Top Enforcement Trends for Pregnancy Accommodations Can Teach Employers Lessons

The EEOC hasn’t been shy about launching litigation against employers that haven’t met their accommodation obligations since the Pregnant Workers Fairness Act took full effect. A review of the agency’s PWFA enforcement actions since its final rule took effect in June 2024 reveals that the EEOC will not tolerate forced leaves of absence, ignored interactive process obligations, rigid attendance policies, and flatly denied basic accommodations. By familiarizing yourself with the top five enforcement trends uncovered through a thorough review of the EEOC’s litigation activity, you can shape your PWFA compliance strategy to meet the moment.

General Overview of the PWFA

The Pregnant Worker’s Fairness Act (PWFA), which took effect in June 2023, implemented a new requirement for covered employers to provide reasonable accommodations for a qualified employee’s known limitations due to pregnancy, childbirth, or related medical conditions, unless such an accommodation would cause the employer undue hardship.  

The EEOC released a final rule in June 2024 that sets forth definitions and parameters for the PWFA. For a comprehensive recap, you can read a detailed FAQs about the PWFA here.

The EEOC’s Top 5 PWFA Enforcement Efforts and What They Demonstrate

Here is a review of the top five enforcement positions taken by the EEOC with respect to pregnancy accommodations, along with guidance for employers to ensure compliance.

1. Leaves of Absence or Light Duty Cannot be Forced When Other Reasonable Accommodations Exist

The EEOC has taken action against several employers who have allegedly forced leaves of absence on employees who could have otherwise been provided another reasonable accommodation which would have allowed the employee to continue to work. For example, In EEOC v. Urologic Specialists of Oklahoma, Inc., the agency negotiated a $90,000 settlement with an employer that it alleged denied reasonable accommodations to a medical assistant at its Tulsa facility during the final trimester of her high-risk pregnancy. Rather than allow her to sit, take short breaks, or work part-time, as recommended by her doctor to protect her health and safety, the EEOC alleged that the medical practice forced her to take unpaid leave in violation of the PWFA.

The EEOC has also taken issue with employers placing pregnant employees on light duty or in positions wherein their earning potential could be reduced. In December 2025, the EEOC sued a Minnesota employer that purportedly removed a pregnant individual from the workplace, placed her on an involuntary leave of absence, and ultimately placed her in a light duty job that reduced her earning potential when she could have continued to work in her position with reasonable accommodations. That lawsuit is pending.

However, situations where an employee requests light duty but is denied that accommodation are also on the EEOC’s radar. The EEOC recently sued an employer that allegedly failed to accommodate a pregnant employee’s 20-pound lifting restriction, for example.

2. The Interactive Process Continues to Play an Important Role 

Employers should not assume that they can just grant any accommodation they prefer for qualified employees. The EEOC has brought action against employers who have forced a plaintiff to accept an accommodation without first engaging in the interactive process. For example, in EEOC v. Wabash Nat’l Corp., the EEOC sued a Kentucky employer that allegedly denied a pregnant employee’s accommodation request to transfer to a role that did not require lying on her stomach.

3. Strict Attendance Policies Present Risk Under the PWFA

In one of its most recent actions, the EEOC just sued Florida employer BestBet Jacksonville, Inc., for enforcing a strict attendance policy against a pregnant employee.  The March 31 lawsuit alleges the employer advised the company that she had a high-risk pregnancy and related medical conditions that required her to take some time off work.  The employer allegedly responded by telling her that she could not return to work because the company had a strict policy: “if an employee misses more than two weeks and they do not qualify for leave under the Family Medical Leave Act, they must resign.” The EEOC indicated in its complaint that this employer allegedly had a practice of denying all accommodation requests brought by qualified employees unless those individuals qualified for leave under the FMLA. The EEOC interpreted this approach as the employer “maintaining a blanket policy prohibiting reasonable accommodations under the PWFA.” 

This is not the only action the EEOC has brought against employers who have enforced attendance policies against employees who had allegedly known limitations of pregnancy or related conditions. Last year, the EEOC settled a case against an Alabama employer for $55,000 after the agency alleged it enforced attendance points against an employee who needed time off for pregnancy-related medical appointments and conditions.

4. Reasonable Accommodations for Qualified Employees Remain High Priority 

The EEOC’s enforcement efforts demonstrate that it will take action against employers that fail to reasonably accommodate employees. This includes employers that don’t provide employees with a suitable space to pump breastmilk, don’t provide ready access to water, and don’t provide pregnant employees the ability to sit, take breaks, work light duty, or work part-time.

• Just last month, the agency filed suit against a Wisconsin grocery chain after it allegedly fired a nursing mother for requesting an accommodation at her workstation to maintain her breast milk supply, According to the suit, the employee asked to keep a water bottle at her workstation to maintain her milk supply, but management refused the accommodation and ultimately fired her rather than allow it.
• And as noted above, the agency negotiated a $90,000 settlement in EEOC v. Urologic Specialists of Oklahoma, Inc., after an employer allegedly denied a pregnant employee the ability to sit, take short breaks, or work part-time as reasonable during the final trimester of her high-risk pregnancy.

While these types of accommodations are explicitly listed in the EEOC’s final rule, the agency has also pursued action against employers for denying accommodations that are not specifically enumerated there. In September 2025, for example, the EEOC filed suit against an employer after a pregnant employee’s provider recommended that she limit her driving time to address pain she was experiencing in her back and legs. She requested either shorter commutes and/or transitioning to virtual admissions for the remainder of her pregnancy. Although assignments were available within the requested radius, the employer allegedly failed to reasonably accommodate the employee and she was forced to resign.

5. Leave As An Accommodation May Be Appropriate In Some Situations

In September 2024, the EEOC brought an action against a Florida-based employer after it allegedly terminated a worker after she had a stillbirth and requested a six-week leave of absence. The EEOC argued that the employer intentionally discriminated against her pregnancy-related medical condition in violation of the PWFA, and ultimately settled the case.   

Key Takeaways for Employers

• Start with the Basics. The EEOC has largely focused on the basic accommodations listed within its final rule. Ensure you have updated relevant policies and training to allow qualified employees the ability to sit, take short breaks, drink water as well as breastfeed or pump as needed.
• Don’t Default to Leave or Light Duty: Engage in the Interactive Process. Under the PWFA, you should discuss leave and light duty as part of an interactive process with the employee and you should make all efforts to provide reasonable accommodations that allow the employee to continue working.
• Train Managers on Enforcing Attendance Policies. Be sure that your management and human resources teams appreciate that strict attendance policies, even when applied equally to all, can present risk if an employee is qualified under the PWFA and requests time off from work as a reasonable accommodation.
• Consider Leave as an Accommodation. When employees are dealing with symptoms that may be pregnancy or childbirth related, consider leave as an accommodation under the PWFA.

EEO-1 Reporting Portal is Open: 5 Quick Tips for Employers

The EEO-1 reporting portal just opened May 20, 2025 and the turn-around time is quick: this year employers only have until June 24th to submit their data. Private employers with at least 100 employees and federal contractors with at least 50 employees need to begin sorting data by employee job category, as well as sex and race/ethnicity, to turn over to the Equal Employment Opportunity Commission (EEOC) during the reporting window. Here’s what you need to know about filing your 2024 EEO-1 Component 1 data this year and the five steps you’ll want to take right away to file on time.

What’s New This Year?

The EEO-1 Reporting Portal welcomes users with message from the EEOC’s new Acting Chair Andrea Lucas. Here’s a breakdown of what Lucas says:

• Take no action motivated by an employee’s protected characteristic. “As you report data on your employees’ race, ethnicity, and sex, I want to take this opportunity to remind you of your obligations under Title VII not to take any employment actions based on, or motivated in whole or in part by, an employee’s race, sex, or other protected characteristics.”
• Don’t use employee demographic data to discriminate. “Your company or organization may not use information about your employees’ race/ethnicity or sex — including demographic data you collect and report in EEO-1 Component 1 reports — to facilitate unlawful employment discrimination based on race, sex, or other protected characteristics in violation of Title VII.”
• Title VII’s protections apply equally to all workers. This is true “regardless of their race or sex. Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.”
• There is no “diversity” exception to Title VII’s requirements. The message goes on to refer the reader to the EEOC’s technical assistance Q&A document “What You Should Know About DEI-Related Discrimination at Work” and President Trump’s recent executive order titled “Restoring Equality of Opportunity and Meritocracy.”

The message serves as a reminder that employers have never been permitted to use the EEO-1 report or the demographic data contained in the reports to violate Title VII of the Civil Rights Act. 

Key Dates and Resources– The 2024 EEO-1 Component 1 data collection window opened on  May 20th. The deadline to file is June 24th at 11:00 PM Eastern Time. The 2024 EEO-1 instruction booklet is available here. The EEOC’s EEO-1 Component 1 online Filer Support Message Center also is now open.

Your 5-Step Strategy Plan

1. Pick a Date
As in the past, EEO-1 reports require employers to pick a payroll end date between October 1, 2024, and December 31, 2024, as your “workforce snapshot period.” Employers will report all employees as of the selected payroll date. So, while you might have fewer than 100 employees on the payroll date selected, you still must report if you reached 100 or more employees during any point of the fourth quarter of 2024. This change to having 100 employees at any time during the fourth quarter was new last year and caught many smaller employers by surprise. 

2. Categorize Your Workforce
Next, ensure that your job titles are categorized correctly and consistently. The EEO job categories are:

(1.1) Executive/Senior-level officials and managers

(1.2) First/Mid-level officials and managers

(2) Professionals

(3) Technicians

(4) Sales workers

(5) Administrative support workers

(6) Craft workers

(7) Operatives

(8) Laborers and helpers

(9) Service workers   

Be sure you check your job titles carefully as each job title should only be associated with a single EEO-1 job category. 

 3. Let Your Employees Choose
Give your employees an opportunity to self-identify their sex and race/ethnicity – and provide a statement about the voluntary nature of the inquiry. The race/ethnicity categories are unchanged:

• Hispanic or Latino: A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.
• White (Not Hispanic or Latino): A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
• Black or African American (Not Hispanic or Latino): A person having origins in any of the black racial groups of Africa.
• Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino): A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
• Asian (Not Hispanic or Latino): A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
• American Indian or Alaska Native (Not Hispanic or Latino): A person having origins in any of the original peoples of North and South America (including Central America) and who maintains tribal affiliation or community attachment.
• Two or More Races (Not Hispanic or Latino): All persons who identify with more than one of the above five races.

In this year’s instructions, only binary options for reporting sex are available in the EEO-1 reporting form. Do not report non-binary employees for 2024. 

4. Choose a Point of Contact
Designate an employee as the “account holder” who will file the EEO-1 report through the EEO-1 Component 1 Online Filing System (OFS). Note that there are separate instructions for new filers and for those who are changing their point of contact. Account holders must submit the workforce demographic data electronically in the OFS through either manual data entry or data file upload. The employer’s certifying official must then certify the EEO-1 Component 1 report(s) in the OFS.

5. File on Time!
File by June 24th – or earlier! In the past, the EEO-1 reporting system has slowed down significantly as the deadline approached, which makes filing more challenging. You might want to allow yourself sufficient time before the deadline so you aren’t scrambling at the last minute with technical challenges. Typically, the EEOC does not provide for extensions. 

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.

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.

EEOC Issues Final Regulations to Implement the Pregnant Workers Fairness Act

The Equal Employment Opportunity Commission (EEOC) has issued final regulations and Interpretative Guidance to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023. The PWFA requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The PWFA required the EEOC to publish final regulations by December 29, 2023. However, the EEOC did not issue final regulations until April 15, 2024.  The final regulations are slated to be published in the Federal Register on April 19, and will go into effect 60 days after publication.  The final regulations were issued after over 100,000 public comments were submitted in response to  the proposed regulations.

In the final regulations the EEOC clarifies, and in some instances, expands upon the circumstances in which an employer must reasonably accommodate an employee, absent undue hardship. The following is a list of some of the issues addressed in the 400+ pages of final regulations.

• Like the proposed regulations, the final regulations cover a wide range of conditions related to pregnancy, including, fertility and infertility treatments, carpel tunnel, menstruation, postpartum depression, lactation (including both breastfeeding and pumping in the workplace), changes in hormone levels, abortion, miscarriage, stillbirth, and preeclampsia.
• The final regulations significantly maintained the list of reasonable accommodation requests that will almost never impose an undue hardship, including permitting employees to carry or keep water nearby, take breaks as needed to eat and drink, and permitting work to be done while sitting instead of standing or vice versa.
• The final regulations clarify the definition of a “qualified individual” as one who can perform the essential functions in the near future.  In the case of a pregnant employee, the presumption is the employee can perform the essential functions “in the near future,” within 40 weeks of suspension of the job function.  For conditions other than current pregnancy, the regulations do not impose a 40-week limitation.  However, the final regulations clarify a request to indefinitely suspend an essential function is not “in the near future” so as to entitle an employee to an accommodation.
• The final regulations further restrict the documentation and information an employer may require to support a request.
• The final regulations state it is a best practice to provide an interim accommodation to an employee under the PWFA, and may mitigate against a claim of delay by an employee.
• The final regulations also clarify there is no right to a reasonable accommodation under the PWFA based upon an individual’s association with someone else who may have a PWFA-covered limitation, or even if the individual themselves has a physical or mental limitation arising out of someone else’s pregnancy, childbirth or related medical condition.
• The final regulations clarify that time for bonding or for childcare is not covered by the PWFA.
• The final regulations also include extensive Interpretative Guidance as an Appendix, which address the major provisions of the PWFA and explain and illustrate how the final regulations will apply.  

If you have any questions about the PWFA or the implications of the regulations for your organization please let us know.

Reminder: Update Your EEOC Poster and Start Complying with the Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) goes into effect on June 27, 2023. The PWFA requires employers to post a notice describing the various protections under the new law.  On June 27^th, employers should remove their old EEOC “Know Your Rights” posters and replace them with the updated version. Please let us know if you need a copy of the updated English or Spanish posting to comply with the PWFA.

EEOC’s Latest AI Guidance Sends Warning to Employers

Employers using or thinking about using artificial intelligence (AI) to aid with workplace tasks received another reminder from the federal government that their actions will be closely scrutinized by the EEOC for possible employment discrimination violations. The federal agency released a technical assistance document on Thursday warning employers deploying AI to assist with hiring or employment-related actions that it will apply long-standing legal principles to today’s evolving environment in an effort to find possible Title VII violations. What are the five things you need to know about this latest development?

1. EEOC Confirms That Employers’ Use of AI Could Violate Workplace Law

The EEOC started by confirming its crystal-clear position in its technical assistance document: an improper application of AI could violate Title VII, the federal anti-discrimination law, when used for recruitment, hiring, retention, promotion, transfer, performance monitoring, demotion, or dismissal. The EEOC outlined four instances where the use of AI during the hiring process – and one example during an employment relationship – could trigger Title VII violations:

• resume scanners that prioritize applications using certain keywords;
• “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements;
• video interviewing software that evaluates candidates based on their facial expressions and speech patterns;
• testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test; and
• employee monitoring software that rates employees on the basis of their keystrokes or other factors.

The agency didn’t say that these are the only types of workplace-related AI methods that could come under fire – or that these types of tools are inherently improper or unlawful. It did say, however, that preexisting agency regulations (the Uniform Guidelines on Employee Selection Procedures) that have been around for over four decades can apply to situations where employers use AI-fueled selection procedures in employment settings.

The agency said this is especially true in “disparate impact” situations – where employers may not intend to discriminate against anyone but deploy any sort of facially neutral process that ends up having a statistically significant negative impact on a certain protected class of workers.   

2. “Four-Fifths Rule” Can Be Applied to AI Selections

The EEOC pointed out that employers can use the “four-fifths” rule as a general guideline to help determine whether an AI selection process has violated disparate impact standards (and we apologize in advance for the impending use of math). The test checks to see if a selection process is having a disparate impact on a certain group by comparing the selection rate of that group with the most “successful” selection rate. If it’s less than four-fifths of that selection rate, then you might be subject to a disparate impact challenge. If that sounds confusing to you, here is the example provided by the EEOC.

Assume your company is using an algorithm to grade a personality test to determine which applicants make it past a job screening process.  

• 80 White applicants and 40 Black applicants take the personality test.
• 48 of the White applicants advance to the next round (equivalent to 60%).
• 12 of the Black applicants advance to the next round (equivalent to 30%).
• The ratio of the two rates is thus 30/60 (or 50%).
• Because 30/60 (or 50%) is lower than 4/5 (or 80%), the four-fifths rule says that the selection rate for Black applicants is substantially different than the selection rate for White applicants – which could be evidence of discrimination against Black applicants.

Note, however, that the EEOC said that this kind of analysis is merely a rule of thumb. It’s a rudimentary way to draw an initial inference about the selection processes. If you end up finding problematic numbers, it should prompt you to acquire additional information about the procedure in question, according to the EEOC, and isn’t necessarily indicative of a definitive Title VII violation. Similarly, just because your numbers clear the four-fifths hurdle doesn’t mean that the particular selection procedure is definitely lawful under Title VII. It can still be challenged by the agency or a plaintiff in a charge of discrimination.

3. EEOC Encourages Proactive Self-Audits

In a statement accompanying the release of the technical assistance document, EEOC Chair Charlotte Burrows said that employers should test all employment-related AI tools early and often to make sure they aren’t causing legal harm. This doesn’t mean just using the four-fifths rule, but also using a thorough auditing process involving a variety of potential examination methods on all AI functions. “I encourage employers to conduct an ongoing self-analysis to determine whether they are using technology in a way that could result in discrimination,” she said.  

But not mentioned by the EEOC: a reminder that you should approach any self-audit with the help of legal counsel. Not only can experienced legal counsel help guide you about the best methodologies to use and assist in interpreting the results of any audit, but using counsel can help cloak your actions under attorney-client privilege, potentially shielding certain results from discovery. This can be especially beneficial if you identify changes that need to be made to improve your process to minimize any unintentional impacts.

4. You’re On the Hook For Problems Caused by Your AI Vendors

The agency also noted quite clearly that you can’t duck your responsibilities by using a third party to deploy AI methods and then blaming them for any resulting discriminatory results. It said that you may still be responsible if the AI procedure discriminates on a basis prohibited by Title VII even if the decision-making tool was developed by an outside vendor.

“In addition,” said the EEOC, “employers may be held responsible for the actions of their agents, which may include entities such as software vendors, if the employer has given them authority to act on the employer’s behalf.” This may include situations where you rely on the results of a selection procedure that an agent administers on your behalf.

The EEOC recommends that you may want to specifically ask any vendor you are considering to develop or administer an algorithmic decision-making tool whether steps have been taken to evaluate whether that tool might cause an adverse disparate impact. And it also recommends asking the vendor whether it relied on the four-fifths rule of thumb or whether it relied on a standard such as statistical significance that is often used by courts when examining employer actions for potential Title VII violations.

5. EEOC’s Guidance is Part of Bigger Trend

This technical assistance document is part of a bigger trend we’re seeing from federal agencies that are increasingly interested in the ways that AI may lead to employment law violations. Just last month, in fact, EEOC Chair Burrows teamed up with leaders from the Department of Justice, the Federal Trade Commission and the Consumer Financial Protection Bureau to announce that they would be scrutinizing potential employment-related biases that can arise from using AI and algorithms in the workplace.

And within the past year, the EEOC teamed up with the DOJ to release a pair of guidance documents warning that relying on AI to make staffing decisions might unintentionally lead to discriminatory employment practices, including disability bias, followed by the White House releasing its “Blueprint for an AI Bill of Rights” that aims to protect civil rights in the building, deployment, and governance of automated systems.

While none of these guidance documents create new legal standards or can be relied upon with the force of law like a statute or regulation, they do carry weight, may signal where the agencies are focusing their enforcement efforts, and can be cited to by agencies and plaintiffs’ attorneys as best practices that employers should follow.  And states have gotten into the action too, with New York City’s law set to take effect in July, and a new bill advancing towards the Governor in California. And for that reason, you should take this guidance seriously and adapt your employment practices as necessary to stay up to speed with the pace of change that is rapidly unfolding before our eyes.

 

The Feds Are Coming, Is Your Business Ready? Part 1: New DOL Outreach

The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA). 

You may now be thinking “What does that have to do with me? I pay my employees to work”.  While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock.  Before your internal defenses kick into high gear, let me provide a few examples of how this could occur: 

• Have you or one of your managers ever interrupted an employee during lunch to ask a “quick” work related question?
• Do you auto deduct time for lunch each day?
• Do your managers understand that if they need to reach out to employees before or after hours, even if it is a quick text or phone call, they should ensure the employee accounts for that time on their timesheet?
• Do non-exempt employees have access to their work email on their personal phone?
• How do you confirm time worked for remote employees is accurate?
• Do you have a policy for your employees to report unauthorized or unapproved overtime?

Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office.  To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).  It is no wonder some of our focus on day-to-day compliance may have slipped. 

My company’s mission is to be The Employer Advocate.  Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur.  Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance.  We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.

The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees. 

While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun.  The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website.  The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters. 

Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach!  Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.

Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.