Ogletree Deakins

Quick Hits NLRB Acting General Counsel William B. Cowen rescinded numerous memoranda from his predecessor, Jennifer Abruzzo. The rescinded memos included key guidance on various labor issues, such as the employee status of college athletes, remedies, and the legality of noncompete agreements and other restrictive covenants. In Memorandum GC 25-05, the newly installed acting general counsel rescinded at least eighteen prior general counsel memos and named more that are “rescinded…

Quick Hits On February 14, 2025, NLRB Acting GC William B. Cowen rescinded memoranda that deemed as violations of the National Labor Relations Act (NLRA) two categories of restrictive covenant agreements with non-supervisory/non-management employees: (1) non-compete agreements in employment contracts and severance agreements and (2) stay-or-pay agreements whereby employees are required to remain employees for a certain period of time or reimburse an employer certain moneys. This action reverses the…

Quick Hits New York’s General Obligations Law (GOL) § 5-336 and Civil Practice Law and Rules (“CPLR”) § 5003-B both impose strict requirements on nondisclosure clauses in matters involving discrimination claims, including that the inclusion of such clauses in a settlement agreement be at the plaintiff’s preference. The U.S. District Court for the Eastern District of New York recently held that an unsigned GOL § 5-336 and CPLR § 5003-B…

Quick Hits Employers may need to provide religious accommodations to Muslim workers during the month of Ramadan. Ramadan will begin on the evening of February 28, 2025, or March 1, 2025, depending on the moon. Ramadan will end on the evening of March 29, 2025, or March 30, 2025, with the Eid al-Fitr holiday to begin the following day. Ramadan is expected to begin on the evening of February 28,…

Quick Hits Nevada OSHA has introduced a new regulation to protect employees from heat illness, with enforcement starting on April 29, 2025. The heat illness regulation requires Nevada employers with more than ten employees to create a written safety program and conduct a job hazard analysis (JHA). Employers are required to provide training on heat illness prevention, provide rest breaks, ensure access to potable water, and designate a person to…

Quick Hits Tax connections: Establishing a PE can result in the obligation to file corporate taxes abroad. Local registration: Although PE is primarily a tax concept, it may coincide with requirements to register with local business authorities as a foreign entity conducting business in the country. Understanding ‘Permanent Establishment’ A company’s business activities may create a significant economic presence that could trigger tax liability abroad. Usually, tax authorities look for…

Quick Hits A coalition of DEI advocates has initiated a legal challenge against President Trump’s executive orders to eliminate diversity, equity, and inclusion programs, claiming they are unconstitutional and infringe on free speech rights. The lawsuit argues that the vague language of the executive orders creates uncertainty that could lead to discriminatory enforcement against those promoting lawful DEI efforts. The U.S. Office of Personnel Management has provided guidance to federal…

Quick Hits New York State’s paid prenatal leave law, which went into effect on January 1, 2025, requires that employers provide employees twenty hours of paid leave per year to receive prenatal care. The NYSDOL recently released new guidance in the form of answers to frequently asked questions (FAQs) to assist employers in understanding and implementing the new requirements under the Paid Prenatal Leave Law. In part, the DCWP’s proposed…

Quick Hits California’s updated guidance adds a new racial/ethnicity category for the 2024 reports—”Middle Eastern or North African” (MENA). The deadline for filing the 2024 California pay reports is May 14, 2025, and the platform opened for new filings on February 3, 2025. California requires covered employers to file payroll employee reports for their own employees and requires covered employers to file labor contractor employee reports for their labor contractor…

Quick Hits The fiscal year 2026 H-1B cap registration period will open at noon ET on Friday, March 7, 2025, and will remain open until noon ET on Monday, March 24, 2025. Prospective cap-subject H-1B petitioners and their representatives must use a USCIS organizational account online to register beneficiaries and pay required fees. USCIS’s new H-1B registration fee of $215 per registration will be in effect for this year’s H-1B…

Quick Hits Premier Doug Ford has called for an Ontario provincial election to be held on February 27, 2025, requiring employers to provide eligible employees with three consecutive hours of paid time off to vote if their work schedules do not already allow for it. Employees must be Canadian citizens, eighteen years of age or older, and residents of Ontario to be eligible for voting time off. An employer can…

Quick Hits New and ongoing litigation at the DOJ’s Civil Rights Division is essentially frozen indefinitely. The freeze could have implications for the Immigration and Employee Rights Section, which handles claims of citizenship discrimination. Hidden among a flurry of executive orders, within the first week of President Trump’s second term of office, the media reports the DOJ issued a freeze memorandum to its Civil Rights Division, which is the arm…

Quick Hits Employers may want to proactively address the potential for increased absenteeism on the Monday following the Super Bowl, often called “Super Sick Monday.” With heightened excitement leading up to the game, employers may want to address the potential for distractions and loss of productivity. The National Football League’s (NFL) Kansas City Chiefs will play the Philadelphia Eagles in Super Bowl LIX in New Orleans, Louisiana. Surveys show that…

Quick Hits President Trump appointed William B. Cowen as acting general counsel of the NLRB. The appointment comes after President Trump, in the past week, discharged former NLRB General Counsel Jennifer Abruzzo and her replacement, NLRB Acting General Counsel Jessica Rutter. President Trump also removed NLRB Member Gwynne Wilcox. The NLRB said that field offices will continue to process unfair labor practice and representation cases. Acting General Counsel Cowen has…

Quick Hits OCR will enforce Title IX protections under the 2020 Title IX Rule, not the 2024 Title IX Final Rule. The 2020 Title IX Rule provides procedural protections for complainants and respondents and requires supportive measures. The 2024 Title IX Final Rule, which was criticized for impermissibly expanding the definition of “sex” to include gender identity and other categories, has been invalidated by federal courts. OCR’s new course for…

Quick Hits Under the Neonatal Care (Leave and Pay) Act 2023, employed parents whose babies are admitted to neonatal care within the first twenty-eight days of birth and remain in hospital for at least seven consecutive days have a right to up to twelve weeks of leave and pay. The act aims to allow new parents necessary time during challenging circumstances without interfering with their maternity, paternity, or parental leave.…

Quick Hits The SCHA requires that higher education institutions participating in Title IV of the Higher Education Act of 1965 programs collect, report, and publicly disclose hazing-related incidents and implement hazing prevention and awareness programs. The SCHA also mandates that institutions, as part of their Clery Reports, begin collecting hazing data and statistics as of January 1, 2025, and include, among other items, all hazing incidents that were reported to…

Quick Hits Healthcare employers will have to navigate several labor and employment law issues in 2025, including a potential continued rise in union organizing, new restrictions on the use of noncompete agreements, emerging workplace safety risks, compliance concerns, additional pay transparency laws, and immigration regulatory and enforcement changes. The issues arise as the new presidential administration seeks to shift federal policy on several of the key issues, including labor relations…

Quick Hits President Trump removed two of the three Democratic commissioners on the EEOC. The removals leave the EEOC with two remaining commissioners and likely will lead to a Republican majority that will push the president’s agenda, including recent executive orders. The unprecedented action is likely to lead to legal challenges regarding the grounds for removing the EEOC commissioners. According to media reports, on January 28, 2025, Commissioners Burrows and…

Quick Hits President Trump removed NLRB member Gwynne Wilcox and discharged NLRB general counsel Jennifer Abruzzo, marking a significant shift in the Board’s leadership. Wilcox’s removal leaves the NLRB without a quorum (minimum of three members) to hear cases, raising questions about the legality of the dismissal and potential court challenges. According to media reports, President Trump removed Wilcox, a President Biden Democratic appointee to the Board, on January 27,…

Quick Hits The deadline for filing the 2024 California pay reports is May 14, 2025, and the filing platform will open for new filings on February 3, 2025. California requires covered employers to file payroll employee reports for their own employees and requires covered employers to file labor contractor employee reports for their labor contractor employees. The California Civil Rights Department has taken legal action against employers that have failed…

Quick Hits On January 16, 2025, the FTC and DOJ issued their “Antitrust Guidelines for Business Activities Affecting Workers.” The guidelines identify five nonexhaustive types of agreements and policies that may constitute violations of antitrust laws by hindering commercial competition and restricting the free movement of employees. The dissenting statement issued by two FTC commissioners indicates the guidelines may be short-lived. Following the recent change in presidential administrations, employers are…

The judge described the executive order as “blatantly unconstitutional.” The executive order limiting birthright citizenship asserts that children born in the United States on or after February 19, 2025, who do not have at least one lawful permanent resident or U.S. citizen parent, will not have a claim to birthright citizenship. Quick Hits A federal judge in Washington recently granted four states a temporary restraining order halting enforcement of President…

Quick Hits Expanding business into the Middle East may require global employers to navigate unique challenges such as establishing a physical office presence, adhering to distinct workweek structures, and understanding regional tax policies. Employers must comply with requirements around hiring local nationals, employing public relations officers (PROs) for government interactions, and providing specific statutory benefits like reduced Ramadan hours and end-of-service gratuity. Additionally, the process of discharging expat employees involves…

Quick Hits The Fourth Bureaucracy Reduction Act, effective January 1, 2025, simplifies requirements for giving written evidence of employment contracts, allowing now digital agreements for open-ended contracts while maintaining written form for fixed-term contracts. The EU’s AI Act, effective from August 2024, introduces regulations on AI systems, with initial provisions on unauthorized AI use starting February 2, 2025, and further regulations on general-purpose AI models and sanctions taking effect on…

Quick Hits The New Jersey Division on Civil Rights (DCR) issued guidance that explains how an employer’s use of automated decision-making tools can lead to algorithmic discrimination that violates the New Jersey Law Against Discrimination (NJLAD). The guidance does not impose any new obligations on employers but reinforces the importance of NJLAD compliance and instructs that the NJLAD “draws no distinctions based on the mechanism of discrimination.” Given the increasing…

Quick Hits The NLRB GC issued a memorandum addressing potential employer concerns about complying with EEO laws prohibiting discrimination and harassment in the workplace and the NLRA’s protections for employees engaging in concerted activity. The memorandum emphasizes the GC’s view that the NLRA and EEO laws are complementary and “both can and should be given full effect.” The memorandum was issued just days before a changeover in the presidential administration,…

Quick Hits On January 14, 2025, the DOL issued an opinion letter reiterating that managers and supervisors cannot keep tips unless they “solely and directly” provide service to the customer, regardless of whether a tip credit is taken. The DOL clarified that even if a manager or supervisor works an entire shift in a nonsupervisory role, they cannot participate in a tip pool, as the primary duty test is based…

Quick Hits Maryland’s Family and Medical Leave Insurance (FAMLI) program provides most Maryland employees with up to twelve weeks of paid leave, with some eligible for an additional twelve weeks, starting July 1, 2026, funded by contributions from both employers and employees beginning July 1, 2025. The Maryland Department of Labor has released two sets of proposed regulations for the FAMLI program. Under the FAMLI program, employees in Maryland will…

Quick Hits On September 26, 2024, New York City released updated FAQs for the Earned Safe and Sick Time Act (ESSTA) to address the October 2023 amended rules and the January 2024 law allowing private rights of action for ESSTA violations. The updated FAQs clarify and provide guidance regarding the amended rules, processes, and procedures in pursuing a private right of action, while also leaving some questions unanswered. The updated…

Quick Hits The Second Circuit has revived a requirement that New York employers include in employee handbooks a notice informing employees of their right to be free from discrimination or retaliation based on their [the employees’] or their dependents’ reproductive health decisions. The ruling also revived a First Amendment challenge by religious organizations to New York’s Reproductive Health Bias Law (New York Labor Law Section 203-e), impacting how employers may…

Quick Hits The New Jersey Data Protection Act (NJDPA) takes effect on January 15, 2025, as New Jersey joins eighteen other states with comprehensive data privacy laws. The NJDPA defines a “consumer” as a New Jersey resident acting in an individual or household context, excluding those acting in commercial or employment contexts. The New Jersey Division of Consumer Affairs will provide a grace period for enforcement of the NJDPA until…

Quick Hits Massachusetts issued new FAQs containing details for employers on how they can meet their obligations when reporting wage data pursuant to the state’s new pay transparency law. Employers in Massachusetts will need to submit workforce demographic information to the state each year under a new law. Covered employers must submit their most recently filed EEO-1 report to the state by February 3, 2025. Employers need not provide customized…

Quick Hits Wildfires sweeping through the Los Angeles area have prompted evacuation orders affecting tens of thousands of residents and creating dangerous conditions for travel. Employers affected by the disaster may need to consider their emergency preparedness plans, immediate workplace safety risks, and employment and staffing concerns while maintaining critical business functions. Wildfires, pushed by high winds and drought conditions, have swept through areas around Los Angeles, destroying homes and…

Quick Hits The U.S. District Court for the Eastern District of Kentucky vacated the U.S. Department of Education’s 2024 Title IX Final Rule, which had expanded the definition of sex-based harassment to include sexual orientation, gender identity, sex stereotypes, and pregnancy. The court found that the 2024 Title IX Final Rule violated the First Amendment and the Spending Clause of the United States Constitution, and it exceeded the U.S. Department…

Quick Hits The Court of Appeal for Ontario highlighted three key points in Dufault v. Ignance (Township): the ESA is intended to protect employee interests; courts should interpret termination of employment clauses such that employers comply with the ESA; and the wording of termination clauses will determine that interpretation. The court also held that if the termination clause in an employment agreement does not comply with the ESA when it…

Quick Hits A recent federal court ruling in Tennessee found that NCAA eligibility rules regarding two-year college transfers likely violate federal antitrust law, granting a former junior college quarterback an additional year to play in Division I football. The court recognized that the NCAA holds monopsony power over college athletes, limiting the labor market for players and impacting their eligibility and competition among schools. The decision is part of a…

Quick Hits The Working for Workers Five Act, 2024 amended the Occupational Health and Safety Act’s (OHSA) definition of “industrial establishment” to exclude any office in a private residence. However, this does not mean the OHSA does not apply to private residences. The Working for Workers Five Act, 2024 also amended the OHSA to apply to telework “performed in or about a private residence.” Simply put, the OHSA applies to…

Quick Hits On July 31, 2024, Governor Maura Healey signed into law legislation requiring Massachusetts employers with one hundred or more employees and subject to EEO-1 reporting obligations to provide a pay report to Massachusetts by February 1 of each year. Covered employers are required to complete their EEO-1 pay reporting by February 1, 2025. Massachusetts has not yet issued guidance on how exactly this reporting will be completed, but…

Quick Hits Italy introduced new parental leave benefits, effective January 1, 2024. Singapore expanded paternity leave benefits and undertook comprehensive workplace fairness legislation. China (Shanghai) implemented penalties for unequal pay in labor dispatch. Brazil and the European Union (EU) focused on gender pay equity with new reporting obligations. Middle Eastern countries such as the United Arab Emirates (UAE) and Saudi Arabia enhanced protections for local nationals. Saudi Arabia required private-sector…