On March 25, 2025, the United States Court of Appeals for the Second Circuit in Tudor v. Whitehall Central School District vacated the Northern District of New York’s grant of summary judgment in favor of the Whitehall Central School District (the “District”) on a failure-to-accommodate claim brought by a teacher in the District under the Americans with Disabilities Act (ADA).  In reversing the lower court’s decision, the court held that the ADA does not require employers to provide only necessary accommodations and that a reasonable accommodation may be required even when the employee can perform the essential functions of their job without the accommodation.  Accordingly, employers cannot simply deny an individual an accommodation just because an employee can perform their job without it; instead, employers must consider the overall reasonableness of the accommodation and whether it will cause an undue hardship on the employer to provide the accommodation.

In Tudor, a teacher sued the District for failing to provide an accommodation in the form of a 15-minute break off campus during her scheduled prep period.  The teacher had suffered from post-traumatic stress disorder (“PTSD”) related to sexual harassment and sexual assault by a supervisor in her former workplace which affected her neurological functioning and interfered with her ability to perform daily tasks, among other things.  The District had previously provided accommodations to the teacher, allowing her to leave campus for one fifteen-minute break during certain periods in the morning and afternoon when she was not responsible for overseeing students.  However, following a change in school administration, the District implemented a prohibition on teachers leaving school grounds during the day.  

Initially, the District still allowed the teacher to take breaks when another staff member could supervise the students, but when another staff member was generally unavailable to cover for the teacher, the teacher still left, knowing that taking breaks in this way violated the District’s policy.  The teacher claimed that this awareness heightened her anxiety but admitted that she could still perform the essential functions of her job without the accommodation.  This admission led the district court to grant summary judgment in favor of the District, holding that the teacher’s ability to perform her job without an accommodation meant that she could not establish the District had failed to provide her with one.

The Second Circuit reversed on the basis of the third element required for the teacher’s failure-to-accommodate claim, i.e., whether the employee was otherwise qualified to perform the essential functions of their job, with or without reasonable accommodation.  The court found that the ADA does not require employers to provide only necessary accommodations and instead requires employers to offer reasonable accommodations to all qualified individuals even if an employee can perform the essential functions of their job with or without the accommodation.  The court explained than an employee may qualify for an accommodation even if it is not strictly necessary to their performance of the essential job functions and thus, absent undue hardship on the employer, reasonable accommodations must be offered.  This holding is in line with the First, Fifth, Sixth, Eighth, Tenth, Eleventh and DC Circuits.

Employers in New York, Connecticut and Vermont should review their process for evaluating employee accommodations requests under the ADA and ensure compliance with the Second Circuit’s decision.  If you have any questions about the subject of this article and its implications for your business, please contact Forework.garding employee performance evaluations, please feel free to contact any member of Forework.   

Performance evaluations are a crucial component of effective management, serving as a tool for both employee development and legal protection. This article describes key aspects of performance evaluations, including their importance, best practices, legal considerations, and the evolving role of AI in the process.

Importance of Performance Evaluations

Performance evaluations help set expectations, provide constructive feedback, and ensure employees understand how their work aligns with company objectives. One common pitfall is the reluctance to provide honest feedback, especially when it is negative. Avoiding critical feedback can lead to confusion when employment decisions, such as layoffs or terminations, arise. Employees who have only received positive feedback may question the reasons behind their dismissal, potentially leading to legal claims.

Creating a Consistent and Interactive Evaluation Process

A well-structured evaluation process should be both consistent and interactive. Employers should establish clear, standardized criteria for evaluating employees to ensure fairness and uniformity across teams. Training managers on these standards can help eliminate inconsistencies.

Engaging employees in the process is equally important. Encouraging a two-way dialogue allows managers to identify miscommunications, clarify expectations, and foster a more collaborative work environment. Employees who feel heard are more likely to accept constructive criticism and improve their performance.

The Role of AI in Performance Reviews

While AI can assist in gathering and analyzing performance data, it lacks the nuance required for meaningful evaluations. Performance assessments should be dynamic, considering changing business needs and individual progress. Relying solely on AI-generated evaluations can lead to impersonal and potentially flawed assessments. Instead, AI should be used as a supplementary tool rather than a replacement for human judgment.

Legal Considerations and Implications

Performance evaluations play a significant role in defending against employment-related claims. In legal disputes, past evaluations serve as key evidence demonstrating an employer’s rationale for personnel decisions. If performance issues were never documented, employees may argue that termination or other adverse actions were based on discrimination or retaliation rather than legitimate business reasons.

To mitigate legal risks, employers should ensure performance evaluations accurately reflect an employee’s strengths and areas for improvement. Specific examples should be included to substantiate assessments and create a clear record of performance trends over time.

Best Practices for Delivering Constructive Feedback

While providing constructive feedback can be challenging, it is essential for employee growth and business success. Managers should focus on delivering feedback in a supportive, objective, and balanced manner. Highlighting strengths alongside areas for improvement can make critiques more palatable.

Additionally, offering resources and support, such as training programs or mentorship, can help employees address performance gaps. When employees feel that their employer is invested in their success, they are more likely to respond positively to feedback.

Key Takeaways for Employers

• Be Honest and Direct: Avoid sugarcoating performance issues in order to prevent future misunderstandings.
• Ensure Consistency: Use standardized criteria and train managers to apply them uniformly.
• Engage Employees: Encourage open discussions and solicit employee input during evaluations.
• Document Thoroughly: Maintain accurate records of performance assessments to support employment decisions.
• Balance Feedback: Combine positive reinforcement with constructive criticism to foster growth.

A well-executed performance evaluation process benefits both employers and employees by promoting transparency, improving productivity, and mitigating legal risks. By incorporating these best practices, organizations can create a fair and effective system that supports long-term success.

If you have any questions regarding employee performance evaluations, please feel free to contact any member of Forework.   

On November 15, 2024, the United States District Court for the Eastern District of Texas in State of Texas v. United States Dep’t of Labor held that the U.S. Department of Labor (DOL) exceeded its rulemaking authority when it released its updated federal overtime rule in April 2024 increasing the minimum salary for exemption as an executive, administrative, or professional (“EAP”) employee under the Fair Labor Standards Act from $684 per week ($35,568 annualized) to $844 per week ($43,888 annualized) effective July 1, 2024 and to $1,128 per week ($58,656 annualized) effective January 1, 2025.  The DOL’s new rule also increased the minimum total annual compensation level for exemption as a “highly compensated employee” (i.e., one who customarily and regularly performs any one or more of the exempt duties or responsibilities of an EAP employee) and provided for automatic triennial increases in the minimum compensation levels for exemption beginning on July 1, 2027.

The Court’s November 2024 decision declared the DOL’s rule an “unlawful exercise of agency power” and vacated it nationally.  The DOL filed an appeal with the United State Court of Appeals for the Fifth Circuit.  However, after President Trump took office, the DOL requested a 30-day extension of time, through March 7, 2025, to file its opening brief on appeal.  We do not anticipate that the DOL will make future filings under the Trump administration challenging the DOL’s authority; perhaps at most there will be a stipulation withdrawing the DOL’s appeal.

Beginning July 1, 2027, and every three years thereafter, the DOL will implement further increases in the minimum salary for exemption as an EAP employee and the minimum annual compensation level for exemption as a highly compensated employee, tied to current earnings data. Employers should determine which employees will be impacted by the new thresholds, consider whether they will increase their salaries to the new minimum or reclassify them to overtime-eligible, and if they do reclassify certain employees to overtime-eligible, consider their supervisor’s management of the overtime costs and have a clear understanding of what hours are considered “hours worked”. If you have any questions about the subject of this article and its implications for your business, please contact your Forework HR representative.

Employers should ensure compliance with all relevant provisions of the New Jersey Domestic Workers Bill of Rights (“NJ Bill of Rights”) which went into effect on July 1, 2024, and outlines the rights of domestic workers employed in private households.  Specifically, the NJ Bill of Rights provides protections for, and establishes guidelines related to, the hiring of hourly or salaried individuals who work in a residence to provide services such as childcare, care for the elderly or disabled, housekeeping, cooking, food service, parking cars, cleaning, laundry, gardening, personal organizing, or other household duties. 

A domestic worker is an hourly or salaried employee, whether full-time, part-time, or temporary, who works in a residence to provide services such as childcare, care for the elderly or disabled, housekeeping, cooking, food service, parking cars, cleaning, laundry, gardening, personal organizing, or other household duties.  Note that the term domestic worker explicitly excludes several categories, including: (1) family members; (2) individuals primarily engaged in house sitting, pet sitting, or dog walking; (3) individuals working at a business primarily run from the residence, such as a home day-care business; (4) individuals who primarily work in household repair or maintenance such as roofers, plumbers, or painters; (5) employees of the state or federal government; and (6) kinship legal guardians.

Under the NJ Bill of Rights, employees are entitled to regular pay of at least the state minimum wage.  If an employee works over 40 hours per week, that employee is entitled to 1.5 times his/her hourly rate for those hours.  Employers must provide up to 40 hours of earned sick leave for employees to care for themselves or loved ones.  Additionally, employers must provide their employees with 10-minute paid breaks every four hours and cannot prevent or discourage employees from taking rest breaks, and the employees are entitled to a 30-minute meal break after more than five hours worked consecutively.  Employers should not—and cannot, under the law—keep original copies of any personal documents belonging to their employees.  At all relevant items, employers must have Workers’ Compensation insurance for their employees, and employees are entitled to at least two weeks’ notice before any termination of employment.

Employers should ensure the proper classification of each employee; if an employee is misclassified as an independent contractor but is actually an employee, or if they are compensated in cash off the books, that worker is still entitled to his/her rights under the New Jersey Domestic Workers Bill of Rights.  Under New Jersey law, a worker is presumed an employee unless the employer is able to adequately demonstrate that the worker is free from control or direction over the performance of service; that the service provided by the worker is either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise; and that the worker is customarily engaged in an independently established trade, occupation, profession, or business.

Under the NJ Bill of Rights, employers of domestic workers working five or more hours per month must execute written contracts with their employees; this includes domestic workers such as babysitters and/or nannies who commonly have had informal arrangements with private households, but under the law, will have executed written contracts.  Employers are responsible for creating the contracts and cannot retaliate against their employees for requesting a contract.  To that end, under the law, workers are also protected under the New Jersey Law Against Discrimination, which prohibits discrimination and harassment in employment, housing, and public accommodations based on various characteristics, including race, nationality, and gender.

To comply with the NJ Bill of Rights, employers should ensure that they are aware of each of the requirements under the law; ensure accurate classification of employees versus independent contractors; have a standard written contract in place for domestic workers with the terms of employment, hours of work, compensation, and responsibilities; ensure recordkeeping of hours worked and wages paid, including any other benefits provided to the employee; provide worker’s compensation coverage and comply with all applicable occupational health and safety standards.  If you have any questions about the subject of this article and its implications for your business, please contact your Forework HR representative.

The cost of doing business includes the risk of getting sued by a former employee, whether it be for wrongful termination, discrimination, breach of contract, or unpaid wages, and employers must be prepared.

An employer may first become aware of a lawsuit filed by a former employee when the company receives a demand letter, which is typically from the former employee’s attorney and asserts legal claims that it believes the former employee has against the company and outlines certain demands that the former employee has before they actually proceed to filing a lawsuit.  Or, a former employee may decide to go straight to litigation, and the company may therefore be served with a formal legal complaint.  In either case, employers must ensure that they do not delay their response.

First and foremost, legal counsel should be contacted as soon as possible to discuss what immediate action is required and to ensure that no key deadlines are missed.  For instance, demand letters often indicate a timeline in which they are seeking a response, and if no response is provided, then the former employee will file a formal lawsuit.  In this case, the employer who fails to respond timely misses the opportunity to negotiate a settlement with the former employee and therefore faces the risk of incurring expensive litigation costs that may have been avoided.  Formal lawsuits filed, regardless of the court, operate on strict timelines.  For examples, employers who are served with a lawsuit filed by a former employee in a United States federal court must file a response to the complaint within 21 days.  If this deadline is missed, there may be a judgment against the company for failure to respond timely.

Other immediate action that will likely be required of the employer is a review of any relevant insurance policies, agreements that the former employee entered into with the company, and document retention.  For instance, many businesses carry insurance policies for former employee claims, such as a employment practices liability insurance (EPLI) coverage that can provide payment or reimbursement of legal fees, judgments and settlements.  It is imperative that employers contact their insurance broker or carriers immediately to ensure they are aware and knowledgeable of their coverage ranging from which attorneys can represent the business, what claims are covered, what the deductibles are and the coverage levels.

Employers should also check all agreements, specifically, any arbitration agreements, that the former employee signed with the company that requires employment claims to be handled through arbitration instead of through the court system.  Arbitration differs from litigation in significant respects, so it is imperative to determine whether the dispute should be arbitrated. Employers should ensure that all agreements are forwarded to their legal counsel for review and to discuss the legal implications and next steps to be taken.  Keep in mind that sometimes, arbitration agreements, or agreements that have arbitration clause, are signed as part of employee’s onboarding paperwork. 

Employers must also ensure that they and their organization have an obligation to preserve all evidence, whether physical or electronic (including evidence on messaging apps like Zoom, Teams, Slack, etc.) and that they do not delete any evidence that may be relevant to a former employee’s claim.  This obligation exists if the business has received a demand letter or has been served with a formal complaint.  The obligation to preserve evidence includes taking care not to wipe out an ex-employee’s returned company property, such as their laptop and mobile phone, and employers may need to immediately suspend automatic document destruction or deletion procedures to ensure that any potentially responsive documents are not deleted.  Employers must consider all places where relevant documents may reside, including with particular people and on any relevant company systems.  Contacting legal counsel immediately will allow a business to develop a plan for document preservation.

Finally, to prepare for initial conversations with attorneys and insurance carriers, employers should ensure that they have compiled the former employee’s personnel file, including the employee’s offer letter, job description, payroll records, any disciplinary records, performance evaluations and supporting documentation, and any agreements signed by the employee.  Employers should also have their employee handbook that was in effect during the former employee’s employment period readily accessible as well as any other relevant policies or procedures.  Employers should also assess who within the company have information relating to the allegations, whether it be the former employee’s supervisor or any other decision-makers that may have been involved in any adverse employment action alleged by the former employee.

Getting sued by a former employee can be stressful, but legal counsel is always there to assist you through the process.  If you have any questions about the subject of this article and its implications for your business, please contact your Forework HR representative.

Employers should ensure that their employees are well versed in security awareness and that the proper training is provided to them to protect the privacy and security of the company’s sensitive data.  Not only is this a best practice for employers and their employees, but it can also ensure compliance with the numerous data privacy and cybersecurity laws that mandate employee data protection training.

One such mandate is under HIPAA whereby covered entities or business associates are required to provide HIPAA privacy training as well as security awareness training to all workforce members.  Note that this training requirement may apply to employers in their role as a plan sponsor of a self-insured health plan.

Another mandate falls under the New York Department of Financial Services’ cybersecurity requirement for financial services companies whereby covered entities are required to provide cybersecurity personnel with cybersecurity updates and sufficient training to address relevant cybersecurity risks.  Similarly, the Gramm-Leach-Bliley Act and the Standards for Safeguarding Customer Information Rule requires covered financial institutions to implement a written information security program to safeguard non-public information, and the program must include employee security awareness training.  The Federal Trade Commission (FTC) expanded the definition of financial institutions in 2023 to include additional industries such as automotive dealerships and retailers that process financial transactions.

Most recently, effective February 2, 2025, the EU AI Act requires all providers and deployers of AI models or systems to ensure their workforce is “AI literate”.  This means training the employer’s workforce to achieve a sufficient level of AI literacy, taking into consideration various factors such as the intended use of the AI system.  The training should incorporate privacy and security awareness given the potential risks.  Note that the Act applies broadly and has extraterritorial reach and therefore this training obligation may apply to organizations including but not limited to: (a) providers placing on the market or putting into service AI systems or placing on the market general-purpose AI models in the Union, irrespective of whether those providers are established or located within the Union or in a third country (e.g., U.S.); (b) deployers of AI systems that have their place of establishment or are located within the Union; and (c) providers and deployers of AI systems that have their place of establishment or are located in a third country (e.g., U.S.), where the output produced by the AI system is used in the Union.  Additionally, under the EU General Data Protection Regulation, a Data Protection Officer is tasked with, among other things, training staff involved in the organization’s data processing activities.

Employers should also be aware of other security awareness training obligations in numerous other laws and regulations, whether express or implied.  This includes certain Department of Homeland Security contractors, licensees under state insurance laws modelled on the NAIC Insurance Data Security Model Law, and organizations that process payments via credit cards in accordance with PCI DSS.

Providing training on employee privacy and security is imperative to safeguard an organization’s sensitive data.  All workforce members that have access to the organization’s sensitive data and information systems—not just the IT professionals—are responsible for protecting data.  Employers should ensure that they, along with their stakeholders and HR professionals, are aware of and are providing support for such training to its workforce.  If you have any questions about the subject of this article and its implications for your business, please contact your Forework HR representative.

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.