planning, and long‑term labor relations management. Understanding the Two Models Well-established, national unions provide robust infrastructure support: assistance with election procedures, contract negotiation expertise, legal representation, strike funds, and training programs. These organizations bring decades of collective bargaining experience and established relationships with labor attorneys. Independent unions, by contrast, operate with greater autonomy. Examples such as the Amazon Labor Union – prior to its affiliation with the Teamsters – demonstrate how workers maintain more direct control over internal operations and strategic decisions. Members avoid contributing high percentages of their dues to national overhead costs, keeping resources concentrated at the local level. At the bargaining table, both union types pursue the same fundamental goal: negotiating over wages, benefits, and working conditions. Key Differences that Impact Employers Once employees vote to unionize, the process moves into collective bargaining, and national and independent unions bring different expertise and resources to this process. National unions bring professional negotiators with extensive experience and established bargaining strategies. Employers face well-prepared adversaries but ones that may be more predictable. Independent unions may initially lack professional negotiating experience, leading to longer, more unpredictable sessions, but they may be more flexible and creative when responding to employer proposals during negotiations. In addition, more established unions may provide strike funds, legal support, and public relations resources that enable sustained labor disputes. On the other hand, independent unions operate with limited resources but often generate strong member commitment and community support that resonates locally. A third key difference is that national unions feature formal procedures and hierarchical structures, offering employers clear points of contact but potentially resulting in bureaucratic delays. Independent unions often use direct democracy, facilitating faster problem-solving but potentially complicating negotiations when leadership must repeatedly seek membership approval. Whether facing a well-established, national union with decades of experience or an independent union born from your workplace, success requires thorough preparation, legal compliance, and commitment to constructive dialogue.
December 18, 2025
Labor and Employment
Holiday Parties Without Headaches: Handling Complaints with Care
The annual holiday party is meant to lift spirits, reward employees, and create a sense of connection as the year draws to a close. It is often one of the few opportunities for your team to relax together outside the workplace. Yet the same relaxed atmosphere can also lead to missteps. When an employee later reports harassment arising from the event, an employer suddenly faces a complex combination of legal obligations, workplace culture concerns, and employee relations challenges. I regularly help organizations navigate these situations. How you respond in the hours and days after receiving a report matters greatly. With the right approach, you can address the issue responsibly, protect all parties involved, and strengthen trust within your workforce. Responding When an Employee Comes Forward When an employee reports harassment related to a company event, the first and most important step is to acknowledge the complaint and ensure the employee feels heard. Even though the behavior occurred outside the office, the legal analysis does not change when the event is employer-sponsored or reasonably connected to work. Your obligations under federal, state, and local anti-harassment laws still apply. Begin by gathering the essential facts: what occurred, who was involved, where the incident took place, and whether any witnesses or relevant communications exist. Holiday events often generate photographs, videos, or social-media posts that may become significant pieces of evidence. Preserve anything that may be relevant as early as possible. Once you have the initial information, move promptly to an impartial investigation. A trained internal investigator or outside counsel can do this. The key is neutrality: no one involved in the investigation should have a personal connection to the individuals involved, and the process should follow the same procedures you would use for any other workplace complaint. While the investigation is ongoing, consider whether temporary steps are necessary to prevent retaliation or further interaction between the individuals involved. These measures need not imply wrongdoing; they are simply safeguards while the facts are being gathered. At the conclusion of the investigation, determine whether your policies were violated and identify appropriate corrective actions. Communicate the findings to the individuals involved in a way that preserves confidentiality while assuring them that the matter was taken seriously. Finally, check in with the reporting employee afterward to ensure that no subtle form of retaliation has occurred, whether through scheduling changes, exclusion from meetings, or other shifts in workplace dynamics. Why Holiday Parties Create Unique Risks Although holiday gatherings feel informal and festive, the legal standards governing workplace conduct do not disappear at the door of the venue. When the employer organizes, sponsors, or encourages attendance at an event, it is generally considered an extension of the workplace. Alcohol service, dimmer social boundaries, and a sense of celebration can cloud judgment and create opportunities for conduct that someone later perceives as inappropriate, unwelcome, or intimidating. Employers also sometimes assume that what happens after official party hours is beyond their responsibility. But if employees continue the celebration in a way that directly follows the company event, the conduct may still be viewed as connected to the workplace. Understanding this continuum is essential when assessing what occurred and how to address it. A consistent theme in my work with clients is that risk increases when boundaries are unclear: unlimited drinks, a lack of visible leadership presence, or an atmosphere that drifts too far from the professional culture you maintain during the workday. When employees are unsure where the lines are, the potential for misunderstanding increases. Creating a Celebration That Reflects Your Values Most employers do not want to cancel holiday events, and they shouldn’t. With thoughtful planning, these gatherings can remain enjoyable while aligning with your legal obligations and your organizational culture. The most effective preparation begins before the party. Communicate expectations clearly but respectfully. A simple reminder that all workplace policies still apply, including those on harassment, professionalism, and retaliation, sets the tone without dampening spirits. Consider the format of the event and whether the venue, timing, and availability of alcohol reflects the environment you want to create. Provide non-alcoholic options, ensure food is available, and, if alcohol is served, rely on trained bartenders rather than self-serve. Managers play a crucial role. A brief refresher on their responsibilities can make a substantial difference. They set the tone and often serve as the first point of contact if an issue arises. Their visible, engaged presence communicates that the organization values both celebration and safety. After the event, a short message thanking employees for attending and reminding them that any concerns can be reported without fear of retaliation further reinforces your culture of respect. When a Report Occurs: The Guiding Principles If you receive a complaint related to the party, approach it with the same care you would apply to any workplace concern. Ask whether the event was employer-sponsored, what evidence may exist, how quickly the complaint was made, and whether any safety or interim measures are needed. Consistency and fairness are essential. So is prompt action. Delays can undermine credibility and may create legal exposure. When handled well, the response to a complaint not only addresses the immediate issue but also strengthens the organization’s culture. Employees notice when leadership acts thoughtfully and with integrity. That trust is valuable long after the holiday season ends. A well-planned holiday party can bring your team together in meaningful ways. With clear expectations, attentive leadership, and a willingness to act quickly when concerns arise, employers can enjoy the benefits of these celebrations without creating unnecessary risk.
December 17, 2025
Labor and Employment
Employee Handbooks: Essential Guide or Outdated Relic?
For years, employee handbooks were treated as routine onboarding documents, i.e., something handed out on a new hire’s first day and rarely revisited unless a legal issue arose. But in 2026, the pace of workplace change has rendered the “static handbook” approach obsolete. With hybrid work now firmly embedded across industries and compliance obligations multiplying at a rapid rate, the modern employee handbook has become one of the most critical tools an employer can maintain. Whether an organization views it as a cultural roadmap or a liability shield, the reality is that a well-maintained handbook is no longer optional. One of the biggest drivers behind this shift is the transformation of how and where employees work. Traditional handbooks were built around the assumption of a centralized, physical workplace. Today’s workforce operates across multiple states and time zones, and home offices, often using company systems in spaces the employer cannot control. Without clearly defined expectations (how time should be recorded, what equipment must be secured, how quickly employees should respond, and what “professionalism” looks like through a webcam), employers unintentionally create inconsistencies that can later breed miscommunication or even litigation. The hybrid model has also introduced new questions around expense reimbursement, data security, and workplace safety, all of which require written guidance to manage effectively. Legal compliance is another area where employers face mounting pressures. The last several years have brought sweeping changes in employment law at every level. From expanding privacy laws governing employee data, to new protections for caregiver status and reproductive decision-making, to the resurgence of federal scrutiny over non-competes and independent contractor classification, the regulatory landscape is complex and evolving. A handbook that has not been meaningfully updated within the last one or two years is almost certainly missing something critical, and often something required by law. Even policies that feel evergreen, such as anti-harassment or leave provisions, may be outdated if they do not reflect newer protected categories or recent state-level paid leave mandates. What many employers do not realize is that the handbook is also one of the most important documents in a dispute. Courts and agencies regularly review handbook policies to determine whether employers communicated expectations clearly and applied them consistently. When a policy is vague or outdated, employees and managers may interpret it differently, leading to discrimination claims, retaliation allegations, and wage-and-hour challenges. A modern, accurate handbook not only provides clarity to employees — it becomes a critical defense exhibit when disputes arise. The content of today’s handbooks looks very different from that of just a few years ago. Remote and hybrid work policies now need to be specific and actionable, addressing topics such as performance expectations outside the office, the use of AI-based tools, and the handling of confidential information in remote environments. Anti-harassment standards must acknowledge that misconduct can occur in virtual settings just as easily as in physical workplaces, and reporting procedures must be accessible to employees who may rarely visit a company office. Likewise, timekeeping rules must squarely address off-the-clock work and break compliance in a distributed workforce, where supervisors cannot easily observe employee activity. Technology and data privacy have also become essential components of the handbook. With the growing use of monitoring software, AI-assisted performance evaluation, and increased reliance on personal devices, employees expect transparency around what data is collected and how technology will be used. Many states now require employers to provide written disclosures regarding privacy practices. A handbook that avoids these topics leaves both employees and the organization vulnerable to confusion and legal risk. One notable shift in recent years is the move away from static paper or PDF manuals. The most effective organizations now treat their handbooks as living compliance resources: digitally housed, easily searchable, and updated regularly. Electronic acknowledgments have replaced signature pages, and some employers are even incorporating short explainer videos or interactive elements to help employees better understand complex policies. In this environment, a handbook is no longer a document that sits untouched for years; it is a dynamic framework that evolves alongside the organization and its legal obligations. The process of modernizing a handbook does not stop with rewriting policies. Employers must ensure that the document accurately reflects actual workplace practices. Courts scrutinize discrepancies between written policies and managerial behavior, and inconsistencies can undermine an employer’s defense. Training supervisors on the content of the handbook, especially policies related to leave, performance management, and remote work expectations, is just as important as updating the text itself. Multi-state employers must also account for the varying state and local laws that apply differently across their workforce, often through state-specific addenda. In many ways, the increase in complexity has reaffirmed the purpose of the employee handbook. Rather than becoming outdated, the handbook has become essential for navigating the uncertainties of the modern workplace. It provides structure in an era of evolving norms, clarity in a landscape of regulatory change, and consistency across a workforce that may never gather under one roof. Employers who update their handbooks regularly (and, ideally annually, and more often if operating in multiple states) position themselves to stay ahead of compliance risks and maintain a more informed, engaged workforce. The bottom line is simple: if your organization has not reviewed its handbook in the last 12 to 18 months, 2026 is the year to do it. A thoughtful, modernized handbook supports your culture, protects your business, and ensures that employees understand what is expected of them (no matter where they work).
December 4, 2025
Labor and Employment
OSHA Reopens After Government Shutdown: What Employers Should Expect
The Occupational Safety and Health Administration (OSHA) is officially back to full operations, now that the government shutdown has ended. With staff fully restored, employers need to recognize that agency activity previously paused is now resuming — and, in many cases, accelerating. As OSHA re-engages inspections, rulemaking, and policy initiatives, organizations that assumed a “wait-and-see” stance during the shutdown may find themselves playing catch-up. During the funding lapse, OSHA’s enforcement was largely limited to imminent danger situations, workplace fatalities and catastrophes, and high-gravity serious violations that could not wait. Programmed inspections, outreach, cooperative-program activity, and some informal conferences were suspended. Yet despite that pause, employers did not gain any regulatory holiday: many deadlines continued to run. For example, the six-month statute of limitations for OSHA to issue citations remained in force, as did the 15-working-day deadline for filing a Notice of Contest once a citation is issued. Because of that, businesses must now review and respond to any enforcement activity that may have been initiated during the shutdown period but did not proceed in a typical manner. With the shutdown behind us, OSHA will begin clearing the backlog of work that accumulated, and that means employers should expect increased activity. Complaints filed during the shutdown may lead to inspections, email inquiries, or phone contact, and cited cases may be pushed toward litigation or settlement as the agency’s Office of the Solicitor resubmits matters to the Occupational Safety and Health Review Commission (OSHRC). The new leadership at OSHA and OSHRC, confirmed during or immediately following the shutdown, signals a renewed policy push: new priorities, new enforcement emphasis, and perhaps fresh interpretations of the rules. On the regulatory side, rulemaking initiatives that were paused are now reactivated. For example, OSHA recently closed its post-hearing comment period for a proposed heat exposure standard, and staff will resume review of comments now that appropriations have returned. Other dockets — related to chemical respiratory protection, changes to the general duty clause, lighting in construction, and workplace violence/infectious disease standards — are also moving forward. Employers should remain alert because while final rules may not be imminent, the path is now open. Given this environment, it is imperative for employers to revisit their safety, health, and compliance programs—and do so with urgency. While the shutdown may have created a temporary lull, it did not suspend employer obligations. During the pause, many firms may have held off on site audits, deferred training programs, delayed record-keeping cleanup, or postponed internal corrective actions. Now is the time to address those gaps. Reporting requirements remain in effect: for example, employers must report work-related fatalities within eight hours and serious injuries (such as amputations, loss of an eye, hospitalization) within 24 hours of occurrence. Furthermore, even in states under federal OSHA plan coverage, the same rules apply: while federal inspectors may have been limited, many state-plan jurisdictions continued inspections and enforcement. Another significant factor: backlog and delay do not mean indefinite delay. When inspections resume in earnest, the accumulation of complaints and deferred cases may result in a surge of agency activity, meaning firms that assumed “no one is watching during the shutdown” could find themselves under scrutiny. In other words, the quiet period is essentially over. Employers should confirm that abatement deadlines, informal conference windows, and contest deadlines have not expired during the shutdown. If citations were issued, the 15-working‐day contest deadline is jurisdictional: missing it means losing the right to challenge the citation. Even if informal conferences were unavailable during the shutdown, the contest deadline continued to run. That means many firms may need to act even before the agency shows up. Documentation of abatement actions, corrective steps, and safety program updates will be vital. In terms of regulatory posture and leadership, the era ahead may bring changed enforcement priorities. With a new assistant secretary for OSHA and a newly confirmed solicitor of labor now in place, OSHA will likely clarify its strategic focus and resume formal rulemaking. Employers should anticipate possible shifts in emphasis — for instance in the areas of musculoskeletal disorders, infectious disease in healthcare, workplace violence protections, and emerging hazard exposures. The agency’s restart also triggers renewed activity at the Mine Safety and Health Administration (MSHA) and its review commission. For employers in mining and heavy industry, that means you should not assume continued dormancy. For practical steps, employers should immediately conduct a legal-compliance health check. Review outstanding citations, confirm whether any deadlines have run or are about to run, track complaints filed with OSHA during the shutdown, and review your injury/illness reporting and record-keeping for accuracy. Update or re-launch training and internal auditing efforts that may have been deferred. Check the status of rulemaking efforts that may affect your industry (for example, the heat stress standard) and monitor whether state-plan jurisdictions are adopting or adapting state-specific rules in response. If your firm operates in multiple states, especially with state-plan OSHA programs, coordinate your multi-state compliance posture now because state enforcement may not have had the same suspension. Finally, ensure your safety culture remains robust: a period of reduced government oversight is not grounds to reduce employer vigilance. In short, OSHA’s return means business as usual — and then some. Employers who treat the shutdown as a pause rather than a break may find themselves at a disadvantage. Now is the time to engage proactively, refresh your compliance strategy, reinforce your safety programs, document your actions, and stay alert.
November 20, 2025
Labor and Employment
Increasing Minimum Wages: Emerging Trends Across the U.S.
The conversation around minimum wage in the United States has gained renewed momentum in recent years. While the federal minimum wage has remained unchanged since 2009, states and municipalities have taken the lead in implementing wage increases to reflect the rising cost of living and economic shifts. State-Level Action in the Absence of Federal Change With the federal minimum wage stuck at $7.25 per hour for over a decade, many states have enacted their own legislation to raise wage floors. These efforts include: State-level minimum wage increases Automatic adjustments tied to inflation Municipalities setting wages above state levels This decentralized approach has led to a patchwork of wage standards across the country, with significant variation depending on location. Widespread Increases Since 2014 The movement to raise minimum wages has gained substantial traction: 28 states and the District of Columbia have increased their minimum wage since 2014 30 states and the District of Columbia now have minimum wages above the federal rate 63 municipalities or counties have set minimum wages higher than their respective state minimums Wage rates exceeding $15.00 per hour are increasingly common These changes reflect a broader recognition of the need for wages that better support working individuals and families. Leading the Nation: Highest Minimum Wage Rates As of mid-2025, several states and cities stand out for their high minimum wage rates: District of Columbia: $18.00/hour (effective July 1, 2025) California: $16.50 Connecticut: $16.35 New Jersey: $15.49 New York (NYC, Long Island, Westchester): $16.50 Washington: $16.66 Municipalities in Washington State boast the highest local rates: Burien, WA: $21.10 Tukwila, WA: $21.10 (for large employers) Seattle, WA: $20.76 These figures highlight the growing trend of local governments stepping in to ensure livable wages. Who Still Earns the Federal Minimum? Despite the federal rate remaining at $7.25, only a small fraction of workers earn this amount: Less than 2% of American workers are paid the federal minimum wage The Bureau of Labor Statistics projects wage growth of 3% to 5% across most states in 2025 By October 2025, over half of all states will have minimum wages above $14.00/hour This data suggests that market forces and state legislation are driving wage increases independently of federal action. Federal Legislation on the Horizon? The Raise the Wage Act of 2025, introduced in both chambers of Congress on April 8, 2025, proposes sweeping changes: Gradual increase of the federal minimum wage to $17.00/hour by 2030 Elimination of the subminimum wage for tipped workers and workers with disabilities Tipped employee minimum wage to rise to $15.00/hour by 2030 Strong backing: 175 Congressional sponsors and support from 85 labor organizations If passed, this legislation would mark a significant shift in federal wage policy and could set a new national standard.
November 19, 2025
Labor and Employment
Independent Contractor Misclassification: Labels Don’t Shield Liability, Says Eleventh Circuit
In a decision that underscores the importance of substance over form in employment relationships, the Eleventh Circuit recently reaffirmed that contractual labels alone do not determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The case, Galarza v. One Call Claims, LLC, involved three insurance adjusters who sued for unpaid overtime, alleging they were misclassified as independent contractors. The plaintiffs had signed independent contractor agreements with One Call Claims, LLC (OCC), which staffed adjusters for Texas Windstorm Insurance Association (TWIA). Despite the agreements, the adjusters worked full-time for TWIA for nearly two years, were restricted from working for other carriers, and had no control over their pay or hours. TWIA dictated how they performed their work—even after transitioning them to remote roles. The Eleventh Circuit applied the six-factor economic reality test from Scantland v. Jeffrey Knight, Inc., emphasizing that no single factor is dispositive. Instead, the focus is on the worker’s economic dependence on the company. The court found that five of the six factors weighed in favor of employee status, reversing the trial court’s summary judgment and sending the case to a jury. Key takeaways from the decision include: Control Matters: The companies’ significant control over the adjusters’ work and schedules undermined their classification as independent contractors. Economic Dependence Is Central: The court stressed that the ability to deduct expenses or maintain licenses does not negate economic dependence. Indefinite Engagements Raise Red Flags: The long-term, exclusive nature of the relationship suggested an employment arrangement. Essential Services Tip the Scale: The adjusters’ work was integral to the companies’ operations, further supporting employee status. The court’s conclusion was striking: “If a jury could not reasonably find that the workers were economically dependent under these facts, it’s not clear that a professional working from home could ever establish economic dependence under the FLSA.” What Employers Should Do This case serves as a cautionary tale for employers. Simply labeling a worker as an independent contractor does not insulate a company from liability. Employers must evaluate the actual working relationship using the economic reality test. Misclassification can lead to substantial legal exposure, including back pay, penalties, and litigation costs. Employment counsel should guide clients in conducting regular audits of contractor relationships, ensuring that classifications align with the realities of the work performed. When in doubt, err on the side of caution — and compliance.
November 3, 2025
Labor and Employment
The Warning Signs Managers Miss: How to Build a More Transparent Workplace
It's not uncommon for employers to be caught off guard by union organizing. Managers frequently describe the experience the same way: “I had no idea.” By the time a representation petition is filed with the National Labor Relations Board (NLRB), the campaign may have been underway for weeks or even months, quietly, strategically, and largely unnoticed. Understanding why management often misses the warning signs and how to build a more transparent workplace culture is critical for maintaining trust among employees. Even well-intentioned and attentive managers can overlook early warning signs of organizing activity. A lack of complaints is often mistaken for employee satisfaction, but silence can just as easily signal dissatisfaction, especially when workers feel their concerns won’t be heard or addressed. Communication gaps also play a major role: frontline supervisors are typically the first to notice shifts in morale or group dynamics, yet they may not report these patterns upward or may fail to recognize their importance. Finally, over time, routine dissatisfaction about scheduling, workload, or management style can become so familiar that it fades into the background, even as it quietly fuels collective frustration. The most effective way to avoid being caught off guard by organizing activity is to create a workplace culture where employees feel genuinely heard, respected, and valued. This requires intentional, ongoing effort. First, open and consistent communication is essential, providing employees with regular opportunities to share feedback, raise concerns, and see that their input leads to meaningful action. Second, supervisors should be trained to recognize shifts in morale and to respond effectively, since they are often the first to sense when issues are brewing. Employers can also benefit from conducting periodic check-ins, such as engagement surveys or small-group discussions, to identify recurring themes of employee dissatisfaction. When management understands the root causes of dissatisfaction and addresses them early, employees are less likely to seek outside representation. It's important to remember that employees have a legally protected right to organize and engage in concerted activity under the National Labor Relations Act. The goal isn't to suppress organizing, but to address the underlying workplace issues that may lead employees to seek union representation in the first place. By staying attentive, transparent, and proactive, employers can work towards fostering a cohesive, engaged workplace and avoiding the all-too-common refrain: “I had no idea."
October 22, 2025
Labor and Employment
The Hidden Cost of Remote Work: Who Pays for the Home Office?
Remote work is now a customary feature of many workplaces. Until recently, employer policies (if any) governed payment of the job-related expenses incurred by remote workers. However, a number of states have now enacted express mandates for payment of remote employment expenses. California, Illinois, Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, North Dakota, Pennsylvania, South Dakota, and the District of Columbia have statutes that require employers to reimburse employees for certain remote work expenses. The city of Seattle also requires payment of “remote work expenses” under its wage payment statute. There are three different types of expense reimbursement laws: Required Reimbursement Most of these states require reimbursement of “necessary” expenses that relate to the performance of the employee’s duties. Those states are California, Illinois, Massachusetts, Montana, North Dakota, South Dakota and the District of Columbia. Conditional Reimbursement Two states make reimbursement conditional on the employer’s policy. Iowa requires reimbursement of expenses “authorized by the employer;” and New York only requires payment for expenses that are “promised” to the employee. Equipment/Tools Reimbursement Two states do not have the “necessary” condition for reimbursement but require payment for equipment or tools based on their use in connection with employment. Minnesota requires reimbursement of expenses for “equipment used” in for work, except “tools of the trade.” New Hampshire similarly requires payment for any expenses “incurred at the request of the employer” except for “expenses normally borne by the employee.” All of these state laws commonly require more extensive reimbursement for work expenses compared with the narrower typical expense reimbursement practices historically used by employers. However, detailed guidance on the scope and nature of required reimbursements is not yet provided in these state laws. State laws that require employers to reimburse the expenses of remote workers typically define the costs covered in terms of whether they are “necessary” for discharge of the employee’s duties and directly related to the kind of work performed. Although not expressly stated in these laws, the underlying premise is that the expenses would not have been incurred unless the employee was performing remote work for the employer. Clearly, the definition of reimbursable expenses is very broad, since any equipment, software, connectivity, or furniture that is actually and routinely used to perform work can be seen as “necessary.” Typical examples of reimbursable expenses would include computer equipment, printers, cellphones, internet connections, software licenses, and cameras/microphones for video conferencing. However, the definition of expenses that are required to be reimbursed is broader than the typical scope of equipment that is reimbursed or furnished to the employee. For example, if a desk or an ergonomic chair is necessary for performance of the employee’s duties, then it may well fit the definition of a reimbursable expense under state law. As a general rule, any expenses that would be incurred by the employee if the employee were not working for the employer are not covered by the state reimbursement laws. Certainly, any normal living expenses (such as food, furniture, electric power, etc.) are not reimbursable under these laws. Also, any personal luxury items that are not necessary for the work (such as decorations for a home office) are not covered. The state statutes do not distinguish between temporary and more long-term remote work for purposes of reimbursement. None of the state laws address how the allocation of expenses that are used both for work and personal activities should be handled. Under the laws of the seven states that use the “necessary expense” test, it would probably violate the law to require pro rata apportionment, since the expenses are fully reimbursable if “necessary” for work. In the two states where the test is whether the equipment or tools are “used” in connection with employment, a similar analysis could apply. In the two states where the employer reimburses pursuant to its authorization or promises, the employer may allow for partial reimbursement as part of its policy. However, establishing and enforcing the separation of employment-related costs and personal costs would be very difficult. The state of Illinois is an exception to the lack of guidance on reimbursable expenses under state laws. The Illinois law supplies a five-part test for determining what expenses are covered: Whether the employee has any expectation of reimbursement Whether the expense is required or necessary to perform the employee’s job duties Whether the employer is receiving a value that it would otherwise need to pay for How long does the employer receive the benefit Whether the expense is required for the job In more than 75% of the states, reimbursement of remote work expenses is neither required by law nor regulated. As a best practice, however, employers should establish clear, detailed policies that describe what remote work expenses are considered to be necessary and directly related to employee duties, as well as policies for documentation and reimbursement of expenses. These policies may need to vary depending upon the job description, work performed, or disability accommodation.
October 20, 2025
Labor and Employment
EEOC Regains Quorum and Signals Major Policy Shifts Ahead
On October 7, 2025, the United States Senate confirmed President Trump’s nomination of Brittany Panuccio as the third commissioner of the Equal Employment Opportunity Commission (EEOC). Her confirmation restores the commission’s quorum for the first time since early 2025 and gives the agency the power to issue, amend, or rescind regulations and guidance, and to take formal policy action under all major civil rights statutes. Since January, Acting Chair Andrea Lucas has led the EEOC without a quorum, which prevented the agency from adopting or revising rules and limited its ability to pursue systemic litigation or other actions requiring a majority vote. With Commissioner Panuccio joining Lucas and Commissioner Kalpana Kotagal, the EEOC now holds a two-to-one Republican majority. The agency is positioned to act quickly in reshaping key regulations and enforcement priorities consistent with the administration’s civil rights enforcement agenda. Acting Chair Lucas has stated that the EEOC will focus on restoring “evenhanded enforcement of employment civil rights laws for all Americans.” She has identified several priorities, including addressing what she describes as race- and sex-based discrimination linked to diversity, equity, and inclusion initiatives, expanding protections for religious liberty, reinforcing sex-based rights rooted in biological distinctions, and increasing enforcement in areas involving national origin and religious discrimination. The Pregnant Workers Fairness Act Will Likely Be the First Target The Pregnant Workers Fairness Act (PWFA) Final Rule, issued in 2024 under a Democratic majority, is expected to be the first regulatory area the commission revisits. Lucas has long expressed concern that the Final Rule improperly expands the phrase “pregnancy, childbirth, or related medical conditions” to include conditions such as menstruation, infertility, abortion, and menopause. She has argued that these conditions are tied to female biology and not to a specific pregnancy or childbirth, and therefore fall outside the statute’s scope. When the Final Rule was approved in April 2024, Lucas voted against it and issued a statement explaining her opposition. She stated that the regulation “fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex.” She also warned that the rule’s structure makes it difficult to sever the portions she viewed as unlawful from those she considered reasonable. In May 2025, the U.S. District Court for the Western District of Louisiana agreed in part, vacating the section of the Final Rule that interpreted the PWFA as requiring accommodations for elective abortions. The court ordered the EEOC to revise the rule, but the agency was unable to do so without a quorum. Now that a quorum has been restored, the EEOC is well-positioned to issue a revised version that reflects both the court’s order and Lucas’s interpretation of the statute. Until the revised rule is published, the current PWFA Final Rule remains in effect except for the vacated abortion provision. Employers should therefore continue to comply with existing requirements while preparing for potential revisions that may narrow the definition of “related medical conditions” and reduce the range of circumstances requiring accommodation. Anticipated Shifts in Other Enforcement Priorities The EEOC is expected to move quickly in several additional areas. The first is diversity, equity, and inclusion initiatives. The agency has already emphasized that Title VII does not recognize any “diversity” or “equity” justification for making employment decisions based on protected characteristics. Employers should expect additional technical assistance and enforcement activity aimed at programs that take race, sex, or other protected traits into account in hiring, promotion, compensation, or participation in mentorship and employee resource programs. The second is religious accommodation. Following the Supreme Court’s decision in Groff v. DeJoy, which heightened the standard employers must meet to show that a religious accommodation would create an undue hardship, the EEOC is expected to take an expansive approach favoring employees. Lucas has a long record of supporting religious liberty initiatives and is likely to prioritize this area in future enforcement actions. The third involves LGBTQ protections. The EEOC may reconsider its interpretation of Bostock v. Clayton County and revisit its 2024 harassment guidance, which included examples related to pronoun usage and access to facilities consistent with gender identity. The agency has already removed certain gender identity resources from its website, suggesting that further revisions are imminent. Finally, the restoration of a quorum means that the EEOC can again authorize systemic or “pattern or practice” litigation and file amicus briefs in significant appellate cases. While reports indicate that the commission has deprioritized cases based on disparate impact theory, employers should remember that private plaintiffs and state enforcement agencies can still pursue such claims under Title VII and related laws. What Employers Should Do Now Employers should continue to comply with the current PWFA Final Rule, but monitor developments closely as the EEOC prepares revisions. They should review their diversity and inclusion programs to confirm that participation criteria and selection practices are neutral and compliant with Title VII. Religious accommodation policies should be updated to reflect the stricter standard established in Groff v. DeJoy, and harassment and equal opportunity training materials should be reviewed for consistency with potential upcoming changes to EEOC guidance. The restoration of a quorum marks a turning point for the EEOC. With full authority restored and a clear policy direction under Acting Chair Lucas, the agency is likely to move swiftly to revise the PWFA regulations, issue new guidance on DEI and religious rights, and revisit prior positions on gender identity and sexual orientation. Employers should expect significant regulatory activity in the coming months and prepare to adapt their workplace policies and practices accordingly.
October 15, 2025
Labor and Employment
Government Shutdown Pauses E-Verify Operations, But I-9 Rules Still Apply
The government shutdown has closed the E-Verify program, meaning employers cannot access their E-Verify accounts. As a result, enrollment, creation of cases, running reports, and terminations are all suspended. Additionally, all customer service channels are closed. Temporary Policies The “three-day rule” for the creation of E-Verify cases is suspended, but the I-9 rules and verification requirements continue. This means that employers must still complete Form I-9 no later than the third business day after an employee starts work for pay and comply with all other Form I-9 requirements. Employers will need to assist employees with completing a paper version of Form I-9, and for any employee whose E-Verify+ cases were “Pending Employee Response” or “Ready for Review” in the E-Verify system. Any pending E-Verify mismatches during the shutdown will not accrue time towards deadlines. If a SSA mismatch has occurred, employees will have to wait until E-Verify is back in operation to correct their mismatch at the SSA. Employers are advised they may not take any adverse action against an employee whose E-Verify case is “Interim case status.” Federal contractors are advised to contact contracting officers regarding deadlines.
October 6, 2025
Labor and Employment
New York City Expands Minimum Pay Protections to Grocery Delivery Workers
On September 10, 2025, the New York City Council voted to override Mayor Eric Adams’ vetoes and enacted legislation extending workplace protections and minimum pay standards to grocery delivery workers. With this development, app-based couriers delivering groceries through third-party platforms, such as Shipt or Instacart, will now be entitled to the same $21.44 per hour minimum pay rate that has been in effect for restaurant delivery workers since April 2025. Background: How We Got Here New York City has steadily built out a framework for regulating app-based delivery work. In 2021, the city became the first in the nation to pass comprehensive legislation creating wage and workplace protections for restaurant delivery couriers. That law prohibited companies from charging workers fees to access their pay, guaranteed restroom access at restaurants, required companies to provide insulated delivery bags, and mandated greater transparency around pay and tips. It also authorized the Department of Consumer and Worker Protection (DCWP) to study working conditions and establish a minimum pay standard. Following DCWP’s review, the city implemented a pay floor for restaurant couriers in 2023. After scheduled increases, the minimum pay rate reached $21.44 per hour as of April 1, 2025. Until now, however, grocery delivery workers have remained excluded from those protections. The July 2025 Legislation On July 14, 2025, the City Council passed a package of bills aimed at closing that gap. In addition to extending the minimum pay standard to grocery couriers, the bills required delivery apps to build in a 10% tipping option at checkout and mandated that workers be paid within seven days of the close of a pay period. When Mayor Adams did not act within 30 days, most of the bills automatically became law on August 13, 2025. However, Adams vetoed two of the most significant measures, including those that would have extended minimum pay to grocery delivery workers. In his veto message, he expressed concern that higher labor costs would lead to rising grocery prices at a time when many New Yorkers, particularly seniors, families relying on SNAP or EBT, and individuals with disabilities, already face food insecurity. The Council Override The City Council strongly disagreed, emphasizing that grocery couriers face the same risks and exploitation as restaurant couriers and deserve equal treatment. On September 10, 2025, the council voted to override the mayor’s vetoes, enacting the measures in full. While some provisions are tied to the effective dates of related safe-access legislation, the core result is that grocery delivery workers are now covered by the same $21.44 hourly pay standard as restaurant couriers. Reactions and What Comes Next The legislation has sparked vigorous debate. Worker advocates and council sponsors hailed the change as a victory for fairness, pointing out that grocery and restaurant couriers often perform identical tasks under similar conditions. Delivery platforms and some grocers, by contrast, have warned that the laws will significantly raise costs, potentially by as much as 46%, reduce tipping, cut shifts, and increase fees for local grocers. At least one company has already threatened litigation against the city. DCWP will continue monitoring compliance, and enforcement is expected to be strict. For businesses operating in New York City, this means both restaurant and grocery delivery models are now subject to enhanced wage obligations, new in-app tipping requirements, and accelerated payment timelines. Employer Takeaway The expansion of New York City’s delivery worker protections represents another step in the city’s effort to regulate the gig economy. App-based service providers should act quickly to review pay practices, update app functionality, and confirm compliance protocols to avoid penalties or reputational risk. Grocers that rely on third-party platforms should also be prepared for potential increases in delivery costs and related contract renegotiations.
September 29, 2025
Labor and Employment
The Heat Is On: OSHA’s Proposed Heat Safety Rule Advances with June 16 Hearing
Update: OSHA Extends Post-Hearing Comment Deadline On September 17, 2025, OSHA extended the deadline for submitting post-hearing comments on its proposed Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. Chief Administrative Law Judge Steven Henley granted a 30-day extension, moving the deadline to October 30, 2025. As a reminder, OSHA published the proposed rule in the Federal Register on August 30, 2024 and held an informal public hearing from June 16 through July 2, 2025. The agency has received more than 43,000 comments to date. Only stakeholders who filed a Notice of Intent to Appear at the hearing may submit post-hearing comments at this stage. Submissions, including supporting data, must be filed electronically through www.regulations.gov (Docket No. OSHA-2021-0009). What this means for employers: Employers who are eligible to file post-hearing comments should review their earlier submissions and consider whether supplemental comments are warranted before the October 30 deadline. Even if not eligible, employers should continue to monitor this rulemaking closely, as OSHA is moving forward quickly with finalizing the heat standard. Proactive compliance planning — including assessing current heat-illness prevention measures — will help employers stay ahead of regulatory changes. Original article published on June 19, 2025 As summer temperatures soar, so does the urgency for workplace safety measures to protect employees from heat-related illnesses. On July 2, 2024, the Occupational Safety and Health Administration (OSHA) unveiled its proposed rule, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” a groundbreaking step toward establishing the first nationwide standard to combat excessive heat in workplaces. With a public hearing scheduled to begin on June 16, 2025, this proposed rule is poised to reshape how employers across industries manage heat hazards. OSHA will hold the hearing virtually, and it will continue through July 2, 2025. The purpose of the hearing is to gather public input on the proposed rule, which aims to protect workers from hazardous heat exposure. What is the Proposed Rule? OSHA’s proposed standard is a comprehensive framework designed to protect approximately 36 million workers in both indoor and outdoor settings. The rule applies to all employers and activates when the heat index hits 80°F for more than 15 minutes during any 60-minute period — termed the “initial heat trigger.” At 90°F, the “high heat trigger” introduces additional requirements. Here’s a snapshot of what employers would need to do: Written Heat Injury and Illness Prevention Plan (HIIPP): Employers must develop and implement a tailored, written plan to evaluate and control heat hazards. This includes designating a heat safety coordinator to oversee compliance. Temperature Monitoring: Outdoor employers must monitor temperatures frequently to assess heat exposure accurately. Indoor employers need to identify areas where the heat index may reach 80°F and incorporate a monitoring plan into their HIIPP. Mandatory Breaks and Cool-Down Areas: At the initial heat trigger, employers must provide access to drinking water and break areas. At the high heat trigger, mandatory 15-minute breaks every two hours and observation systems (similar to buddy systems) to monitor for heat illness symptoms are required. Training and Acclimatization: Employees must receive training on heat hazards, emergency responses, and acclimatization protocols to gradually build tolerance to higher temperatures, especially for new or returning workers. Hazard Alerts and Signage: Employers must issue heat hazard alerts before shifts or when high heat is recognized, using accessible communication methods that are easily understood by all employees. For indoor areas frequently exceeding 120°F, warning signs are mandatory. This isn’t just a suggestion—it’s a specification standard, meaning employers have little wiggle room to deviate from OSHA’s requirements. The rule’s scope is vast, covering general industry, construction, maritime, and agriculture; however exemptions apply to work with no reasonable expectation of reaching the initial heat trigger or areas consistently air-conditioned below 80°F. Why This Rule Is a Big Deal OSHA’s push for a federal heat standard has been simmering since 2021, fueled by President Biden’s Executive Order 13990 on climate change. The agency’s National Emphasis Program on heat hazards, launched in April 2022, underscored the need for action, though citations under the General Duty Clause have been sparse and often overturned in litigation. This proposed rule aims to close those gaps, providing clear, enforceable requirements to protect workers from heat-related illnesses, which can range from heat exhaustion to life-threatening heatstroke. The timing is critical. Rising temperatures are no longer just a summer concern—record-breaking heat waves are hitting year-round, especially in regions like the Southwest. States like California, Minnesota, Oregon, and Washington already have heat illness prevention standards, and California’s recent indoor heat rule (effective July 23, 2024) shares similarities with OSHA’s proposal. For employers with existing plans, the good news is that OSHA’s rule doesn’t mandate changes if your program already includes the proposed elements. However, aligning your plan with OSHA’s requirements could be a smart move to avoid General Duty Clause violations. The Public Hearing: Your Chance to Shape the Future The public hearing begins on June 16, 2025 (and continues through July 2, 2025), offering a platform for employers, industry groups, and workers to weigh in. Only those individuals who filed a timely Notice of Intention to Appear (NOITA) will be allowed to testify or ask questions at the hearing. The comment period, which closed on December 30, 2024, saw robust engagement, and this hearing is the next step in refining the rule. Recent Supreme Court decisions, such as Loper Bright Enterprises v. Raimondo, have raised questions about the authority of federal agencies, potentially impacting OSHA’s rulemaking. Additionally, the Trump administration’s “Regulatory Freeze Pending Review,” issued on January 20, 2025, could delay or alter the rule’s trajectory, though its impact on ongoing rulemaking remains unclear. The hearing will be a critical moment to gauge the rule’s momentum and OSHA’s response to these dynamics. Practical Tips for Employers While the rule is still in the proposal stage, proactive employers can get ahead of the curve. Here’s how: Review Existing Plans: If you have a heat illness prevention program, compare it to OSHA’s proposed elements. Gaps in training, monitoring, or break policies could expose you to future citations. Engage in the Hearing: Attend the hearing (even if you failed to submit a timely NOITA) to stay informed and, if able, to voice practical concerns, especially if your industry faces unique challenges (e.g., indoor heat in manufacturing or outdoor work in construction). Train Your Team: Start training supervisors and employees on heat hazards and acclimatization now. Early adoption can reduce risks and demonstrate compliance readiness. Monitor State Standards: If you operate in states with existing heat rules, ensure compliance while preparing for potential federal alignment. California’s indoor rule, for example, has trigger points at 82°F and 87°F, slightly different from OSHA’s. The Heat Is On—Are You Ready? OSHA’s proposed heat injury and illness prevention standard is a wake-up call for employers to prioritize worker safety in a warming world. With the public hearing kicking off on June 16, 2025, now is the time to engage, prepare, and adapt. Whether you’re a small business or a multinational corporation, this rule could redefine your workplace safety obligations.
September 25, 2025
Labor and Employment
Visa Uncertainty: The Presidential Proclamation on H-1Bs and a $100,000 for New Petitions
On September 19, 2025, the Trump administration issued a Presidential Proclamation “Restriction on Entry of Certain Nonimmigrant Workers,” effective at 12:01 a.m. September 21, 2025. The Presidential Proclamation specifically targets H-1B Visa Holders who are outside of the United States. Any H-1B visa holder attempting to enter the United States after the effective date must be accompanied by proof of payment of an additional $100,000 fee. This action created panic among large H-1B employers and employees as employees scrambled to return to the United States before the effective date and time. The Administration, through United States Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the Press Secretary’s office, had to “clarify” that their rule was only effective for new H-1B petitions. USCIS Statement attempting to clarify the situation: This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of the United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States. Accordingly, individuals in H-1B status in the United States are unaffected. The vast majority of H-1B cases pending for this cap year will also not be affected. Individuals traveling outside of the country with valid H-1B visas or seeking to obtain renewal of an H-1B visa, will also be unaffected. Instead, the focus will be on certain key groups. The first major group will be the new H-1B cap applicants in 2026. These applicants will be required to demonstrate payment of a $100,000 fee before filing their petition with the USCIS. Also, the effective date of the order will directly impact cap-exempt employers looking to hire new workers in H-1B status. These employers tend to be in research, medical, academia, and related fields. It should be noted that there is currently no guidance on how to make the fee payment. Exemptions are also built into the order, but they are not specific. Currently, it appears that they may exist for an individual, a company, or potentially a whole industry, if DHS determines that it is in the national interest of the United States and does not pose a threat to the security or welfare of the United States. Crucially, the Proclamation does not address whether the fee and restriction apply to cap-exempt H-1B workers outside of the U.S., who are typically exempt from the majority of H-1B fees. What should employers do? We currently believe that international travel will not be affected for the vast majority of H-1B visa holders. We recommend all non-immigrant visa holders consult with counsel before international travel, given the current climate. Employers and individuals looking to apply in the 2026 H-1B lottery or seeking employment with a Cap Exempt H-1B employer should seek legal advice immediately. How long is this effective for? The Presidential Proclamation is effective for a period of 12 months. What Happens in the future? The proclamation is likely to face legal challenges as it directly contradicts the will of Congress in the issuance of the H-1B visa program and its implementing regulations, including the introduction of application fees without notice and comment. Entry of nonimmigrants, however, is controlled by the executive branch, so potentially a modified version of this proclamation will continue.
September 22, 2025
Labor and Employment
The FTC’s Noncompete Ban Is Dead – But Enforcement Is Alive and Well
The Federal Trade Commission has officially withdrawn its appeal in Ryan, LLC v. FTC, putting an end to its controversial attempt to ban noncompete agreements through agency rulemaking. That effort may be over, but the commission has made clear that employers are not free to impose noncompetes “willy-nilly.” As FTC Chair Ferguson recently cautioned, the failure of the Biden Administration’s sweeping ban does not mean the agency is abandoning the field. From Rulemaking to Case-by-Case Enforcement Rather than pursuing broad regulations, the FTC has pivoted toward an enforcement model. On September 4, the commission announced a complaint against Gateway Services, Inc. over its use of noncompete clauses. Alongside the complaint, Commissioners Ferguson and Holyoak issued a joint statement emphasizing a new philosophy – using targeted enforcement to signal to the market what the FTC views as unlawful practices. In their words, a “steady stream of enforcement actions” provides transparency and nudges employers toward compliance without sweeping rulemaking. This case-by-case strategy echoes traditional antitrust enforcement – send a clear warning through precedent, not regulation. Public Input Still Matters At the same time, the FTC issued a Request for Information (RFI) seeking data about how noncompetes are used, justified, and experienced across industries. While the agency insists this is not a return to rulemaking, the RFI will likely shape enforcement priorities, especially sector-specific initiatives. Employers with legitimate business interests in protecting trade secrets or client relationships should consider submitting comments before the November 3 deadline to ensure their perspective is not drowned out by opponents. Healthcare in the Crosshairs The FTC has already signaled special scrutiny of healthcare employers. On September 10, Chair Ferguson sent letters to large health systems and staffing firms urging them to review restrictive covenants in their employment agreements. The move is striking given that states already regulate healthcare noncompetes more aggressively than nearly any other sector – dozens of new bills have been proposed in the past year alone. Why the added federal attention? One explanation may be the flood of public comments targeting healthcare during last year’s failed rulemaking process. In other words, political pressure and anecdotal evidence may be driving the FTC’s focus more than labor market data – where healthcare remains one of the strongest employment sectors nationwide. How Employers Can Avoid the “Willy-Nilly” Label The Gateway Services complaint and other FTC actions provide insight into what will draw scrutiny. Employers should work closely with counsel to design noncompete and restrictive covenant programs that focus on legitimate interests rather than blanket employee control. Key considerations include: Legitimate purpose: Use restrictive covenants to prevent unfair competition and protect confidential information, not merely to retain employees or block mobility. Role-specific tailoring: Reserve noncompetes for positions where they are truly necessary (e.g., senior executives, client-facing sales roles). Apply different restrictions for different levels of employees. Narrower alternatives: Consider whether non-solicitation, confidentiality, or customer protection clauses can adequately protect the business. Reasonable scope: Draft restrictions that are proportionate in duration, geography, and covered activities. Agreements that prevent someone from working for a competitor “in any capacity” – say, even as a janitor – are likely to raise red flags. Compliance with state law: Many states have already tightened restrictions on noncompetes. Ignoring state law not only risks invalidation but may also invite FTC scrutiny. The Bottom Line While the federal ban is off the table, the FTC is not retreating. Employers should expect enforcement actions to continue, particularly in sectors like healthcare, and should take this moment to review their agreements. A thoughtful, legally sound approach to restrictive covenants will make it much harder for regulators to paint your practices as “willy-nilly.”
September 18, 2025
