Employer’s Guide to Attracting & Retaining Gen Z Workers

Article courtesy of Fisher & Phillips

As the weather gets warmer and you shift your focus to seasonal hiring, you’ll want to be sure to connect with Gen Z applicants, many of whom are college and high school students in search of summer jobs. These workers are “digital natives” who grew up with technology and social media, and as a result, have their own work preferences, influences, and slang that can be somewhat baffling to outsiders. Do you want to bridge the generational divide and create a welcoming and legally compliant workplace for all? Here’s your guide to hiring Gen Z this summer.   

Gen Z Has Clocked In – and They Have Notes!

Gen Z is generally defined as people born between 1997 and 2012, which means members of this generation will turn 13 to 28 this year – and their presence in the workplace is growing rapidly. According to data from the U.S. Department of Labor, Gen Z surpassed Baby Boomers in the workforce for the first time in 2023. By mid-2024, the labor force by generations consisted of:

• 15% Baby Boomers
• 18% Gen Z
• 31% Gen X
• 36% Millennials

This means your hiring managers will want to understand what motivates Gen Z and what keeps them engaged. Here are six major points to keep in mind – with the caveat that every individual is different, some attributes are based on life-stage, and others are applicable to everyone, regardless of generation.

1. Sus Emails Are Not the Vibe – PERIODT

Gen Z has been communicating electronically since the womb, essentially. This means Gen Z workers are particularly attuned to subtleties and subtext within emails and texts. The biggest source of anxiety? The period – specifically, the “Thanks.” While it admittedly seems harmless, Gen Z workers might see the period as a means of passive aggressive “end of story” communication, even if it was once the go-to neutral punctuation. Using more exclamation points in communication might seem excessive to other generations, but it could make your newer Gen Z employees feel welcome and mitigate unnecessary stressors.

2. When We Excel, Let Us Know!

Gen Z doesn’t need to be coddled but making them feel like valued members of the team can go a long way. When providing coaching and training, consider doing so in a way that is constructive and growth minded. Everyone likes to know that the work they do is seen and appreciated. Even when feedback is negative, being thoughtful and constructive can encourage a team-oriented mindset that will help build confidence and ultimately lead to better work product.   

3. Fully Remote Work Can Be Pretty Mid

COVID-19 may be in the rearview mirror, but it has forever changed the way we work. While Gen Z workers don’t necessarily want to be in the office five days a week, having a fully remote workforce also poses challenges. Remote work can be isolating, especially for workers who are just starting their careers. While every workplace is different, finding ways for new hires (of any generation, really) to meaningfully connect with their colleagues is generally a worthwhile effort. Consider developing mentorship pairings, hosting in-person social events, and taking an extra minute at the end of the day to check-in 1:1. This can help foster a sense of camaraderie that, in turn, produces better work. Plus, this is a great opportunity to make Gen Z workers feel like they are respected members of the team and to boost your retention efforts.   

4. Lacking Work-Life Boundaries is Cringe

With technology connecting everyone, everywhere, all the time, respecting meaningful work-life balance is a priority for Gen Z. Simple things like delaying send on what would otherwise be a midnight email – or making it clear that workers are not obligated to respond after hours – can make a big difference. Work with them to set clear expectations on when they are expected to be in the office or online.   

5. We Care About the Brand

One of the things to embrace about Gen-Z is their altruistic side. Employers who give back to the community through directed giving or volunteer work will not go unnoticed or unappreciated for their efforts. Engaging your new hires in these activities is also an excellent team-building opportunity.

6. There are Pros and Cons to Being Chronically Online

The association of Gen Z with social media is unavoidable. There can be incredible opportunity in wielding social media to your advantage. Your Gen Z employees likely know what’s trending and can be assets in building your online brand. However, you’ll want to set clear expectations. Does your employee handbook address the use of social media platforms? If not, now may be the time to contact your FP attorney to help you refresh your policies. Additionally, you can click here for four tips on updating your social media policies and staying on top of the latest trends.

At the end of the day, while Gen-Z is unique in many ways, all employees want to feel respected in their workplace. Creating a healthy, safe, and engaging environment for all employees is essential to maintaining a positive company culture.  Read on for our specific tips for summer hiring.

What’s the Tea with Hiring Seasonal Workers?

Gen Z is represented by a range of workers who may approaching more senior levels of employment or still looking to land a summer job. If you’re looking to hire Gen Z workers when school lets out, you’ll want to keep the following tips in mind.

No Cap! A Bunch of Rules May Apply to Your Workplace

Here are six critical compliance items to add to your summer hiring checklist:

1. Verifying Employment Authorization – Employers must treat seasonal staff in the same way they treat regular employees by verifying that they are legally eligible to work in the United States. Employers should complete the Employment Eligibility Verification form (I-9 Form) even for seasonal employees. 
2. Hiring Minors – Many employers, particularly in the hospitality and retail industries, are looking to hire teenagers to meet the uptick in demand during the summer. Don’t forget both federal and state laws restrict the time of day and number of hours that minors can work, the type of work that minors can perform, and the equipment they can use. The federal Fair Labor Standards Act (FLSA) governs child labor but allows states to enact more restrictive laws, so you must be aware of any local restrictions as well. In situations where the federal law and state law differ, you must follow the law that provides the most protection for the minor. You should also understand the restrictions on the types of job duties minors can perform. Click here for more information on this topic. 
3. Complying with Wage and Hour Laws – The FLSA and state laws generally require you to pay seasonal employees 1.5 times their regular rate of pay for all hours worked beyond 40 in a given workweek. However, certain workers are exempt from overtime requirements under both federal and state law. Under the FLSA, for example, employees of certain seasonal amusement or recreational establishments, organized camps, and religious or nonprofit educational institutions are generally exempt from overtime pay. Additionally, the FLSA provides for subminimum wage for minors under certain circumstances. It’s important that you review your seasonal employees’ status under federal and state law to determine whether overtime exemptions apply. You should also be aware of various state and local laws that apply to meal and rest breaks, predictable scheduling, and other requirements.
4. Understanding the Definition of “Seasonal Employee” – You should determine whether your temporary employees are truly “seasonal.” According to the IRS, an employee is considered seasonal if the employment period is expected to last for six or fewer months and the need for the role usually starts and ends at about the same time each year – such as May to August for the summer season.
5. Avoiding Misclassification – Businesses often misclassify employees as independent contractors and, in the process, open themselves up to significant potential liability. This temptation can be especially compelling with seasonal employees. You should avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally justify such a classification. You should also note that some states, such as California, Illinois, Massachusetts, and New Jersey, have stricter rules than federal law when it comes to independent contractor classification.
6. Complying with PTO Rules – Unless employment continues beyond the summer, seasonal employees are ineligible for federal Family and Medical Leave Act (FMLA) leave because they will not fulfill the required 1,250 hours of work in a 12-month period. However, some state and local jurisdictions require employers to provide paid time off – such as sick leave – to employees who work for shorter durations. Seasonal employees may or may not qualify for such leave accruals, so it’s important to check the laws in your jurisdiction.

Give Your Policies and Procedures a Glow-Up

• Preventing Discrimination – Many employment laws, such as those prohibiting employment discrimination, harassment, and retaliation, apply with equal force to regular and seasonal workers. Therefore, you should take steps to prevent and address allegations by seasonal employees in the same manner as for regular employees. Don’t cut corners when it comes to onboarding seasonal employees. Consider providing the same training that you offer all throughout the year (knowing how to report harassment or discrimination, understanding your professionalism rules, etc.).
• Determining Whether New Laws Apply – You should recognize that most federal and state employment laws apply only to businesses with a certain number of employees. So, your seasonal employee headcount might bring your business under the purview of additional laws. Particularly if you’re a small business, you should pay attention to whether hiring seasonal employees will increase your total number of employees and trigger additional legal obligations.
• Protecting Confidential Information – If the seasonal employee will have access to confidential or proprietary information, you may want to enter into a non-disclosure or confidentiality agreement.
• Training Supervisors at the Start of the Season – Consider developing a training program so supervisors are prepared to handle issues as they arise this summer. Make sure they know that most rules that apply to regular workers also apply to seasonal workers with equal force. When it comes to hiring minors, supervisors should be trained on the hours and jobs they can do. You may want to set restrictions in the scheduling system for minors and give them different nametags or different colored shirts, so supervisors know not to ask them to work extra hours or on certain equipment.

Have You Set Clear Expectations? Yes? Slay!

• Although seasonal employees typically understand that they were hired on a temporary basis, you should be sure to specify the limited duration of employment both verbally at the onset and in writing.
• Further, you should require any seasonal employees to acknowledge, in writing, that they understand they are being hired for a limited duration and as “at-will” employees – meaning you and the employee have a legal right to terminate the employment relationship, with or without cause, at any time.

Workplace Law: Essential Items on Your May To-Do List

It’s hard to keep up with all the recent changes to labor and employment law, especially given the rapid pace at which the new administration has been moving on initiatives impacting the workplace and beyond. For the latest changes and a compliance action plan, here’s a quick review of some critical developments and a checklist of the essential items you should consider addressing in May and beyond.

_____	Check out the Fisher & Phillips First 100 Days Report for employers. The first 100 days of any new administration set the tone for what’s to come — and in 2025, that tone has been unmistakable: bold, fast-moving, and deeply consequential for employers. They created this special report —a snapshot of where things stand, where they’re headed, and what your organization should be doing to keep pace.
_____	Stay tuned for more guidance on “disparate impact” claims. For decades, employers could face liability for policies and practices that didn’t intentionally discriminate but had a “disparate impact” on a group of job applicants or employees based on a protected characteristic, such as race or sex. The president is now aiming “to eliminate the use of disparate impact liability in all contexts to the maximum degree possible,” according to an April 23 executive order. Here’s what you need to know about this development and how it may impact your practices.
_____	Prepare for EEO-1 reporting to begin. This year’s collection of EEO-1 reports could begin in less than a month – and will likely not allow employers to categorize workers as “non-binary.” Private employers with at least 100 employees and federal contractors with at least 50 employees should prepare to sort company data by employee job category, as well as by sex and race/ethnicity, to turn over to the EEOC between May 20 and June 24. While these dates are not yet set in stone, the compliance window will be here before you know it.
_____	Safeguard your corporate leaders against rising security threats. Executives are increasingly at risk of becoming targets of violent acts or cyberattacks such as doxing or social engineering, and your organization must think ten steps ahead to ensure the safety of your people and the future of your business. Here’s an overview of executive protection programs and four key steps to help you build yours.
_____	Consider alternatives to the H-1B visa for hiring foreign nationals. You may be disappointed if your candidate was not selected for an H-1B visa in the recent cap lottery – but not all hope is lost. If you employ foreign nationals, the good news is that you can explore certain short-term, long-term, and even some lesser-known solutions. Here are 11 alternatives your organization can use to retain top talent and critical staff, even if your candidate was not selected last month in the FY 2026 H-1B cap lottery.
_____	Review your accommodation request process. A federal appeals court recently clarified that an employee may qualify for a reasonable accommodation under the Americans with Disabilities Act (ADA) even if they can perform essential job functions without such an accommodation. The 2nd Circuit’s March 25 decision in Tudor v. Whitehall Central School District reinforces that the ability to perform essential job functions is relevant – but not decisive – in ADA failure-to-accommodate claims. Here’s what employers need to know about this case.
_____	Slay summer hiring. As the weather gets warmer and you shift your focus to seasonal hiring, you’ll want to be sure to connect with Gen Z applicants, many of whom are college and high school students in search of summer jobs. Here’s your guide to hiring Gen Z this summer.
_____	Prepare for new state sick leave requirements in 2025. Over the past few years, we’ve seen a sharp increase in state-level legislation and ballot initiatives mandating employer-provided leave options for employees with strong voter support. Missouri’s new paid sick leave law took effect May 1, but there is still time to learn more here about how your company can manage this patchwork of state laws.
_____	Track additional state law developments. With so many changes at the federal level, don’t forget to stay updated on state and local developments, too. For example: Now that we’re less than a year away from Colorado having the nation’s most stringent set of laws regulating the use of artificial intelligence in the workplace and elsewhere, some lawmakers are asking whether it’s better to take a step back and cool the jets. Click here to learn about a new bill that was introduced on April 28. Speaking of AI rules, California’s privacy regulator intends to advance sweeping new rules that would govern AI tools used for automated decision-making purposes – but Governor Newsom just stepped in and signaled concern that these rules could stifle innovation and drive AI companies out of the state. A California appellate court handed employers a wage and hour win on April 21 by ruling that meal period waivers prospectively signed by non-exempt employees are enforceable if certain criteria are met. A new law in Florida will make it the most enforcement-friendly state in the country for non-compete and garden leave agreements. Here is what employers should know about the CHOICE Act and three steps you can take to prepare. Ohio has taken a major step toward modernizing workplace compliance after finalizing a new law in April that will allow employers to post certain mandatory labor law notices electronically, as long as they are accessible to all employees.  An April 1 decision in Massachusetts offers a textbook example of how employers can work with their trial counsel to limit their financial exposure – even after a trial loss – through thoughtful litigation strategy.

Florida Will Soon Be Friendliest State in Country For Enforcing Non-Compete Agreements

Florida will soon be a place where businesses can operate with more peace of mind, thanks to a new law that will make it the most enforcement-friendly state in the country for non-compete and garden leave agreements. The “Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act,” passed both the Florida House and Senate on April 24 and expected to be signed by Governor DeSantis, will reshape the state’s laws on restrictive covenants starting on July 1, 2025. The Act does not amend any current statutes, but instead provides more certainty to employers looking to enforce certain non-compete agreements and agreements offering “garden leave” (a period of time where an employee is not required to perform any work but is still paid their salary and benefits in return for not accepting employment elsewhere). Here is what employers should know about the CHOICE Act and three steps you can take to prepare.

Overview of the CHOICE Act

While many federal and state regulatory efforts seek to curb non-compete agreements, the CHOICE Act goes the other direction and creates a presumption that “covered” non-compete agreements and garden leave provisions are enforceable and do not violate public policy. Importantly, the law requires courts to issue an injunction unless the former employee or poaching employer can prove the new employment will not result in unfair competition.

Who is Covered?

The Act defines a “covered employee” as any employee or contractor who works primarily in Florida or works for an employer with their principal place of business in Florida who earns or is reasonably expected to earn a salary greater than twice the annual mean wage of either:

• the county where the company has its principal place of business; or
• the county where the employee resides if the employer’s principal place of business is not in the state.

Notably, “salary” does not include discretionary incentives or awards or anticipated but indeterminable compensation, like bonuses or commissions. The Act excludes from this definition any person classified as a “healthcare practitioner” under Florida law.

What Agreements Are Covered?

The new law covers two types of agreements:

 Type 1- Garden Leave Agreements

A garden leave agreement will be fully enforceable provided that:

1. The employee is advised, in writing, of the right to seek counsel prior to executing the agreement and has at least seven days to review the agreement before execution;
2. The employee and employer agree to provide up to four years advance, express notice before terminating employment (e.g., the “notice period”);
3. The employer agrees to pay the employee their regular base salary and benefits for the duration of the notice period;
4. The employee acknowledges, in writing, that in the course of their employment, the employee will receive confidential information or information about customer relationships;
5. The garden leave provisions provide that:
   • After the first 90 days of the notice period, the covered employee does not have to provide services to the covered employer;
   • The covered employee may engage in nonwork activities at any time, including during normal business hours, during the remainder of the notice period; and
   • The covered employee may, with the permission of the covered employer, work for another employer while still employed by the covered employer during the remainder of the notice period.

Type 2- Non-Compete Agreements

Likewise, a non-compete agreement will be fully enforceable provided that:

1. The employee is advised, in writing, of the right to seek counsel prior to executing the agreement and has at least seven days to review the agreement before signing;
2. The employee acknowledges, in writing, that in the course of their employment, the employee will receive confidential information or information about customer relationships;
3. The employee agrees not to assume a role with or for another business in which the employee would provide services similar to the services provided to the covered employer during the three years preceding the non-compete period, or in which it is reasonably likely the employee would use confidential information or customer relationships;
4. The non-compete period does not exceed four years; and
5. The non-compete period is reduced day-for-day by any non-working portion of the notice period pursuant to a covered garden leave agreement, if applicable.

Notably, there are no restrictions on the geographic scope of a covered non-compete agreement. 

What Else?

• Employers may introduce these agreements either at the beginning of employment or during the course of employment, provided that the employee still has seven days to consider signing the agreement before the offer of employment (or continued employment) expires.
• Employers may also elect to shorten a period of garden leave at their discretion by providing the employee with 30 days’ advanced written notice.
• The bill also states that, if the covered employer has a principal place of business in Florida and uses a covered agreement expressly governed by Florida law, then “if any provision of this section is in conflict with any other law, the provisions of this section govern.” What happens if the employee of such a covered employer lives in a state that bans non-compete agreements outright, like California? This situation is very likely to play out in the courts, and it may come down to where the first suit is filed.

Remedies Available

Of course, drafting and executing these agreements means very little if employers have to jump through hoops to enforce them. However, the CHOICE Act makes obtaining an injunction against a breaching employee a lot less burdensome because it requires courts to issue a preliminary injunction against a covered employee.

A judge may only modify or dissolve the injunction if the covered employee – or prospective employer – proves by clear and convincing evidence (which must be based on non-confidential information) that:

• the employee will not perform similar work during the restricted period or use confidential information or customer relationships;
• the employer failed to pay the salary or benefits required under a covered garden leave agreement, or failed to provide consideration for a non-compete agreement, after the employee provided a “reasonable opportunity” to cure the failure; or
• the prospective employer is not engaged in (or preparing to engage in) a similar business as the covered employer within the restricted territory.

If the employee engages in “gross misconduct” against the covered employer, the covered employer may reduce the salary or benefits of the covered employee or “take other appropriate action” during the notice period, which would not be considered a breach of the garden leave agreement.

3 Key Steps For Employers

Assuming this bill is signed into law, Florida will become by far the most enforcement-friendly state in the country for non-competes and garden leave provisions starting July 1, 2025. (Arguably, it already was, but this law would go substantially further than the current Florida restrictive covenants statute.) Employers should prepare for this new day by considering the following three steps:

• Review existing agreements and consider whether your agreements need to be modified to comply with the Act’s definition of a “covered” garden leave or non-compete agreement.
• Understand that restrictive covenants can still be used and enforced against employees who earn less than two times the mean salary for the applicable county. However, employers will not have an entitlement to a preliminary injunction without proving a legitimate business interest and irreparable harm.
• It is always a good practice to review your company’s confidentiality protocols and make sure your policies regarding trade secrets, customer information, and confidential information are comprehensive, up to date, and legally compliant. While the CHOICE Act only requires that the employee acknowledge access to confidential information, the more guardrails in place, the better.

DOJ Withdraws 11 Pieces of ADA Guidance: What Covered Businesses Need to Know

The Department of Justice (DOJ) withdrew 11 documents providing guidance to businesses on compliance with Title III of the Americans with Disabilities Act (Title III). The DOJ Guidance sets forth how the agency interprets certain issues addressed by Title III of the ADA.  Although the guidance has been withdrawn, the law remains the same. Title III requires that covered businesses must provide people with disabilities with an equal opportunity to access the goods or services that they offer.

The DOJ says the documents were withdrawn in order to “streamline” ADA compliance resources for businesses consistent with President Trump’s January 20, 2025 Executive Order “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis” . According to the DOJ’s press release, the “withdrawal of 11 pieces of unnecessary and outdated guidance will aid businesses in complying with the ADA by eliminating unnecessary review and focusing only on current ADA guidance. Avoiding confusion and reducing the time spent understanding compliance may allow businesses to deliver price relief to consumers.”  

The DOJ identified the following guidance for withdrawal:

1. COVID-19 and the Americans with Disabilities Act: Can a business stop me from bringing in my service animal because of the COVID-19 pandemic? (2021)
2. COVID-19 and the Americans with Disabilities Act: Does the Department of Justice issue exemptions from mask requirements? (2021)
3. COVID-19 and the Americans with Disabilities Act: Are there resources available that help explain my rights as an employee with a disability during the COVID-19 pandemic? (2021)
4. COVID-19 and the Americans with Disabilities Act: Can a hospital or medical facility exclude all “visitors” even where, due to a patient’s disability, the patient needs help from a family member, companion, or aide in order to equally access care? (2021)
5. COVID-19 and the Americans with Disabilities Act: Does the ADA apply to outdoor restaurants (sometimes called “streateries”) or other outdoor retail spaces that have popped up since COVID-19? (2021)
6. Expanding Your Market: Maintaining Accessible Features in Retail Establishments (2009)
7. Expanding Your Market: Gathering Input from Customers with Disabilities (2007)
8. Expanding Your Market: Accessible Customer Service Practices for Hotel and Lodging Guests with Disabilities (2006)
9. Reaching out to Customers with Disabilities (2005)
10. Americans with Disabilities Act: Assistance at Self-Serve Gas Stations (1999)
11. Five Steps to Make New Lodging Facilities Comply with the ADA (1999)

The DOJ is also “raising awareness about tax incentives for businesses related to their compliance with the ADA” by prominently featuring a link to a 2006 publication.

The withdrawn guidance was prepared before the most recent Title III regulations went into effect in 2011 or deals with COVID-19.  It is not expected the DOJ’s withdrawal of the guidance to have significant impact on business operations, but we are closely monitoring the rapid developments from the federal agencies that impact our clients.

No Slowing Down: Employers’ Recap of the Trump Administration’s First 50 Days

Courtesy of Fisher Phillips

While new presidents are typically judged based on their actions in their first 100 days, the current Trump administration has moved at such a rapid speed that we think another recap is needed at the halfway point. Here’s your employer cheat sheet on Trump’s first 50 days.

Immigration

• Trump signed 10 immigration orders on day one (Jan. 20). These executive orders, among other things, declared a national emergency at the U.S.-Mexico border, reinstated the “remain in Mexico” policy, terminated the asylum related mobile app, and designated Mexican criminal cartels as terrorist organizations. Read more here. Trump also tried to end automatic birthright citizenship for children of undocumented immigrants, but this order has been blocked nationwide by federal judges in Washington and Maryland while legal challenges play out in court.
• DOJ announced an aggressive immigration stance (Feb. 5). According to a memo from Attorney General Pam Bondi, the Department of Justice will use “all available criminal statutes to combat the flood of illegal immigration . . . and to support the DHS’s immigration and removal initiatives.” Read more here.
• DHS shortened the duration of Haiti’s TPS (Feb. 20). Department of Homeland Security (DHS) Secretary Kristi Noem scaled back a previous decision made by Biden-era DHS officials that had extended Temporary Protected Status (TPS) for Haitian nationals who are in the United States. As a result, the TPS designation period for Haitian nationals will end on August 3 (rather than February 3, 2026).
• DHS unveiled plans for expanded alien registration (March 7). A new DHS rule, which is set to take effect on April 11, significantly expands foreign national registration enforcement by requiring certain noncitizens to register with the government, provide biometric data, and carry proof of registration. This new enforcement push is expected to impact 3.2 million foreign nationals. Read more here.
• Anything else? The Trump administration has been carrying out its plans for mass deportations and widescale enforcement activities, including workplace raids. Read more here. Changes to nation’s immigration policy have a particularly big impact on the high-tech sector, which has long been reliant on foreign professional skilled workers.

DEI and Equal Opportunity Compliance

• Trump issued a far-reaching order against “gender ideology” (Jan. 20). The executive order requires the federal government to recognize only two biological sexes (male and female, as determined at conception) and removes the concept of “gender identity” from federal anti-discrimination laws – a stance that seemingly runs counter to the Supreme Court’s Bostock ruling on Title VII’s definition of “sex.” The order also calls for reversals of any policies that allowed gender-identity-based access to single-sex spaces (like bathrooms), and rescinds many Biden-era actions, including 2024 EEOC workplace harassment guidance that expanded protections for pregnant and LGBTQ+ workers. Read more about Trump’s gender ideology order here.
• Trump issued a sweeping anti-DEI order (Jan. 21). The same order that dismantled key affirmative action standards for federal contractors also barred OFCCP from allowing or encouraging DEI programs and directed federal agencies to combat “illegal” corporate DEI programs in the private sector. Read more about the order here (federal contractors) and here (private sector) – and read below for its current (court-halted) status.
• Trump fired two Democrat members of the EEOC (Jan. 27). The unprecedented move enabled Trump to quickly install a majority of Republican commissioners rather than having to wait until their normal terms expire over the next two years.
• Group of plaintiffs sued Trump and his administration (Feb. 3). Chief diversity officers, professors, a restaurant group, and the city of Baltimore filed a complaint in a Maryland federal court, claiming that Trump’s Jan. 21 anti-DEI order is unconstitutional.
• States started to push back (Feb. 13). Sixteen Democratic state attorneys general issued joint guidance reaffirming their position that workplace DEI remains legal and important to the modern workplace.
• Federal judge temporarily blocked Trump’s order (Feb. 21). The district court agreed with the plaintiffs who filed the Feb. 3 complaint that certain parts of the order are unconstitutional, and that they were ultimately likely to succeed on the merits of their claims. The court halted enforcement of the order while the lawsuit plays out in court.
  

Affirmative Action and Federal Contract Compliance

• Trump dismantled key affirmative action standards (Jan. 21). Trump revoked a 1965 executive order that required federal contractors to engage in race and gender affirmative action – and directed the Office of Federal Contract Compliance Programs (OFCCP) to immediately cease enforcing it. Read more here.
• Labor Department follows suit (Jan. 24). Acting Secretary of Labor Vince Micone ordered all OFCCP employees to cease and desist any and all investigative and enforcement activity under the revoked 1965 executive order. Read more here.
  

Labor Relations

• Trump summarily dismissed two key NLRB figures (Jan. 27). While the dismissal of National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo was widely anticipated, the unprecedented firing of Board Member Gwynne Wilcox raises significant procedural and policy questions for the federal labor agency in the short term and beyond.
• Trump appointed William Cowen as NLRB Acting General Counsel (Feb. 3).
• Wilcox launched a legal challenge to her termination (Feb. 5).
• Cowen signaled a new policy direction (Feb. 14). The NLRB’s Acting GC rescinded more than a dozen policies endorsed by previous leadership, including positions on the legality of non-competition agreements and stay-or-pay provisions, whether college athletes should be considered employees, and more.
• Anything else? These recent shakeups have created compliance confusion for some employers. Here’s what employers need to know about the current state of the NLRB – but stay tuned, because a federal judge reinstated Wilcox on March 6. While the Board can resume certain activities with a three-member quorum back in play, the Trump administration immediately appealed this decision, and this matter seems destined for a date at the Supreme Court for a final resolution.

Department of Labor + Workplace Safety

• Trump nominated new OSHA and MSHA leaders (Feb. 12). Trump recently nominated David Keeling, a workplace safety veteran with experience at UPS and Amazon, to lead Occupational Safety and Health Administration, and Wayne Palmer, a former executive for an industrial minerals trade association, to take the helm at the Mine Safety and Health Administration.
• The Senate confirmed Lori Chavez-DeRemer to lead the DOL (March 10). Trump surprised the business community in November just weeks after the election when he announced Chavez-DeRemer as his nominee to lead the U.S. Department of Labor. Her selection was met by skepticism by some in the employer community because she positions herself as a supporter of unions and labor rights.

Employee Defection and Trade Secrets

• FTC committed to targeting noncompetes (Feb. 26). In a somewhat surprising development, the Federal Trade Commission announced that it intends to continue scrutinizing noncompete agreements and more. Federal Trade Commissioner Andrew Ferguson unveiled plans for a Joint Labor Task Force that will identify and prosecute labor-market practices the agency deems to be “deceptive, unfair, and anticompetitive” and harmful to workers. Read more here.

Artificial Intelligence

• Trump appointed a new AI Czar (Dec. 5). David Sacks, a Big Tech veteran, Silicon Valley insider, and vocal advocate for deregulation, now shapes federal policy on emerging technology. As the nation’s first “AI & Crypto Czar,” Sacks will likely oversee a seismic transformation in how AI will be regulated and integrated across industries.
• Trump rescinded Biden’s AI Order (Jan. 20). One of Trump’s first executive actions was revoking Executive Order 14110 (Biden’s comprehensive AI policy, which aimed at ensuring safe and ethical AI deployment). Read more here.
• Trump announced huge AI infrastructure investment (Jan. 21). The day after Inauguration Day, Trump announced a $500 billion private-sector-led AI infrastructure investment. Read more here.
• Trump issued a new AI order (Jan. 23). Trump’s AI executive order calls for a group of regulators to craft a new AI policy within six months intended to ensure “global AI dominance.”

Education

• Trump’s first-week actions impacted K-12 schools (Jan. 20-24). The flurry of executive orders signed by President Trump during his first few days of his second administration not only touch on immigration issues and potential raids or enforcement activities on K-12 school campuses but also demand a revisitation of DEI policies, bathroom and locker room access rules, and gender ideology studies.
• Feds rescind Title IX guidance impacting college athletic programs (Feb. 12). The U.S. Department of Education’s Office of Civil Rights (OCR) announced that Name, Image, and Likeness (NIL) payments will not be subject to Title IX gender equity requirements.
• Education Department kicked off a new era of Title VI Enforcement (Feb. 14). The department’s OCR also promised to begin cracking down, starting February 28, on “overt and covert racial discrimination” in educational institutions receiving federal funding. The agency’s Feb. 14 “Dear Colleague” letter created compliance confusion for many schools across the country, especially regarding their diversity-related activities.
  

Conclusion

The Trump administration has showed no signs of slowing down, and we expect that to continue throughout the next 50 days and beyond.

A Whirlwind Start: Employers’ Recap of First 21 Days of the Trump Administration

President Donald Trump is just 21 days into his second term in office, but you might already be struggling to keep up with the number of changes and policy shifts coming from the new administration. While new presidents are typically judged based on their actions in their first 100 days, Trump’s whirlwind first three weeks warrant taking a pause to make sure you’re caught up on all the changes impacting key workplace issues. Major policy shifts have already affected immigration, DEI programs, equal employment opportunity, labor relations, and artificial intelligence. Here’s your 21-day recap:

1. Immigration

• What happened? President Trump took swift immigration action, signing 10 executive orders relating to immigration policy on day one. Among other things, those orders declared a national emergency at the U.S.-Mexico border, reinstated the “remain in Mexico” policy and terminated the asylum-related mobile app, and designated Mexican criminal cartels as terrorist organizations. Another one ended automatic birthright citizenship for children of undocumented immigrants, but this order has been blocked nationwide by federal judges in Washington and Maryland while legal challenges play out in court.
• Anything else? The Trump administration has begun carrying out its plans for mass deportations, which could have impacts on multiple key industries. U.S. Immigration and Customs Enforcement (ICE) has started conducting widescale enforcement activities, including workplace raids. And K-12 schools should be prepared for ICE activity on campus and check out our school-focused Immigration Enforcement FAQs.
• What should you do? Ramp up your I-9 compliance efforts, consider using the E-Verify system, and establish a rapid response plan. Take these five steps to prepare for anticipated enforcement activities. If you are subject to a DHS raid, contact our new Employers’ Rapid Response Team at (877) 483-7781 or DHSRaid@fisherphillips.com. Work with your immigration counsel to keep up with continuing policy shifts, develop proactive compliance strategies, and consider ways to support any impacted employees.

2. Affirmative Action and Diversity, Equity, and Inclusion (DEI)

• What Happened? This January 21 executive order not only dismantled key affirmative action and DEI standards for federal contractors but also directed federal agencies to combat “illegal” corporate DEI programs. Days later, the Department of Labor announced it was ceasing all pending investigations and enforcement activity under the now-rescinded Executive Order 11246, which had required federal contractors to meet certain race and gender affirmative action obligations since the 1960s. A lawsuit filed February 3 alleges that Trump’s anti-DEI efforts are unconstitutional.
• What should federal contractors do? Stay tuned for more information from the Office of Federal Contract Compliance Programs (OFCCP), track legal challenges to the administration’s actions, and reach out to your attorney to develop a game plan to comply with evolving requirements. You also must continue to participate in other required compliance filings (as applicable), such as EEO-1 and VETS-4212, and state pay data reporting.
• What should employers in the private sector do? Review or assess your hiring, training, and promotion practices in light of these new federal anti-DEI initiatives.  

3. “Gender Ideology” and the Equal Employment Opportunity Commission

• What happened? Within hours of taking office, Trump signed a sweeping executive order requiring the federal government to recognize only two biological sexes (male and female, as determined at conception) and removing the concept of “gender identity” from federal anti-discrimination laws – a stance that seemingly runs counter to the Supreme Court’s Bostock ruling on Title VII’s definition of “sex.” The order also calls for reversals of any policies that allowed gender-identity-based access to single-sex spaces (like bathrooms), and rescinds many Biden-era actions, including 2024 EEOC workplace harassment guidance that expanded protections for pregnant and LGBTQ+ workers. And you can click here to read about how the “gender ideology” order impacts K-12 schools.
• Anything else? Trump took the unprecedented step of firing two Democrat members of the EEOC on January 27, enabling him to quickly install a majority of Republican commissioners rather than having to wait until their normal terms expire over the next two years.
• What’s next? We expect Trump to appoint at least one EEOC replacement member so that the agency can began taking action that align with his plans. You can expect to see DEI programs on the chopping block, a rescission of the 2024 Pregnant Workers Fairness Act rules, expanded rights for religious workers, restricted approaches to gender identity and worker bathroom access, stronger “reverse discrimination” principles, and overall reduced EEOC enforcement and outreach. But you can also expect uncertainty due to the likely litigation over the two EEOC Commissioner firings and the potential for a court to strike down any steps taken by the agency in the interim.

4. Labor Relations

• What happened? In a series of swift and game-changing moves, President Trump summarily dismissed two key figures at the National Labor Relations Board (NLRB). While the General Counsel Jennifer Abruzzo’s dismissal was widely anticipated, the unprecedent firing of Board Member Gwynne Wilcox raises significant procedural and policy questions for the federal labor agency in the short term and beyond. President Trump also just appointed William Cowen as NLRB Acting General Counsel on February 3.
• What’s next? We expect that in the coming weeks and months Trump will appoint and the Senate will approve at least one more NLRB Member, though Wilcox has already launched a legal challenge to her termination. As the Board takes shape, we also expect a big shift away from its recent pro-labor stance. We expect the Board to expand employer authority over employee activities while limiting the scope of federal labor law to exclude gig workers and independent contractors. Here’s everything you need to know about the current state of the NLRB and your best practices moving forward.

5. Artificial Intelligence

• What happened? The White House enacted a sweeping shift in AI policy by rescinding President Biden’s executive order on artificial intelligence and announcing a massive private-sector-led AI infrastructure investment. The moves signal a sharp departure from the prior administration’s regulatory approach, replacing AI oversight with a focus on economic growth and national competitiveness. President Trump also appointed David Sacks as the new “AI & Crypto Czar.” Sacks – a Big Tech veteran, Silicon Valley insider, and vocal advocate for deregulation – will likely oversee a seismic transformation in how AI will be regulated and integrated across industries.
• What’s next? Employers and AI industry leaders must now deal with an evolving landscape where AI regulation is loosened and investment in AI development is skyrocketing. The emphasis will be on innovation and industry collaboration, and for employers, this means a flurry of new workplace AI tools that you’ll need to track and integrate. But you should also note that we’re starting to see a patchwork of various state and local laws regulating the use of AI in the workplace. Click here to review all of the laws, regulations, guidance documents, and court action that impact employers and their use of AI.

Conclusion

President Trump’s second term kicked off at a rapid pace, and we expect to see a lot more to come during his first 100 days and beyond. We will continue to monitor developments related to all aspects of workplace law.

Courtesy of Fisher Phillips

EEOC Issues New Guidance on Wearable Technologies: Key Points for Employers

As more employers incorporate wearable technology in the workplace, including those enhanced by artificial intelligence, the Equal Employment Opportunity Commission (EEOC)’s new fact sheet “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” offers important considerations for employers.  The EEOC explains how employers can navigate the complexities of using wearable technologies while ensuring compliance, primarily, with the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and to a lesser extent, Title VII and GINA.

What Are Wearable Technologies?

Wearable technologies, or “wearables,” are electronic devices that are designed to be worn on the body. These devices are often embedded with sensors that can track bodily movements, collect biometric information, monitor environmental conditions and/or track GPS location. Common examples of wearables include:

• Smartwatches
• Fitness Trackers
• Wearable Cameras
• Continuous Glucose Monitors
• Smart Rings
• Environmental or Proximity Sensors
• GPS Devices
• Other aids

Other examples of wearables that are beginning to be used in the workplace include smart glasses and smart helmets that can measure electrical activity of the brain referred to as electroencephalogram or “EEG” testing or detect emotions.  Exoskeletons are also being used to provide physical support and reduce fatigue.

Wearables in the workplace may implicate federal and state employment, data privacy, AI, and potentially other laws when employers require employees to wear them or if the information collected from the employee’s wearable is reported to the employer.

Key Considerations From the EEOC Guidance

The EEOC’s new guidance outlines several important considerations for employers using wearable technologies with employees:

1. Medical Examinations and Disability-Related Inquiries: Employers using wearables to collect information about an employee’s physical or mental conditions, such as blood pressure monitors or eye trackers, may be conducting “medical examinations” under the ADA. Similarly, directing employees to provide health information in connection with using wearables may constitute disability-related inquiries. Under the ADA, medical examinations and disability-related inquiries are strictly limited to situations where they are job-related and consistent with business necessity such as in connection with a request for reasonable accommodation, in connection with a concern about whether an employee’s ability to perform essential job functions is impaired by a medical condition, or when there is a concern the employee may pose a direct threat of serious harm to their own or others’ health or safety due to a medical condition. In addition, medical examinations and inquiries are also permitted when required under a federal law or safety regulation (i.e. DOT or OSHA requirements), when conducted as part of a periodic examination of employees working in certain positions affecting public safety that are narrowly tailored to address specific job-related concerns (i.e. police officers, firefighters), or when made as part of voluntary wellness programs. A disability-related inquiry is a question(s) that is likely to elicit information about a disability. There are a variety of factors considered in determining whether a test or procedure is a medical examination, but generally speaking, a medical exam is defined by the EEOC as a procedure or test that seeks information about an individual’s physical or mental impairments or health.
2. Confidentiality: Any medical or disability-related data collected from wearable devices must be kept confidential and stored separately from the employee’s personnel file. This information should only be shared with individuals who need to know it for legitimate business reasons consistent with the requirements of the ADA and PWFA.
3. Non-Discrimination: Employers must ensure that the use of wearable-generated information does not lead to discrimination based on a protected characteristic such as race, color, religion, sex, national origin, age, disability, or genetic information. For example, the EEOC explains that using heart rate data to infer pregnancy and then making adverse employment decisions based on that information could violate EEO laws.
4. Reasonable Accommodation: Employers may need to make exceptions to a wearables policy as a reasonable accommodation under Title VII (religious belief, practice, or observance), the ADA (disability), or the PWFA (pregnancy, childbirth, or related medical conditions). For example, this could include providing an alternative for employees needing accommodation due to pregnancy, disability or a conflicting religious belief.
5. Accuracy and Validity of Data: Employers should consider the accuracy and validity of the data collected by wearables, especially across different protected bases. Inaccurate data that disproportionately affects certain groups could lead to discriminatory practices. For example, the EEOC explains that relying on wearable technology that produces less accurate results for individuals with dark skin could lead to adverse employment decisions against those workers.

This overview highlights the key points from the EEOC’s new guidance. Employers should review the full guidance to ensure compliance and consult with legal counsel if they have specific questions or concerns. In addition to compliance with discrimination laws, the adoption of wearables and other emerging technologies in the workplace to manage human capital raises a number of additional legal compliance challenges including privacy, occupational safety and health, labor, benefits and wage-hour compliance to name a few.  

Courtesy of Jackson Lewis P.C.

ACA Reporting Change: No Longer Necessary to Distribute Form 1095 to Employees

Two bills—the Employer Reporting Improvement Act and the Paperwork Burden Reduction Act—were signed into law on December 23, 2024. These two Acts change the requirements for distributing IRS Forms 1095-B and 1095-C to all employees and covered individuals.

Background

Under the ACA, all employers (or health insurers for fully insured plans) were required to report information about any health coverage offered to their employees via Forms 1095-B or 1095-C. These paper forms are also required to be filed with the IRS, covered by the IRS Form 1094-B or 1094-C.

Based upon data from the ACA’s Exchange/Marketplace and these Form 1095s, the IRS would determine if any Employer Shared Responsibility Payments (not-so-affectionately known as the “penalties”) were due and send the employer a letter (IRS 226J letter) asking for any clarification before the proposed penalties were assessed. Employers only had 30 days from the date of the letter to respond, in many cases noting a coding error on the Form 1095. Since the IRS used the US mail, often the employer had very few days to research the reason for the proposed penalty and to respond accordingly. If the response from the employer was late, the IRS could not only assess the proposed penalty, but additional penalties as well.

Further, the period for assessing and collecting the penalties had no statute of limitations which would otherwise potentially limit the liability for older assessments.

Changes Under the Two Acts

The two Acts will make several important changes that will improve the reporting and enforcement process for plan sponsors.

Forms 1095-B and 1095-C. Plan sponsors and health insurance providers for fully insured plans are no longer required to send these forms to all eligible (full-time) employees and covered individuals. Instead, only if an employee requests a form must one be provided by the later of January 31st of the year following the coverage year or 30 days after the date of the request. However, note that in order to take advantage of this new rule, plan sponsors must provide a notice to employees letting them know they have the right to ask for a 1095 form. There is no model notice yet, but employers can likely make a good-faith effort to draft such a notice.

Electronic Distribution of Requested Form. If the employee has previously given their consent to receive the form electronically (and as long as they haven’t revoked that consent), the 1095 can be provided electronically. While we don’t yet have guidance on this new provision, a good-faith effort—such as including a consent to receive the Form electronically on the request form—may suffice.

Extension of Response Time to Penalty Letters. Plan sponsors will now have 90 days, not 30, to respond to a proposed penalty assessment letter from the IRS before any further action is taken. Given our history assisting employers with responding to these IRS 226J letters, most often the proposed penalty was due to a coding error or missed employee on the 1095, not a failure to offer affordable minimum essential coverage. The change will allow employers reasonable time to research the issue and respond to the IRS in a timely manner.

Statute of Limitations on Penalty Assessments. Instead of an open-ended period to assess penalties, there is now a six year period for collecting any penalties from employers, starting from the later of the due date for the 1095 Forms or the actual filing date, whichever is later.

Important Note. The 1095-B or 1095-C must still be prepared and remitted to the IRS with the corresponding Form 1094. These two Acts only change the distribution requirements to employees and covered individuals in group health plans.

Effective Date. The effective date of the Paperwork Burden Reduction Act is for all calendar years after 2023. The effective date for the Employer Reporting Improvement Act is for returns due after December 31, 2024. Thus, most employers will be relieved of the IRS Form 1095-B and 1095-C requirements for distribution to employees for returns that are due January 31, 2025 for the 2024 year.

Reminder: OSHA 300A Logs Must Be Posted By Feb 1st

All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.

Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details.
The 300A log is a summary of all workplace injuries, including COVID cases,  and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.

Please contact our office if you need a copy of either the OSHA 300 or 300A logs.

Telehealth and HSA Eligibility Changes as of January 1, 2025

Plan sponsors that offer high-deductible health plans (HDHPs) paired with Health Savings Accounts (HSAs) will no longer be permitted to cover telehealth services before the deductible is met, as Congress failed to extend the safe harbor allowing this benefit as part of the American Relief Act of 2025, the law passed in late December to fund the federal government for the next few months. The provision may be taken up in the next Congress, but current rules expire for plan years beginning on or after January 1, 2025.

Background

The telehealth safe harbor for HSA-qualified HDHPs was originally created by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act permitted HDHPs to cover telehealth or other remote-care services before the plan’s deductible is met, effective on March 27, 2020 for plan years beginning on or before December 31, 2021.

Legislation enacted in March 2022 extended this flexibility from April 1, 2022 through December 31, 2022 and subsequent legislation further extended the telehealth flexibility for plan years beginning after December 31, 2022, and before January 1, 2025.

The latest congressional activity

President Biden signed the American Relief Act of 2025 on December 21, 2024. The law funds the government through March 14, 2025, and provides disaster relief appropriations and economic assistance to farmers. However, the bill does not include an extension of HDHP telehealth flexibility.

Congressional leadership had originally negotiated a bipartisan bill that would have extended the HDHP telehealth flexibility rule for an additional two years.

Implications for sponsors of HDHPs with HSAs

Sponsors of HDHPs that have HSAs with plan years beginning before January 1, 2025 may continue to reimburse individuals for telehealth services before the deductible for the remainder of that plan year. However, for HDHPs with a plan year of January 1, 2025 or later, plans may not reimburse individuals for telehealth services before they meet their deductible. If a plan permits reimbursement for telehealth services before the deductible is met, the HDHP would not be HSA-qualified, and therefore participants could not contribute to an HSA for that plan year.

Consequently, plans should assure that telehealth services provided before the deductible is met in an HDHP are subject to cost-sharing, unless the service is for a preventive benefit required under the ACA (e.g., a telehealth visit to obtain a prescription for a preventive service).

Telehealth services continue to be a popular benefit. Plan sponsors should contact their health plan administrator to determine how they will implement telehealth benefits in an HDHP and whether they will be communicating changes to plan participants. In some cases, plan documents may need to be amended concerning telehealth coverage.

Looking ahead

It is possible that the telehealth provision could be revived in the new Congress, although it is likely those efforts would take several months.

However, it is unclear when or whether there will be action on the proposed legislation. Plan sponsors should monitor developments on this issue in the next Congress.