The Skinny:

·      DEI stands for diversity, equity and inclusion – three laudable goals corporations in recent years have focused on, specifically on the heels of the Black Lives Matter movement.

·      Notwithstanding these goals, since their passage, long before either Trump administration, federal employment laws have prohibited making employment decisions based upon legally protected classes, including hiring, firing, promotion, etc., even when such decisions were made in an effort to lift up a historically disadvantaged group.

·      DEI was a target of the first Trump Administration, for example, its issuance of executive orders banning certain DEI trainings. It has once again become a focus point for this second Trump Administration in a more pointed manner. Trump has signed several executive orders related to abolishing “illegal” DEI programs. Examples of such executive orders include those affecting Big Law, colleges and universities, federal contractors and those receiving federal grants under the Department of Labor (“DOL”). The executive orders focus on an entity certifying it is not participating in “illegal” DEI and cancelling contracts and grants of those who are.

·      Certification of non-participation in “illegal” DEI is complicated for a couple reasons: it is not completely clear what qualifies as “illegal” DEI, and it may trigger a False Claim Act claim if the certifying party is found to be participating in any such “illegal” DEI.

·      The certification provision of Executive Order 14173 that was supposed to be effective April 21, 2025 was just enjoined nationwide as against the DOL with respect to any grantee or contractor. The rest of the order, described below remains intact for now.

·      Guidance recently released by the Trump Administration sheds some light on how the government may interpret “illegal” DEI and thus, how it may enforce its certification requirements.

·      Employers, even those who are not federal contractors or grantees, should take note of the guidance and review their DEI programs accordingly to avoid becoming a target of a discrimination investigation.

The Second Circuit recently held that an employee need not prove a requested accommodation is necessary for them to perform the essential functions of their job because the ADA does not require such proof. Instead, the ADA only requires the requested accommodation be reasonable. In so holding, the Court found that summary judgment was incorrectly granted to a school district that argued its employee could not prevail on her failure to accommodate claims because she had admitted that she could perform her job without the requested accommodation.

The Court explained the ADA only requires an employee to prove their employer is subject to the ADA, the employee is disabled pursuant to the ADA, and they were qualified to perform the essential functions of their job either with or without a reasonable accommodation and the employer failed to make such accommodation. The Court reasoned by requiring an employee to first prove the accommodation is necessary to be reasonable, would conflict with the plain wording of the statute requiring a “reasonable accommodation” and the intent of the law’s broad construction in light of its remedial nature.

This case is a reminder for employers not to focus on playing the part of an employee’s doctor determining what is or is not necessary or appropriate for a particular disability, but instead, focus on whether the employee is a qualified individual (i.e., has a disability under the ADA and can perform the essential functions of their job either with or without an accommodation) and whether providing the requested accommodation would be an undue hardship. This reminder is even more timely as mental health and neurodivergence is becoming more openly discussed and employees are more likely to seek accommodations related to both, each of which may not be as apparent as certain physical disabilities. Employers should ensure that their managers and human resources professionals are trained in language and actions to listen/look for to prompt an offer to begin the interactive process to avoid running afoul of disability laws, especially in jurisdictions that have greater protection that under federal law, like New  York City.

A recap of 2024 employment law and a look at what is coming in 2025.

Dear Reader:

It’s the end of another era. We’re back to December, and we know this time of year all too well – we’re long past the cruel summer, about a fortnight away from yet another year – ‘tis the damn season and it’s time to speak now so you can enter 2025 fearless(ly) because employment laws can be a nightmare dressed like a daydream leaving you haunted, if you’re not properly prepared. Read the manuscript below to avoid employment law becoming your albatross next year.

At the Federal Level

Grab Your Passport and My Hand - Is your I-9 Documentation in Order?

With a new administration coming in January, which promised mass deportation and a general crackdown on immigration, employers should ensure that they are in compliance with I-9 documentation. During Donald Trump’s last administration, I-9 audits were higher than during either the Obama or the Biden presidencies, and that should be expected this term.

Employers should audit their own I-9 compliance to ensure each of their employees has filled out their I-9 Form (accurately and completely) and provided proper supporting documents for verification, such as a passport, green card or E-Verify confirmations, and that the employer section of each I-9 has been properly completed. 

I-9 Forms are required to be completed by employees no later than their first day of work for pay and employers are required to fill out the second section no later than the third business day from when the employee started work for pay.

Last week, on April 24, 2024, the federal DOL increased the minimum salary thresholds to qualify as an exempt employee under the Fair Labor Standards Act (FLSA), from its current $684 per week to $844 per week, effective July 1, 2024. For employees qualifying under the FLSA’s highly compensated employee exemption, they must make at least $132,964 per year.

The DOL’s rule also provides for an additional increase to $1,128 per week, effective January 1, 2025. Notably, the increase in 2025 will have exempt employees across the country required to make nearly as much as those exempt employees in New York State – excluding New York City, Westchester and Long Island. New York State exempt employee’s minimum salary will be $1,161.65 per week- a difference of only $33/week – a far cry from the current difference of $440.20 per week. The 2025 increase for highly compensated employees under the FLSA will increase to $151,164 per year. The rule also provides that these minimum thresholds will now be updated every three years.

In what seems to be a tradition now, the New York State Legislature included within its budget passage a key employment change for New York employers. This year, such change included requiring employers to grant 20 hours of paid leave during a 52 week period to use for prenatal healthcare appointments. Such grant, effective January 1, 2025, is as amendment to the New York State Paid Sick Leave Law and in addition to the New York Paid Family Leave Law. The prenatal healthcare appointments are defined as “health care services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy.” Such leave may be taken in hourly increments, rather than any larger time blocks. Payment, at an employee’s regular rate of pay (or minimum wage, if greater), is also stipulated to be in hourly increments. Additionally, like other New York State leave laws, the provisions includes an anti-discrimination  and retaliation provision in response to employees who request or take such leave.

As many of you may have heard over the last few months to a year, the Federal Trade Commission (FTC) released a proposed rule that would have banned non-competes. Last week, on April 23, 2024, the FTC released its final rule. Despite months of comments from several protesting, the final rule prohibits employers to enter into non-competes with any worker once the rule is in effect – 120 days after it is published in the Federal Register. Notably, worker is defined far broader than employee – it specifically excludes consideration of classification under any State or Federal laws and specifically includes all natural persons whether an “employee, independent contractor, extern, intern, volunteer, apprentice, or a sole proprietor who provides a service to a person.”

Employers in New York should take note of recent developments related to paid leave to ensure they understand the various statutes as it appears leave related laws are a priority for law makers in New York right now.

There were numerous employment law developments in New York City and State in 2023 for which employers must ensure they are compliant. Catch up with these measures and learn what to watch for in 2024 in our year-end roundup.

In September, the EEOC released proposed guidance for federal harassment claims, with a public comment period open until Nov. 1. The guidance is fairly lengthy and summarizes what constitutes harassment, how liability may be imputed to an employer, and how an employer may best prevent such liability. Get the key takeaways from the proposed guidance.

The Supreme Court recently found that the long-applied standard for the undue hardship defense related to religious accommodations pursuant to Title VII – when an employer can show an accommodation provides more than a de minimus costs to employer – was based upon an incorrectly interpreted Supreme Court case. Learn about the new standard and what what it could mean for your business.

Amended regulations for ESSTA went into effect on Oct. 15, 2023. These regulations are in response to the 2020 amendments to ESSTA, which were prompted by the New York State Paid Sick Leave Law. The regulations act to clarify outstanding questions where the statute was unclear. Learn what the regulations could mean for your business.