Quick Hits

• EEOC Acting Chair Andrea Lucas is focused on expanding religious rights in both private and federal workplaces.
• The first two post-Groff federal workforce decisions from the EEOC’s Office of Federal Operations (OFO) offer practical insights into how the EEOC will enforce religious accommodation obligations with respect to private-sector employers.
• Both cases emphasize that workplace religious accommodation requires that employers engage in a robust interactive process that heavily favors employees.

Introduction

Under Title VII of the Civil Rights Act of 1964, employers must reasonably accommodate employees’ sincerely held religious beliefs, practices, or observances, unless doing so would cause an undue hardship. In Groff, the Supreme Court held that the undue hardship standard requires the employer to establish that the accommodation would result in a substantial burden, meaning significant difficulty or expense.

On August 4, 2025, the EEOC’s OFO published two decisions affecting public-sector employers concerning religious accommodation denials that offer insight into how the EEOC may interpret Groff in the private sector. Those decisions require a robust interactive process (largely structured to favor the employee) and impose a significantly higher undue hardship burden of proof on the employer.

Andy B. v. Federal Reserve Board of Governors

Andy B., a law enforcement officer, requested that the Federal Reserve exempt him from its COVID-19 vaccination mandate, based on the vaccine’s derivation from fetal cell lines obtained through abortion. He appealed to the OFO after the Federal Reserve denied his request, placed him on administrative leave, and terminated his employment.

The OFO reversed the Federal Reserve’s decision, emphasizing Andy B.’s apparent sincerity of faith based on his willingness to lose his job over the vaccination mandate. The OFO criticized the Federal Reserve for not engaging in a thorough interactive process, citing the Federal Reserve’s failure to explain the difference between vaccines derived from fetal cell lines and those tested on fetal cell lines. The OFO asserted that the Federal Reserve should have known this distinction, explained it to Andy B., and attempted to determine whether his religious beliefs fell in one or both camps. In other words, the OFO held that the employer was responsible for educating employees about their own beliefs as part of the interactive process.

Finally, the OFO found that the Federal Reserve failed to establish that providing Andy B. an effective reasonable accommodation would have imposed an undue hardship under Groff’s elevated standard. In particular, and in contrast to other vaccine cases in which employers were able to demonstrate undue hardship based on general scientific knowledge and public health recommendations and statistics, the OFO noted that the Federal Reserve failed to offer any actual evidence of undue hardship and declined to turn to outside sources for such evidence on the Federal Reserve’s behalf.

Augustine V. v. Department of Veterans Affairs

As a newly hired physician in the U.S. Department of Veterans Affairs (VA), Augustine V. requested to work extra hours Monday through Thursday in order to take Friday afternoons off for Muslim prayer services. During the four-month-long interactive process, the VA allowed Augustine V. to use leave and compensatory time to make up the hours she missed on Fridays. At the end of the interactive process, the VA offered Augustine V. a choice of working full-time on a six-day schedule (coming in part-time on Fridays and Saturdays) or transferring to a part-time position. Augustine V. chose the part-time option under protest and appealed to the OFO.

The OFO reversed the VA’s decision, finding neither of the VA’s two solutions to be reasonable because they both disadvantaged Augustine V. The six-day schedule harmed the employee because it deprived her of a day off, while the part-time position reduced her income by approximately 40 percent. The OFO also noted that the VA failed to explain why it chose its accommodation of Augustine V. working six days a week over the employee’s preferred solution of working extra hours four days a week.

The OFO’s position seems to run counter to the well-established legal principle that an employer need not offer the accommodation the employee prefers or even the most effective option, as long as it eliminates the workplace conflict. The OFO’s analysis also seems to require that it justify its proposed accommodation in comparison and/or contrast to the employee’s preferred solution.

Finally, the OFO held that the VA could not establish undue hardship. It dismissed the VA’s concerns about patient care and coworker burdens as speculative and explained that mere coworker disgruntlement was not enough under Groff. According to the OFO, the VA also undermined its undue hardship claim by allowing Augustine V. to use leave and compensatory time during the four-month interactive process period.

Potential Impact for Private-Sector Employers

Employers may want to consider these two federal workforce decisions as reliable indicators of the EEOC’s religious accommodation enforcement strategy in the private sector as well. Employers wishing to avoid potentially lengthy and prolonged EEOC investigations and litigation may want to consider the following prophylactic measures:

• Reviewing religious anti-discrimination and accommodation policies and practices for compliance with the EEOC’s best practices recommendations
• Ensuring a robust and well-documented interactive process
• Considering a broad range of possible accommodations and being open to non-traditional or unusual solutions
• Gathering concrete evidence to support articulable, specific burdens on business operations that each proposed accommodation would impose
• When choosing between an employee’s preferred accommodation and the employer’s preferred accommodation, documenting a business case for the employer’s choice—even if both are reasonable

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor EEOC developments and will provide updates on the Employment Law and Leaves of Absence blogs as additional information becomes available.

In addition, the firm’s new podcast series, EEOC Exclusive, provides insight into issues involving the EEOC. In the first episode of EEOC Exclusive, “Looping in Loper Bright,” the speakers—Adam T. Dougherty, James M. Paul, D’Ontae D. Sylvertooth, and Sean J. Oliveira—broadly explore EEOC regulations in light of the demise of Chevron deference and a district court’s recent decision that drew upon Loper Bright Enterprises v. Raimondo to invalidate the EEOC’s practice of granting early rights to sue upon request. The speakers previously examined those issues in their August 8, 2025, article, “Looping in Loper Bright to Require the EEOC Follow Its Enabling Statute.”

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Regulatory Agenda, We Hardly Knew Ye. Late last week, stakeholders got a glimpse of the administration’s regulatory plans with the release of the Spring 2025 Unified Agenda of Regulatory and Deregulatory Actions. But shortly after the release of the agenda, the Office of Information and Regulatory Affairs’ (OIRA) website went offline for maintenance, and the agenda became unavailable. OIRA’s website is currently operational, with the caveat that it is “currently undergoing revisions,” though the Spring 2025 regulatory agenda remains unavailable. From the very brief moment that the agenda was publicly available, it appears that the U.S. Department of Labor (DOL) will move to issue regulations relating to independent contractors and joint employment under the Fair Labor Standards Act (FLSA). Not sure what happened here, but the Buzz will have a breakdown of the official agenda once it is released.

Proposed H-1B Changes Delayed? In conjunction with the website maintenance at OIRA and the “here it is, here it isn’t” release of the Spring 2025 regulatory agenda, it appears that at least some of the administration’s regulatory proposals have taken a step backward in the rulemaking process. Most notable is U.S. Citizenship and Immigration Services’ (USCIS) proposal to scrap the H-1B lottery and replace it with a wage-based selection process. Last week, that proposal initially cleared OIRA review—putting it one step closer to being made available for public comment—but now it is back under review. This means that stakeholders will likely have to wait a little longer for the release of the proposal.

Fifth Circuit: NLRB Structure Likely Unconstitutional. The U.S. Court of Appeals for the Fifth Circuit issued a decision this week in a consolidated appeal holding that the National Labor Relations Act’s (NLRA) prescribed removal protections for administrative law judges (ALJs) and National Labor Relations Board (NLRB) members are likely unconstitutional. Pursuant to the statute, NLRB ALJs can only be removed when the Merit Systems Protection Board (MSPB) finds good cause. Those members of the MSPB, in turn, may only be removed by the president. The court found that these two layers of “for cause” removal protections are unlawful. For actual Board members, the NLRA provides that they may be removed only “for neglect of duty or malfeasance in office, but for no other cause.” The Fifth Circuit found this protection from removal to be “constitutionally suspect under modern separation-of-powers doctrine.” The court further concluded that the Supreme Court of the United States’ decision on May 22, 2025, that stayed an injunction that would have kept Gwynne Wilcox serving on the Board “reinforces our conclusion that Board Members’ insulation from presidential removal likely violates” the U.S. Constitution.

For now, the Board remains without an operational quorum as nominees Scott Mayer and James Murphy await their confirmation hearings in the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP). General counsel nominee, Crystal Carey, has had her confirmation hearing, but the HELP Committee has not voted on her nomination. Brian E. Hayes, Thomas M. Stanek, and Zachary V. Zagger have the details.

NLRB Acting GC to State Lawmakers: Back Off. With the NLRB seemingly at a standstill, some state governments have taken steps to fill what they view as a policy void. Indeed, some state legislatures have introduced bills that would allow their agencies to assert control over unfair labor practices and union representation elections. Addressing these efforts, NLRB Acting General Counsel William Cowen issued a release stating, “recent measures under consideration by several state legislatures due to the Board’s lack of a quorum very likely would be preempted by the National Labor Relations Act.” Cowen further notes that “the work of the NLRB has largely been unaffected by the temporary absence of a Board quorum” and that “Regional Offices continue to process unfair labor practice and representation cases, and the Acting General Counsel has been delegated litigation authority that would normally be exercised by the Board.”

EEOC Continues Focus on Religious Discrimination. This week, the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release entitled, “200 Days of EEOC Action to Protect Religious Freedom at Work.” The release outlines actions the EEOC has taken during the Trump administration “to defend the religious liberty of American workers.” These enforcement actions involve COVID-19 vaccine mandates, religious-based accommodations, and antisemitism on college campuses. The release serves as a reminder that religious discrimination remains an enforcement priority for the Commission.

USCIS Update. Readers should be aware of the following developments from U.S. Citizenship and Immigration Services (USCIS):

• Anti-American Vetting. USCIS updated its policy manual this week to make changes to how officials should use their discretion when reviewing certain benefit requests. Specifically, the guidance instructs USCIS officials to examine “circumstances where an alien has endorsed, promoted, supported, or otherwise espoused the views of a terrorist organization or group, including those who support or promote anti-American ideologies or activities, antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies.” Evidence of such activity “will be an overwhelmingly negative factor in discretionary analysis.” The guidance further clarifies that this new discretionary analysis applies to National Interest Waiver determinations but not to other employment-based petitions. The new policy is effective immediately.

• False Claims to Citizenship. In an additional update to its policy manual, USCIS clarified that making a false claim to U.S. citizenship does not need to be made intentionally, knowingly, or willfully in order to be found inadmissible.

• Increased Fees. Pursuant to a July 22, 2025, Federal Register notice, USCIS will not accept benefit requests postmarked on or after August 21, 2025, that do not include new fees as established by the Reconciliation Bill (H.R. 1). These fees generally apply to initial applications and work authorization documents relating to asylum, parole, and temporary protected status (TPS) requests. This does not include all the new fees prescribed in H.R. 1, such as the $250 “visa integrity fee.”

The 1994 Crime Bill Remembered. On August 21, 1994, the U.S. House of Representatives passed the Violent Crime Control and Law Enforcement Act of 1994, which was signed into law by President Bill Clinton on September 13, 1994. In terms of its scope, page length, and funding, it is the largest crime bill in U.S. history. It provided funding for the hiring of 100,000 new police officers and nearly $10 billion for the construction of new prisons. Though sometimes referred to as the “1994 Crime Bill” or the “Clinton Crime Bill,” it was then-Senator Joe Biden who drafted the Senate version of the legislation. Readers of a certain age may recall particular provisions of the bill, many of which still resonate in some form or another in current policy debates. For example, the law included the Federal Assault Weapons Ban (which expired in September 2004) and the Violence Against Women Act (a portion of which was struck down by the Supreme Court in United States v. Morrison (2000) as an unconstitutional expansion of the Commerce Clause). The law also added sixty new federal offenses eligible for the death penalty and the “three strikes” lifetime-sentence rule for certain repeat offenders.

Quick Hits

• In California, Indiana, Michigan, Nevada, and Virginia, child labor laws have changed this year.
• Some state laws limit the hours minors can work or the jobs they can do.
• The DOL recently has amped up enforcement of the child labor provisions of the FLSA.
• Federal and state labor agencies may certify U-visas and T-visas for qualifying workers—including minors—who are victims of workplace crimes or trafficking and who cooperate with investigations.

Child labor has drawn heightened attention lately with some states enacting stricter child labor rules and others relaxing their restrictions. State laws vary in how they limit the hours minors can work and the types of jobs minors can do. In some cases, the time limitations are different during the school year and outside of the school year.

California Law

California enacted a law, Assembly Bill (AB) 3234, requiring employers to disclose child labor findings from voluntary audits. It took effect on January 1, 2025. Employers must publish audit results on their website, including the timing of the audit, any child labor findings, and copies of child labor policies.

California limits the hours that minors can work, prohibits work in some hazardous occupations, and requires them to obtain a work permit.

Indiana Law

Indiana amended its statute to expand the hours that minors can work. Under the changes that took effect on January 1, 2025, sixteen- and seventeen-year-olds can work the same hours and days as an adult. Parental permission is no longer required for sixteen- and seventeen-year-olds to work longer or later hours. In addition, fourteen- and fifteen-year-olds can work until 9 p.m. on any day from June 1 to Labor Day.

Michigan Law

Under a new Michigan law, a new registration system will allow minors to register for employment and allow employers to register to employ minors. Once the system is established, the state Department of Labor and Economic Opportunity will issue work permits for minors, and schools will not be asked to do so. The new rules will take effect on October 2, 2026.

Children under sixteen years of age can work a maximum of three hours per day during a week when school is in session. They can work between 7 a.m. and 7 p.m. on school days during the school year, or between 7 a.m. and 9 p.m. from June 1 to Labor Day.

Nevada Law

A new law in Nevada, Assembly Bill 215, prohibit minors under age sixteen from working more than forty hours in any one week. It was previously limited to forty-eight hours. The law also prohibits minors younger than nineteen from working between the hours of 11 p.m. and 6 a.m. on any night preceding a school day. Certain exceptions apply to emancipated minors, lifeguards, arcade employees, stage or theatrical employees, and minors working on a farm.

The law requires the Nevada labor commissioner to prepare and distribute an abstract of child labor laws, which employers must post in a visible location at the workplace and online.

The law will take effect on October 1, 2025.

Virginia Law

Virginia legislators recently passed two laws related to minors involved in content creation or working in barber shops and beauty salons.

House Bill 2401 requires content creators, including parents, to put into a trust a certain portion of their earnings from video content that includes the name, likeness, or image of a child. The child can receive the funds after turning eighteen-years-old or being emancipated. The law took effect on July 1, 2025.

A child under the age of sixteen is considered to be engaged in the work of content creation when two criteria are met:

• during the previous twelve months at least 30 percent of the content creator’s compensated video content produced within a thirty-day period includes the likeness, name, or photograph of the child; and
• the number of views received per video segment on any online platform met the online platform’s threshold for the generation of compensation or the content creator received compensation for video content equal to or greater than $0.10 per view.

The law requires content creators whose content regularly features a child to maintain records with:

• the name and documented proof of age for the child engaged in content creation,
• the number of videos that generated compensation,
• the number of minutes of the video content that the content creator received compensation for during the reporting period,
• the number of minutes each child was featured in video content during the reporting period,
• the total compensation generated from video content featuring a child during the reporting period, and
• the amount of money deposited into the trust for the child during the reporting period.

Meanwhile, House Bill 1667 permits children aged sixteen years or older to work in licensed barbershops and cosmetology salons if they are employed under a valid work-training program or hold a cosmetology or barber license from the state Board for Barbers and Cosmetology. Previously, they could only do so if they were part of a registered apprenticeship. The law took effect on July 1, 2025.

Federal Enforcement

The Fair Labor Standards Act (FLSA) generally prohibits employers from having minors under age eighteen do certain types of dangerous jobs, including:

• driving a motor vehicle for work;
• operating or cleaning power-driven meat-processing machines;
• operating or cleaning power-driven bakery machines;
• operating circular saws, chainsaws, woodchippers, and forklifts;
• logging and forestry work;
• demolition tasks;
• roofing work; and
• mining work.

In addition, certain roles are off limits for fourteen- and fifteen-year-olds, including:

• most occupations involving transportation, construction, warehousing, and public utilities;
• work in freezers or meat coolers;
• any part of baking operations;
• sign-waving;
• door-to-door sales activities;
• work on ladders and scaffolds; and
• catching or cooping poultry.

Under the FLSA, fourteen- and fifteen-year-olds can work a maximum of three hours on a school day, eighteen hours during a school week, eight hours on a non-school day, and forty hours on a non-school week. The hours must be between 7 a.m. and 7 p.m., except for June 1 through Labor Day, when it’s extended to 9 p.m. Children under fourteen years old cannot be employed in nonagricultural occupations covered by the FLSA.

In fiscal year 2024, the U.S. Department of Labor (DOL) concluded 736 cases with child labor violations involving 4,030 children nationwide. It fined employers more than $15.1 million in civil money penalties, an 89 percent increase from the previous year. The agency had more than 1,000 open child labor investigations in January 2025.

In some of those cases, children allegedly were cleaning meatpacking plants during the middle of the night, and some of them were migrants who came to the United States alone from Mexico or Central America, according to the DOL.

Immigration Relief for Young Victims of Workplace Violations

Federal and state labor agencies are increasingly supporting young immigrant workers who experience serious workplace abuses. When a qualifying crime—such as trafficking, involuntary servitude, obstruction of justice, or other criminal activity—occurs in the workplace and violates a law the agency enforces, the agency may issue a U-visa certification.

A U-visa certification confirms that the worker is a victim of a qualifying crime and has cooperated, is cooperating, or is likely to cooperate with the investigation or prosecution. A U-visa can provide temporary lawful status and work authorization, ultimately creating a potential pathway to lawful permanent residence.

Similarly, minors and adults who are victims of severe forms of trafficking may be eligible for a T-visa. Labor agencies may provide a T-visa certification attesting to the individual’s victim status and cooperation with the agency’s anti-trafficking efforts. A T-visa offers lawful status for up to four years, employment authorization, and eventual eligibility for permanent residence. Requests for U- or T-visa certifications often arise in parallel with wage-and-hour or health-and-safety probes, and they can significantly influence an agency’s investigative timeline.

Next Steps

Employers may wish to adjust their staffing arrangements and job assignments to ensure that minors don’t exceed their time limits and don’t perform dangerous tasks that are impermissible under state or federal law.

Furthermore, employers may wish to carefully coordinate with staffing agencies and third-party vendors, such as cleaning services, to ensure they have accurate records on the age and immigration status of all workers. This diligence helps prevent child-labor violations and immigration violations, including scenarios in which immigrant children present false documents, such as a green card belonging to a similar-aged relative, to an employer or staffing agency.

When an investigation does arise, employers may want to prepare for the possibility that affected immigrant workers may seek U- or T-visa certifications. Cooperation with investigators, prompt remediation of any violations, and the implementation of robust compliance programs can mitigate enforcement risk.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law, Immigration, State Developments, Wage and Hour, and Workplace Safety and Health blogs as new information becomes available.

The Ogletree Deakins Client Portal contains additional information and tracks developments on child labor laws, including those in California, Indiana, Michigan, Nevada, and Virginia. 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.

Leigh N. Ganchan is a shareholder in Ogletree Deakins’ Houston office.

Christopher W. Olmsted is a shareholder in Ogletree Deakins’ San Diego 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 UK Data (Use and Access) Act 2025 introduces several important amendments to the UK General Data Protection Regulation (UK GDPR), the Data Protection Act 2018 (DPA), and the Privacy and Electronic Communications Regulations (PECR), which directly impact how employers process personal data.
• Among the changes are new measures for international data transfers, automated decision-making, legitimate interest, cookies, and the creation of a complaints procedure.
• The UK data supervisory authority, the Information Commissioner’s Office (ICO), has announced that it intends to issue further guidance on the changes in late 2025 or early 2026.

Whilst the act does not completely overhaul the current UK data protection framework, it introduces several significant changes which will be discussed in this article.

International Data Transfers

The act introduces a “data protection test,” offering more flexibility than the previous “essentially equivalent” standard for third-country data transfers. Under the changes, international transfers would be permitted if the third country’s protections are “not materially lower” than those in the UK. In addition to the data protection test, the secretary of state may create laws authorising international transfers, taking into account the larger context of data flows between the UK and other countries, as well as the potential benefits of the transfers. Due to these modifications, the UK’s guidance on international transfers may differ from that of the European Union. The Information Commissioner’s Office (ICO) is due to publish updated guidance on international transfers in early 2026.

Data Subject Access Requests (DSARs)

Employers may benefit from clarified and streamlined requirements for responding to DSARs. The act clarifies that only “reasonable and proportionate” searches are required, and the response deadline is paused if additional information is needed from the requester, such as verifying the requester’s identity or defining the scope of the request. This only applies when the recipient of the DSAR cannot reasonably proceed with responding without this information, and the requester should be notified of the extension.

Legitimate Interests

The act provides a list of “recognised legitimate interests” that do not require a balancing test or a legitimate interests assessment (LIA), provided the processing can be considered necessary. The activities in scope include crime prevention and national security. Also included in the list of “recognised legitimate interests” are direct marketing and intra-group data sharing for internal administration, although these processing activities will require a LIA. Organisations may want to consider whether the lawful basis amendments apply to their processing activities and ensure that privacy documentation, such as privacy notices, continues to accurately describe the relevant lawful bases relied upon.

Automated Decision-Making

The act eases restrictions on automated decision-making, allowing it to be used in a wider range of circumstances, provided that easing of restrictions ensures transparency, provides meaningful human intervention, and creates an accessible mechanism for data subjects to challenge outcomes. However, automated decisions involving special category data, such as health information, are only permitted with explicit consent or where required under substantial public interest, as defined by UK law.

Cookies

The act aligns fines under the UK Privacy and Electronic Communications Regulations (PECR) with those under the UK General Data Protection Regulation (UK GDPR), raising the maximum penalty to £17.5 million or 4 percent of global turnover. For organisations, this means that breaches related to electronic communications, such as direct marketing, carry significant financial risk.

The act also permits the use of certain “low-risk” cookies (e.g., for security or analytics) without explicit consent, provided users can opt out of such processing.

Complaints Procedure

In addition to strengthening the enforcement powers of the ICO, the act has created a statutory right for individuals to raise data privacy-related complaints directly with organisations. Organisations will be required to facilitate the creation of a formal complaints mechanism, such as an online form, acknowledge receipt of complaints within thirty days, and take appropriate steps to investigate each complaint without undue delay. Once the investigation is completed, the relevant data subject should be notified of the outcome, and any actions taken should be recorded.

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

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

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

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Quick Hits

• In State of Texas v. Bondi, the Fifth Circuit overturned a district court’s injunction that had prevented enforcement of the Pregnant Workers Fairness Act (PWFA) against the State of Texas as an employer.
• The court found that the U.S. House of Representatives’ use of proxy voting during the COVID-19 pandemic did not violate the U.S. Constitution’s Quorum Clause.
• The PWFA broadly requires employers to provide reasonable accommodations for employees with limitations arising from pregnancy, childbirth, or related medical conditions—but regulatory changes may be on the horizon.

Background

The PFWA, which went into effect on June 27, 2023, requires employers to provide reasonable accommodation to workers with known limitations related to pregnancy, childbirth, or related medical conditions, absent undue hardship. This is true regardless of whether the “known limitations” constitute a disability under the Americans with Disabilities Act (ADA). Thereafter, the EEOC began enforcement of the PWFA and issued its final regulations, explaining in an associated press release that it “provides clarity to employers and workers about who is covered, the types of limitations and medical conditions covered, how individuals can request reasonable accommodations, and numerous concrete examples.”

The PWFA faced immediate legal challenge, including by the State of Texas. The State of Texas’s argument focused on the U.S. Constitution’s Quorum Clause, which requires a majority of members of the House or U.S. Senate to be present in order to constitute the necessary quorum (or majority percentage) to pass legislation. In the context of the COVID-19 pandemic, the House implemented a rule that allowed its nonpresent members to vote by proxy. And it was pursuant to this rule that the PWFA was passed.

The District Court’s Injunction

The district court agreed with the State of Texas that the U.S. Congress violated the Constitution when it included physically absent members in the quorum count for passage of the PWFA. Because Texas requested an injunction only on its own behalf, the court prohibited enforcement of the law by the EEOC only as to the State of Texas, leaving it in effect as to all other covered employers.

The Fifth Circuit’s Opinion

On appeal, the Fifth Circuit held that in-person voting was not required under the Quorum Clause. The Fifth Circuit found that the plain language of the Quorum Clause does not explicitly require physical presence for voting. The court highlighted that historical practices dating back to 1789 support the notion that a quorum can be presumed even if a majority of members are not physically present. The court also emphasized that the Constitution was designed to adapt to changing circumstances over time.

Thus, the Fifth Circuit held, “The House’s proxy-voting rule did not violate anyone’s fundamental rights. There is a reasonable relationship between the rule and the result it seeks—majoritarian rule. And the constitutional text, history, and tradition indicate that the Quorum Clause contains no physical-presence requirement that the House’s rule could have flouted.” With this, the court vacated the district court’s injunction, allowing the PWFA to be enforced against the State of Texas.

Implications for Employers

This case affirms the constitutionality of the PWFA, which has been in effect for private employers for more than two years. With limited exception on the issue of abortion, the EEOC’s final regulations remain in force nationwide, now including Texas’s public employers. Notably, however, the EEOC under the Trump administration has indicated that it intends to rescind these Biden-era regulations, which may ease the accommodation requirements currently imposed on employers.

Ogletree Deakins’ Employment Law Practice Group and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Employment Law and Leaves of Absence blogs as additional information becomes available.

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Quick Hits

• Most applicants for nonimmigrant visa interview waivers will be required to attend in-person interviews after September 2, 2025.
• For certain nationalities, these changes are effective immediately and without exception.
• These changes may lead to longer wait times and extended visa processing timelines

Interview waivers will still be available for the following visa categories, although an in-person interview may be requested at the consular officer’s discretion:

• applicants under A-1, A-2, C-3 visa classifications (excluding attendants, servants, or personal employees), G-1 to G-4, NATO-1 to NATO-6, or TECRO E-1;
• applicants for diplomatic or official visas; and
• applicants renewing a full validity B-1, B-2, or B1/B2 visa, or a Border Crossing Card/Foil (for Mexican nationals) within twelve months of the prior visa’s expiration. However, they must have been at least eighteen at the time of the prior visa’s issuance, must apply in their country of nationality or residence, have never been refused a visa (unless overcome or waived), and have no apparent or potential ineligibility.

Prior to this change, U.S. embassies and consulates permitted “drop box” processing for certain nonimmigrant visa applicants who previously held a U.S. visa in the same class. This included common categories like H-1B, L-1, F-1, and O-1, as well as age-based interview exemptions for children under fourteen years of age and adults over seventy-nine years of age. As of September 2, 2025, most of these applicants will once again be required to attend in-person interviews, regardless of whether they are renewing a visa or applying for the first time.

Stricter Guidance for Nationals and Citizens of Certain Countries

For nationals and citizens of the following countries, all nonimmigrant visa applicants must attend in-person interviews, effective immediately, and without the exceptions listed above:

Afghanistan, Angola, Antigua and Barbuda, Benin, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Cambodia, Cameroon, Chad, Cote D’Ivoire, Cuba, Republic of Congo, Democratic Republic of Congo, Djibouti, Dominica, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, The Gambia, Ghana, Haiti, Iran, Kyrgyz Republic, Laos, Liberia, Libya, Malawi, Mauritania, Niger, Nigeria, Saint Kitts and Nevis, Saint Lucia, Sao Tome and Principe, Sierra Leone, Senegal, Somalia, South Sudan, Sudan, Syria, Tanzania, Togo, Tonga, Turkmenistan, Tuvalu, Uganda, Vanuatu, Venezuela, Yemen, Zambia, and Zimbabwe.

Applicants for diplomatic and official visas from these countries should continue to use normal diplomatic channels for scheduling interviews.

Current Visa Appointment Wait Times

Due to the upcoming policy change, visa applicants should anticipate longer wait times and plan ahead accordingly. Applicants can view estimated visa appointment wait times on the State Department’s Global Visa Wait Times website. Wait times vary widely by location and visa category.

Additional Reminders

• Visa applicants must bring the original DS-160 confirmation page used to schedule the appointment. Applicants who submit a second DS-160 to make corrections must bring both the original DS-160 confirmation page used to schedule the appointment and any new DS-160 confirmation pages. Otherwise, the appointment must be rescheduled with the new DS-160 application number.
• Effective January 1, 2025, the following rescheduling rules apply to nonimmigrant visa appointments:
  • One free reschedule is permitted.
  • Applicants who miss an appointment or need to reschedule a second time must repay the visa fee to book a new appointment.

Key Takeaways

Given the scope of these changes, applicants may want to plan ahead and account for potential delays when arranging travel, employment, or academic activities. The new requirements are expected to impact a wide range of travelers, including students, business professionals, and temporary workers.

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

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Quick Hits

• Effective August 1, 2025, Louisiana’s Employment Discrimination Law now includes military status as a protected class, extending anti-discrimination protections to military personnel, veterans, and their dependents.
• A new exemption to Louisiana’s final pay law, effective August 1, 2025, excludes partnership distributions from the standard wage payment requirements upon the termination of employment.

Louisiana’s Employment Discrimination Law Expanded to Include Military Status

Effective August 1, 2025, Louisiana’s Employment Discrimination Law (LEDL) now includes “military status” as a protected class, extending to military personnel and veterans protections against discrimination in hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, and other terms of employment. The new law, Act No. 100, also prohibits discrimination based on military status in housing, education, and public accommodations.

Notably, the LEDL now also protects spouses/family members against employment discrimination if they are a dependent of a military service member. Under the new law, “military status” is defined to include individuals who are “member[s] of the uniformed services … of the United States” or its reserve components, or dependents of such service members who have been supported by them for at least 180 days.

Key Takeaways for Employers

• Employers may want to immediately review and update anti-discrimination and equal employment opportunity (EEO) policies, and also review and update handbooks to include military status.
• Human resources teams and managers may want to incorporate training for new protections and how to adequately respond to requests related to military service, including leave or adjustments to schedules.

New Exemption From Louisiana’s Wage Payment Act for Partnership Distributions

The legislature also added a new provision to the Louisiana Wage Payment Act (LWPA), which requires payment of wages to employees after termination of employment. Specifically, Act No. 113 provides that the existing provisions regarding the obligation to pay wages earned at the time of termination do not apply to “profits interest granted or issued by an entity that is taxed as a partnership for federal income tax purposes,” even though the recipient was an employee. Notably, Act No. 113 does not include a similar exemption for limited liability companies (LLCs).

This change clarifies the scope of final wage payment requirements. Under the new law, certain types of compensation related to partnership interests are excluded from the standard requirements that require timely payment of wages upon termination of employment. This law also became effective August 1, 2025.

Key Takeaways for Employers

• For businesses that operate as partnerships with compensation structures tied to profits interests, the exemption will effectively prevent disputes over whether those interests should be treated like standard wages payable upon termination of employment.
• The exemption ensures that entities operating as partnerships (taxed accordingly) are not required to treat “profits interest granted or issued” like cash wages, which might otherwise have administrative or financial implications upon an employee’s exit.

Ogletree Deakins’ New Orleans office will continue to monitor developments and will provide updates on the Louisiana blog as additional information becomes available.

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Quick Hits

• The Office of the Privacy Commissioner of Canada (OPC) has published guidance on the processing of biometric information under the Personal Information Protection and Electronic Documents Act (PIPEDA).
• Biometric data is permitted for use in Canada, but is considered highly sensitive and subject to heightened privacy expectations.
• Organizations can consider conducting an internal Biometric Privacy Impact Assessment (B-PIA) to evaluate risks and demonstrate accountability.
• While the OPC guidance is advisory, Québec has established more prescriptive requirements under its privacy legislation. 

Application of the Federal Biometric Guidance

The federal biometric guidance issued by the Office of the Privacy Commissioner of Canada applies only to organizations that are subject to PIPEDA. That said, PIPEDA’s scope is broad, and many private-sector organizations across Canada will fall within it. In general, PIPEDA governs the collection, use, and disclosure of personal information in the course of commercial activities nationwide. However, there are key exceptions. In Alberta, British Columbia, and Québec, provincial private-sector privacy laws deemed “substantially similar” to PIPEDA apply in place of the federal statute for most consumer and employee information. Outside of those provinces, PIPEDA applies to consumer data, but not to employee data. An exception exists for federally regulated organizations, known as “federal works, undertakings, and businesses” (FWUBs), including industries such as airlines, banks, telecommunications, broadcasting, interprovincial or international transportation, and certain Crown corporations. For FWUBs, PIPEDA applies to both consumer and employee personal information.

Companies may want to evaluate carefully whether they are subject to PIPEDA, as the analysis can be fact-specific. While there are general rules of application, particular circumstances may lead to different outcomes, and in some cases both federal and provincial privacy laws may apply to the same organization.

As a quick reference:

• Companies located in Alberta, British Columbia, and Québec: Provincial laws may apply to both consumers and employees.
• Federal works, undertakings, or businesses (FWUBs): PIPEDA applies to both employees and consumers.
• Elsewhere in Canada, non-FWUBs: PIPEDA applies only to consumer information.

It is also worth noting that other legal regimes may govern certain categories of data, such as background check information or sector-specific requirements, which organizations may need to consider in parallel. Accordingly, organizations may want to confirm whether PIPEDA applies to their operations before assessing their obligations under the new federal biometric guidance.

Federal Guidance: Biometric Use Permitted, but With Caution

The OPC guidance notes that biometrics are not prohibited in the private sector, but their use ought to be approached with exceptional care. Key themes from the federal guidance include:

• Heightened Sensitivity: Because biometric identifiers are immutable, they are treated as particularly sensitive. Organizations may wish to consider handling them with the highest level of care.
• Biometric Privacy Impact Assessment (B-PIA): Before implementation, organizations may want to consider whether biometrics are truly necessary, whether less intrusive alternatives are available, and how risks can be addressed.
• Purpose Limitation: Collection may be limited to a clear, specific, and legitimate purpose, with attention paid to avoiding unintended secondary uses.
• Consent and Transparency: Express, informed consent is generally expected. Individuals may benefit from clear explanations of what is collected, how it will be used, and who will access it. Companies operating in Canada may also wish to establish an internal retention schedule and provide privacy notices. In provinces with comprehensive private-sector privacy legislation, namely Alberta, British Columbia, and Québec, as well as in federally regulated workplaces, these notices typically extend to employees and job applicants, and may need to reference any biometric data, but consent for biometric data may be required separately.
• Safeguards and Retention: Organizations may want to consider implementing robust safeguards such as encryption, access controls, and timely deletion when the data is no longer required.
• Individual Rights: Providing processes that allow individuals to access, correct, or request deletion of their data, and to withdraw consent, may help align with regulatory expectations.
• Ongoing Review: Organizations may benefit from reviewing biometric programs regularly and revisiting privacy assessments as technologies, vendors, or business needs evolve.

Taken together, the OPC’s guidance signals an expectation that organizations approach biometrics through a “privacy by design” lens, with companies expected to perform internal evaluations to determine it has taken an approach that prioritizes privacy.

Québec’s Higher Bar: The CAI’s Prescriptive Rules

While the OPC guidance is advisory, Québec has established more prescriptive requirements under its privacy legislation. Organizations in Québec will want to consider the following obligations:

• Completing a privacy impact assessment (PIA)
• Filing a declaration with the CAI at least sixty days before deploying a biometric system or database
• Obtaining express consent and offering a nonbiometric alternative for identification
• Applying strong minimization, confidentiality, and security measures
• Ensuring secure destruction once the data is no longer required
• Facilitating individuals’ rights to access, correct, or request deletion of their biometric data

These requirements reflect Québec’s restrictive approach to privacy protection and may set a higher bar for compliance compared with other Canadian jurisdictions.

Biometric Use Under Alberta and British Columbia Privacy Laws

In addition to federal guidance, organizations operating in Alberta and British Columbia will want to consider provincial requirements under their respective private-sector privacy laws. Both provinces emphasize the principle of data minimization, which means that organizations are expected to limit the collection, use, and disclosure of personal information to what is reasonable and necessary for the identified purpose. When it comes to biometric data, given its heightened sensitivity, the data minimization principle plays an important role in assessing whether biometrics are the least intrusive option and whether less privacy-invasive alternatives could achieve the same objective. While these provincial laws contain certain exceptions to consent in the employment context, for example, by allowing organizations to collect or use personal information without consent if it is reasonable for the purpose of managing the employment relationship, these exceptions are subject to interpretation. They may not be applicable in every scenario involving biometric data, particularly where the use of biometrics could be seen as outside of managing an employee.

Next Steps

As biometric adoption accelerates, Canadian regulators are signaling that innovation may need to be balanced with accountability. Organizations considering or already using biometric technologies may wish to:

1. Conduct a privacy impact assessment (B-PIA or PIA) early in the process.
2. Assess necessity and proportionality—determining whether biometrics are the least intrusive option or offer advantages that can greatly reduce risk.
3. Implement safeguards such as encryption, access restrictions, and limited retention periods.
4. Develop consent and transparency practices—including privacy notices for customers, employees, and applicants provide clear information.
5. Monitor legal developments—particularly in Québec, where the rules are more prescriptive and may influence other jurisdictions.

Biometric technologies offer efficiency and enhanced security, but they also carry unique privacy risks. The OPC’s guidance and Québec’s regulatory framework highlight the importance of caution, accountability, and transparency in their use. Organizations that take steps to align with these evolving expectations may reduce regulatory risk while fostering trust in the use of biometric tools in Canada’s digital economy.

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

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Quick Hits

• The Fifth Circuit held that the statutory limits on the president’s power to remove board members and ALJs were likely unconstitutional and violative of the U.S. Constitution’s separation-of-powers doctrine.
• The decision maintains the injunctions that had enjoined ULP proceedings involving the three employers at issue, allowing the employers to continue to challenge the NLRB’s constitutionality.
• The decision addresses only the propriety of the injunctions’ issuance. The ultimate question of whether the NLRB’s structure is constitutional will very likely be decided by the Supreme Court of the United States.
• The Fifth did not address the potential remedy if the NLRB’s structure was unconstitutional. It did, however, suggest that the constitutional problem might be solved by “severing” the limits on presidential removal and leaving the remainder of the statute intact.

Removal Protections Likely Unconstitutional

The decision notes that the statutory limits on removing administrative law judges (ALJs) are likely unconstitutional, as “ALJs are inferior officers insulated by two layers of for-cause removal protection.”  Thus, ALJs may be removed only for good cause as determined by the U.S. Merit Systems Protection Board (MSPB), whose members themselves are removable only for cause. Such a dual-layer of for-cause removal protection is unconstitutional, the panel wrote.

Further, while acknowledging that the constitutionality of removal protections for NLRB members was a “closer call,” the three-judge appellate panel found that the for-cause protections enjoyed by NLRB members also likely violated the Constitution. Under the National Labor Relations Act (NLRA), the president may remove NLRB members “for neglect of duty or malfeasance in office, but for no other cause.”

In particular, the panel rejected the argument that such a restriction was constitutional under the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, which upheld restrictions on the president’s authority to remove officers of certain types of independent agencies—in that case, a commissioner of the Federal Trade Commission (FTC).

The panel noted that courts “have been reluctant to extend” that decision to agencies that are “not a ‘mirror image’” of the FTC. Instead, the panel found that the Humphrey’s Executor decision represented a “narrow exception, limited to ‘multimember expert agencies that do not wield substantial executive power.’” Unlike FTC commissioners in 1935, NLRB members do wield substantial executive power, as they “determine bargaining units, direct representation elections, adjudicate unfair-labor-practice charges, and seek enforcement of their orders in federal court,” the panel stated.

Additionally, the panel pointed to the Supreme Court’s recent stay of lower court orders that would have reinstated former NLRB Member Gwynne Wilcox and MPSB Member Cathy Harris to their respective boards while they challenged their removals by President Trump earlier this year.

Propriety of Injunctive Relief

The NLRB had argued that the challengers would not suffer immediate and irreparable harm, a showing that is typically required for injunctive relief, if the removal protections were ultimately found to be unconstitutional. The NLRB had argued that no actual harm would result from limitations on removal, and that, in any event, any arguable harm could be remedied on appeal from an ALJ or Board decision. A majority of the Fifth Circuit panel rejected these arguments out of hand, noting, “The Employers have made their case and should not have to choose between compliance and constitutionality. When an agency’s structure violates the separation of powers, the harm is immediate—and the remedy must be, too.”

Next Steps

The Fifth Circuit Court of Appeals’ ruling applies within the Fifth Circuit, a jurisdiction covering federal districts in the states of Louisiana, Mississippi, and Texas, and it likely means that employers in those states will be able to obtain injunctions blocking ULP litigation and potentially other NLRB proceedings by filing similar constitutional challenges.

More broadly, the ruling is another piece in the ongoing battle over the constitutionality of the NLRB and other independent federal agencies and the continuing viability of the “administrative state.” The constitutionality of the NLRB’s structure will very likely be decided by the Supreme Court, perhaps as early as its next term. While it is always difficult to predict how the Supreme Court will rule, its recent rulings may signal that the Court is prepared to hold that removal protections for NLRB members violate the separation of powers of the U.S. Constitution.

Of greatest practical consequence, though, is what will happen if the Court ultimately holds that the statutory removal restrictions are unconstitutional. In such cases, the prevailing doctrine in federal law is to remove or “sever” the constitutional impediment and leave the remainder of the statute in place. Indeed, the NLRA itself appears to provide for precisely this type of approach since Section 16 of the Act provides, “If any provision of this Act [subchapter], or the application of such provision to any person or circumstances, shall be held invalid, the remainder of this Act [subchapter], or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.”

Thus, the remedy to any constitutional defect in the NLRB’s structure would likely be merely “writing out” of the statute its removal limitations and making NLRB members and ALJs terminable at will by the president. That said, there is a more expansive argument that if the U.S. Congress deemed such removal protections, and the “independence” they guarantee, to be central or essential to the NLRA itself, the entire statute could fall. That bar, however, would be very high. In essence, it would require a finding that in the absence of the statutory removal protections, Congress never would have passed the NLRA in the first place. Unlikely as that might be, the unfolding constitutional debate demands attention.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Governmental Affairs and Traditional Labor Relations blogs as additional information becomes available.

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Quick Hits

• The Fifth Circuit held that dual for-cause removal protections for NLRB administrative law judges (ALJs) are unconstitutional under Article II of the U.S. Constitution, as they unduly insulate ALJs from presidential oversight.
• For-cause removal protections for NLRB Board members were also found likely unconstitutional, except where the agency mirrors the Federal Trade Commission structure as described in Humphrey’s Executor v. United States.
• The decision affirms that district courts have jurisdiction to enjoin ongoing agency proceedings on constitutional grounds, and that being subjected to an unconstitutional proceeding constitutes irreparable harm.

The court found that two layers of for-cause removal protection, where ALJs may be removed only for cause by the Merit Systems Protection Board (MSPB), whose members themselves are only removable for cause, violate the separation of powers. This structure impedes the president’s ability to ensure the faithful execution of the laws.

The court determined that for-cause removal protections for principal officers (such as NLRB Board members) are constitutionally suspect unless the agency is a “mirror image” of the Federal Trade Commission (FTC), with features such as statutory party-balancing and limited executive power. The court also affirmed that district courts may enjoin agency proceedings based on these constitutional challenges, and that participation in an unconstitutional proceeding is itself irreparable harm.

Application to OSHRC and OSHRC ALJs

OSHRC ALJs are subject to the same dual for-cause removal protections as NLRB ALJs. Under the Fifth Circuit’s reasoning, these protections are likely unconstitutional, as they similarly insulate ALJs from presidential control. OSHRC is led by three commissioners, removable by the president only for cause. While OSHRC is a multimember adjudicatory body, it lacks statutory party-balancing and exercises only adjudicatory (not executive or policymaking) authority. The constitutionality of for-cause removal protections for OSHRC commissioners is less clear. If OSHRC is deemed sufficiently similar to the FTC in Humphrey’s Executor v. United States, the protections may be upheld; otherwise, they may be vulnerable to challenge. The court’s decision supports the ability of parties before OSHRC to seek injunctive relief in district court, challenging the constitutionality of ALJ and commissioner removal protections and halting ongoing proceedings.

Conclusion

The Fifth Circuit’s decision casts doubt on the constitutionality of dual for-cause removal protections for OSHRC ALJs and raises questions about the protections afforded to OSHRC commissioners. Parties before OSHRC may now have a viable path to challenge the agency’s structure in district court, potentially impacting the validity of OSHRC proceedings and the agency’s future operations. Employers and practitioners may want to closely monitor further developments and consider the potential for constitutional challenges in ongoing and future OSHRC matters.

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

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