On February 10, 2025, New York State Senator Sean Ryan introduced Senate Bill S4641, which seeks to broadly prohibit the use of non-compete agreements in employment contracts. The proposed ban aligns with a growing national trend aimed at limiting non-compete agreements, particularly in the healthcare sector, where such restrictions have been criticized for limiting workforce mobility. Sen. Ryan previously sponsored a similar bill in 2023, which the legislature passed. However, Gov. Hochul vetoed that measure, citing concerns over its broad scope and potential economic consequences.

Key Provisions of S4641

The bill introduces several key definitions under a newly proposed Section 191-d of New York’s Labor Law:

• Non-compete agreement: Defined as “any agreement, or clause contained in any agreement, between an employer and a covered individual that prohibits or restricts such covered individual from obtaining employment after the conclusion of employment with the employer.” This definition is limited to true non-compete agreements and does not extend to other restrictive covenants such as confidentiality or non-solicitation agreements.
• Covered individual: Refers to any worker who is economically dependent on an employer, regardless of whether they are employed under a formal contract. However, this category excludes highly compensated individuals.
• Highly compensated individual: Defined as any person earning an average annualized cash compensation of $500,000 or more, calculated using the individual’s three most recent W-2 and K-1 statements. If the person has been employed for less than three years, the calculation is based on the entire duration of their employment.
• Health-related professional: Encompasses a wide range of medical practitioners licensed under New York law, including physicians, physician assistants, chiropractors, dentists, veterinarians, pharmacists, nurses, psychologists, and mental health practitioners.

Prohibitions on Non-Compete Agreements

• Under Section 191-d, employers and associated entities—including corporations, partnerships, limited liability companies, and not-for-profit organizations—would be prohibited from seeking, requiring, demanding, or accepting non-compete agreements from any covered individual or health-related professional.
• Any non-compete agreements entered into after the effective date of the law would be deemed null, void, and unenforceable.

Private Right of Action

The bill grants covered individuals the right to file a civil lawsuit against any employer or entity that attempts to enforce a prohibited non-compete agreement.

The statute of limitations for bringing such a lawsuit would be two years, starting from the later of the following events:

• The date the non-compete agreement was signed.
• The date the individual first becomes aware of the agreement.
• The date of termination of employment or contractual relationship.
• The date the employer attempts to enforce the non-compete agreement.

Courts would have the authority to invalidate non-compete agreements and issue remedies that may include:

• Injunctive relief preventing the enforcement of the agreement.
• Liquidated damages of up to $10,000 per affected individual.
• Compensation for lost wages, damages, and attorney’s fees.

Exceptions and Carve-Outs

While the bill broadly prohibits non-compete agreements, it does include several exceptions:

• Employers would still be permitted to enter into agreements that:
  • Establish fixed terms of employment or require exclusivity during the term of employment.
  • Protect trade secrets and other confidential information.
  • Restrict employees from soliciting clients of their former employer.
• The bill also exempts non-compete agreements related to the sale of a business. Specifically, individuals who sell the goodwill of a business, transfer a majority ownership interest, or own at least 15% of a business may still be subject to enforceable non-compete clauses.
• The law would not override existing protections under Section 202-k of New York’s Labor Law, which already bans non-compete agreements for certain employees in the broadcast industry.

Severability

The bill includes a severability provision, ensuring that if any part of the law is found to be invalid, the remaining provisions would still be enforceable.

Key Differences From the 2023 Bill

The latest version of the bill makes several changes in response to concerns outlined in Gov. Hochul’s veto memo from December 2023:

• Inclusion of a salary or compensation minimum threshold (the “highly compensated individual”).
• Inclusion of a carve-out for the sale of a business.
• Omission of language identical to California’s Business & Professions Code §16600.

Next Step for Employers

If the bill is passed by the New York State Legislature, it will be sent to Gov. Hochul, who will have three options:

• Sign the bill into law, enacting the ban on most non-compete agreements.
• Veto the bill, as she did in 2023.
• Negotiate amendments through the chapter amendment process to address remaining concerns.

We expect intense lobbying efforts for and against the bill, as happened in 2023. We recommend employers stay on top of such legislative developments.

If you have any questions regarding non-compete agreements and this proposed bill, please feel free to contact Forework HR representative.

On February 14, 2025, newly appointed Acting General Counsel of the National Labor Relations Board (“NLRB”), William Cowen, rescinded several memoranda previously issued by former NLRB General Counsel Jennifer Abruzzo. Cowen also signaled his intention to provide new guidance in line with the Trump Administration’s policy agenda.

In a memorandum dated February 14, 2025, Cowen formally rescinded multiple General Counsel memoranda issued by his predecessor. He explained that the rescissions were necessary to manage an “ever-increasing workload” that had become “unsustainable” for NLRB staff. The rescinded memoranda include:

• GC 23-05 (“Guidance in Response to Inquiries about the McLaren Macomb Decision”) – This memorandum addressed the NLRB’s ruling in McLaren Macomb concerning the extent to which non-disparagement and confidentiality clauses in employee separation agreements may infringe upon employees’ rights under the National Labor Relations Act (“NLRA”). While the rescission does not overturn the McLaren Macomb decision, it eliminates General Counsel Abruzzo’s prior guidance, which stated that “savings clauses or disclaimer language . . . would not necessarily cure overly broad [confidentiality or non-disparagement] provisions.”
• GC 23-08 (“Non-Compete Agreements that Violate the National Labor Relations Act”) – This memorandum asserted that, with limited exceptions, non-compete agreements that restrict employees from accepting certain jobs or starting certain businesses post-employment interfere with their rights under the NLRA.
• GC 25-01 (“Remedying the Harmful Effects of Non-Compete and ‘Stay-or-Pay’ Provisions that Violate the National Labor Relations Act”) – This memorandum contended that “stay-or-pay” agreements—where employees must reimburse employers for benefits such as sign-on bonuses, training repayment agreements (TRAPS), relocation expenses, or tuition reimbursements if they leave before a specified period—are presumptively unlawful under the NLRA.
• GC 21-06 (“Seeking Full Remedies”) & GC 21-07 (“Full Remedies in Settlement Agreements”) – These memoranda directed NLRB Regions to pursue the “full range of remedies available” in unfair labor practice cases and to structure settlements to provide the most comprehensive relief.
• GC 24-01 (“Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC”) – This memorandum provided guidance on the NLRB’s 2023 decision to implement a new, union-friendly recognition standard for employers facing union recognition demands.

Looking ahead, employers should anticipate continued shifts in labor policy under the Trump administration, including changes in enforcement priorities. The NLRB itself did not review exceptions filed in these cases or make definitive rulings on the legality of non-compete and non-solicitation clauses before the conclusion of the Biden administration. The repeal of the aforementioned memos reduces the likelihood that a new general counsel will pursue complaints against employers over the use of restrictive covenants. Furthermore, with the potential for a majority-Republican NLRB in the near future, it is unlikely that the Board would rule in alignment with the former general counsel’s guidance on these issues.

Nevertheless, employers should be aware of the risks associated with implementing non-compete and non-solicitation agreements for non-supervisory employees covered under the NLRA. While restrictive covenants for supervisory employees—who are not subject to the NLRA—may face less scrutiny, employers should proceed with caution when drafting and enforcing these provisions. Employers must consider wage thresholds, ensure that such covenants are narrowly tailored to protect legitimate business interests, and remain informed about evolving state laws that govern their enforceability.

If you have any questions regarding the actions of the NLRB, please feel free to contact your Forework HR representative.

On January 28, 2025, the Acting Chair of the Equal Employment Opportunity Commission (“EEOC”), Acting Chair Andrea Lucas issued a statement announcing that the EEOC is returning to its “mission of protecting women from sexual harassment and sex-based discrimination in the workplace by rolling back the Biden administration’s gender identity agenda.”

This statement followed President Trump’s issuance of Executive Order 14168 (the “EO”), which, among other things, directs federal agencies to enforce “the freedom to express the binary nature of sex and the right to single-sex spaces in the workplace” and remove all existing statements, policies, forms, communications, or messages promoting gender ideology.  The EO  states that the federal government shall recognize only two sexes: male and female. 

Lucas’s latest statements indicate the first steps of the EEOC taking action to enforce the terms of the EO.  Specifically, one day after the EO was issued, Lucas announced several priorities for the EEOC’s compliance, investigations, and litigation, with one being to “defend the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work.”  Lucas has also removed materials promoting gender ideology from the EEOC’s internal and external websites and documents and began a content review of the EEOC’s “Know Your Rights” poster, which all covered employers are required to post in their workplaces.  Lucas removed the display of EEOC employees’ pronouns in internal and external communications and removed the “X” and “Mx.” gender markers from the EEOC’s charge and related forms and intake process.  Lucas also has also been vocal about her opposition to portions of the EEOC’s “Enforcement Guidance on Harassment in the Workplace” that state that harassing conduct under Title VII includes “denial or access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity” and “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”

However, despite Lucas’s clear intentions to enforce the “binary reality of sex,” including by removing guidance and references to “gender identity,” this new priority may be in tension with current federal law.  Specifically, the US Supreme Court in Bostock v. Clayton County held that Title VII prohibits discrimination and harassment based on gender identity and sexual orientation.  Thus, at this time, employment discrimination against transgender and gender nonconforming individuals remains illegal under federal law.  Additionally, more than half of the states in the United States have laws explicitly prohibiting, or have interpreted other laws to prohibit, discrimination and harassment based on sexual orientation and gender identity, and these laws remain in effect.

President Trump terminated two sitting Democratic commissioners, leaving the EEOC without a voting quorum.  EEOC Lucas cannot unilaterally remove or modify certain gender identity-related documents because doing so requires a majority vote of the full Commission.  Nonetheless, we expect to see an increase in workplace disputes on this issue in the future, including disputes involving “single sex spaces” in the workplace, such as bathrooms and locker rooms.  The Supreme Court in Bostock avoided discussing this issue but it has been addressed to some degree at the state and local level.  For example, according to published guidance, the New York City Human Rights Law requires that employers permit employees “to use single-gender facilities, such as restrooms or locker rooms, and to participate in single-gender programs, that most closely align with their gender, regardless of their gender expression, sex assigned at birth, anatomy, medical history, or the sex or gender indicated on their identification.”

Employers should continue to monitor developments, and in the meantime should review policies and practices with counsel to ensure compliance with applicable law and continue to implement anti-discrimination, anti-harassment, and equal opportunity policies as well as conduct workplace trainings consistent with applicable law.  If you have any questions about the subject of this article and its implications for your business, please contact Forework.

President Trump has dismissed key figures at the National Labor Relations Board (“NLRB”), including Board Member Gwynne Wilcox, General Counsel Jennifer Abruzzo, as well as the NLRB’s second-ranked attorney, NLRB Deputy General Counsel Jessica Rutter.  On February 3, President Trump appointed William Cowen as NLRB Acting General Counsel.  The Senate must confirm any eventual appointee by President Trump to serve as the NLRB General Counsel.

With the firing of these NLRB members, we expect to see the rescission of memos previously issued that broadened the scope of protected employee activities by targeting issues like non-compete agreements, joint employer standards, and expanding union access. 

It is also important to note that the Board is now officially without a quorum and consists of only two Members: Republican Chair Marvin Kaplan and Democratic Member David Prouty.  NLRB requires a three-member quorum to issue decisions.  Thus, without a quorum, the Board cannot adjudicate cases or set new legal precedent.  However, Regional Offices will continue to operate and process representation petitions, conduct elections, and certify results without a Board quorum.  Thus, all existing and future appeals will be in limbo for the foreseeable future, but employers should remain alert for administrative, rulemaking, or interim guidance from the new General Counsel.

Despite these shakeups, the NLRB remains in full effect and employers are still responsible for compliance with all existing laws and standards.  Accordingly, employers should examine their employee handbooks, work rules, and disciplinary procedures to confirm they meet the most recent NLRB standards.  If you have any questions about the subject of this article and its implications for your business, please contact Poricanin Law.le and its implications for your business, please contact Forework.

Below is a list of laws that will take effect in 2025 for employers in New York and New York City.  Employers should review and revise their current policies and practices and update accordingly.

January 1, 2025: Paid Prenatal Leave Law

• Pregnant employees in New York who work for private employers are eligible for 20 hours of paid leave for prenatal care.
• Effective January 1, 2025, New York employers will be required to provide up to 20 hours of paid prenatal leave to pregnant employees during any 52-week period for a long list of pregnancy-related doctor visits.
• Paid prenatal leave is a separate benefit from NYS sick leave or any other leave policies and laws. Accordingly, employees are entitled to 20 hours of paid prenatal leave in addition to any other available leave options. Employers cannot require an employee to choose one leave type over another or exhaust one type of leave before using paid prenatal leave. 
• These benefits are available immediately upon hire, and the leave can be taken in hourly increments and is paid at the employee’s regular rate of pay. Employers are not required to pay out unused prenatal care leave at termination.
• The employee contribution rate and benefit amounts under New York Paid Family Leave will increase:
  • the employee contribution rate will increase from .373 percent to .388 percent
  • the maximum weekly benefit amount will increase from $1,151.16 per week to $1,177.32 per week.

January 1, 2025: Coverage for Mental Health Injuries

• Effective January 1, 2025, New York’s Workers’ Compensation Law will permit all workers to file claims for mental injury based on extraordinary work-related stress.
• This amendment to the Workers’ Compensation Law under A5745 (the “Amendment”) expands coverage to all workers in the State of New York whereas previously, only certain first responders were eligible for such benefits.
• The Amendment eliminates the requirement for stress to be a result of a work-related emergency.

March 1, 2025: Retail Worker Health and Safety Act

• Retail employers with 10 or more employees must adopt the Department of Labor’s forthcoming model retail workplace violence prevention policy and training and provide notice to all employees of same.
• The comprehensive policy includes identification of workplace violence risks (such as working alone, late at night, or handling large amounts of money); methods to mitigate these risks; and employee protection from retaliation when reporting safety concerns.
• Employers must provide interactive training for all employees upon hire and annually thereafter, covering de-escalation strategies, active shooter response drills, use of panic buttons and other safety devise, and emergency response protocols specific to each worksite.
• The effective date could potentially be pushed to June 2, 2025.

May 8, 2025: Amendments to 2018 Lactation Accommodation Law (NYC EMPLOYERS ONLY)

• Effective May 8, 2025, employers in New York City will be required to physically and electronically post a copy of their written lactation accommodation policy.  Employers will be required to post the policy in an area accessible to employees and electronically on the employer’s intranet (if it exists).  This NYC law applies only to employers with four or more employees.
• Employers should keep in mind that this posting obligation is in addition to employers’ obligation to distribute a written lactation policy to employees upon hire.  State law requires all New York employers, regardless of size, to make reasonable efforts to provide a room (other than a restroom) or other location where an employee may express milk in privacy. 

June 1, 2025: Fashion Workers Act

• Effective June 1, 2025, the Fashion Workers Act will require model management companies to register their business within one year of the effective date, i.e., June 1, 2026.
• The Fashion Workers Act will impose several duties and responsibilities on both model management companies and clients related to working with models in New York and is aimed at providing greater protections for fashion workers and introduces regulations aimed at implementing labor protections for models and creatives.

June 1, 2025: Warehouse Worker Injury Reduction Program

• Effective June 1, 2025, to comply with the Warehouse Worker Injury Reduction Program, certain New York warehouse employers will need to prepare and implement a program identifying and minimizing the risks of musculoskeletal injuries to their employees, which are the leading cause of injury that results in workers missing work. 
• To comply with the Warehouse Worker Injury Reduction Program, employers that employ more than 100 employees at a single warehouse distribution center, or more than 1,000 employees at one or more warehouse distribution centers within New York, must establish an injury reduction program and work with employees to continuously evaluate and reduce or eliminate musculoskeletal risks and injuries in the workplace.

July 31, 2025: COVID-19 Leave

• New York’s COVID-19 paid quarantine leave expires.
• Currently, New York law requires employers to provide paid sick leave in the event of an order of quarantine or isolation related to COVID-19, in addition to other leave entitlements. Effective July 31, 2025, employers will no longer be required to provide employees with separate Paid Emergency Leave for COVID-19-related quarantines and isolations.
• After July 31, 2025, employees who need time off to manage care or isolate for COVID-19 will need to use existing paid leave laws including New York State’s Paid Sick Leave and New York City’s Earned Sick and Safe Time.

If you have any questions about the subject of this article and its implications for your business, please contact Forework.

To date, two federal agencies’ attempts to ban or deem non-compete agreements invalid have failed and it is expected that any further attempts by these agencies to invalidate non-compete agreements will fail under the Trump administration, leaving non-compete agreements a legitimate way to protect an employer’s interests from unfair competition under federal law. However, more states have adopted laws restricting the use of non-competes for lower-paid employees and medical professionals, with state courts issuing decisions invalidating non-compete agreements that were found to be overly broad or not supported by adequate consideration. 

By way of background, in April of 2024, the Federal Trade Commission (“FTC”) adopted a rule banning new non-competes and prohibited enforcement of already executed agreements, with limited exceptions, for all employees because such restrictions limit workers’ mobility and lead to lower pay. The rule was set to take effect on September 4, 2024 but failed, as two federal courts (one in Texas and one in Florida) issued injunctions blocking the rule before it could become effective.  Although the FT has filed appeals, the likelihood that the FTC will try to enforce this ban under the Trump administration is minimal.

The other federal agency, the National Labor Relations Board (“NLRB”), issued a memo via its then-General Counsel, Jennifer Abruzzo, in 2023 to all NLRB Regional Directors, Officers-in-Charge, and Resident Officers stating her position that non-compete provisions in employment contracts and severance agreements violate the National Labor Relations Act, except in limited circumstances, and later took the position that an employee should be entitled to “make whole relief” if the NLRB determines an employer utilized an unlawful non-compete.  In practice, this would mean employees could pursue monetary damages against their former employer for alleged lost wages related to missed job opportunities they had not pursued because of the purported unlawful non-compete. However, Ms. Abruzzo was terminated by President Trump on January 27, 2025 and it is expected that these NLRB directives will likely be rescinded by the new Trump-appointed NLRB General Counsel. 

Currently, four states ban the use of non-competes entirely and 33 states, plus Washington, D.C., have legislation restricting their use.  In 2025, Louisiana, Maryland and Pennsylvania will prohibit or limit the use of non-competes for various types of health care professionals, joining 17 other states, including Colorado, Indiana, Kentucky, Tennessee and Texas, which have some limits on non-competes for health care professionals. For example, Pennsylvania’s new law limits non-competes for health care practitioners to one year and voids non-competes for health care practitioners who are dismissed by their employers.  States have continued to adopt salary-level thresholds for the use of non-competes, and increased limits on non-competes at the state level are expected to continue in 2025.  

In New York State, Governor Hochul vetoed a proposed law banning noncompete agreements in 2024 which would have covered all individuals, i.e., individuals performing work or services for an organization who are in a position of economic dependence on that organization and provided them with the right to bring a civil action against their employer. At the time, Governor Hochul indicated that she would support a bill that allows noncompete agreements for high earners.   Most recently, a bill introduced in the New York State Senate on February 10, 2025, would prohibit nearly all non-compete agreements arising in employment, and consistent with a national trend, non-competes for healthcare professionals would be banned. The proposed bill defines “highly compensated individual” as “any individual who is compensated at an average annualized rate of cash compensation … equivalent to or greater than [$500,000] per year” and “health related professional” includes physicians, physician assistants, chiropractors, dentists, perfusionists, veterinarians, physical therapists, pharmacists, nurses, podiatrists, optometrists, psychologists, occupational therapists, speech pathologists, audiologists, and mental health practitioners, all as licensed under New York law. If the legislature passes the bill and it is sent to the governor for signature, Governor Hochul can sign it, veto it, or secure changes through a chapter amendment process. Employers should stay apprised of pending legislation, and in the meantime, should review the terms of their non-compete provisions to ensure that their non-compete language is reasonable in geographic scope and duration and supported by sufficient (and not nominal) consideration and ensure that the terms are compliant with state law where the employee is working, including any applicable salary threshold requirements. Employers should also consider strengthening their non-solicitation provisions and confidentiality provisions. If you have any questions about the subject of this article and its implications for your business, please contact Forework. 

Wearable technologies, including smart watches, rings and other digital devices designed to track the wearer’s bodily movements and location, as well as collect biometric information and other data in real time, are changing the landscape of the workplace. Workplaces have seen an increased use in these wearables, leading to the enactment of new laws and regulatory guidance from several states and administrative agencies surrounding the use of such technologies.

Among these is a fact sheet issued by the U.S. Equal Employment Opportunity Commission (“EEOC”) titled “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws” (found here) which provides guidance on how the federal equal employment opportunity laws may apply to employers’ use of wearable devices where such wearable devises may pose compliance issues for employers and their agents.  Generally speaking, it is clear that the fact sheet indicates a growing concern over the use of employee-monitoring technologies. 

One of the biggest risks is employee privacy. Several state and federal laws, such as the Americans with Disabilities Act (ADA) and state biometric information laws, protect certain information given by employees to their employers.  For instance, the ADA limits disability-related inquiries or medical examinations for all employees, not just those with disabilities, to situations when it is “job related and consistent with business necessity” for a specific employee or otherwise permitted under the ADA.  Disability-related inquiries or medical examinations are allowed in a few limited circumstances, which have specific requirements, but if an employer uses wearables to conduct disability-related inquiries or medical examinations outside one of such exceptions (including when required by federal, safety-related laws or regulation; for certain employees in positions affecting public safety; and/or if the inquiry or examination is voluntary and part of an employee health program), then those inquiries or examinations may pose compliance risks. 

The EEOC’s guidance provides that wearable technologies may constitute “medical examinations” and/or “disability-related inquiries” in violation of the ADA.  To determine whether a test or procedure is a medical examination under the ADA, the EEOC will consider several factors, including whether the test measures an employee’s performance, whether the test is normally given in a medical setting, and whether medical equipment is used. Wearable technologies may be deemed to be conducting medical examinations when they track and collect information about an employee’s physical or mental condition, such as blood pressure monitors and eye trackers, and they may also be deemed to be conducting medical examinations where they are conducting diagnostic testing, such as EEGs.

Other risks include employee health, data security, and data interpretation. For instance, if an employer collects medical or disability-related data from wearable devices, the ADA requires employers to maintain that data in separate medical files and treat it confidential medical information with limited exceptions.  The EEOC’s guidance also states that employers must abide by equal opportunity laws when using information collected by wearables and cannot use such information to discriminate against employees based on a protected characteristic, which includes (but is not limited to) race, color, religion, sex, national origin, age, disability, and genetic information.  For example, according to the EEOC, employers may violate non-discrimination laws by using data from wearable technologies to infer that an employee is pregnant and then taking an adverse action against the employee as a result.

The EEOC guidance also provides that an employer also may need to make an exception to a wearables policy as a reasonable accommodation under Title VII (such as religious belief, practice or observance), the ADA (for a disability) or the Pregnant Workers Fairness Act (for pregnant employees, childbirth, or related medical conditions), even if the ADA were to allow the employer to use wearables to collect medical information.

It is important to note that this guidance was issued at the end of Biden’s Administration, and it remains to be seen whether the EEOC under the Trump Administration will rescind or amend this guidance. In the meantime, employers who used wearable technologies in the workplace should review and ensure that the type of information collected by such wearable technologies is compliant under the ADA, evaluate the accuracy and validity of the information before making any adverse employment decision based on that information while ensuring that such information is not used to discriminate against employees on the basis of a protected characteristic. 

If you have any questions about the subject of this article and its implications for your business, please contact Forework.

Effective May 8, 2025, employers in New York City will be required to physically and electronically post a copy of their written lactation accommodation policy. Employers will be required to post the policy in an area accessible to employees and electronically on the employer’s intranet (if it exists). This NYC law applies only to employers with four or more employees.

Employers should keep in mind that this posting obligation is in addition to employers’ obligation to distribute a written lactation policy to employees upon hire. State law requires all New York employers, regardless of size, to make reasonable efforts to provide a room (other than a restroom) or other location where an employee may express milk in privacy. 

Per New York State law, employers must provide employees 30 minutes of paid break time to express milk. Now, both the state and NYC law will require all employers to provide 30 minutes of paid break time and allow employees to use other paid break or mealtime for time in excess of 30 minutes. 

NYC’s new posting requirement of the employer’s written lactation accommodation policy bolsters the state’s requirement to provide unpaid lactation breaks and, whereas state law requires an employer to make “reasonable efforts” to provide a location for expressing milk, NYC employers are specifically required to engage in a cooperative dialogue to determine what, if any, accommodations may be available, and to provide the employee with a written notice regarding whether any accommodation was ultimately granted or denied. 

NYC employers should inform and train managers about this new law to ensure they are well equipped to handle any employee requests for lactation breaks and should review and revise their current policies and practices and update their physical and electronic postings to ensure that they meet this posting obligation.

On January 20, 2025, the Trump administration began acting in several areas, including issuing an executive order that directly contradicts recent guidance from the Equal Employment Opportunity Commission (EEOC) on harassment and misgendering in the workplace.

EEOC’s April 2024 Guidance on Workplace Harassment and Misgendering

Under the Biden Administration, the EEOC implemented several employee-friendly initiatives to enhance protections, one of which was an update to the agency’s guidelines on workplace harassment in April 2024. This revised guidance expanded the definition of harassment to include various forms of discrimination, particularly those involving gender identity.

The new guidance clarified that workplace harassment could include misgendering—intentionally and repeatedly referring to someone by pronouns or a name that does not reflect their gender identity. It also addressed barriers to restroom access, noting that preventing employees from using restrooms that align with their gender identity is considered harassment.

With these updates, the EEOC reinforced its commitment to safeguarding employees from discrimination based on gender identity, making it clear that such harassment and mistreatment would not be tolerated.

President Trump’s Executive Order on Gender Recognition

In stark contrast to the EEOC’s guidance, President Trump and his administration took bold action by signing the Executive Order titled, “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government” (the “EO”). The EO declares that “[i]t is the policy of the United States to recognize two sexes, male and female.” The EO explicitly rejects “gender ideology,” which, according to the EO, includes the notion “that males can identify as and thus become women and vice versa” and “it is possible for a person to be born in the wrong sexed body.”

The executive order explicitly states that these sexes are “not changeable and are grounded in fundamental and incontrovertible reality,” further clarifying that “sex” does not equate to “gender identity.” This policy directly challenges the EEOC’s April 2024 guidance and appears to affect the interpretation and enforcement of federal laws, including Title VII of the Civil Rights Act of 1964.

Legal Implications

The conflict between the Biden-era EEOC guidance and President Trump’s executive order raises significant legal concerns. Federal agencies, courts, and employers must navigate competing interpretations of sex-based protections in the workplace, especially since laws like Title VII protect against discrimination based on gender identity, transgender status, and sexual orientation. The Trump administration’s approach may lead the EEOC to reduce enforcement of transgender rights under Title VII or take a different stance altogether, possibly considering accommodations like bathroom access for transgender employees as discriminatory.

This issue is far from settled, and President Trump is expected to take additional actions soon. The long-term impact will depend on court rulings and potential legislative changes in the coming months. However, until Congress amends laws like Title VII, private employers are still bound by existing law, not the executive order. This may lead to litigation, but for now, employers should continue to follow the law and case precedents, while staying aware of the policy shift under the Trump administration.

Implications for Private Employers:

• Employers should prepare to address questions from employees, particularly LGBTQI+ employees and allies, about any policy changes.
• Employers with anti-discrimination, harassment, and retaliation policies based on gender, gender identity, and gender expression can reassure employees about the company’s commitment to a safe and inclusive workplace.
• Given the EEOC’s focus on creating “single-sex spaces at work,” employers may face conflicting obligations under federal and state law.
• Employers should stay informed on federal developments, such as potential litigation over restroom access and biological sex, which may be prioritized by the new EEOC.
• Employers must also remain mindful of state laws that prohibit discrimination, harassment, and/or retaliation based on gender identity and sexual orientation.
• Expect revisions to the EEOC’s “Know Your Rights: Workplace Discrimination is Illegal” poster, which employers are required to display on-site, due to changes resulting from the executive order.
• Anticipate changes to reporting options on identification forms, particularly regarding gender information, as some government forms may no longer allow non-binary or similar gender identity data due to the executive order.

If you have any questions regarding this executive action and its implications, please feel free to contact Forework..

When employees leave a company, there is a heightened risk of data theft, including trade secrets or confidential business information. The risk is present whether an employee’s departure is voluntary or not and could cause damage to business operations and legal or regulatory consequences like data breach notifications.

Common reasons a departing employee may take corporate data:

• To secure a new job or compete with a former employer— A departing employee may use a company’s trade secrets or intellectual property to gain an advantage when seeking a new job or competing with their previous employer.
• For personal financial gain— A former employee might sell the stolen data or use it to launch their own business.
• To seek revenge— Disgruntled employees may intentionally sabotage their former company’s operations by destroying data in retaliation for how they were treated during their departure.
• By accident— Not all data theft is intentional; departing employees may mistakenly believe the data belongs to them or fail to properly erase business-related data from their devices.

Safeguarding Trade Secrets

Trade secrets generally refer to information that has commercial value because it’s kept secret, such as formulas, methods, programs, etc. Under the Uniform Trade Secrets Act (UTSA), businesses must demonstrate reasonable measures to protect these secrets. Reasonable safeguards include:

• Restricting access to sensitive data.
• Requiring confidentiality agreements.
• Regular employee data security training.
• Monitoring data access or downloads.

Failure to protect trade secrets may result in losing legal protections if such trade secrets are stolen. Companies should consult with trusted IT and legal advisors to ensure they have adequate safeguards.

Data Breach Concerns

Departing employees may also take personal information, e.g., employee data, which could trigger data breach obligations. This includes not only social security numbers, but financial, health and biometric data as well as online credentials and government IDs. Unauthorized access to such information may require notification to affected individuals and authorities.

Regulatory and Contractual Implications

Companies may face additional obligations such as SEC regulations for publicly traded companies if data theft is material, industry-specific reporting for sectors like healthcare or energy, and contractual obligations to notify affected parties if confidential data is compromised. Ignoring these can lead to fines, lawsuits, and reputational harm.

Key Takeaways for Employers

A proactive, comprehensive strategy minimizes legal exposure and business risks.

Assess stolen data to determine legal obligations (personal info, trade secrets, etc.).

Evaluate legal and regulatory requirements for notifications and disclosures.

Leverage contractual protections to address the theft.

Strengthen safeguards: Implement data protection measures, employee training, and enhanced exit procedures.