Quick Hits

• A bill in the New York State Assembly would prohibit employers from inquiring about applicants’ salary expectations.
• The bill also would prohibit employers from refusing to interview, hire, or promote workers based on their stated salary expectations.
• New York law already prohibits employers from asking for an applicant’s salary history.

The bill, 2025-A1289, would also prohibit employers from relying on pay expectations that the applicant voluntarily shares in determining whether to offer employment and how much to pay the individual. Many states have enacted similar laws in recent years, aiming to promote pay equity and close the gender and racial wage gaps.

The bill is currently in committee in the New York State Assembly.

The bill builds upon the existing New York salary history ban, which took effect in 2020, and which prohibits employers from asking applicants about their salary history. The bill would further restrict pre-offer compensation discussions by prohibiting inquiries into applicants’ salary expectations, the theory being that this further enhances pay equity and potential biases in the hiring process.

The bill would bar employers from requiring applicants to submit their salary expectations as a condition for securing an interview, being hired, or being promoted. Employers would also be prohibited from refusing to interview, hire, or promote a worker based on their stated salary expectations.

There are two clauses in 2025-A1289 that may seem at odds and cause confusion: one allows job applicants to voluntarily share their salary expectations, including for the purpose of negotiating their wages or salary; and the other prohibits employers from relying on that information when determining the compensation ultimately offered. While applicants retain the right to advocate for themselves, employers must ensure compensation decisions are based on objective, articulable, job-related factors, and not influenced by what applicants say they hope to earn. If the bill is enacted with those two clauses intact, employers may want to tread carefully, such as by listening respectfully, but building offers based on, for example, standardized pay structures and market data, and not applicants’ pay expectations.

Under 2025-A1289, employers would also be required to provide employment benefits information when requested. Unfortunately, the bill does not define “employment benefits.” Presumably, benefits such as health insurance, 401(k) plans, stock purchase plans, and commission structures would be included. It is less clear if other benefits, such as paid time off, discretionary bonuses, flexible work schedules, employee assistance plans, and tuition reimbursement, are included as employee benefits.

The bill would create a private right of action for an applicant or employee to bring a civil lawsuit for a violation by an employer. If successful, plaintiffs may be entitled to compensatory damages, potential injunctive relief and reasonable attorney’s fees.

Next Steps

If 2025-A1289 passes the state legislature and is signed by the governor, it would take effect nineteen days after it becomes law. The legislative session is scheduled to end on June 13, 2025.

Employers in New York must comply with current state law prohibiting questions about salary history. Additionally, some employers may need to confirm compliance with similar local laws, such as those in New York City, Ithaca, Albany County, Suffolk County, and Westchester County, and even laws of other states, if a position is remote.

Employers may want to be prepared to comply with the bill, if enacted, including by reviewing interview protocols, training hiring managers and recruiters, updating job descriptions, and generally ensuring that compensation and other employment decisions are based on objective, lawful criteria.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Benefits and Executive Compensation, New York, Pay Equity, and Wage and Hour blogs as new information becomes available.

Justine L. Abrams is a shareholder in Ogletree Deakins’ Morristown office.

Joseph B. Cartafalsa is a shareholder in Ogletree Deakins’ New York 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 proposed New York State Fast Food Franchisor Accountability Act would make fast-food restaurant franchisors jointly and severally liable for violations of Chapter 31 of the New York Labor Law, as well as the New York State Human Rights Law and applicable workers’ compensation laws, to the same extent that they may be enforced against fast-food restaurant franchisees.
• The proposed act aims to enhance accountability for fast-food restaurant franchisors and further protect workers’ rights in the fast-food industry.

SB S7289 would make fast-food restaurant franchisors responsible for ensuring that their franchisees are compliant with “applicable employment, worker safety, public health and safety laws and orders and any rules or regulations” to the same extent that those laws are enforceable against fast-food restaurant franchisees. In effect, if a fast-food restaurant franchisee became liable for a violation of applicable employment and worker protection laws, the fast-food restaurant franchisor would be “jointly and severally liable for any penalties or fines” in connection with any violation of laws set forth in the act and any regulations or rules related thereto.

Overview of the Proposed Fast Food Franchisor Accountability Act

The Fast Food Franchisor Accountability Act would apply to “fast food chain[s],” defined in the legislation as “a set of restaurants consisting of fifty or more establishments nationally that either share a common brand or are characterized by standardized options for decor, marketing, packaging, products, and services” and that operate “fast food restaurant[s],” defined as “any establishment in the state that is part of a fast food chain and that, in its regular business operations, primarily provides food or beverages according to all of the following”:

• (a) For immediate consumption, either on or off the premises;
• (b) To customers who order or select items and pay before eating;
• (c) With items prepared in advance, including items that may be prepared in bulk and kept hot, or with items prepared or heated quickly; and
• (d) With limited or no table service. For purposes of this section, “table service” shall not include orders placed by a customer on an electronic device.

Further, a “fast food restaurant franchisor” would mean “a person or entity who grants or has granted a fast food restaurant franchise.” The legislation defines a “fast food restaurant franchisee” as “a person or entity to whom a fast food restaurant franchise is granted.”

If enacted, the act would hold fast-food restaurant franchisors accountable for complying with various employment, worker safety, and public health and safety laws in New York State. These would include the New York State Human Rights Law, applicable workers’ compensation laws, and various laws found in Chapter 31 of the NYLL, such as the New York State Paid Sick Leave Law, New York Prenatal Leave Law, New York Lactation Accommodation Law, and minimum wage and overtime pay requirements. Additionally, the act would apply to emergency executive orders issued by the governor concerning employment standards or worker safety, as well as orders issued by a county or municipality on such matters. If a franchisor’s terms prevent or create substantial barriers to the franchisee’s compliance with these laws, the proposed amendment would allow the franchisee to file an action against the franchisor for monetary or injunctive relief.

The proposed Fast Food Franchisor Accountability Act also provides that a franchisor would not be permitted to waive any part of the act through an agreement or allow the franchisee to indemnify the franchisor for any liability it caused.

Although the act is only a bill and not yet law, fast-food employers with thirty or more fast-food establishments nationally and with operations in New York City are already required to follow New York City’s Fair Workweek Law, which sets forth requirements for predictive scheduling, premium pay, and processes and procedures for discharging employees or reducing their scheduled hours.

Next Steps

Fast-food employers with operations in New York that would be subject to the proposed act may want to review the bill to determine what additional obligations they may face if it is enacted in substantially the same form as currently proposed.

As Senate Bill S7289 progresses through the legislative process, Ogletree Deakins’ New York office will continue to monitor and report on developments and will provide updates on the Hospitality and New York blogs as additional information becomes available.

Jamie Haar is of counsel in the New York office of Ogletree Deakins.

Sarah M. Zucco is of counsel in the New York office of Ogletree Deakins.

Stephen M. Park is a 2024 graduate of Fordham University School of Law and is currently awaiting admission to the State Bar of New York.

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Quick Hits

• The 2025–26 New York state budget includes significant amendments to the New York Labor Law, impacting wage-and-hour enforcement, liquidated damages, and child labor penalties.
• The amendments bring long-awaited clarity to New York pay frequency claims, including interest-only damages for a first violation.
• The amendments grant the New York State Department of Labor (NYSDOL) enhanced enforcement powers, including the ability to impose a 15 percent surcharge on unsatisfied wage judgments and allow employees to enforce wage orders directly.
• The budget also mandates a comprehensive overhaul of minor employment certification and recordkeeping, centralizing the process under the NYSDOL, effective May 9, 2027.

The amendments to the NYLL are now law, effective immediately, and apply to pending and future actions unless otherwise specified. The legislation significantly recalibrates wage-and-hour enforcement, modifies liquidated damages, expands enforcement powers, and increases penalties for child labor violations. Moreover, the legislation overhauls employment certification and recordkeeping for minors, though these changes take effect in two years (on May 9, 2027).

The Labor Law has also been amended to narrow the potential liquidated damages exposure that currently accompanies the requirement that “manual workers” be paid on a weekly basis—a hot-button issue that has spawned a wave of class action litigation against employers who pay “manual workers” on a biweekly basis rather than every week.

The NYLL was also amended to dramatically expand the New York State Department of Labor’s (NYSDOL) enforcement toolkit by giving the labor commissioner “quasi-sheriff” powers, authorizing the NYSDOL to impose an additional 15 percent penalty on unsatisfied wage judgments, and—most notably—allowing employees themselves to step into the shoes of the labor commissioner to docket and execute collection action on wage orders directly. The amendments also include significant increases to civil penalties for child labor violations.

Finally, the budget includes a comprehensive overhaul of the minor employment certification process. Under the new provisions of the NYLL, minor employment certifications will be centralized under the NYSDOL, which must develop and implement a new electronic database system for child labor certification. While this major overhaul was long overdue, it will become effective in two years (May 9, 2027).

Modifications to NYLL § 198(1-a)

NYLL § 198(1-a) now provides the following:

• Liquidated damages for most underpayment violations remain capped at 100 percent of the total amount of wages found to be due, and up to 300 percent for willful violations of NYLL § 194 (requiring equal pay based on gender).
• For violations of the pay frequency requirement under NYLL § 191(1)(a) (requiring weekly wage payment to “manual workers”), where the employer paid wages on a regular payday at least semi-monthly:
  • For a first-time violation, if the employer had a good-faith basis for its pay practice, liquidated damages are limited to no more than 100 percent of the lost interest on the delayed wages (not the late wages themselves), calculated daily at the rate set by Banking Law § 14-a (currently 16 percent per annum).
  • For repeat violations (after a final, unappealed order for the same violation covering employees performing the same work), liquidated damages are 100 percent of the total amount of late wages found to be due (along with interest on that amount).

These changes are now in effect and apply to all pending and future cases.

Modifications to NYLL §§ 218–219 (Civil Penalties)

Modifications to §§ 218–219 of the NYLL include the following, and are now in effect and apply to future cases:

• The NYSDOL commissioner may file wage orders with the county clerk, which immediately become liens with a civil judgment’s full force and effect.
• The commissioner is authorized to add a 15 percent surcharge to any outstanding amount when filing a wage order.
• The commissioner has all the powers of a sheriff under Article 25 of the Civil Practice Law and Rules to levy and sell an employer’s assets, but without the customary marshal or sheriff fees.
• At an employee’s request, the commissioner must assign the wage, supplement, interest, and liquidated damages portion of the order to the employee, who may then docket and enforce the order personally, including levying property and garnishing bank accounts.
• These provisions also apply to wage supplement claims (e.g., vacation pay, expense reimbursement).

Increased Civil Penalties for Child Labor Violations (NYLL § 141)

The maximum civil penalties for violations of child labor laws have been significantly increased:

• Up to $10,000 for a first violation.
• $2,000–$25,000 for a second violation.
• $10,000–$55,000 for a third or subsequent violation.
• For violations involving serious injury or death of a minor, penalties range from $3,000–$30,000 for a first violation, $6,000–$75,000 for a second, and $30,000–$175,000 for a third or subsequent violation.

Overhaul of Minor Employment Certification and Recordkeeping

The budget agreement also includes the following changes to the state requirements for minor employment certification and recordkeeping:

• The NYSDOL, in consultation with the New York Department of Education, will create and maintain a confidential database for the employment of minors.
• Employers hiring minors under eighteen years of age will be required to register in the database, providing detailed information about the business and the minors employed.
• Employers will be required to file employment certificates or permits electronically or physically at the place of employment, accessible to authorized persons.
• Minors will be required to register in the database and update their employment certificate or permit for each employer.
• Employment certificates and permits will be issued electronically within the database.
• The labor commissioner, rather than school officials, will be responsible for issuing and revoking employment certificates and permits.
• Employers will be required to destroy any physical or electronic copies of a minor’s employment certificate upon termination of employment.
• Temporary service employers will be required to keep employment certificates on file and provide copies to each establishment where a minor is assigned.
• The modifications regarding minor employment incorporate necessary changes to the State Education Law (to remove responsibility for issuing employment certificates from local school officials).

These modifications will go into effect in two years (May 9, 2027).

Overview of the New York Labor Law Amendments

The wage-and-hour component of the budget legislation (found in Part U of the ELFA Bill) strikes a new balance between employer certainty and employee recoverability. By simultaneously softening damages for technical pay-frequency missteps and arming workers with streamlined collection mechanisms, lawmakers appear intent on reducing litigation volume while ensuring that bona fide wage theft is swiftly remedied.

Limiting Liquidated Damages for Frequency-of-Pay Violations

Under current law, an employer that pays manual workers on a biweekly basis—even where the correct amount is ultimately paid—may be liable for liquidated damages equal to 100 percent of the late-paid wages (plus 9 percent statutory interest and attorneys’ fees). The First Department’s 2019 decision in Vega v. CM & Associates Construction Management, LLC, upended many employers over a century-long belief that NYLL § 191(1)(a) did not provide for a private right of action, spurning enormous class-action litigation (and potential exposure) for what many employers view as a technical timing infraction. A competing decision issued in 2024 by New York’s Second Appellate Department in Grant v. Global Aircraft Dispatch, Inc., resulted in a split among the state’s appellate divisions, creating further uncertainty in this legal landscape.

The NYLL has also been modified as follows:

• Preserves the commissioner’s and courts’ ability to award up to 100 percent liquidated damages for most underpayment violations, and up to 300 percent for willful equal-pay violations; but
• Carves out frequency-of-pay cases where the employee was, in fact, paid on a regular payday on a semimonthly or faster cadence.
  • For a first-time violation, where the employer had a “good-faith basis” for believing its pay practice was lawful, liquidated damages would be limited to interest only, calculated daily at the rate established by Banking Law § 14-a 16 percent) per annum); and
  • Employers with a prior, final, and unappealed order for the same violation (covering employees who perform “the same work”) to 100 percent liquidated damages on the underlying wages for subsequent infractions.

By tethering first-offense damages to lost interest rather than duplicating principal wages, the law seeks to curtail outsized settlements in pay frequency cases while preserving meaningful deterrence for repeat violators. These changes went into effect on May 9, 2025, and apply to pending actions and any future litigated frequency-of-pay cases.

Expanding NYSDOL and Employee Enforcement Powers

The amendment to NYLL §§ 218-219 (found in Part V of the Education, Labor and Family Assistance (ELFA) Bill) allows the labor commissioner to repurpose long-standing tax-collection tools for wage enforcement, including the following.

• Automatic Judgment Liens. Once an order to comply is issued by the NYSDOL (or a final decision rendered by the Industrial Board of Appeals) and is docketed with a county clerk, it “shall have the full force and effect of a judgment.” The lien attaches immediately to the employer’s real and personal property.
• 15 percent) “Non-Payment” Surcharge. If the employer fails to satisfy the order to comply before filing, the labor commissioner may unilaterally increase the amount due by 15 percent).
• Sheriff-Style Levy Authority. Whether executed through county sheriffs or NYSDOL personnel, the labor commissioner may impose a levy on and sell an employer’s assets as if executing on a court judgment—without paying the customary marshal or sheriff fees.
• Mandatory Assignment to Employees. Upon request, the labor commissioner must assign to the employee “without consideration or liability” the order’s wage, supplement, interest, and liquidated-damages portion. The employee may docket and enforce the order personally, including levying property and garnishing bank accounts, all under the Civil Practice Law and Rules.
• Parallel Provisions for Unpaid Wage Supplements. Identical language appears in amended NYLL § 219, which governs wage-supplement claims (e.g., vacation pay, expense reimbursement).

In effect, these amendments reduce agency workload while incentivizing employers to resolve wage matters promptly.

Increased Civil Penalties for Child Labor Violations

The maximum civil penalties for violations of child labor laws have been significantly increased. For a first violation, the penalty is up to $10,000; for a second violation, $2,000–$25,000; and for a third or subsequent violation, $10,000–$55,000. Where a violation involves serious injury or death of a minor, penalties range from $3,000–$30,000 for a first violation, $6,000–$75,000 for a second, and $30,000–$175,000 for a third or subsequent violation.

Overhaul of Minor Employment Certification and Recordkeeping

The amendment to the provisions of the NYLL and State Education Law (found in Part X of the ELFA Bill) requires the NYSDOL, in consultation with the Department of Education, to create and maintain a confidential database for the employment of minors.

Employers hiring minors under eighteen years of age must register in the database, providing detailed information about the business and the minors employed. Employers must file employment certificates or permits electronically or physically at the place of employment, accessible to authorized persons. Minors must register in the database and update their employment certificate or permit for each employer. Employment certificates and permits are now issued electronically within the database.

Rather than school officials, the labor commissioner will become responsible for issuing and revoking employment certificates and permits. Employers must destroy any physical or electronic copies of a minor’s employment certificate upon termination of employment. Temporary service employers must keep employment certificates on file and provide copies to each establishment where a minor is assigned.

Several sections of the Education Law relating to minor employment certification, procedures, and recordkeeping have been repealed or amended to align with the new NYLL requirements, since the process for issuing, revoking, and maintaining employment certificates will be centralized under the NYSDOL. These changes to the employment of minors will go into effect in two years (on May 9, 2027).

Practical Impact on Employers 

These profound modifications to the NYLL create a two-tiered enforcement climate:

• Reduced Class-Action Leverage in Pay Frequency Cases. Plaintiffs’ counsel may find it less lucrative to pursue frequency-of-pay class actions now that the maximum liquidated-damages exposure is limited to interest for first-time violators; however, willful or repeat offenders would be liable for 100 percent of liquidated damages and will no longer be able to rely on the current uncertainty in the law to leverage better settlements.
• Recordkeeping and Good-Faith Defense. Demonstrating a “good-faith basis” will be critical to avoid wage-doubling damages in first-time pay frequency cases. Employers may want to document reliance on agency guidance, legal opinions, or industry practice.
• Strategic Settlement Considerations. Once the NYSDOL issues an order, the prospect of a swift, judgment-like lien may tilt settlement negotiations in the employee’s favor, encouraging earlier resolution.
• Heightened Collection Risk on Substantive Wage Claims. Employers that ignore NYSDOL orders could face accelerated enforcement, immediate liens, and asset levies initiated either by the commissioner or directly by employees, now sweetened by a 15 percent) surcharge.
• New Requirements for Employment of Minors. Once these changes go into effect on May 9, 2027, employers of minors must register with the NYSDOL’s database and comply with the new electronic recordkeeping and certification requirements.

Next Steps

Employers may want to consider the following steps:

• Auditing Pay Frequencies. Employers—particularly those with “manual worker” populations—may want to confirm that pay schedules comply with the requirements set forth in NYLL § 191.
• Preparing for Enhanced Post-Order Collection. Consider reviewing asset-protection strategies and ensure prompt payment procedures for NYSDOL orders to avoid the 15 percent surcharge and immediate liens.
• Updating Wage and Hour Policies. Consider incorporating the proposed damages framework into internal compliance manuals and manager training, emphasizing the continuing risks for willful or repeat violations.

The enactment of the 2025–26 state budget represents a sweeping overhaul of New York’s wage and hour laws, enforcement mechanisms, and minor employment regulations. Most changes are already in effect and apply to pending and future matters.

Ogletree Deakins’ New York and Buffalo offices will continue to review these changes to the New York Labor Law, follow any activity the NYSDOL may undertake, and provide additional updates on the New York blog as these changes are implemented across New York State.

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Quick Hits

• Some states have changed their laws regulating child labor in the past two years.
• Overtime and minimum wage laws typically apply to part-time, seasonal workers.
• Seven states (California, Colorado, Maryland, Minnesota, Nevada, Oregon, and Washington) have a heat regulation for workplaces.

Child Labor Considerations

State laws vary on details like the number of hours minors are allowed to work per week, the nighttime hours permitted, and the definitions of hazardous work prohibited for minors.

In the past two years, some states have enacted more restrictive child labor laws, and other states have loosened child labor restrictions. Illinois increased limits on the hours that minors can work. Colorado, Nebraska, Oregon, and Virginia passed laws to heighten penalties on employers that violate existing child labor laws. Florida, Indiana, Iowa, New Hampshire, New Jersey, and Ohio loosened rules related to the hours that minors can work.

Wage and Hour Considerations

Many seasonal employees are hourly workers who qualify for overtime pay and minimum wage, which varies by state. However, the minimum wage and overtime provisions of the federal Fair Labor Standards Act (FLSA) do not apply if the employer is an amusement or recreational establishment that does not operate for more than seven months in any calendar year, or if the employer’s average receipts for any six months during the preceding calendar year were less than one-third of its average receipts for the other six months. Examples of this may include amusement parks, summer camps, and beachside concessions.

The FLSA does not require meal and rest breaks, but some states mandate meal and rest breaks that may be paid or unpaid, depending on the state.

Some employers partner with local universities to work with summer interns who receive academic credit for their work. These internships may be paid or unpaid, if the internship meets the “primary beneficiary test” under the FLSA, which generally requires the internship to provide training related to the academic program.

Workplace Safety Considerations

Summertime heat can pose health risks for workers, whether they work outside or inside. The federal government does not have a workplace safety regulation on heat, but the Occupational Safety and Health Act has a general duty clause that requires employers to provide a workplace free of hazards that could cause death or serious harm.

Some states have their own workplace heat standards. Nevada recently implemented a heat illness prevention regulation that applies to employers with more than ten employees. Likewise, California has a new heat illness prevention regulation for indoor workplaces.

Next Steps

Employers that have started summer hiring may want to consider:

• reviewing the state-level maximum hours and time-of-day restrictions applicable to minors;
• ensuring that tasks assigned to minors do not fall into the category of “hazardous” occupations, such as driving, cooking with hot oil, meat processing, and operating heavy machinery;
• keeping accurate records of minor employees’ dates of birth;
• keeping the employee manual and employee training materials up to date;
• clearly communicating that a worker is a full-time, part-time, or temporary employee;
• ensuring that seasonal workers are adequately trained in workplace safety and heat illness prevention; and
• ensuring that independent contractor agreements have been reviewed and updated, if plans include hiring independent contractors.

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

Sandra R. White is a shareholder in Ogletree Deakins’ San Antonio office.

Virginia M. Wooten is a shareholder in Ogletree Deakins’ Charlotte 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

• Minnesota’s legislative session will conclude with an omnibus bill introducing significant proposed changes to labor and employment laws, with more developments expected by the end of the session on May 19, 2025.
• A provision in the omnibus bill would mandate that Minnesota employers provide a thirty-minute meal break for employees working six or more consecutive hours and a fifteen-minute rest break every four hours, with penalties for noncompliance.
• SF 3045 / HF 2783 would prohibit employers from retaliating against employees for their political contributions or activities, with violations classified as gross misdemeanors and provisions for civil action.

Omnibus Budget and Policy Bills

Several omnibus bills have emerged that may impact employers. An omnibus bill is a large bill generally made up of numerous smaller bills on the same broad topic. Often, the smaller bills are heard in committee and then laid over for possible inclusion in the omnibus bill rather than passing each bill separately.

Senate File (SF) 1832 / House File (HF) 2440

SF 1832 passed in the Senate and currently sits with the House of Representatives for comparison with HF 2440.

Meal and Rest Breaks

The legislature snuck in a provision to this omnibus bill that would impact Minnesota’s meal and rest break laws. Minnesota meal and rest break statutes are currently vague, stating that employers must provide employees working eight or more hours with “sufficient time” to eat a meal and with “adequate time” to use a restroom every four hours. The omnibus bill would:

• allow each employee working six or more consecutive hours a meal break of at least thirty minutes; and
• allow each employee a rest break of at least fifteen minutes or enough time to utilize the nearest convenient restroom, whichever is longer, within each four consecutive hours.

If an employer fails to provide said meal and rest breaks, the employer would be liable to the employee for the meal or rest break time that should have been provided at the employee’s regular rate of pay, plus an additional equal amount as liquidated damages. Additionally, the commissioner could assess a penalty of up to $1,000 per employee per day during which meal or rest breaks are not provided as required.

Should this bill pass, employers may want to review their meal and rest break policies and make appropriate changes.

Employer Unemployment Penalties

This provision of the omnibus bill would increase penalties for employers that misrepresent or make false statements to the state’s unemployment insurance program, which is administered by the Minnesota Department of Employment and Economic Development, to 100 percent instead of the current 50 percent of the amount of overpaid benefits to the applicant, the amount of benefits that the applicant would have been entitled to, or the amount of the special assessment.

Commissioner’s Injunctive Relief

This provision of the omnibus bill would grant the commissioner of the Minnesota Department of Labor and Industry the power to not only bring civil actions but also seek an “order enjoining and restraining violations” against employers that violate various labor and employment statutes.

SF 2370 / HF 1615

The Senate passed a version of this omnibus bill, but the House amended it. The revised omnibus bill will be headed back to the Senate.

Namely, a provision of this omnibus bill seeks to strengthen tribal medical cannabis programs, including by expanding the nondiscrimination provisions to include “the person’s status as an individual enrolled in the registry program” or “the person’s status as a Tribal medical cannabis program patient.”

Amongst other provisions, the omnibus bill prohibits retaliation “against a patient” who asserted rights or sought remedies under the law and provides for injunctive relief. If the omnibus bill passes, Minnesota employers would be required to provide “written notice to a patient at least 14 days before […] tak[ing] an [adverse] action.” The written notice would need to cite the specific federal law or regulation the employer believes would be violated if they fail to take action.

SF 3045 / HF 2783

SF 3045 had its third reading and was passed to the House for reading and comparison to HF 2783. Once received by the House, the omnibus bill was amended and passed. However, the Senate did not concur with the House bill amendment and requested a conference committee be convened. On May 5, 2025, both House and Senate conference committees were convened to compromise on the language of the bill. If they reach a compromise, their agreement must be passed by both bodies before it can be sent to the governor.

Notably, SF 3045 / HF 2783, with limited exceptions, would explicitly prohibit employers (defined as a person or entity employing one or more employees) from economic reprisal against individuals due to their political contributions or political activity, “including for becoming a candidate or local candidate for elected public office,” or due to “refusal to communicate with public or local officials to influence a decision about a legislative or administrative action or the official action of a political subdivision.” Violation of this section would be considered a gross misdemeanor, and the statute would provide for a right to bring a civil action for damages, injunctive relief, costs, and attorney fees, and any other just and equitable relief, including reinstatement.

New Bill Signed Into Law

Yesterday, Governor Tim Walz signed HF 688 / SF 1317 into law. This law affords full and equal access to all housing accommodations to individuals actively training service dogs. Previously, these accommodations were available only to individuals with disabilities who had service dogs. The new law would allow individuals training service dogs not to pay extra fees for the dogs in training. These individuals would still be liable for any damage done to the premises by the service dog in training. Notably, this protection would only be limited to service dogs in training under the supervision of an organization accredited by Assistance Dogs International or the International Guide Dog Federation. The law specifies that landlords or boards of homeowners’ associations may require written certification from the supervising organization.

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

• The U.S. District Court for the Northern District of Texas recently ruled that an employer breached a duty of loyalty to plan participants by permitting an investment manager to invest retirement assets in holdings based on nonpecuniary environmental, social, and governance (ESG) factors. A major factor in the case was that the CFO of the employer also acted as the fiduciary overseeing the plan asset investment managers.
• The Supreme Court of the United States recently ruled in another case that involved allegations of prohibited transactions under ERISA, 29 U.S.C. § 1106(a)(1)(C). The main issue was whether a plaintiff is required to plead facts addressing the elements of a prohibited transaction exemption under 29 U.S.C. § 1108(b)(2)(A) in order to state a viable prohibited transaction claim under 29 U.S.C. § 1106(a)(1)(C).

First Case

In a recent class action filed in the Northern District of Texas against an employer and its fiduciary committee responsible for several 401(k) plans, the plaintiffs alleged the fiduciaries had breached their duties to the plans when investing plan assets in ESG investments. The court ruled that there was no breach of the duty of prudence but found that there had been a breach of the duty of loyalty.

Duty of Prudence

The court concluded that there was no breach of the duty of prudence concerning the selection and retention of investment managers. According to the ruling and ERISA’s relevant provisions, fiduciaries are required to perform their duties with “the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B).

Most prudence claims are process-focused. A key factor in the court’s decision was the robust process the employer maintained for monitoring, selecting, and retaining managers in the plans’ core investment lineup. The court found the employer and fiduciary committee’s method to be thorough and well-documented. Additionally, the court viewed favorably the defendants’ efforts to mitigate risks by hiring an external, industry-leading consultant to continuously monitor all aspects of the plans.

The court emphasized that the duty-of-prudence analysis is “inherently comparative” and objective, relying on how fiduciaries should act “consistent with prevailing industry standards.” This comparative approach underscores the importance of adhering to industry norms and best practices in fiduciary decision-making.

Duty of Loyalty

In contrast to the first ruling, the court determined that there had been a breach of the duty of loyalty because the employer’s interests were intertwined with the investment manager’s. ERISA’s duty of loyalty is the “highest known to law,” requiring fiduciaries to act solely and exclusively in the best interests of the plan’s participants and beneficiaries. The court ruled that this standard had not been met.

A significant concern for the court was the undue influence the investment manager had over the employer, evidenced by its ownership of approximately $400 million of the employer’s fixed income debt and 5 percent of the employer’s stock.

Another critical issue identified by the court was the dual role of the employer’s chief financial officer (CFO), who managed the day-to-day operations of the investment manager while also holding a fiduciary duty to the employer as an officer of the company. These conflicting interests were exacerbated by the CFO’s admission that the relationship between the employer and the investment manager regarding ESG investments was circular. The court found that these overlapping interests and roles regarding plan and employer compromised the fiduciary duty of loyalty, highlighting the need for clear and uncompromised dedication to the best interests of plan participants and beneficiaries.

While the court found that there had been a breach of the duty of loyalty, it did not outright prohibit plan fiduciaries from looking at ESG factors for investment plans. In State of Utah v. Micone (February 14, 2025), the U.S. District Court for the Northern District of Texas upheld a 2022 U.S. Department of Labor regulation allowing fiduciaries to consider ESG factors if the factors served as a tiebreaker between equally beneficial financial options. The court emphasized that financial benefits must be the sole and primary consideration, with ESG factors considered only after confirming the financial benefits of an investment for the plan beneficiaries.

Second Case

The Supreme Court of the United States reviewed a case brought by employees who participated in a university’s 403(b) plans from 2010 to 2016. Among other claims, the employees alleged that payments made to the plan’s service providers were prohibited transactions under ERISA, 29 U.S.C. §1106, due to excessively high recordkeeping fees. The district court dismissed the employees’ prohibited transactions claim, and the U.S. Court of Appeals for the Second Circuit affirmed, primarily based on the courts’ conclusion that the employees were also required to plead facts supporting the nonapplication of relevant prohibited transaction exemptions in §1108.

Before the Supreme Court, the employees argued that §1106(a)(1)(C) of ERISA prohibits all transactions between plan fiduciaries and service providers and that the exemptions in §1108 are affirmative defenses that a defendant must plead and prove. The fiduciaries argued that plaintiffs must also plead and prove that the exemption facts negate application of the §1108 exemptions.

On April 17, 2025, the Supreme Court reversed the Second Circuit’s decision. The Court held that §1108 exemptions are affirmative defenses and that “defendant fiduciaries bear the burden of pleading and proving that a §1108 exemption applies to an otherwise prohibited transaction under §1106.” This holding drastically reduces the requirements for plaintiffs to plausibly allege that a prohibited transaction occurred, and it will likely expose fiduciaries to greater potential liability and expense because it will lead to more prohibited transaction claims getting past the pleading stage, forcing defendants to engage in expensive discovery.

Next Steps

Plan sponsors may want to review the makeup of their fiduciary committees to ensure they do not include high-ranking members who have a conflict of interest to the employer stemming from their duty of loyalty to the company as an officer or director. Instead, plan sponsors may want to consider appointing individuals who, while perhaps holding a lower rank such as a manager, are still knowledgeable about investments to make prudent choices for the plan.

Plan sponsors may also want to ensure that their committee delegation is properly documented and that the fiduciary committee is actively fulfilling its responsibilities. It is crucial that the committee members possess a thorough understanding of their responsibilities, including investments and fees associated with the plan.

When selecting a plan vendor, a plan sponsor may want to verify whether the vendor holds a significant ownership stake (e.g., at least 5 percent) in the employer and make note of other external influences that may sway investment decisions.

Finally, ERISA requires plan fiduciaries to conduct proper due diligence of the investments, their returns over time, and the fees being paid by the plan as compared to other similarly situated plans.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group will continue to monitor developments in this area and will provide updates on the Employee Benefits and Executive Compensation blog as additional information becomes available.

Karen N. Brandon is a shareholder in the Morristown office of Ogletree Deakins.

Mark E. Schmidtke is a shareholder in the firm’s Chicago and Indianapolis offices.

Stephen M. Park is a 2024 graduate of Fordham University School of Law and is currently awaiting admission to the State Bar of New York.

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DOL to Rescind 2024 Independent Contractor Regulation? The U.S. Department of Labor (DOL) is backing away from the Biden-era independent contractor regulation finalized in January 2024. More specifically, the DOL’s Wage and Hour Division (WHD) has issued guidance (Field Assistance Bulletin No. 2025-1, “FLSA Independent Contractor Misclassification Enforcement Guidance”) instructing its field staff to “no longer apply the 2024 Rule’s analysis when determining employee versus independent contractor status in FLSA investigations.” The DOL will be taking this position while it reconsiders the 2024 Rule, “including whether to rescind the regulation.” In the meantime, DOL investigators are instructed to rely on Fact Sheet #13: Employment Relationship Under the Fair Labor Standards Act (FLSA). Finally, the guidance notes that “the 2024 Rule remains in effect for purposes of private litigation.” The first Regulatory Agenda of the second Trump administration—expected sometime in June or July of this year—should provide stakeholders with a clearer picture of the DOL’s intentions regarding a potential rescission of the 2024 independent contractor rule.

Bipartisan Paid Family Leave Bill Introduced in House. In January 2024, the Buzz discussed the U.S. House of Representatives’ bipartisan Paid Family Leave Working Group’s four-pillar paid leave framework. This week, Representatives Chrissy Houlahan (D-PA) and Stephanie Bice (R-OK), who co-chair the working group, introduced the More Paid Leave for More Americans Act. The legislation combines two pillars of their framework, the Paid Family Leave Public Partnerships Act and the Interstate Paid Leave Action Network Act. Here is how it would work:

• Paid Family Leave Public Partnerships Act. This portion of the bill would offer DOL grants to states that establish paid family leave programs. To be eligible for such grants, states would be required to:
  • provide eligible employees with at least six weeks of paid leave for the birth or adoption of a child;
  • provide wage replacement between 50 percent and 67 percent based on employees’ income, with a cap equal to 150 percent of the state’s average weekly wage;
  • enter into a partnership with a private entity—such as an insurance carrier—to administer the benefits; and
  • participate in the to-be-created Interstate Paid Leave Action Network (I-PLAN).
• Interstate Paid Leave Action Network Act (I-PLAN Act). This aspect of the More Paid Leave for More Americans Act would help states reduce the variances between the programs that have led to the current “patchwork” of paid leave compliance requirements. The I-PLAN would be tasked with establishing an agreement that will “[c]reate a single policy standard with respect to all participating States to facilitate easier compliance with and understanding of paid leave programs across States[.]” In other words, the I-PLAN aspect of the bill will strive to seek uniformity between states on key paid family leave terms such as employee eligibility, family member, intermittent leave, etc.

The More Paid Leave for More Americans Act still has a long way to go before becoming law. But the bipartisan nature of the bill is an optimistic sign for its supporters.

EEOC Personnel News. Recent nominations and hiring decisions shed some light on where the U.S. Equal Employment Opportunity Commission (EEOC) is heading from a policy perspective:

• Commissioner Appointment. President Donald Trump nominated Brittany Bull Panuccio to serve on the Commission. Panuccio is currently an assistant U.S. attorney in Florida and previously served as an attorney at the U.S. Department of Education. If confirmed, Panuccio would join Acting Chair Andrea Lucas to form a Republican majority on the Commission. Current Commissioner Kalpana Kotagal is the only Democrat on the Commission. Further, Panuccio’s confirmation would return a functioning quorum to the Commission and would likely allow Acting Chair Lucas to move forward with her regulatory—and subregulatory—agendas. D’Ontae D. Sylvertooth and Sean J. Oliveira have the details.
• Chief of Staff. Acting Chair Lucas has selected Shannon Royce as her chief of staff. Royce is an attorney and former president of the Christian Employers Alliance. Lucas has announced that one of her top priorities is “protecting workers from religious bias and harassment.”

Bill Would Provide Tax Break on Overtime Pay. The Buzz has discussed President Trump’s desire to limit the taxes that workers pay on tips and overtime earnings. Bills have already been introduced in the U.S. Congress to address the “no tax on tips” issue. This week, Republican legislators turned to the overtime issue by introducing the Overtime Wages Tax Relief Act. The bill would allow workers to deduct up to $10,000 ($20,000 for those filing jointly) of income derived from working overtime for each taxable year. The deduction begins to phase out when income reaches $100,000 for individuals or $200,000 for married couples. Republicans may try to include this bill in their larger reconciliation tax reform package.

OFCCP Layoffs Arrive. President Trump’s rescission of Executive Order 11246 eliminated the affirmative action requirements for federal contractors, and, in turn, most of the operations of the Office of Federal Contract Compliance Programs (OFCCP). Many OFCCP employees were subsequently offered a deferred resignation option or placed on administrative leave. This week, most of OFCCP’s remaining employees received notice that they would be laid off, effective June 6, 2025. According to reports, this is more than 300 employees (according to its fiscal year 2025 budget justification, OFCCP has about 490 employees). OFCCP will reportedly maintain one regional office in Dallas, Texas.

A Pope-ular Guest. At the Buzz, no news is more significant than labor and employment policy developments. But for the rest of the world—particularly for Catholics—the selection of Chicago-born Cardinal Robert Prevost as Pope Leo XIV was the news of the week. Some American politicians, such as Senators Mark Kelly (D-AZ) and John Hoeven (R-ND), expressed excitement and optimism about the selection of an American-born Pope. But at this early hour, there aren’t any plans to invite the new pontiff to address Congress. Indeed, it is a rare event. On September 24, 2015, Pope Francis delivered an address to a joint session of Congress, the only Pope to ever do so. It was probably no coincidence that three of the most powerful politicians at the time—Vice President Joe Biden, Speaker of the House John Boehner, and House Democratic Leader Nancy Pelosi—were all Catholic.

Quick Hits

• The Immigrant Visa (IV) Scheduling Status Tool provides foreign nationals clarity regarding the month and year that recently scheduled immigrant visa (IV) interviews became “documentarily complete” (fees paid and all documents received).
• The Global Visa Wait Times Tool gives foreign nationals a monthly snapshot of the next available nonimmigrant visa (NIV) interview date.
• These two new tools provide enhanced clarity with regard to interview wait times, but the tools are intended as a guide only. Due to numerous factors, these tools do not provide precise information on individual visa wait times.

The Immigrant Visa (IV) Scheduling Status Tool gives foreign nationals an approximation of when a visa interview may be scheduled for their case. The tool provides the date that recently scheduled IV interviews became “documentarily complete” (fees paid and all documents received) at a particular consular post. To use the tool, click here, choose the immigrant visa category, input the desired U.S. embassy or consulate, and click “Go.” The result will be the date on which the National Visa Center is scheduling interviews at the selected U.S. embassy or consulate.

The Global Visa Wait Times Tool shows the next available visa interview date for various nonimmigrant visa categories and the average wait time for a B visa interview, updated monthly. To use the tool, click here and navigate to the chart to see each U.S. embassy or consulate listed in alphabetical order by city/post, and the average wait time for scheduling interviews.

These tools offer improved insight into interview wait times, but the tools are intended as a guide only. Due to numerous factors, these tools do not provide precise information on individual visa wait times.

Key Takeaways

When anticipating the timing of a consular interview, visa applicants may use these new tools as a guide to determine visa appointment availability.

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

• President Trump nominated Brittany Panuccio, an assistant U.S. attorney in Florida, to serve as an EEOC commissioner.
• The EEOC currently has only two commissioners, one less than needed for a quorum.
• Once the EEOC has a quorum, it will be able to engage in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that advances the administration’s agenda.

By statute, the EEOC is composed of five political appointees: a chair, vice chair, and three commissioners. Title VII of the Civil Rights Act of 1964 dictates that no more than three commissioners may be from the same political party, and once confirmed, they serve five-year terms on the Commission. Thus, in addition to the EEOC’s acting chair, Andrea Lucas, if Panuccio is confirmed, the president can nominate another Republican to serve as a commissioner.

Further, Title VII demands that for there to be a quorum at the agency, there must be three active commissioners. Thus, Panuccio’s confirmation will resolve the EEOC’s current dilemma, i.e., being unable to vote on topics such as official guidance, policies, regulatory proposals/rulemaking, subpoena enforcement, and litigation (although by memorandum of understanding, much of the litigation decision-making has been delegated to the general counsel in the absence of a quorum).

We anticipate, based on statements made by Acting Chair Lucas and other informal guidance, that once the Commission has a quorum, it will make certain types of charges, litigation, and other policy matters a priority. This prioritization includes:

• focusing on investigating and litigating with an expanded definition of what constitutes an adverse action when considering employer diversity, equity, and inclusion (DEI) programs (e.g., where a DEI program results in one protected class failing to receive the same or similar mentorship or feeling ostracized or discriminated against because of such programs);
• eliminating systemic investigation and litigation of otherwise neutral employer policies that may have a disparate impact on a protected class;
• eliminating recognition of “gender identity” as it relates to the EEOC’s sexual harassment guidance and similar guidance, particularly concerning restrooms, locker rooms, sleeping quarters, and other sex-specific workplace facilities, which, in the view of Acting Chair Lucas, impinges on the rights of women;
• eliminating existing EEOC policy, guidance, and regulations associated with abortion as a pregnancy-related condition under the Pregnant Workers Fairness Act; and
• an increased focus on investigation and litigation of employment discrimination based on religion or national origin (e.g., Judaism and American), race (particularly those employees who feel preferential programs exclude them in the name of DEI), and sex (particularly from those employees who think that the focus on gender identity, transgender rights, and sexual orientation has impinged on their rights).

The lack of a quorum has prevented the EEOC from investigating charges consistent with Acting Chair Lucas’s perspective concerning various active agency guidance (several of which she condemned in public statements), enforcing administrative subpoenas (due to a 2024 delegation of authority), pursuing noncontroversial, nonsystemic, noncostly litigation (due to a 2021 continuing resolution); and seeking dismissal of certain cases approved under prior EEOC leadership.

More importantly, the lack of a quorum has kept the Commission from engaging in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that furthers the current administration’s agenda. Such a lack of quorum has seemingly caused confusion and a state of “unknown” in the employment law community (given Acting Chair Lucas’s statements without the proper quorum to push such agenda items), as well as inhibited the EEOC from voting to pursue controversial, costly, and systemic lawsuits.

If Panuccio is confirmed, the EEOC will be able to discuss and vote on various matters. While we do not know how Panuccio will vote, we expect significant changes in policy and internal operations within the EEOC that are consistent with the areas identified above. Employers can expect the EEOC to begin working on rescinding guidance and policies that run afoul of the current administration’s agenda, adopting updated guidance and policies, and proposing new and updated regulations. Further, there may be a change in the types of “priority” cases within the EEOC’s enforcement and litigation divisions.

While the EEOC has no authority to overturn case law, it certainly can become a burden on employers’ resources during investigations of charges of discrimination.

By continuing to ensure policies and practices are lawful and compliant with antidiscrimination statutes, employers should be able to achieve the appropriate balance in the days to come.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law and Governmental Affairs blogs 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

• Under the Americans with Disabilities Act (ADA), an employee must propose a reasonable and necessary accommodation that addresses a key obstacle that prevents the employee from performing a necessary function of the position.
• The ADA does not include emotional support animals in its definition of “service animals.”
• Where an employee admits he or she can perform the essential job functions without the requested accommodation, even if not optimally, it weakens any claim that the accommodation is necessary.

Background

Aaron Fisher, a firefighter for the City of Lansing, Michigan, suffers from post-traumatic stress disorder (PTSD). Fisher requested permission to bring a service dog to work, stating that his symptoms worsened while on emergency calls. Although the City of Lansing required employees to submit a reasonable accommodation request form with medical documentation to Human Resources (HR), Fisher bypassed this policy. Fisher submitted his request only to his battalion chief, who initially approved it. However, HR denied the request after discovering the arrangement and determining that Fisher had provided insufficient documentation.

Fisher later submitted another request, this time including a letter from his physician stating he needed an “emotional support animal during work hours.” The city again denied the request. Fisher responded by filing a lawsuit under the ADA and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA), claiming discrimination and retaliation.

In its motion for summary judgment, the city argued Fisher did not need a service dog to perform his essential job functions. The City of Lansing also contended that the presence of a dog could hinder Fisher’s ability to respond quickly to emergencies, that the dog might not always remain under Fisher’s control, and Fisher had not demonstrated a medical necessity for the accommodation.

The Court’s Decision

The court granted summary judgment in the city’s favor, holding that Fisher had not shown that a service dog was necessary for him to perform his essential job function. Fisher’s own testimony indicated he could perform his duties—though not optimally—without the dog. Additionally, the letter from Fisher’s psychologist recommended an emotional support animal but did not state that he could not perform his job without it. While the court did not decide whether Fisher’s dog qualified as a “service animal” under the ADA, it pointed out that the ADA authorizes “service animals” but not “emotional support animals.”

The court also observed that Fisher received a positive performance evaluation and had accrued substantial sick leave and overtime hours after the city denied his accommodation request. These facts supported the conclusion that Fisher could perform his job without the accommodation. Ultimately, the court found Fisher had not met his to prove the dog was a necessary accommodation and dismissed the case.

Key Takeaways for Employers

This case highlights several important considerations for handling ADA accommodation requests:

• Under EEOC guidance, employers may require employees to provide adequate medical documentation to support accommodation requests and follow a consistent formal review process if the “requirements are job related and necessary for the conduct of the business.”
• Distinguishing between service animals and emotional support animals can be useful. ADA regulations authorize accommodations related to service animals, but not emotional support animals.
• Assessing whether the accommodation is necessary for the employee to perform essential job functions is valuable. If the employee can perform those duties without the accommodation, it may not be required.
• Employers may also want to communicate clearly with employees about the status of their accommodation requests and provide documented explanations for any denial.

Employers that consider these factors may be more able to effectively manage accommodation requests and remain compliant with the ADA.

Ogletree Deakins’ Detroit (Metro office) and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence and Michigan blogs as additional information becomes available.

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