In response to New York State’s newly enacted paid prenatal leave mandate, the New York City Department of Consumer and Worker Protection (DCWP) has revised its regulations under the NYC Earned Safe and Sick Time Act (ESSTA). These amendments, which take effect on July 2, 2025, incorporate specific requirements for the administration of prenatal leave by employers within the city.

Overview of the Statewide Mandate

Starting January 1, 2025, all New York employers must provide up to 20 hours of paid leave in any 52-week period for prenatal medical appointments and pregnancy-related healthcare services. This benefit is immediately accessible to employees upon a qualifying need and is in addition to other leave entitlements, including sick leave. Employers are prohibited from demanding sensitive medical details or documentation as a condition for using this leave.

Key Changes to ESSTA Rules

To harmonize local requirements with the state law, NYC’s updated ESSTA rules clarify several employer responsibilities:

1. Pay Stub and Leave Usage Disclosure

For every pay period during which an employee uses paid prenatal leave, employers must inform the employee in writing of:

• The amount of paid prenatal leave used during that pay period, and
• The remaining balance available.

This disclosure can be provided on the employee’s pay stub or in a separate written statement, similar to ESSTA’s existing reporting obligations.

2. Mandatory Written Policy

Employers must now implement a standalone written policy addressing paid prenatal leave. At a minimum, this policy must include:

• A clear statement that employees are entitled to a separate bank of 20 hours of paid prenatal leave per 52-week period.
• Rules regarding how leave can be requested and in what increments.
• Disciplinary guidelines for misuse.
• A confidentiality statement affirming that employees will not be required to disclose private health information and that any information received will be kept confidential.

Employers must distribute this policy:

• At the time of hire,
• Within 14 days of any revisions, and
• Upon employee request.

3. Use of Other Leave Prohibited

The new rules align with guidance from the New York State Department of Labor in affirming that employers:

• May not require employees to use or exhaust other leave before or instead of paid prenatal leave, and vice versa.
• May not mandate substitution of prenatal leave with other forms of leave.

However, with mutual agreement, employers and employees may opt to modify work schedules instead of using prenatal leave time.

4. No Make-Up Time or Shift Coverage Required

Employers cannot require employees who use paid prenatal leave to:

• Work extra hours to compensate for missed time, or
• Find someone to cover their shift during their absence.

Next Steps for Employers

With the July 2, 2025 effective date approaching, NYC employers should:

• Review and update workplace policies and handbooks to include a compliant prenatal leave policy.
• Adjust payroll systems to track and report prenatal leave usage.
• Train HR and supervisory staff on the new requirements and confidentiality obligations.

If you have any questions regarding Prenatal Leave Law, please contact any member of the Forework team.

On June 2, 2025, the U.S. Department of Labor (DOL) announced a significant relaunch and broadening of its Opinion Letter Program, a long-standing initiative aimed at helping the public navigate complex labor law questions. The Program provides formal, written interpretations of how DOL enforcement agencies would apply federal labor laws in particular workplace situations.

These opinion letters are a valuable compliance resource for employers, employees, and their advisors. They offer clarity on how the law applies to specific factual scenarios and can be requested by anyone—businesses, trade associations, unions, or individuals—seeking guidance on nuanced or uncertain areas of the law.

Expanded Scope Across DOL Agencies

The newly relaunched Program now encompasses five major DOL enforcement agencies, each contributing to the initiative through distinct forms of interpretive guidance:

• Wage and Hour Division (WHD): Will resume issuing formal opinion letters on matters such as wage payment obligations, exemptions under the Fair Labor Standards Act (FLSA), and leave requirements under the Family and Medical Leave Act (FMLA).
• Veterans’ Employment and Training Service (VETS): Will also issue opinion letters related to veterans’ employment protections.
• Occupational Safety and Health Administration (OSHA): Will provide interpretive letters clarifying workplace safety and health regulations.
• Employee Benefits Security Administration (EBSA): Will issue information letters and advisory opinions addressing questions under ERISA and related employee benefits laws.
• Mine Safety and Health Administration (MSHA): Will disseminate regulatory updates, training materials, and other forms of compliance guidance through a new centralized information hub.

Historical Context and Administrative Trends

The DOL’s approach to opinion letters has fluctuated across administrations. The Obama-era DOL discontinued the use of WHD opinion letters in favor of more general administrator interpretations. The Trump administration reinstated the practice, resulting in the issuance of over 70 letters between 2018 and early 2021. The Biden administration scaled back the volume of such guidance, issuing only a limited number during its term.

This latest relaunch signals a renewed emphasis—under the current administration—on proactive compliance assistance, transparency, and greater stakeholder engagement.

Benefits of the Opinion Letter Program

The expanded Program offers several key advantages to the regulated community:

1. Proactive Risk Mitigation: Employers can seek preemptive guidance on legal gray areas, potentially reducing the likelihood of enforcement actions or litigation.
2. Policy Insight: Letters may reflect evolving interpretations of labor laws and provide early indications of shifting enforcement priorities.
3. Centralized Access and Submission Portal: The DOL has launched a dedicated website where the public can access existing guidance and obtain instructions for submitting new requests for opinion letters or related interpretations.

Practical Considerations for Employers

While opinion letters can serve as persuasive authority in court and provide a strong foundation for compliance efforts, they are not binding on courts and do not carry the same weight as formal regulations. Moreover, not every request results in the issuance of an opinion letter, and the DOL exercises discretion in determining which inquiries merit a response.

Employers should consider working with experienced legal counsel to:

• Assess whether an opinion letter request is appropriate for a particular workplace issue,
• Frame and submit the request in a way that enhances the likelihood of a favorable and actionable response, and
• Align internal policies with the latest DOL guidance to strengthen compliance and limit exposure.

If you have any questions regarding the Opinion Letter Program, please contact any member of the Forework team.

On May 1, 2025, the U.S. Department of Labor’s Wage and Hour Division announced that it will no longer enforce its 2024 Final Rule governing independent contractor classification under the Fair Labor Standards Act (FLSA). Instead, the agency will apply the framework set out in a 2008 Fact Sheet and a previously withdrawn 2019 Opinion Letter.  This will likely alleviate and reduce some of the exposure to liability for companies who misclassify workers (knowing or unknowingly) under the FLSA. 

Key Points from the DOL’s Announcement

• The 2024 Final Rule remains in effect for private litigation, but the DOL will not use it in agency investigations that involve unpaid wages or settlements initiated on or after May 1, 2025.
• The DOL explained it is reevaluating the 2024 Final Rule and may ultimately rescind or revise it.
• In the interim, the DOL will rely on prior guidance to assess whether a worker is an employee or an independent contractor under the FLSA.

The 2008 Framework

The DOL’s 2008 guidance emphasizes an “economic reality” test rather than formal technical concepts. The following factors are considered significant:

• Whether the work is an integral part of the business
• The permanence of the working relationship
• The worker’s investment in tools, equipment, or facilities
• The level of control exercised by the employer
• The worker’s opportunity for profit or loss
• The degree of initiative or judgment used in competing in the marketplace
• The extent to which the worker operates an independent business

Certain elements are not considered relevant when assessing employment status, including:

• The location where work is performed
• Whether a written agreement exists
• Whether the worker holds a state or local license
• The method or timing of compensation

Reference to the 2019 Opinion Letter

The 2019 Opinion Letter, now informing current DOL enforcement, analyzed whether workers for an online marketplace platform were employees or independent contractors. It concluded that the workers were independent contractors based on their economic independence and application of the same core factors.

What Employers Should Know

The DOL may issue further rulemaking in this area. For now, employers should evaluate contractor classifications under the 2008 economic reality framework and stay informed on any forthcoming updates. Legal counsel can assist in reviewing worker classifications to ensure compliance with the evolving enforcement standards.

If you have any questions regarding the independent contract rule, please contact any member of the Forework team.

In 2024, the Federal Trade Commission (FTC) introduced a rule that would have prohibited noncompete agreements nationwide. However, employers challenged the rule in multiple forums and secured victories before the National Labor Relations Board and U.S. District Courts in Texas and Florida. These outcomes led to a permanent injunction blocking the rule as of August 20, 2024.

Status of the Appeals

• The FTC appealed the Texas and Florida decisions to the Fifth and Eleventh Circuit Courts of Appeals.
• In February 2025, FTC Chairman Andrew Ferguson indicated the agency would reevaluate its strategy.
• Ferguson also directed the formation of a labor task force to investigate deceptive and anticompetitive labor practices, including noncompete agreements.
• The FTC requested a 120-day stay in both appeals, which was granted. The cases are now on hold until July 2025.

Impact on Employers

With the FTC rule on hold, the enforceability of noncompete agreements continues to be governed by state law, which varies widely across jurisdictions. Some states, such as California, broadly prohibit noncompete agreements, while others, like Ohio, are considering similar restrictions. In Washington, employers may face penalties if they attempt to enforce a noncompete that is deemed invalid under state law.

Alternative Protections for Employers

Even in states where noncompetes are unenforceable, employers can use alternative contractual protections:

• Confidentiality clauses to safeguard proprietary information.
• Non-solicitation clauses to prevent former employees from targeting clients or co-workers.

Although these measures offer more limited protection than noncompete agreements, they still help preserve business interests.

Recommended Next Steps

Employers should consult with legal counsel to ensure their agreements align with current state law. Regular reviews are especially important as state-level legislation continues to evolve.

If you have any questions regarding noncompete agreements, please contact any member of the Forework team.

A federal judge has blocked a recent effort by the Trump administration to roll back Temporary Protected Status (TPS) for approximately 600,000 Venezuelan immigrants living in the United States. The ruling preserves the protections currently in place, allowing beneficiaries to remain in the country without immediate risk of deportation.

TPS was originally extended to Venezuelans due to the ongoing political and economic crisis in their home country. The program allows individuals from designated nations to live and work legally in the U.S. if returning to their home country would pose a threat to their safety.

The court’s decision emphasized the potential hardship that could result if protections were removed, particularly given Venezuela’s continued instability. While the administration had sought to narrow the program, the judge found that doing so at this time would be premature and potentially harmful to those affected.

Immigrant advocacy groups have responded positively to the ruling, citing the importance of maintaining humanitarian protections. The decision adds to the broader legal and political conversation surrounding U.S. immigration policy, particularly in how it addresses individuals fleeing crisis situations abroad.

Those currently protected under TPS are encouraged to monitor official updates and consult with legal professionals to stay informed about any future developments.

If you have any questions regarding TPS, please feel free to contact Forework.

In recent years, employers have encountered evolving federal and state requirements related to discrimination, harassment, and retaliation in the workplace. These developments arise from changes in agency guidance, such as the EEOC’s revised stance on sexual harassment, new legislation expanding protected classes, and shifting judicial standards that lower the threshold for proving harm in employment discrimination cases.

A critical component of any effective response to a complaint is a properly conducted workplace investigation. Investigations serve to gather relevant facts from the complainant, the accused, and any witnesses, and to review documentation and other evidence so that employers can take appropriate corrective action when necessary.

Key Considerations for Workplace Investigations

• Tailor the investigation to the situation: There is no one-size-fits-all approach. The scope and formality of an investigation should reflect the seriousness of the complaint. While some cases may call for formal interviews or external counsel, others may be addressed with a more streamlined approach. At a minimum, investigations should include interviews with both the complainant and the alleged wrongdoer and should be thoroughly documented.
• Investigate informal complaints: Employers should not wait for a formal, written complaint. An investigation should be initiated when an employee makes a verbal or informal report suggesting a potential policy or legal violation.
• Consider external investigators when appropriate: While internal HR personnel often conduct investigations, the use of external, impartial investigators may be preferable in certain scenarios, such as serious allegations, potential litigation, or when termination of employment may be a potential outcome.
• Remote interviews are acceptable: Interviews may be conducted in person or via video conferencing, especially when logistics or costs make in-person meetings impractical. Video interviews are generally preferred over phone calls for better assessment of witness credibility. Oral interviews, supported by thorough documentation, may be more effective than requiring written witness statements.
• Preserve evidence early: Depending on the nature of the allegations and the likelihood of litigation, employers should consider issuing evidence preservation notices to relevant parties. These can be formal written letters or informal verbal instructions, reminding individuals not to delete potentially relevant records or communications.
• Communicate investigation outcomes thoughtfully: While confidentiality is important, employers should generally inform both the complainant and the alleged wrongdoer of the outcome, i.e., whether a policy violation was substantiated. Details of disciplinary action, however, need not be disclosed. Employers should also take steps to prevent retaliation and consider following up periodically with the complainant to monitor for ongoing issues.
• Invest in training and prevention: Proactive employers are better positioned to manage workplace complaints. Organizations should implement clear reporting procedures and train employees on policies related to harassment, discrimination, and workplace conduct.

By taking a thoughtful and flexible approach to investigations, as well as documenting each step, employers can respond effectively to complaints, reduce legal risk, and foster a respectful workplace environment.

If you have any questions regarding workplace investigations, please feel free to Forework.

In recent weeks, the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) have announced the formation of new task forces, both public and private, aimed at identifying and eliminating practices that restrict competition. These initiatives reflect heightened federal attention to labor market fairness and regulatory reform under the Biden and Trump administrations, respectively.

DOJ: Anticompetitive Regulations Task Force

On March 27, 2025, the DOJ unveiled its Anticompetitive Regulations Task Force, which will focus on eliminating state and federal laws that suppress free-market competition.

Key initiatives include:

• Public engagement: The DOJ is soliciting public comments through May 26, 2025, on laws and regulations that hinder competition in key sectors, including:
  • Housing
  • Transportation
  • Food and agriculture
  • Healthcare
  • Energy
• Interagency collaboration: The DOJ will partner with federal and state agencies to identify and repeal regulations that restrict competition.
• Advocacy efforts: The DOJ will support deregulation through legal briefs, public comments on legislation, and litigation support.

These efforts align with President Trump’s Executive Orders 14192 and 14219, which direct federal agencies to reduce unnecessary regulatory burdens and promote small business growth.

FTC: Joint Labor Task Force

On February 26, 2025, FTC Chairman Andrew N. Ferguson announced the formation of a Joint Labor Task Force to investigate and address unfair, deceptive, and anticompetitive practices in labor markets.

The task force will:

• Prioritize investigations and enforcement actions targeting:
  • Noncompete and non-solicitation agreements
  • No-poach or no-hire agreements
  • Wage-fixing and labor monopsonies
  • Deceptive job advertising and business opportunities
  • Occupational licensing barriers and job scams
• Coordinate internally across FTC bureaus to share best practices and enhance enforcement.
• Promote research on harmful labor practices and advocate for policy reforms.
• Conduct outreach to educate workers and encourage reporting of violations.

This initiative builds on previous FTC enforcement priorities and reinforces the agency’s continued focus on labor market competition, despite shifts in broader regulatory policy.

Looking Ahead

While the DOJ and FTC are approaching competition enforcement from different angles, both initiatives signal an aggressive posture toward removing structural barriers to market entry and worker mobility. Employers and industry participants should monitor these developments and assess potential compliance risks under evolving federal enforcement strategies.

If you have any questions regarding these newly established task forces, please feel free to reach out to Forework.

Generally speaking, public accommodations must allow service animals accompanying individuals with disabilities onto their premises.  A recent Florida federal court’s decision provides insight on how to handle a situation where allowing service animals places others with severe allergies at risk.

In the Florida federal court case, the plaintiff had a service dog which was trained to perform tasks to alert plaintiff to, and mitigate, self-harming behavior caused by post-traumatic stress disorder (“PTSD”), anxiety, and bipolar disorder. The plaintiff brought the service dog to an appointment with a new doctor who, upon seeing the dog, informed her employee that she was severely allergic to dogs and could not see the plaintiff with the dog.  The employee then informed the plaintiff of possible modifications to her visit with the doctor, explaining that the plaintiff could either see the doctor while the service dog waited outside, or she could see a different doctor.   The plaintiff then accused the medical practice of violating the ADA.

In analyzing the facts of the case and the law, the court noted the Department of Justice’s guidance that “allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals” and “when a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.”  However, the court held that “despite this rule, a service animal may nonetheless be excluded if it poses a direct threat to the health and safety of persons providing or receiving services from an accommodation.”  Per the court, the medical practice had properly conducted “an individualized assessment” of the direct threat to the doctor and considered “reasonable modifications” to mitigate those risks, and its conclusion was objectively reasonable.  The court emphasized that the regulation (28 C.F.R. § 36.208(b)) requires only a “reasonable judgment,” not a perfect one.  

Employers should ensure that they have practices in place to ensure that assessment of a situation posing a direct threat to someone else as a public accommodation aligns with the court’s reasonableness test, and that accommodations are made while simultaneously mitigating the risk to the health and safety of others.  If you have any questions about the subject of this article and its implications for your business, please contact Forework.

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.