April Legal Updates
Handbook Alert – NY
NY employers are again are required to include in their employee handbooks a notice regarding prohibited discrimination and retaliation based on an employee's reproductive health care choices.
Sign of The Times – Removing DEI Protections
IA is now the first state to remove anti-discrimination protections for gender identity.
IA Governor Reynolds signed a bill into law that removes “gender identity” as a protected class under the state’s civil rights code. The law also defines gender as binary, requires birth certificates to indicate sex, and restricts teaching about “gender theory” from kindergarten through sixth grade. Senate File (SF) 418 takes effect on July 1, 2025.
CTA Saga Finally Ending?
The Treasury Department announced it will not enforce the Corporate Transparency Act, which requires businesses to disclose their beneficial owners. This decision comes after legal challenges as well as opposition from the Trump administration, which has cited concerns about the law's potential burden on low-risk entities. The Treasury plans to limit the act's scope to focus on foreign reporting companies.
MN Fed Court Rules on ADA and Websites
A federal court in Minnesota recently ruled that the ADA’s “public accommodations” provision applies to websites, which is consistent with other courts that have made similar rulings. The plaintiffs who filed the suit claimed that the defendant’s website was not accessible to individuals with vision-related disabilities. The court rejected the argument that the ADA only applies to physical places of public accommodation, emphasizing the law’s broad evolving nature and denying the defendant’s motion to dismiss the case.
Takeaway: if you sell products or services via a website, be sure that it is optimized for visually-impaired consumers using screen-reader technology.
The case is Frost v. Lion Brand Yarn Co., 24-cv-950 (KMM/LIB) (D. Minn. Feb. 6, 2025).
MI Updates Min Wage Act
The MI legislature amended the state's Wage Act on Feb. 20, 2025 to accelerate the schedule of minimum wage increases, but did not eliminate the tip credit for workers who receive tips. Gov. Whitmer signed the legislation, Senate Bill 8 (SB 8), on Feb. 21, 2025.
Michigan's minimum wage rate is now $12.48 per hour. The minimum wage for tipped workers is $4.74 per hour.
States Can Sue To Challenge PWFA
The Eighth Circuit has held that seventeen Republican state attorneys general have standing to sue to block rules that the EEOC issued under the Pregnant Workers Fairness Act (PWFA). In so doing, the court rejected the argument that the states did not have standing to sue to block the rules. The challenge is based on arguing that the EEOC exceeded its authority by including abortions in the PWFA’s definition of pregnancy-related conditions.
AR Bans Dr Non-Competes
On March 4, 2025, Arkansas Governor Sarah Huckabee Sanders signed into law Senate Bill 139, now Act 232 (the “Act”), which amends the state’s non-compete statute to ban non-compete covenants that “restrict the right of a physician to practice within the physician’s scope of practice”. The term “physician” includes any person authorized or licensed to practice medicine under the Arkansas Medical Practice Act and any person licensed to practice osteopathy under Arkansas law. The Act is to go into effect 90 days after adjournment of the current legislative session, putting the effective date around mid-July 2025.
More EEOC Charges Filed Last FY
Last week, the EEOC last week released data on Charges filed in its Fiscal Year ending September 30, 2024. Here’s FY24 vs. FY23:
- Charges increased by 9.2%, from 81,055 for FY23 to 88,531 for FY24.
- Oddly, retaliation charges declined from 46,047 (54%) during FY23 to 42,301 (47.8%) during FY24.
- Disability charges increased from 29,160 (36%) to 33,668 (38%).
- Pregnant Workers Fairness Act charges made up 3.1% (2,729) of all charges filed during FY24; the PWFA did not become effective until June 27, 2023, so FY 2024 is the first full year when PWFA charges could be filed.
- Age charges increased from 14,144 (17.4%) to 16,223 (18.3%).
- Race charges increased from 27,505 (33.9%) to 30,270 (34.2%).
- Race-based harassment charges increased from 11,270 (13.9%) to 12,863 (14.5%).
- Sex charges declined 25,473 (31.4%) to 26,872 (30.4%).
- Sex-based harassment charges remained about 17.5% of all charges filed in both FYs. Quid pro quo sexual harassment charges also remained proportionately steady at 9.5% of all charges filed in both FYs.
Judge Undoes NLRB Member Wilcox Firing
A Washington, D.C. federal judge last Thursday ordered fired National Labor Relations Board member Gwynne Wilcox to be reinstated, restoring a quorum on the board pending a likely appeal by the Trump administration.
FTC Asks Court to Suspend Noncompete Appeals
The Federal Trade Commission is asking two circuit courts to pause their reviews of its ban on noncompete clauses, saying it needs time to reconsider whether it actually wants to defend the rule.
In the FTC motions filed last Friday in the Fifth Circuit and Eleventh Circuit, it asked the courts to hold two challenges to the ban in abeyance for 120 days in order for the FTC to "reconsider its defense of the challenged rule."
NLRB Acting GC Rescinds Severance Memo
The acting NLRB General Counsel rescinded a number of guidance memos, including GC 23-05, which provided guidance on the Board's decision in McLaren Macomb, a decision that held that employers violated the NLRA when they offered employees severance agreements that required a broad waiver of rights.
NLRB Acting GC Rescinds Severance Memo
Further, the acting GC rescinded memos GC 23-08 and GC 25-01. GC 23-08 declared that the "proffer, maintenance, and enforcement" of noncompete agreements in employment contracts and severance agreements violate the NLRA, except in limited circumstances. GC 25-01 expanded on GC 23-08 by allowing the NLRB to seek make-whole relief to remedy potentially harmful effects on employees. The memo also addressed how "stay-or-pay" provisions(where an employee must pay the employer if they separate from employment) infringe on employees' rights just like noncompete agreements and therefore must be narrowly tailored. The memo further explained that where a stay-or-pay provision is voluntarily entered into, it would not be considered unlawful if it contained a reasonable and specific payment amount and reasonable "stay" period and did not require repayment if the termination is without cause.
IA No Longer Protects Gender Identity
The IA Legislature passed a bill (Senate File 418) that removes "gender identity" as a protected characteristic under the state’s Civil Rights Act. Gov. Reynolds signed the bill on Feb. 28, 2025, and the new law is effective July 1, 2025.
Trump Revokes Fed. Contractor Wage Order
President Trump rescinded former President Biden's executive order increasing the minimum wage for federal contract workers to $15 an hour, leaving an uncertain future for the USDOL rule implementing the order and ongoing court challenges to the rule.
Commissions Protected Under NJ Wage Law
The NJ Supreme Court clarified in a unanimous opinion Monday that workers who make commissions are subject to state wage law protections. The court held that commissions qualify as wages under the Wage Payment Law since they directly compensate employees for their labor or services and the amount is determined on the time, task, piece, or commission basis.
WV Grounds for Unemployment
The WV Legislature amended § 21A-6-1 and enacted § 21A-6-1d in 2024 to now all unemployment benefits for an applicant who “is able to work and is available for full-time work for which he or she is fitted by prior training or experience and is actively seeking work as defined in § 21A-6-1d of this code.”
However, applicants must provide proof they conduct at least four “work search activities” each week, which can include registering with job agencies, applying for jobs, attending job fairs, in-person visits with potential employers, participating in skills assessments or instructional workshops, and interviewing with employers. They also must accept suitable job offers referred by the state workforce agency.
And, W.Va. Code § 21A-6-1d requires employers to report job offer refusals by individuals receiving unemployment benefits: “An individual applying for or receiving unemployment benefits who receives referrals from Workforce West Virginia to a job or jobs considered to be suitable . . . shall apply for that job or those jobs within one-week of receiving the referrals and accept employment in suitable work if offered. . . . Employers shall report the refusal of any individual who is receiving unemployment benefits and who receives job referrals from Workforce West Virginia to accept an offer of employment to the commissioner and also report those that accept employment and either leave or are dismissed from that employment within six weeks of the start date of that employment.”
USCIS Issues New I-9
USCIS published an updated version of the Form I-9. The revised Form I-9 has an edition date of 1/20/2025 and an expiration date of 5/31/2027. The updated Form I-9 is already available on the USCIS website.
Employers should begin using the new Form I-9 immediately. As far as existing forms, Form I-9 (8/1/2023 edition) remains valid until its expiration date, 5/31/2027.
2nd Circuit Say ADA Accommodation Unnecessary
Last week, the Second Circuit Court of Appeals released an opinion that changes to the by which employers must address disability-related accommodation requests. In Tudor v. Whitehall Central School District, Case No. 23-665, the Second Circuit held that plaintiffs suing their employers for failure to provide a reasonable accommodation no longer need to prove that the accommodation was necessary to perform the employee’s essential job duties.
The Second Circuit reasoned that “[a] straightforward reading of the ADA confirms that an employee may qualify for a reasonable accommodation even if she can perform the essential functions of her job without the accommodation.” (emphasis added). The Court further noted that while “[a]bility to perform the essential functions of the job is relevant to a failure-to-accommodate claim, [] it is not dispositive.” Therefore, “an employer must, absent undue hardship, offer a reasonable accommodation–such as a modified work schedule–to an employee with a disability if that employee is capable of performing the essential functions of her job with or without the accommodation.”
EEOC Data on Neurodiversity
The EEOC reported that there is a rise in disability discrimination charges related to neurodiversity in recent years. If you aren’t familiar with neurodiversity, it is medical conditions that cause the brain to function differently than the typical pattern. Such conditions include autism, attention-deficit hyperactivity disorder (ADHD), dyslexia, sensory processing disorder, and Tourette’s syndrome. In many cases, people with those conditions qualify under the ADA definition of disability. The ADA covers physical and mental impairments that substantially impair a major life activity, such as sleeping, eating, speaking, and reading.
DEI under siege
The EEOC came out with new guidance on “diversity, equity, and inclusion-related discrimination.” This guidance contains a new interpretation on DEI initiatives intersect with respect to anti-discrimination protections.
The EEOC’s guidance tasks employers to reassess their DEI programs to ensure they are crafted in a manner consistent with longstanding protections. Highlights:
- Disparate Treatment and Unequal Access to Opportunities: The EEOC’s guidance places a new focus on excluding individuals from training, mentoring, fellowships, or interview slates based on protected characteristics.
- Segregation and Classification: The guidance warns against separating employees into separate groups for DEI-related activities on the basis of race, sex, or other protected characteristics.
- Harassment: The EEOC affirms that DEI training should not create a hostile work environment.
- Retaliation: Title VII’s anti-retaliation provisions may apply when an employee objects to DEI training based upon a good-faith, fact-specific belief that the training violates anti-discrimination laws.
- Employee Resource Groups (ERGs): The guidance also affirms that ERGs and affinity groups must be inclusive and open to all employees and should not limit access based on race, sex, or other protected traits may raise concerns of exclusion or unlawful segregation.
