House Republicans Postpone Votes on Key Bills. On April 1, 2025, Republican leaders in the U.S. House of Representatives canceled all remaining votes for the week after they failed to squash an effort within their own ranks to allow new parents in the House to vote by proxy. The unexpected abbreviated work week means that anticipated votes on the Safeguard American Voter Eligibility (SAVE) Act (a bill that passed the House in July 2024 that would require proof of citizenship to register to vote in federal elections) and the No Rogue Rulings Act (a bill that would prohibit federal district courts from issuing orders providing for injunctive relief beyond the parties to the litigation, meaning no nationwide injunctions) have been postponed. The Buzz will continue to monitor these bills when the House returns to Washington, D.C.

President Trump Sends Nominations for WHD Administrator, DOL Solicitor, to Senate. The political appointee picture at the U.S. Department of Labor (DOL) continues to come into focus. Secretary of Labor Lori Chavez-DeRemer and Deputy Secretary Keith Sonderling are already in place. Previously, the Buzz discussed President Donald Trump’s nominees to run the Occupational Safety and Health Administration (OSHA), as well as the Employment and Training Administration (ETA). This week, President Trump:

• Nominated Andrew Rogers to serve as administrator of the Wage and Hour Division (WHD). Rogers served in the WHD during the first Trump administration before moving to the U.S. Equal Employment Opportunity Commission (EEOC), where he served as chief counsel to Commissioner Andrea Lucas. He has served as the Commission’s acting general counsel since February 4, 2025.
• Nominated Jonathan Berry to serve as solicitor of labor, which is essentially the DOL’s top attorney. Berry served as the head of the DOL’s regulatory department in the first Trump administration, and also previously served in the U.S. Department of Justice.

Immigration News. The latest news on employment-based immigration policy includes the following:

• H-1B Registration Completed; Petition Period Begins. Claudia P. Martorell and Sidra E. Cheema have the details on the closing of the H-1B registration period and the opening—beginning April 1, 2025—of the ninety-day petition filing period with U.S. Citizenship and Immigration Services (USCIS).
• Bill Would Eliminate OPT. A group of nine Republicans in the House have introduced the ‘‘Fairness for High Skilled Americans Act of 2025’’ (HR 2315), which would eliminate the Optional Practical Training (OPT) for F-1 students. The OPT program provides F-1 students with up to three years of work authorization after graduation. The bill should not be confused with an identically named bill that has been introduced in previous congresses that would eliminate the 7 percent per-country cap for employment-based visas and make significant changes to the H-1B visa program.
• Judge Blocks Vacatur of TPS Designation Venezuela. A federal district court in California temporarily blocked Secretary of Homeland Security Kristi Noem’s recent rescission of Temporary Protected Status (TPS) for certain individuals from Venezuela. The judge determined, in part, that the TPS statute “does not permit the Secretary to terminate a TPS designation ‘midstream’ during the term of the prior designation.” Protected status from deportation for covered individuals was scheduled to terminate on April 7, 2025. Amanda M. Mullane and Daniela Medrano Sullivan have the details.

House Republicans Introduce Labor Bills. House Republicans have introduced bills that address union organizing through the use of “salts,” as well as voting in union representation elections:

• Union Salts. Republican Representative Burgess Owens (UT) reintroduced the Start Applying Labor Transparency (SALT) Act, which would require more transparency from union salts, who are professional union organizers who seek employment only in order to organize employees. The Buzz wrote about the SALT Act in 2024.
• Representation Elections. Representative Bob Onder (R-MO) introduced the Worker Enfranchisement Act, which would allow a union to become the exclusive bargaining representative of employees only if it wins a majority of votes cast in a secret ballot election “in which not less than two-thirds of such employees vote.” Currently, unions can become the representative of an entire bargaining unit—impacting the terms and conditions of all employees in that unit—if they win a majority of the votes cast, no matter how poor the voter turnout is.

Remembering Justice Reed. On April 2, 1980, former Supreme Court Associate Justice Stanley Forman Reed passed away. While perhaps not as well-known as some of his contemporaries, Reed enjoyed quite a legal career. After serving in the United States Army in World War I, Reed returned to his Kentucky home where he carved out a legal career representing agricultural interests. This led to his 1929 appointment by President Herbert Hoover to serve as general counsel of the Federal Farm Board. In 1932, President Franklin D. Roosevelt appointed Reed as general counsel of the Reconstruction Finance Corporation and then, in 1935, as solicitor general of the United States. Here is where things got interesting for Reed:

• As solicitor general, Reed was tasked with defending many of FDR’s New Deal programs. Among other cases, Reed argued and won West Coast Hotel Co. v. Parrish (1937) (the “switch in time that saved nine,” by upholding minimum wage laws) and National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) (upholding the constitutionality of the National Labor Relations Act).
• Reed argued and lost A.L.A. Schechter Poultry Corporation v. United States (1935), also known as the “sick chicken” case.
• While defending New Deal programs, Reed once argued six cases before the Supreme Court in a span of two weeks, collapsing from exhaustion during the middle of one of the arguments in December of 1935.
• In 1938, FDR nominated Reed to serve as an associate justice of the Supreme Court of the United States, where he served until his retirement in 1957.
• In 1949, as a sitting justice on the Court, Reed served as a character witness on behalf of Alger Hiss, who was being tried for perjury in connection to accusations that Hiss was a spy for the Soviet Union. Hiss had served under Reed at the Reconstruction Finance Corporation.
• Reed is the last serving justice who did not graduate from law school. (He attended law school, but he did not graduate).

Quick Hits

• In a decision on March 25, 2025, the Second Circuit Court of Appeals ruled that employees with disabilities may be entitled to reasonable accommodations under the ADA even if they can perform their jobs’ essential functions without them.
• The case involved a high school teacher with PTSD who was denied brief afternoon breaks, leading the Second Circuit to emphasize the ADA’s broader support for employee well-being and inclusion.
• The Second Circuit’s ruling clarifies that under the ADA, a “qualified individual” may be entitled to reasonable accommodations to enhance his or her workplace experience, aligning with similar decisions from other circuits and addressing previous uncertainties about the necessity of accommodations for job performance.

The case involved Angel Tudor, a New York high school teacher diagnosed with post-traumatic stress disorder (PTSD), who requested the accommodation of brief afternoon breaks to manage her condition. Tudor had a history of requesting accommodations at work in the years preceding her lawsuit. The school district denied her request during the 2019–2020 school year, prompting her to file a lawsuit alleging a failure to accommodate under the ADA. The lower court dismissed her claim, concluding that during discovery, Tudor acknowledged that she could perform her job’s essential functions without the requested breaks, albeit “under great duress and harm.” However, the Second Circuit overturned this decision, emphasizing that the ADA requires reasonable accommodations to support employees’ well-being and workplace inclusion, not just those necessary for job performance.

The Second Circuit emphasized the fact that, under the ADA, a “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (Emphasis in original.) In other words, whether an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must. An employee may be a “qualified individual” entitled to reasonable accommodation under the ADA even if she can perform the essential functions of her job without one.

This ruling aligns with similar decisions from other circuits, underscoring that employers must consider reasonable accommodations even when an employee can technically fulfill his or her job duties without them. The Tudor decision addresses previous uncertainties about whether an accommodation must be essential for job performance, affirming that the ADA’s protections extend to accommodations that enhance an employee’s overall workplace experience.

In light of the opinion, and similar opinions from at least six other circuit courts of appeal, employers may want to reassess their accommodation policies to ensure they comply with the ADA’s broad protections.

Ogletree Deakins’ New York and Stamford offices will continue to monitor developments and will provide updates on the Leaves of Absence and State Developments blogs as additional information becomes available.

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Quick Hits

• A group of former EEOC officials has issued a statement asserting that employers can implement specific DEI programs without violating antidiscrimination laws, despite recent technical assistance from the acting chair of the EEOC that could classify such initiatives as unlawful discrimination.
• The former officials argued that proactive efforts to promote diversity and equal opportunity are essential and can be executed lawfully.
• They identified specific DEI-related initiatives: antidiscrimination training, employee resource groups, broader recruitment efforts, and demographic data collection, as lawful practices that can help employers prevent unlawful discrimination.

In the lengthy statement, the group of former EEOC officials argued that despite EEOC Acting Chair Andrea Lucas’s recent technical assistance, “employers lawfully may—and indeed should—take proactive steps to identify barriers that have limited the opportunities of applicants and employees based on any protected characteristic.”

The new EEOC technical assistance documents, issued on March 19, 2025, aligned the EEOC with President Donald Trump’s executive orders to eliminate “illegal” DEI in employment. The documents clarify the acting chair’s position that employers may be engaging in unlawful discrimination if they use race, sex, or another protected characteristic as just one deciding factor in an employment decision, even if not the sole deciding factor. The technical assistance further stated that employee resource groups (ERG) or affinity groups may be unlawful if they are not open to everyone.

However, the former EEOC officials’ statement argued that companies have a legitimate interest in promoting diversity, and employers can “adopt effective and lawful mechanisms to support diversity by advancing equal opportunity for all employees, without the use of illegal preferences.” (Emphasis in original).

“Properly constructed, such efforts are not discriminatory,” the former EEOC officials said in the statement. “To the contrary, they can help prevent and address the discrimination that continues to deny equal employment opportunities to qualified workers and applicants and prevents employers from utilizing the full talent of our communities.”

The statement is signed by several former EEOC officials who held the roles of chair, vice chair, acting chair, commissioner, general counsel and legal counsel including Charlotte Burrows (commissioner from 2015-2025 and chair 2021-2025), Chai R. Feldblum (commissioner 2010-2019), Christine Griffin (commissioner 2006-2009, vice chair 2009), Stuart I. Ishimaru (commissioner 2003-2012, acting chair 2009-2010), Jocelyn Samuels (commissioner 2020-2025, vice chair 2021-2025), and Jenny Yang (commissioner 2013-2018, vice chair 2014, and chair 2014-2017; and director of the Office of Federal Contract Compliance Programs (OFCCP) 2021-2023), Karla Gilbride (general counsel 2023-2025), P. David Lopez (general counsel 2010-2016), Peggy R. Mastroianni (legal counsel 2011-2017), and Ellen Vargyas (legal counsel 1994-2000). 

Specifically, the former EEOC officials identified several DEI programs that were called into question by the recent technical assistance that they argued might be implemented without violating antidiscrimination laws: (1) employer antidiscrimination and harassment training, (2) ERGs or affinity groups, (3) broader recruitment efforts, and (4) data collection designed to identify or prevent potential unlawful discrimination.

• Antidiscrimination and Harassment Trainings—The statement argued that employer antidiscrimination and harassment trainings rarely rise to the level of unlawful discrimination. To establish such a claim, it is insufficient to show that the training made employees uncomfortable; they must show that it created a hostile work environment. According to the statement, this standard has only been met in extreme cases, such as when an employee alleged that his genitals were touched during a simulation or when an employee alleged he was required to attend several conferences and trainings that “‘ascrib[ed] negative traits to white people or white teachers without exception and as flowing inevitably from their race.’”
• Employee Resource Groups / Affinity Groups—Similarly, the statement argued ERGs, employee business groups, and/or affinity groups are likely lawful if they are voluntary and open to all employees, even if they focus on shared experiences of members of a protected class or who share a protected characteristic. The statement noted that employers must apply “the same approval process and criteria, including for material support” to all groups.
• Broader Recruitment Efforts—The statement argued that employers may lawfully broaden their applicant pools to find talent from diverse groups by expanding the places and channels they use to advertise job listings and engage in outreach, including to historically Black colleges and universities, women’s colleges, smaller colleges, and trade schools. Further, the statement argued that employers could review and revise their qualification criteria to remove barriers to qualified candidates, such as removing a requirement for a four-year degree to hold a particular position.
• Data Collection—The statement also defended the lawfulness of employers’ demographic data collection as a “best practice” to “ensure compliance with applicable civil rights laws.” The statement noted that as long as employees are not required to provide such information, employers’ collection and examination of such data “is crucial for employers to identify and correct any barriers to equal opportunity before those barriers result in a lawsuit.”

Next Steps

The statement from the former EEOC officials comes as employers grapple with the Trump administration’s attacks on DEI while trying to implement programs to prevent unlawful employment discrimination and avoid liability from unlawful discrimination lawsuits. The EEOC has sought to align its guidance with the Trump administration’s policies, raising concerns about the lawfulness of many current DEI programs and initiatives.

While the president’s orders are being challenged in court, employers may want to review their policies with regard to the orders and the EEOC’s new technical assistance to understand the current administration’s views and enforcement strategy. Employers may further want to review the former EEOC official’s statement and monitor related developments as they assess their policies and practices, and determine what changes, if any, may be warranted.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Reporting, and Governmental Affairs blogs as additional information becomes available.

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Quick Hits

• On March 31, 2025, a U.S. district court judge issued an order temporarily reinstating Venezuela’s TPS pending further litigation.
•  Shortly after taking office, Secretary of Homeland Security Noem canceled the extension of the 2021 and 2023 TPS designations for Venezuela and the overall 2023 TPS program for Venezuelans.
• This court order ensures that Venezuelan TPS holders retain their legal status and employment authorization through October 2, 2026, while the case is being decided.

Background

The secretary of Homeland Security may designate a foreign country for TPS due to temporary conditions such as ongoing armed conflict, an environmental disaster, epidemics, or other extraordinary and temporary conditions that prevent nationals from safely returning to that country. TPS beneficiaries who meet the parameters of such programs are protected from removal from the United States, and they can receive work and travel authorization.

In 2021, Venezuela was initially designated for TPS and, through extensions, this program remains in place. In October 2023, Venezuela was redesignated for TPS, expanding the program and providing additional relief for citizens of Venezuela who met qualifying criteria. The 2021 and 2023 designations were most recently extended by the Biden administration on January 17, 2025, for eighteen months, to October 2, 2026.

On January 28, 2025, Secretary Noem canceled the extension of the 2021 and 2023 TPS designations for Venezuela. This decision reinstated the expiration of TPS for Venezuelan beneficiaries under the 2021 designation to September 10, 2025, and for new applicants under the 2023 designation to April 2, 2025.

On February 1, 2025, Secretary Noem terminated the 2023 TPS designation, ending temporary legal protections for beneficiaries under the 2023 designation on April 7, 2025.

The Nationwide Order

On March 31, 2025, U.S. District Court Judge Edward Chen issued a nationwide order postponing Secretary Noem’s cancelation of the eighteen-month extension for the 2021 and 2023 TPS designations and the termination of the 2023 TPS designation. This order will remain in place until the court issues its final decision on the merits in National TPS Alliance v. Noem.

Analysis and Impact

The U.S. district court’s order temporarily results in the following, pending further litigation:

• Venezuela’s 2023 TPS designation is reinstated.
• The eighteen-month extension for 2021 and 2023 TPS designations is reinstated, providing legal protected status for Venezuelan TPS holders through October 2, 2026.
• The Employment Authorization Documents (EAD) issued under the 2021 or 2023 TPS designations with an expiration date of September 10, 2025; April 2, 2025; March 10, 2024; or September 9, 2022, remain valid through April 2, 2026.
  • USCIS issued guidance on I-9 completion.  The USCIS guidance instructs employers “to enter April 2, 2026, pending further litigation, on Form I-9 as the new expiration date of the automatically extended EAD.”
• Venezuelan TPS holders may also demonstrate a 540-day automatic extension of their EAD “Card Expires” dates upon presenting:
  • an EAD showing category code A12 or C19; and
  • a Form I-797 Receipt Notice confirming a pending I-765 application for a category code A12 or C19 EAD renewal showing a “Received Date” between January 17, 2025, and September 10, 2025.

The U.S. district court’s order does not impact TPS designations for other countries.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Immigration blog as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

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Quick Hits

• The Minnesota Legislature’s party divide creates uncertainty for employers, with amendments to key labor laws like Paid Family and Medical Leave and Earned Sick and Safe Time potentially facing delays or requiring bipartisan compromise.
• Proposed amendments to Minnesota’s Earned Sick and Safe Time Law include delaying penalties for violations before January 1, 2026, making Earned Sick and Safe Time permissive, and changes to leave notice requirements and documentation for extended leave, but none have advanced past initial stages.
• Various bills aim to modify or delay the Paid Family and Medical Leave Law, with some proposing exemptions for small employers and others seeking to repeal the law or delay its implementation until 2027.

This divide in the Minnesota Legislature means uncertainty for Minnesota employers. Critical issues, such as Minnesota’s Paid Family and Medical Leave and Earned Sick and Safe Time (ESST) laws, may either face delays or require bipartisan compromise to advance. Employers should stay alert until the end of the legislative session on May 19, 2025, as the legislature negotiates the future of Minnesota’s labor and employment laws.

This article previews key proposed bills that would impact employers if enacted. While it is too early to predict which bills will reach the governor’s desk, the nature of the proposed legislation offers insight into the extent of the legislative divide and the effort required by the legislature to pass any bills.

Minnesota Earned Sick and Safe Time

A handful of proposed bills would amend Minnesota’s ESST law, but none have advanced past their introduction and first reading. These bills sit in the Minnesota House of Representatives’ Workforce, Labor, and Economic Development Finance and Policy Committee and the Minnesota Senate’s Labor Committee, respectively.

House File (HF) 2025 / Senate File (SF) 2300 would create the most significant changes among the proposed bills. These companion bills, among other amendments, would:

• exempt employers with fewer than fifteen employees from ESST requirements;
• allow prorating ESST hours based on full-time or part-time employee status;
• change employee notice for unforeseeable leave from “as soon as practicable” to “as reasonably required by the employer”;
• allow employers to ask for documentation if ESST use exceeds two days;
• remove certain paid time off (PTO) requirements; and
• let employers ask employees to find replacements unless the leave is unforeseeable and permit employees to find replacements on their own.

Other proposed bills would exclude farm employees working for farms with five or fewer employees (HF 1057 / SF 310), Department of Transportation workers (HF 1905), and inmates of correctional facilities (SF 947) from certain requirements; exclude employees appointed to serve on boards or commissions from certain definitions (HF 758 / SF 494); and give employers the option to provide certain benefits (HF 1542 / SF 2572). HF 1325 / SF 2605 would prohibit penalties for violations before January 1, 2026, and provide various exemptions and proration options for small employers.

Paid Family and Medical Leave (Paid Leave)

Various proposed bills aim to change the Paid Leave Law, including potentially delaying its implementation for another year or repealing it altogether. Notably, HF 0011 / SF 2529 would delay the law’s implementation by one year, meaning employees would not receive benefits until January 1, 2027. Once it was sent to the House floor for debate and vote, the House laid HF0011 on the table. No further action will be taken until the House reconsiders the bill.

Other related bills to watch:

• HF 1241 / SF 1771 and HF 1263 / SF 2277 would repeal the Paid Leave Law and return unspent money to the general fund.
• HF 0260 / SF 1793 would exempt employers with twenty or fewer employees until January 1, 2028.
• HF 2113 would exempt employers with fifty or fewer employees.
• HF 2024 would exempt certain small employers; change the definition of a seasonal employee; allow private plans to provide shorter durations of leave and benefits under certain circumstances; and postpone benefits until January 1, 2027.
• HF 1523 / SF 1849 would exempt certain agricultural workers.
• HF 2269 would delay employer penalties for failure to notify employees of paid leave benefits until January 1, 2027.
• HF 1976 / SF 2466 would exempt collective bargaining agreement employees from the definition of “covered employment” under certain conditions; remove individuals with personal relationships with employees from the definition of “Family Member”; change the definition of “small employer” to fifty or fewer employees; and require small employers to pay a 50 percent rate among other amendments.

Nondiscrimination

The legislature introduced numerous bills targeting nondiscrimination laws, which are summarized here.

• HF 1672 / SF 2371 would expand nondiscrimination provisions to include medical cannabis patients.
• HF 2182 / SF 200 would allow employers to justify adverse impact of discriminatory practices if related to the job or business purpose.
• HF 0481 / SF 1529 would prohibit employment discrimination based on refusal of medical intervention.
• HF 0282 / SF 407 would add political affiliation as a protected category under the Minnesota Human Rights Act. Similarly, SF 863 would prohibit employers from engaging in economic reprisals based on political contributions or activity.
• HF 1427 / SF 1111 would require transportation network companies to make vehicles wheelchair-accessible and adopt nondiscrimination policies.

Independent Contractors

The legislature has taken up several bills related to independent contractors. Below is a summary of the key bills currently under consideration:

• HF 1316 / SF 2306 would require employers to report newly hired independent contractors to the commissioner of children, youth, and families for child support purposes.

• SF 2153 would expand “prohibited practices” to include “if an employer has a formal job classification and compensation plan, place an employee in a job classification or job category or provide a job title that misrepresents the employee’s experience or actual job duties and responsibilities.”
• HF 2145 / SF 2361 would double the potential penalty for employers that intentionally misrepresent an employee as an independent contractor in the unemployment insurance or paid family and medical leave programs.

Job Postings, Employment Agreements, and Unions

The legislature also introduced bills that would affect job posting requirements, employment agreements, and unions. Namely:

Job Postings

• HF 1484 / SF 2235 would require job postings to disclose whether employee health plan options comply with cost-sharing limits.

Employment Agreements

• HF 2567 / SF 2533 would prohibit stay-or-pay provisions as a condition of employment.
• HF 1768 would provide more circumstances under which a covenant not to compete is valid and enforceable.

Unions

• HF0107 / SF1532 would allow strikers who stop working due to a labor dispute to be eligible for unemployment benefits.
• SF 1148 would allow applicants to be eligible for unemployment benefits if the employer hires a replacement worker for their position.
• HF 2240 / SF 3050 would allow private employees to allocate their union dues to a local, state, or national organization of their choice.

Ogletree Deakins’ Minneapolis office will continue to track developments and will publish updates on the Minnesota blog as more information becomes available.

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Quick Hits

• Staying up to date with regulatory change will remain key; currently, more than 2,800 U.S. companies rely on the EU-U.S. Data Privacy Framework.
• Operating on an invalid or outdated mechanism may cause significant operational interruptions for organisations.
• Organisations that fail to protect personal data being internally transferred are being actively penalised by European (and UK) regulators.

The DPF, which was developed collaboratively by the Biden administration and the European Commission (EC), addresses the requirements under GDPR Articles 44–49 regarding data transfers to the United States, allowing participating organisations to rely on this as a valid transfer mechanism without the need to identify and implement additional safeguards to protect data. Key to the DPF’s functionality, and its EC adequacy status, is the involvement of independent oversight agencies and their respective powers, including advisory and audit rights, regarding actions of the U.S. government and how these impact individuals’ rights.

Although to date, none of the current administration’s decisions have directly referred to the DPF, there are increasing concerns that U.S. actions might lead to a situation in which the Court of Justice of the European Union (CJEU) invalidates the EC’s DPF adequacy decision, mirroring the fate of the DPF’s predecessors.

One such action was taken on February 18, 2025, when the Trump administration issued Executive Order 14215, “Ensuring Accountability for All Agencies,” an order that aims to harmonise regulatory practices across federal agencies, including the Federal Trade Commission (FTC), an agency that plays a crucial role in enforcing the DPF. A key provision of this order is that there will be presidential review of all significant regulatory actions proposed by federal agencies, including the FTC. Concerns have been raised that the requirements of this order could potentially compromise the FTC’s independence, which is integral to the operation of the DPF.

In addition, in January 2025, the administration terminated all Democratic members of another independent agency, the U.S. Privacy and Civil Liberties Oversight Board (PCLOB). Again, the DPF agreement requires the PCLOB to operate independently when providing privacy-related oversight of U.S. counterterrorism activities, including how those activities are balanced against the privacy rights of individuals, and when conducting annual reviews of the DPF’s redress mechanism. Both the independent nature and the functionality of the PCLOB are being called into question, raising concerns for the future of the DPF.

The evolving political landscape means that organisations will likely want to carefully and continuously monitor for potential changes and possibly adapt their approach when transferring personal data internationally. The CJEU’s previous invalidation of international data transfer mechanisms, such as the EU-U.S. Privacy Shield, highlights the potential risks and the severity of the actions taken by the CJEU to ensure the safeguarding of EU data.

In the event that the DPF were invalidated, all transfers taking place by way of the DPF would be required to cease with immediate effect, and any subsequent transfers operating under an invalid DPF would be found to be illegal. It would be necessary for organisations to identify, and implement, alternative transfer mechanisms, such as EU-approved Standard Contractual Clauses (SCCs) (and UK Addendum or International Data Transfer Agreements) for all international transfers, even if a transfer occurs between different entities of the same organisation.

When relying on SCCs, organisations are legally required to carry out transfer impact assessments (TIAs), which assess the laws and practices of the country where the EU data will be transferred. Organisations may want to stay informed of regulatory developments and undertake periodic reassessments of potential risks. More information on international data transfers and identifying the most appropriate international transfer mechanisms can be found in our previous article.

Organisations may want to assess the scope and types of data transfers that they carry out in the course of their business operations and identify which transfer mechanism is most sensible from a commercial and business continuity perspective.

Failure to comply with up-to-date data protection laws and data transfer rules can lead to commercial and reputational damage. If appropriate measures are not taken, corrective sanctions can be enforced, such as orders to cease transfers of personal data and significant financial penalties.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group will continue to monitor developments and provide updates on the Cross-Border and Cybersecurity and Privacy blogs as additional information becomes available.

Simon J. McMenemy is the managing partner of the London office of Ogletree Deakins, and he is co-chair of the firm’s Cybersecurity and Privacy Practice Group.

Nicola McCrudden is of counsel in the London office of Ogletree Deakins.

Lorraine Matthews, a data privacy and cybersecurity practice assistant in the London office of Ogletree Deakins, contributed to this article.

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Quick Hits

• The Supreme Court allowed a truck driver to pursue civil RICO claims for lost wages after he failed an employer drug test after ingesting an allegedly falsely marketed pain relief product.
• The Court ruled that a plaintiff may pursue treble damages under RICO for lost business or property that followed a personal injury.
• The decision raises questions about the scope of RICO, particularly whether lost wages and economic harms related to personal injuries can be considered recoverable.

The 5–4 ruling in Medical Marijuana, Inc. v. Horn held that a plaintiff may seek treble damages under RICO, a law initially designed to combat organized crime, for lost business or property, even if the damages resulted from an antecedent personal injury.

The ruling allowed a truck driver to pursue civil RICO claims seeking recovery for lost wages against the sellers of a pain relief product after he was discharged for failing a random drug test when he tested positive for tetrahydrocannabinol (THC), the psychoactive component of marijuana or cannabis. He alleged the sellers falsely marketed their pain relief product as not containing THC, only the non-psychoactive chemical cannabidiol, more commonly known as CBD.

The product sellers argued that the damages resulted from a personal injury and that RICO’s “business or property” injury limitation precludes recovery for economic harms stemming from personal injuries. Specifically, RICO allows an individual to bring civil claims for damages to “business or property by reason of” racketeering and other activities prohibited by the act and recover treble damages.  

“The phrase ‘injured in his business or property’ does not preclude recovery for all economic harms that result from personal injuries,” Justice Amy Coney Barrett wrote in the Court’s opinion, which was joined by four other justices. “We therefore affirm the Second Circuit’s judgment and remand the case for further proceedings consistent with this opinion.”

Notably, the Supreme Court expressly did not address whether the truck driver had suffered a personal injury when he consumed THC or whether the term “business” encompasses all aspects of “employment.” The Court also did not provide further explanation on what types of injuries to “property” are covered by RICO.

The Second Circuit had found that the truck driver was “‘injured in his business’” when he lost his job and that there is no bar to recovery under RICO if the economic harm is preceded by or a result of a personal injury.

The CBD product sellers argued that the Second Circuit’s approach would effectively destroy RICO’s “business or property” limitation and transform traditional personal injury suits into federal suits under RICO, which allows for recovery of treble damages.

However, the Supreme Court majority rejected the sellers’ arguments. In the Court’s opinion by Justice Barrett, the Court clarified the plain interpretation of the RICO text, stating that “‘injured’ means ‘harmed’ − with no plausible alternative in hand.” (Justice Ketanji Brown Jackson wrote a short concurring opinion to note that Congress has instructed that RICO be “liberally construed.”)

The Court further explained that while “civil RICO has undeniably evolved,” RICO claims are still limited in that they require a direct relationship between the injury and the alleged injurious conduct, and a “plaintiff must first establish a pattern of racketeering activity.” The Court also noted that the terms “business” and “property” in RICO still limit the types of claims that are recoverable.

“As we noted at the outset, ‘business’ may not encompass every aspect of employment, and ‘property’ may not include every penny in the plaintiff ’s pocketbook,” the Court said. “Accordingly, not every monetary harm—be it lost wages, medical expenses, or otherwise—necessarily implicates RICO.”  

“If the breadth of the statute ‘leads to the undue proliferation of RICO suits, the ‘correction must lie with Congress,’” the Court added.  

In a dissenting opinion joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Brett Kavanaugh argued that RICO categorically excludes personal injury claims, stating that “the fundamental question here is whether business or property losses from a personal injury transform a traditional personal-injury suit into a business-injury or property-injury suit that can be brought in federal court for treble damages under RICO.”

Justice Kavanaugh further argued that the majority’s opinion “leaves substantial confusion in its wake” because it did not explain “whether lost wages and medical expenses are recoverable losses of business or property in those RICO suits.”

Justice Clarence Thomas dissented, arguing that the case was “improvidently granted” because the parties dispute whether the truck driver even “suffered a personal injury in the first place” and that there has been inadequate briefing on the meaning of the “business or property” injury requirement in RICO.

Next Steps

The Supreme Court’s ruling expands the reach of RICO’s civil component by finding that personal injury claims that have damages to “business or property” are not necessarily excluded. The CBD sellers in the case and business groups have argued that such an approach could increase federal RICO liability for businesses for product liability claims. However, the Court noted that it is up to Congress to limit the claims, if necessary.

Further, while the ruling comes in the context of an employee suing for lost wages after losing his job, the ruling leaves open questions over the extent to which lost wages or other adverse employment actions that lead to lost wages or economic losses for employees may implicate RICO. The Second Circuit had interpreted injury in “business” under RICO as encompassing “employment.” Still, the Supreme Court expressly did not decide that issue, noting the Second Circuit’s “interpretation may or may not be right.”

Whether the truck driver’s RICO suit will ultimately be successful after remand level is highly questionable. However, the concerns raised in the dissent remain—the inclusion of economic harms that stem from personal injuries as recoverable under RICO is likely to lead some crafty attorneys to attempt to further expand the applicability of the civil RICO statute. 

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing blog as additional information becomes available.

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Quick Hits

• Wyoming enacted legislation that will void noncompete agreements with employees with limited exceptions.
• Noncompete agreements will remain permissible in certain contexts, such as the sale of a business, the protection of trade secrets, the recovery of employers’ costs to relocate or train employees, and to restrict post-employment activity of executive or managerial personnel and their key staff.
• The law also prohibits noncompete clauses in agreements involving physicians and will allow them to inform patients with certain rare disorders of their new practice without facing liability.
• The law only applies to contracts entered into on or after July 1, 2025.

On March 19, 2025, Governor Mark Gordon signed Senate File 107 into law, which will significantly limit the enforceability of noncompete covenants in employment contracts. The new legislation, which will take effect on July 1, 2025, applies to contracts entered into on or after that date. Employers that use restrictive covenants will have to rethink how they protect their business interests and manage their workforce.

In enacting the new noncompete prohibitions, Wyoming joins a growing list of states, which includes California, Minnesota, and Oklahoma, to impose significant restrictions or completely ban employee noncompete agreements. Ohio is also considering a bill that would ban noncompete agreements for workers or prospective workers this legislative session.

Here is what employers need to know about the new Wyoming law and its implications.

Employee Noncompete Agreements Are Void

The law declares that as of July 1, 2025, “[a]ny covenant not to compete that restricts the right of any person to receive compensation for performance of skilled or unskilled labor” is void. The law applies prospectively to contracts entered into on or after July 1, 2025, specifically stating that “[n]othing in this act shall be construed to alter, amend or impair any contract or agreement entered into before July 1, 2025.”

Key Exceptions to the Ban

While Senate File 107 broadly invalidates noncompete agreements, the law contains some notable exceptions:

• Sale of Business—Under the law, noncompete clauses remain enforceable in contracts related to the purchase and sale of a business or its assets.
• Protection of Trade Secrets—The law will permit the use of noncompete agreements or clauses “to the extent the covenant provides for the protection of trade secrets” as they are defined under state law.
• Recovery of Training Expenses—The law permits employers to include provisions in employment contracts allowing them to recover relocation, education, and training expenses, with recovery amounts decreasing based on the length of the employee’s service. (Up to 100 percent for service less than two years, up to 66 percent for between two and less than three years, and up to 33 percent for between three and less than four years.)
• Executive and Management Personnel—The law exempts the noncompete ban for agreements involving “[e]xecutive and management personnel and officers and employees who constitute professional staff to executive and management personnel.”

Although not defined, the “executive and managerial personnel” restriction substantially mirrors a prior version of Colorado’s noncompete statute. Cases interpreting the Colorado statute recognized that the issue would typically be a question of fact. However, courts routinely recognized that restrictive covenants could be applied to both key personnel who are “in charge” and individuals who conduct or supervise a business, often including various levels of management.

Special Considerations for Physicians

Senate File 107 specifically declares void “[a]ny covenant not to compete provision of an employment, partnership or corporate agreement between physicians that restricts the right of a physician to practice medicine … upon termination of the physician’s employment, partnership or corporate affiliation.” The law will further allow physicians, upon termination of their employment, the partnership, or corporate affiliation, to inform patients with certain “rare disorders[s]” about their new practice and provide their contact information without facing liability.

Next Steps

Wyoming’s new noncompete law marks a significant shift in the state, reflecting a broader national trend. That trend could continue, particularly after a 2024 Federal Trade Commission (FTC) rule that sought to ban nearly all noncompete agreements in employment was struck down in court. The government had appealed but the Trump administration has halted those appeals while it considers the FTC’s rule.

In light of the changes, employers in Wyoming may want to consider reviewing and revising any new employment contracts and evaluating alternative strategies for protecting their business interests. Employers using noncompete agreements may want to consider whether those provisions are being applied in one of the specifically enumerated exceptions. Employers may also want to ensure that noncompete agreements that fall into one of the permissible categories have reasonable geographic and temporal limitations. Wyoming courts will not blue pencil or revise noncompliant restrictive covenants, and instead, noncompliant restrictive covenants will be voided.

Ogletree Deakins will continue to monitor developments and will provide updates on the Unfair Competition and Trade Secrets and Wyoming blogs as additional information becomes available.

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Quick Hits

• The New Mexico House of Representatives recently passed a bill to protect workers from penalties at work for off-duty use of medical marijuana.
• The New Mexico Senate and House of Representatives both passed a bill to permit medical use of psilocybin.
• The governor has until April 11, 2025, to sign or veto any bill that passes both chambers.

A bill (House Bill (HB) 230) in the New Mexico Legislature would protect employees from being disciplined at work for off-duty use of medical cannabis. HB 230 passed the state House of Representatives on March 12, 2025, and was sent to a Senate committee. It clarifies that an employee could not be considered impaired by cannabis at work solely because of the presence of THC metabolites or components of cannabis in the body. It would prohibit employers from conducting random drug testing for cannabis, if the employee is a qualified medical marijuana patient over the age of eighteen. Random drug testing would be permitted if the employer has a reasonable suspicion of marijuana consumption during work hours that resulted in an accident or property damage.

In 2021, New Mexico legalized the possession, consumption, and cultivation of recreational cannabis for adults twenty-one and older. The state legalized medical marijuana in 2007. The medical conditions that may qualify under the New Mexico Medical Marijuana Program include cancer, anxiety, post-traumatic stress disorder, insomnia, glaucoma, HIV/AIDS, hepatitis C, and multiple sclerosis, among others.

In a growing national trend, recreational marijuana is now legal in twenty-four states and Washington, D.C. Cannabis use and possession remain illegal on federal property under federal law.

Medical Psilocybin

Another bill, Senate Bill (SB) 219, recently passed the New Mexico legislature to approve medical use of psilocybin, sometimes called “magic mushrooms.” If signed by the governor, SB 219 would make it legal for patients to use psilocybin prescribed by a doctor for a qualifying medical condition, including major treatment-resistant depression, post-traumatic stress disorder, substance use disorder, and end-of-life care.

Next Steps

Governor Michelle Lujan Grisham has until April 11, 2025, to sign or veto bills that pass both chambers of the legislature.

In the meantime, employers in New Mexico may wish to review their drug testing policies and practices to ensure they comply with state law, particularly with respect to medical marijuana patients. Employers can discipline or fire workers who use marijuana while on duty or arrive at work intoxicated.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing and New Mexico blogs as new information becomes available.

Further information on the requirements of state marijuana laws is available on the Ogletree Deakins Client Portal in the Marijuana law summary. Full law summaries are available for Premium-level subscribers; Snapshots and Updates are available for all registered client users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

M. Tae Phillips is a shareholder in Ogletree Deakins’ Birmingham office and co-chair of the firm’s Drug Testing Practice Group.

David R. Kuhnz is an associate in Ogletree Deakins’ Indianapolis office.

Patrick F. Clark is a shareholder in Ogletree Deakins’ Atlanta office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• The Fifth Circuit vacated its decision to uphold a $15 per hour minimum wage for federal contractors.
• The court acted shortly after President Trump rescinded a Biden administration rule raising the minimum wage for federal contractors to $15 per hour.
• An Obama-era rule establishing a $13.30 per hour minimum wage for federal contractors still stands.

On the website for the U.S. Department of Labor, the agency said it is “no longer enforcing” the final rule that raised the minimum wage for federal contractors to $15 per hour with an annual increase depending on inflation.

As of January 1, 2025, the minimum wage for federal contractors was $17.75 per hour, but that rate is no longer in effect. Therefore, an Obama-era executive order setting the minimum wage for federal contractors at $13.30 per hour now remains in force.

Some federal contracts may be covered by prevailing wage laws, such as the Davis-Bacon Act or the McNamara-O’Hara Service Contract Act. Those prevailing wage laws are still applicable.

Many states have their own minimum wage, and those vary widely.

Background on the Case

In February 2022, Louisiana, Mississippi, and Texas sued the federal government to challenge the Biden-era Executive Order 14026, which directed federal agencies to pay federal contractors a minimum wage of $15 per hour. The states argued the executive order violated the Administrative Procedure Act (APA) and the Federal Property and Administrative Services Act of 1949 (FPASA) because it exceeded the president’s statutory authority. The states also claimed the executive order represented an “unconstitutional exercise of Congress’s spending power.”

On February 4, 2025, the Fifth Circuit Court of Appeals upheld the $15 per hour minimum wage for federal contractors. A three-judge panel ruled that this minimum wage rule was permissible under federal law.

On March 14, 2025, President Trump rescinded the Biden-era executive order that established a $15 per hour minimum wage for federal contractors. In effect, that made the earlier court ruling moot, according to the Fifth Circuit.

Next Steps

Going forward, the Obama-era $13.30 minimum wage rate for federal contractors still stands. Federal contractors operating in multiple states may wish to review their policies and practices to ensure they comply with state minimum wage laws and federal prevailing wage laws. If they use a third-party payroll administrator, they may wish to communicate with the administrator to confirm legal compliance.

Ogletree Deakins’ Government Contracting and Reporting Practice Group and Wage and Hour Practice Group will continue to monitor developments and will provide updates on the Government Contracting and Reporting, State Developments, and Wage and Hour blogs as new information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

Jeff S. Mayes is a shareholder in Ogletree Deakins’ Houston office.

Tiffany Stacy is a shareholder in Ogletree Deakins’ San Antonio office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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