May Legal Updates

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.

2^nd 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.

2^nd Circuit on ADA Accommodation

The Second Circuit Court of Appeals ruled in Tudor v. Whitehall Central School District on March 25, 2025, that employees with disabilities can qualify for reasonable accommodations under the ADA, even if they can perform their essential job functions without accommodation.

Key Findings:

• An employee does not need to prove that an accommodation is essential for job performance to be eligible for one under the ADA.
• The Court emphasized the broad remedial purpose of the ADA in eliminating disability discrimination.

Case Summary:

• A teacher with PTSD had previously been allowed to leave school grounds during 15-minute prep periods as an accommodation.
• A new administration revoked her afternoon accommodation despite her long-term reliance on it.
• When she continued leaving campus, she was denied coverage, leading her to file an ADA claim.
• The District Court ruled against her, stating she could perform her job without the accommodation.
• The Second Circuit overturned that ruling, aligning with other federal courts in holding that employers must provide accommodations unless they pose an undue hardship.

Implications for Employers:

• Employers in New York, Connecticut, and Vermont must recognize that ADA-covered employees are entitled to accommodations, even if they can fulfill their job duties without them.
• Undue hardship remains the only exception, but proving it is a high standard—legal counsel should be consulted before denying accommodations.

WA Fair Chance Law

WA State’s Fair Chance Law, as amended by HB 1747, will take effect in July 2026, expanding protections for job applicants and employees with criminal records. Key changes include:

Expanded Prohibitions

• Employers cannot ask about criminal records before making a conditional job offer.
• Employers cannot take adverse action based on arrest records (except in certain adult cases) or juvenile convictions.
• Employers cannot take adverse action based on adult convictions unless a legitimate business reason is provided. 

New Employer Obligations

• Employers must provide pre-adverse action notices, allowing applicants two business days to respond.
• If an employer moves forward with adverse action, they must issue a formal written notice, documenting their reasoning. 

Increased Penalties

• Higher fines for first, second, and subsequent violations, calculated per affected applicant or employee.

Businesses operating in WA should update hiring processes to comply with the new law, including:

• Revising job applications to remove impermissible criminal record inquiries.
• Updating workplace postings and online materials to reflect fair chance hiring.
• Training recruiters and hiring personnel on legal limitations.
• Reviewing background check policies and notification procedures.

LA CTY Fair Workweek Ordinance

The Los Angeles County Fair Workweek Ordinance will take effect on July 1, 2025, impacting retail employers in unincorporated areas of the county. Key provisions include: 

• Work Schedule Transparency: Employers must provide a written good-faith estimate of work hours to new hires.
• Advance Scheduling: Work schedules must be posted at least 14 days in advance.
• Rest Periods: Employees must have at least 10 hours between shifts unless they consent in writing and receive time-and-a-half pay.
• Predictability Pay: Employees must be compensated for last-minute schedule changes.

Retail employers must also post workweek rights notices (once available) and retain records for three years. Businesses should check the LA County Consumer & Business Affairs website to verify if they operate in an affected area.

WA Personnel Files Law

The WA Legislature has passed a new law amending RCW 49.12.240 and 49.12.250, affecting employers' obligations regarding employee personnel files. Here are the key changes:

1. Definition of "Personnel File": The law now defines "personnel file" to include job application records, performance evaluations, non-active disciplinary records, leave and accommodation records, payroll records, and employment agreements.
2. Production Timeline: Employers must produce personnel files within 21 calendar days of an employee's or former employee's request, replacing the previous "reasonable time" requirement.
3. Discharge Statements: Employers must provide former employees, upon written request, with a statement of the discharge date, whether there was a reason for discharge, and the reason if applicable.
4. Private Right of Action: Employees can now sue for non-compliance, recover attorney's fees, and statutory damages. Employers must be given five days' notice before a lawsuit is filed. 

Statutory damages are set at $250 if the file or discharge statement is not provided within 21 days, $500 if not provided within 28 days, and $1,000 if not provided within 35 days. There is also a $500 penalty for other violations.

The bill is expected to be signed into law soon.

EEO-1 Reporting Date

The 2024 EEO-1 Component 1 data collection is set to begin on May 20, 2025, with a filing deadline of June 24, 2025. The EEOC has requested the removal of the non-binary reporting option, aligning with Executive Order 14168. The revised instructions now only provide binary options (male or female) for reporting employee counts. The EEOC has not updated guidance for small federal contractors with 50-100 employees, despite changes in regulations. Employers should prepare for the upcoming filing cycle and stay tuned for further guidance from the EEOC.

Sixth Circuit Weighs in on FLSA “Weekly Basis”

The U.S. Court of Appeals for the Sixth Circuit issued a decision on April 1, 2025, in Pickens v. Hamilton-Ryker IT Solutions, LLC. This case clarified what it means to be paid on a "weekly basis" for the salary-basis test under the FLSA.

Key Points:

• Plaintiff: Lynwood Pickens, a pipe inspector, was paid a guaranteed weekly salary of $800 plus $100 per hour for hours worked beyond eight in a week.
• Issue: Pickens claimed he was misclassified as an exempt salaried worker and was owed overtime pay.
• FLSA Exemption: The highly compensated employee (HCE) exemption requires a total annual compensation of $107,432, including at least $684 per week paid on a salary or fee basis.
• District Court Ruling: Initially ruled in favor of Hamilton-Ryker, stating Pickens was paid a fixed weekly salary.
• Sixth Circuit Decision: Reversed the district court's ruling, stating that the weekly payment must reflect the general value of services performed and not be incidental. Pickens' $800 salary did not compensate him adequately for his regular 52-hour workweek. 

This decision emphasizes the need for companies to ensure their compensation practices align with both the text and spirit of the law, following the precedent set by the Helix Energy Solutions Group v. Hewitt case.

CA Meal Waivers Can Be Valid

CA employers sometimes have employees sign meal period waivers during onboarding process to allow employees to forgo meal periods during shifts of specific lengths—typically waiving the first meal period for shifts between five and six hours and the second for shifts between 10 and 12 hours. Until recently, CA courts had not weighed in on the legality of these “prospective” waivers.

In a victory for employers, the Court of Appeal ruled (in Bradsbery v. Vicar Operating, Inc.) that such waivers are enforceable, provided they are not unconscionable or coerced. In short, these waivers are invalid if they were coerced, signed unknowingly, or unable to be revoked at any time.

Court Enjoins Part of PWFA

Last week, a US District Court judge in North Dakota granted summary judgment to the Catholic Benefits Association (CBA) by finding that portions of the PWFA Final Regulations that require employers to reasonably accommodate limitations arising out of infertility, abortions, and in vitro fertilization violate CBA’s rights under the Religious Freedom Restoration Act (RFRA). The court additionally found that the EEOC’s Guidance on Harassment in the Workplace violates the CBA’s rights under the RFRA to the extent it forces CBA to “speak or communicate in favor of abortion, fertility treatments, or gender transition when such is contrary to the Catholic faith; refrain from speaking or communicating against the same when such is contrary to the Catholic faith, use pronouns inconsistent with a person’s biological sex; or allow persons to use private spaces reserved for the opposite sex.”

This ruling, and the court’s injunction, is limited to the CBA and its members; however, the ruling could lead to a nationwide injunction blocking the RFRA and EEOC Guidance, as many other lawsuits have been filed in the same regard.

KS Updates Non-Solicitations

On April 9, 2025, KS Governor Kelly signed Senate Bill No. 241 into law, amending the KS Restraint of Trade Act. This amendment clarifies which business contracts are not considered an unreasonable restraint of trade or against public welfare.  

Key Changes:

• Non-solicitation agreements: The law creates presumptions of enforceability for employee and customer non-solicitation covenants meeting specific requirements, where previously the Act's coverage of such provisions was unclear. 
• Mandatory reformation: If a covenant is deemed overbroad or unenforceable, Kansas courts are required to modify and enforce the covenant as modified. 
• Effective date: The amended Act takes effect on July 1, 2025. 
• "Pro-business" law: The Kansas Chamber has praised the law as "pro-business," enhancing employers' ability to protect workforce stability and client relationships.  

Existing Regulations:

• Kansas courts already uphold protective covenants that are reasonable and not against public welfare.
• Courts assess reasonableness by considering factors like: protecting legitimate business interests, burden on the employee, public welfare impact, and reasonable duration and geographic scope.
• The "reasonableness test" will continue to apply to protective covenants not specifically covered by the new law's presumptions, including non-compete agreements.
• The new law mandates flexible enforcement by courts for agreements falling within the specific limitations.

MI Earned Sick Time Act

The MI Earned Sick Time Act requires employers to post a workplace poster in the workplace (effective March 23, 2025), and to provide written notice to employees on the date of hire of their rights under the earned sick time act. To address the new law, MI’s Department of Labor and Economic Opportunity has issued an updated workplace poster.