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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Quick Hits

• Multistate employers may want to review their pay transparency compliance requirements as they move into the second half of 2025 since such laws are being actively enforced in states like New Jersey and Illinois.
• Colorado’s rigorous enforcement of pay transparency laws has resulted in significant fines for employers, highlighting the importance of including accurate compensation information and meeting all posting requirements.
• New pay transparency laws in Massachusetts, Vermont, and Cleveland, Ohio, will take effect in late 2025, mandating salary disclosures in job postings and imposing penalties for noncompliance.

New Jersey and Illinois Begin Enforcement: Key Coverage Clarifications

Notably, both the New Jersey Department of Labor and Workforce Development and the Illinois Department of Labor have begun active enforcement of their new pay transparency laws. Employers may want to note that New Jersey’s Department of Labor and Workforce Development has clarified its position on coverage: regardless of where a position is physically located, the New Jersey pay transparency law applies if the employer meets the minimum employee threshold and does business, employs persons, or takes applications for employment within New Jersey. This expansive interpretation means that multistate employers with any New Jersey presence may want to carefully review their job postings and internal processes for compliance, even for roles outside the state.

Similarly, Illinois continues to enforce its pay transparency requirements for employers with fifteen or more employees, regardless of where those employees are located. Illinois guidance emphasizes that the law applies to remote positions if the employer has reason to know or reasonably foresees that the work could be performed in Illinois or would report to a supervisor, office, or worksite in Illinois. Both states are actively monitoring compliance and have published guidance to help employers navigate these new obligations.

Lessons Learned: Colorado’s Enforcement Actions and Citations

Colorado remains at the forefront of pay transparency enforcement, and recent citations and notices of fine issued by the Colorado Division of Labor Standards and Statistics offer important lessons for employers nationwide. The division’s analysis in recent cases has focused on several recurring issues:

• Failure to Include Required Compensation Information: Employers were cited for omitting salary ranges, providing overbroad (e.g., $17.29 per hour – $41 per hour or $50,000 – $433,700 per year) or multiple ranges in a single posting, or listing ranges below applicable minimum wage or exempt salary thresholds.
• Missing Benefits and Application Deadlines: Citations were issued for postings that failed to include a general description of benefits or the required application deadline, a requirement effective January 1, 2024.
• Technical Issues Not a Defense: The division has made clear that “technical issues” or inadvertent omissions do not excuse noncompliance. Employers are expected to proactively monitor and correct postings.
• Repeat and Ongoing Violations: The division has imposed escalating fines for repeat and ongoing violations, especially where employers failed to cure deficiencies after being put on notice.

Overall, the division has found hundreds of violations, with fines assessed based on the number and severity of infractions. For example, in one case, the division determined that the employer violated the Equal Pay for Equal Work Act and its implementing rules on over 200 counts, including failures to provide compensation, benefits, and application deadlines. Fines have ranged from $1,000 to $6,000 per violation, with total penalties that have exceeded $500,000. The division has also required employers to implement compliance monitoring and reporting for a set period of time following a citation.

Coming Soon in 2025: Vermont; Cleveland, Ohio; and Massachusetts

Vermont

Vermont’s pay transparency law took effect on July 1, 2025. The law applies to employers with five or more employees, at least one of whom works in Vermont. Covered employers must include the expected compensation or a good-faith range of compensation in all written advertisements for Vermont job openings, including remote jobs predominantly performed in Vermont. For commission-based or tipped positions, special disclosure rules apply. The Vermont attorney general has issued guidance. Enforcement for private employers is handled by the attorney general’s Civil Rights Unit, and retaliation against individuals who exercise their rights under the law is prohibited.

Massachusetts

Massachusetts’s Wage Transparency Act will become effective on October 29, 2025. Employers with twenty-five or more employees in Massachusetts must disclose pay ranges in job postings, to applicants, and to current employees upon request. The law defines “pay range” as the annual salary or hourly wage range the employer reasonably and in good faith expects to pay at the time of posting. Employers with one hundred or more employees must also submit certain EEO Data Reports to the Commonwealth annually. The law provides a warning for a first offense, with escalating fines for subsequent violations, and a two-business-day cure period for defects until October 29, 2027. The Massachusetts Attorney General’s Office, which has enforcement authority over the statute, has published detailed guidance and hosted webinars to assist employers with compliance.

Cleveland, Ohio

Cleveland’s new pay transparency ordinance will take effect on October 27, 2025. The ordinance applies to employers with fifteen or more employees in the city and requires salary ranges or scales to be included in job postings. It also prohibits inquiries into an applicant’s salary history. The city’s Fair Employment Wage Board will enforce the ordinance, and employers will have a ninety-day cure period to correct deficiencies before civil penalties up to $5,000 are imposed.

See You in 2026? Delaware: Poised to Join the Pay Transparency Movement

Delaware is set to become the latest state to enact pay transparency legislation, pending the governor’s signature. House Bill (HB) 105 would require employers with more than ten employees to include salary or wage ranges and a general description of benefits in all internal and external job postings. Employers would also be required to maintain records of job descriptions and wage rates for current and former employees. The bill assigned enforcement responsibility to the Delaware Department of Labor, with written warnings for first offenses and civil penalties ranging from $2,000 to $10,000 for subsequent violations. The bill would take effect one year after enactment.

Key Takeaways

• Multistate employers may want to closely monitor evolving state and local pay transparency requirements, as coverage and enforcement are expanding rapidly.
• Proactive compliance—including regular audits of job postings, training for HR and recruiting teams, and prompt correction of deficiencies—is essential to avoid significant penalties.
• Employers may want to review state-specific guidance and enforcement trends to ensure their pay transparency practices are up to date and legally compliant.

Ogletree Deakins’ Pay Equity Practice Group will continue to monitor developments and provide updates on the Multistate Compliance, Pay Equity, State Developments, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• The USOPC has banned transgender athletes from competing in women’s sports, becoming the latest institution to align with a recent executive order from President Trump seeking to ban transgender athletes from girls’ and women’s sports.
• The Trump administration has further sought to enforce the policy, bringing a lawsuit against California authorities over the participation of a transgender athlete in the girls’ state track and field championships.
• The actions come as the Supreme Court of the United States is set to hear a pair of cases challenging two of the wave of state laws in recent years that mandate sports participation consistent with athletes’ sex at birth.
• The landscape has created uncertainty for educational institutions and portends potential additional enforcement around gender issues more broadly.

On July 21, 2025, the USOPC changed the “athlete safety policy” posted on its website that effectively bans transgender athletes from women’s sports, adding language that the USOPC will “ensure that women have a fair and safe competition environment consistent” with President Trump’s EO 14201. The USOPC also reportedly sent a letter to national governing bodies notifying them of the need to change their policies, accordingly, saying the committee has an “obligation to comply with federal expectations.”

The move comes after the National Collegiate Athletic Association (NCAA) took similar action the day after the president’s EO 14201, issued on February 5, 2025, prohibiting athletes assigned male at birth from participating in women’s sports competitions, a reversal from prior NCAA policy that allowed athletes to participate in competition in accordance with their gender identity.

Changing Policy Landscape

President Trump made regulating gender identity issues and sports issues a priority early on in his administration. On his first day in office, he signed EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which defines sex as “binary” and “immutable.”

That order was followed by EO 14201, which claimed that allowing transgender women athletes to compete in women’s sports “denies women and girls the equal opportunity to participate and excel in competitive sports.” Specifically, EO 14201 threatened to “rescind all funds from educational programs that deprive women and girls of fair athletic opportunities,” i.e., allowing transgender athletes to compete in women’s sports.

EO 14201 further directed the secretary of state to “use all appropriate and available measures to see that the International Olympic Committee” amends its eligibility standards to ensure that “participation in women’s sporting events is determined according to sex and not gender identity or testosterone reduction.” The United States is set to host the 2028 Summer Olympics in Los Angeles.

Moreover, in February 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter” announcing it would no longer enforce Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in educational programs, based on a now-invalidated Biden-era rule that had interpreted the law’s definition of prohibited discrimination based on “sex” to include discrimination based on gender identity.

Enforcement Actions

More recently, the administration has followed up on those policies. On July 8, 2025, the U.S. Department of Justice (DOJ) filed a lawsuit based on Title IX against the California Department of Education and the California Interscholastic Federation after a transgender female athlete finished first in the girls’ triple jump and high jump and second in the girls’ long jump at the California state high school track and field championships.

The lawsuit, which followed reported threats from President Trump to withhold funding if California allowed transgender female athletes to compete in the championships, alleged that policies allowing school athletes to compete in sports that align with their gender identities, “ignore undeniable biological differences between boys and girls, in favor of an amorphous ‘gender identity.’”

That action came after the University of Pennsylvania, on July 1, 2025, settled an OCR Title IX investigation concerning the participation of a transgender female athlete on the women’s swim team during the 2021-2022 season. As part of the settlement, the school agreed to modify three school swimming records and apologize to other athletes “disadvantaged” by the athlete’s participation.

State Policies and Legal Challenges

The Trump administration’s enforcement comes amid a growing debate over sports participation and the distinctions between male and female competitions. Since 2020, at least twenty-seven states have enacted laws banning or restricting students from participating in sports consistent with their gender identity, particularly targeting transgender girls and women.

The Supreme Court of the United States recently agreed to hear a pair of cases—Little v. Hecox and B.P.J. v. West Virginia State Board of Education—during the next term that raise the issue of whether state laws that prohibit transgender female athletes from participating in girls’ and women’s sports violate Title IX and the Equal Protection Clause of the U.S. Constitution. The agreement to hear the cases come after the Supreme Court recently upheld a Tennessee law that prohibits gender-affirming medical treatments for minors.

But while the USOPC, NCAA, and many states have aligned with the Trump administration’s policy to block transgender athletes from women’s sports, some institutions and states, like California, allow athletes to compete in sports consistent with their gender identity. Further, the president’s executive orders and other attempts to defund programs face ongoing legal challenges, and the lawsuit against California could lead to lengthy litigation and appeals.

What It Means

The Trump administration’s lawsuit against California and the similar OCR investigations exhibit the administration’s interpretation that allowing transgender female athletes to compete in girls’ and women’s school and college sports violates Title IX. The actions highlight a willingness to expand enforcement actions based on a binary and immutable view of sex, including over access to other sex-segregated spaces such as bathrooms.

As a result, schools and other institutions face compliance challenges. It is critical that organizations examine the current evolving legal landscape under federal and state law and determine if their policies and practices are in compliance.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Higher Education, and Sports and Entertainment blogs as additional information becomes available.

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Quick Hits

• The Trump administration has deployed troops to Los Angeles and Washington, D.C., in recent months, and the president has named four more cities where he intends to deploy troops.
• Employers must provide job-protected leave to service members who are called to military duty.
• Domestic deployments for natural disasters or other emergencies may impact private employers with regard to their staffing levels, compensation costs, and employee benefits administration.

In June 2025, President Trump deployed about 4,700 National Guard soldiers and U.S. Marines to Los Angeles to support federal immigration enforcement. On August 11, 2025, President Trump deployed about 800 National Guard soldiers to Washington, D.C., to assist local police in preventing crime.

About 1 percent of the U.S. workforce is part of the uniformed services. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), private and public employers are legally obligated to give employees job-protected, unpaid leave when they are called up for duty with the Army, Navy, Marine Corps, Air Force, Space Force, Coast Guard, Reserves, National Guard, Public Health Service, and certain other duties specified by USERRA. Depending on the length of an employee’s absence due to military service, USERRA also governs the extent to which the employee is entitled to continue participation in the employer’s group benefit plans, the timing within which the employee should seek reinstatement following completion of military service, and the position into which the employee is entitled to be reinstated.

In addition, many states have enacted laws providing various additional leave protections and other entitlements for employees serving in the uniformed services. Some employers provide paid leave and other benefits to employees serving in the military beyond what is required by law.

For many employers and their human resources teams, a common challenge can be a lack of familiarity with USERRA and state military leave laws, compared to other more common leave situations, such as the medical leave under the Family and Medical Leave Act (FMLA), as many employers encounter military leave circumstances less frequently. USERRA is arguably one of the most protective federal employment statutes in existence, providing for up to five years of protected leave and sometimes requiring reinstatement into different, higher roles than the employee held prior to leave (the so-called “escalator position”). Moreover, while USERRA generally does not require employers to provide paid leave or non-seniority-based benefits to employees while on military leave, it does require employers to provide such benefits on at least as generous a basis as are provided to employees on other comparable forms of leave. Thus, when employees take USERRA leave, it can present staffing and scheduling challenges and numerous HR questions for employers.

For example, USERRA generally requires employees to provide advance notice of the need for leave to the employer (with certain exceptions), but there is no specified deadline, and the nature of military orders can sometimes result in very little notice being available to the employer. The duration of military leave also is often uncertain. While an employee may originally receive military orders for a specified time, those orders may be extended or shortened, significantly impacting the amount of leave needed and making the cumulative amount of leave the employee will need difficult to predict in advance.

In some circumstances, employers may choose to reassign work to other coworkers or hire other workers to cover business needs while an employee is on military leave, but employers may be required to displace such workers in order to reinstate the employees on leave after their military service has concluded. Employers may need to coordinate with third-party vendors that handle payroll and benefits to ensure compliance with USERRA and applicable state laws while the employee is on military leave, such as with respect to an employee’s election to remain on company-sponsored health benefits.

Next Steps

Los Angeles and Washington, D.C., were the first cities that experienced domestic deployments this year. Looking ahead, President Trump has named Baltimore, Chicago, New York, and Oakland, California, in his public discussions about the next possible locations for domestic deployments. Given the tempo of these domestic deployments, it is reasonable to anticipate an increased use of USERRA-protected leave and benefits in the workforce, and employers may want to proactively ensure that their HR teams are up to speed on USERRA and applicable state law requirements.

Like any regulatory scheme not frequently encountered, USERRA compliance can be challenging for some employers. However, numerous resources exist to help. Ogletree Deakins has a team of lawyers, many of whom are veterans or are currently serving in the Reserves or National Guard, who regularly advise clients on USERRA compliance issues. In addition, under the federal SALUTE program, employers can request technical assistance to resolve USERRA-related questions or address their specific circumstances. 

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the California, District of Columbia, Employment Law, Leaves of Absence, and State Developments blogs as new information becomes available.

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

Michael Oliver Eckard is a shareholder in Ogletree Deakins’ Charleston 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 Court of Appeal of Québec reversed both the Administrative Labour Tribunal (TAT) and the Superior Court decisions below it, finding that a farmworker’s fatal accident had happened “in the course of work” even though it occurred outside regular working hours.
• The majority stressed that the phrase “in the course of work” under the Act respecting industrial accidents and occupational diseases must be interpreted broadly and liberally to advance the social purpose of the workers’ compensation regime.
• Employers may face increased claims or higher premiums due to the broader interpretation of “in the course of work” by the Court of Appeal of Québec, which could encompass injuries sustained during activities of a seemingly personal nature, particularly when such activities support or benefit work-related equipment or operations.

Background

A seasonal agricultural worker from Guatemala was fatally injured while changing a tire on an employer-owned van after hours, on the employer’s premises, and using employer tools. The van had been used for work earlier that day and was needed for the next day’s operations. Although the repair was not explicitly ordered by the employer and occurred outside paid hours, the Court of Appeal ultimately found that the accident was sufficiently connected to the worker’s employment to qualify as a compensable “employment injury” under the LATMP.

The Legal Issue: What Does ‘In the Course of Work’ Mean?

The central legal question was whether the worker’s accident occurred “in the course of work” as required by the LATMP. Both the Administrative Labour Tribunal (Tribunal administratif du travail) (TAT)) and the Superior Court had previously ruled against the worker’s estate, focusing on the lack of direct instructions and the fact that the activity was not part of his formal job duties nor during regular work hours.

On appeal, the majority found the TAT and Superior Court decisions unreasonable. Central to the Court of Appeal’s reasoning was the interpretation of the phrase “in the course of work” under the LATMP. The Court of Appeal reaffirmed that this term must be interpreted broadly and liberally, consistent with the social and remedial purpose of the legislation. Rather than requiring a direct or formal link to assigned job duties, the court held that an accident qualifies if it bears a “more or less close” connection to the employment context. This means that activities which are connected to, or beneficial for the employer’s operations, even if not strictly within paid hours or explicit instructions, can fall within the scope of work that can give rise to compensation for injury. The majority highlighted several facts demonstrating the work-relatedness of the incident:

• The repair occurred on the employer’s premises with the employer’s tools.
• The vehicle had been used for work duties earlier that day, and its functionality benefitted next-day operations.
• The worker was an authorized driver routinely tasked with transporting coworkers for work, living necessities, and recreation.

The Court of Appeal concluded that the TAT erred by focusing solely on the absence of a direct instruction or formal job duty, rather than considering the broader context of the employment relationship and the benefit to the employer. By narrowly concentrating on direct job duties and the lack of a direct instruction to perform the work, while ignoring the broader context and purpose of the legislation, the TAT failed to apply the required liberal interpretation of “in the course of work.” Consequently, the court declared the death to be a compensable “employment injury” and remanded the file to the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) to assess indemnity.

Practical Implications for Employers

Employers may face heightened exposure for injuries sustained in gray areas between work and personal life. Key takeaways include:

• Premises and equipment control: Injuries occurring on employer property or involving employer equipment are more likely to be deemed work-related, even if they happen after hours or without explicit instructions.
• Broad interpretation: Courts and tribunals will look at whether the activity indirectly advances, maintains, or protects the employer’s operations, not just whether it occurs during paid time or under direct supervision.
• Policy review: Employers may wish to review and update their policies to define the boundaries of work-related activities, clearly prohibiting the use of company equipment and presence on company premises after hours.
• Training and oversight: Employers may wish to consider providing training to reinforce the prohibition on performing work using employer equipment outside regular hours, and taking steps to ensure that the employer cannot be seen as encouraging or tolerating the use of its equipment outside of working hours.
• Hazard analysis and safety training: If an employer opts to allow employees to use its equipment outside of working hours, it may wish to consider training employees on the safe use of such equipment, covering not only tasks that the employee regularly uses the equipment for but also foreseeable uses of the equipment that the employee may engage in.

Conclusion: A Liberal and Remedial Approach

The Court of Appeal’s decision affirms greater protection and access to compensation for injuries that occur in the gray areas between work and personal life, provided there is a meaningful connection to the employment context. The ruling underscores that the boundaries between work and personal life are not always clear-cut, especially when employer property or equipment is involved.

Ogletree Deakins’ Montréal office will continue to monitor developments and will provide updates on the Cross-Border and Workplace Safety and Health blogs as additional information becomes available.

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Quick Hits

• All employment-based final action dates and dates for filing remain unchanged for September 2025.
• USCIS to accept adjustment-of-status filings based on final action dates in September 2025 Visa Bulletin.
• The State Department anticipates most EB preference categories will become oversubscribed in August or September.

Source: U.S. Department of State, September 2025 Visa Bulletin, Final Action Dates Chart

The final action dates for all EB preference categories will remain the same in September 2025 as previously announced in the August 2025 Visa Bulletin:

• EB-1: All countries remain current in September except for China, which remains at November 15, 2022, and India, which remains at February 15, 2022.

• EB-2: All countries remain at September 1, 2023, except for China, which remains at December 15, 2020, and India, which remains at January 1, 2013.

• EB-3: All countries remain at April 1, 2023, except for China, which remains at December 1, 2020; India, which remains at May 22, 2013; and the Philippines, which remains at February 8, 2023.

• EB-5: All countries remain current in September, except for China, which remains at December 8, 2015, and India, which remains at November 15, 2019.

Key Takeaways

Consistent with its statements in the August 2025 Visa Bulletin, the State Department has confirmed a steady increase in demand for EB immigrant visa numbers and anticipates reaching the 2025 fiscal year limits during August and September. When the annual limit for a preference category is reached, immigrant visa numbers for that category become immediately unavailable. Immigrant visa limits will reset at the beginning of the government’s fiscal year on October 1, 2025.

The State Department also determined that the numerical limitation for EB immigrant visas in fiscal year 2025 is 150,037.

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

• A federal district court ruled that the Education Department violated the Administrative Procedure Act and the U.S. Constitution by improperly issuing guidance that deemed certain DEI programs focused on “race-based preferences” unlawful for schools.
• The court found that the Education Department’s requirement for schools to certify compliance with its interpretations of Title VI of the Civil Rights Act of 1964 and recent Supreme Court of the United States rulings constituted a binding agency action that did not undergo necessary public notice and comment procedures. 
• The ruling highlights concerns over what constitutes “illegal DEI,” ultimately blocking the Education Department’s efforts to end diversity efforts in admissions and hiring, and restrict classroom discussions on race and diversity.

Background on the Case

On February 14, 2025, the Education Department issued a “Dear Colleague” letter, stating that schools that receive federal funding would lose their federal funding if they continued their unlawful diversity, equity, and inclusion (DEI) programs. It argued that the race-based DEI programs discriminated against white and Asian students.

On February 28, 2025, the Education Department’s Office for Civil Rights issued frequently asked questions (FAQs) articulating the “broad implications” of the Supreme Court of the United States’ 2023 decision in Students for Fair Admissions v. Harvard, which held that certain race-conscious college admissions policies violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The FAQs announced the agency would require states and school districts to certify their compliance with the Education Department’s interpretations of Title VI and the Supreme Court ruling.

The American Federation of Teachers, the American Federation of Teachers–Maryland, the American Sociological Association, and the Eugene, Oregon School District 4J sued, claiming that the Dear Colleague letter and FAQs procedurally and substantively violated the APA and the U.S. Constitution’s First Amendment and Fifth Amendment. The Education Department argued that it was merely reminding schools of existing obligations under antidiscrimination laws or clarifying the law. It said the letter and FAQs were not binding, final agency actions.

In April 2025, the U.S. District Court for the District of Maryland enjoined the federal government from enforcing the Dear Colleague letter, but it did not rule on the legality of the FAQs.

The District Court’s Ruling

In its latest ruling, the federal district court in Maryland found the certification requirement violated the APA because it substantively altered the legal landscape without undergoing the required procedural steps first. The court concluded the certification requirement was a binding, final agency action subject to public notice and comment periods, which did not occur. The court also said the certification requirement was arbitrary and capricious for failing to consider the requirements of the federal Paperwork Reduction Act.

“The government did not merely remind educators that discrimination is illegal: It initiated a sea change in how the Department of Education regulates educational practices and classroom conduct, causing millions of educators to reasonably fear that their lawful, and even beneficial, speech might cause them or their schools to be punished. The law does not countenance the government’s hasty and summary treatment of these significant issues,” the court stated.

The court previously blocked the Dear Colleague letter in a preliminary injunction and affirmed that decision largely on the same grounds. The Dear Colleague letter warned schools not to permit classroom speech regarding “systemic and structural racism” and “teach[ing] students that certain racial groups bear unique moral burdens that others do not.” The court reasoned that the restrictions violate educators’ free speech rights under the First Amendment because they regulate classroom speech based on content or viewpoint. The court further found the Dear College letter and FAQs violate the Fifth Amendment because they were too vague about what constituted “illegal DEI.”

“The stringent procedures outlined by the APA are not hollow gestures designed to manufacture the appearance of fair and reasoned decision-making,” the court stated. “They exist to ensure that agencies stay within the bounds of their delegated authority and exercise that authority within the constraints of the law more broadly.”

Next Steps

The opinion from the federal court in Maryland is the latest decision against the agency’s DEI guidance. The decision comes after the U.S. District Court for the District of New Hampshire granted a preliminary injunction against the Dear Colleague letter and the FAQs based on similar rationales.

For the time being, the courts have blocked the federal government from revoking federal funds from schools that do not comport with the agency’s certification requirement. However, the Maryland case could be appealed to a federal circuit court, and it’s unclear whether the stays will remain or not. The Education Department has made clear that challenging what it considers to be illegal DEI will remain a top enforcement priority.

While this case and other similar cases make their way through the courts, K-12 schools, colleges, and universities may wish to review their policies and practices concerning DEI to ensure compliance with all local, state, and federal antidiscrimination laws. 

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Higher Education Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, and Higher Education blogs as new information becomes available.

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

Nonnie L. Shivers is a shareholder in Ogletree Deakins’ Phoenix office and co-chair of the firm’s Diversity, Equity, and Inclusion Compliance Practice Group.

Zachary V. Zagger is senior marketing counsel 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

• Significant new limitations on restrictive covenants with healthcare practitioners relating to noncompetition, nondisparagement, and nondisclosure took effect on June 9, 2025.
• Employers will soon be prohibited from asking an applicant’s age, date of birth, or date of graduation from any educational institution prior to an interview or conditional job offer.
• Starting in January 2026, striking workers will be eligible for up to ten weeks of unemployment benefits during a strike.

Workplace Accommodations for Agricultural Workers (HB 2541)

Governor Kotek signed House Bill (HB) 2541 into law on May 7, 2025. Under HB 2541, certain agricultural workers must now be provided with the same accommodations for the expression of breast milk during work hours that have been provided to employees in other industries. Those accommodations include rest periods and a private location to express breast milk that is not a public restroom or toilet stall and that is in close proximity to the employee’s work area. Employers in the agricultural industry may want to review their policies and check their facilities to ensure compliance with HB 2541.

Effective: May 7, 2025

Healthcare Noncompete Agreements (SB 951 and HB 3410)

On June 9, 2025, Governor Kotek signed into law Senate Bill (SB) 951, which, among other things, imposed significant new limitations on restrictive covenants with healthcare practitioners relating to noncompetition, nondisparagement, and nondisclosure. The limitations were modified by separate legislation, HB 3410. Learn more about SB 951 and HB 3410 from our article, “Oregon Imposes Limitations on Restrictive Covenants in Agreements With Healthcare Practitioners.”

Effective: June 9, 2025, but with additional rolling effective dates

Statute of Limitations When BOLI Charge Filed (HB 2957)

HB 2957 changes the statute of limitations in employment cases when individuals file a charge with BOLI. Complainants no longer have a strict ninety-day deadline to sue after receiving the agency’s “right to sue” notice in some circumstances. Employers are also prohibited from entering into agreements with former, current, or prospective employees that would have the effect of shortening the statute of limitations for violations enforceable by BOLI. Learn more about HB 2957 from our article, “Oregon Clarifies Time Frames for Filing Civil Actions in Employment Cases.”

Effective: June 24, 2025

Unemployment Insurance for Striking Workers (SB 916)

Governor Kotek signed SB 916 on June 24, 2025. The law allows striking workers to be eligible for up to ten weeks of unemployment benefits during a strike. Employees must wait one week before becoming eligible for unemployment benefits, subject to a possible limit based on the tax schedule in effect at the time. The law requires benefits to be paid back if the employee later receives back pay that results in an overpayment of benefits. School districts will also be required to deduct from the employee’s future wages the benefits charged for weeks during a strike. Although New Jersey, New York, and Washington State grant some unemployment benefits to striking workers, public employees in those states are barred from striking. Oregon is now the first state to offer unemployment benefits to both striking public and private employees.

Effective: January 1, 2026

Liability for Property Owners (SB 426)

Governor Kotek signed SB 426 into law on June 9, 2025. The new law makes a property owner, contracted buyer, or lessee, and a direct contractor jointly and severally liable in a civil action for any unpaid wages owed to the unrepresented employees of the direct contractor and subcontractors at any tier for construction work performed within the scope of the construction contract. SB 426 defines “unrepresented employee[s]” as those employees who are “[n]ot represented by a construction trade labor organization” or employees who are “[n]ot covered by a collective bargaining agreement” that includes, among other provisions, “a mechanism for recovering unpaid wages … on behalf of the employees.” The law does not apply to construction work done to an owner’s principal residence or a property with five or fewer residential or commercial units on a single tract. Employers engaging contractors to perform work and employers in the construction industry may want to be aware of the implications of this new law. As a first step, employers in the construction industry can review their pay policies to ensure legal compliance.

Effective: January 1, 2026

Age Discrimination in Hiring (HB 3187)

On May 22, 2025, Governor Kotek signed HB 3187 into law. The law prohibits employers from requesting or requiring an applicant’s age, date of birth, or date of graduation from any educational institution prior to completing an initial interview, or if there is no initial interview, prior to making a conditional offer of employment. Two exceptions are provided: (a) when the employer needs the information to comply with an applicable law, or (b) when the information is required to affirm that the applicant meets bona fide occupational qualifications. To ensure compliance, employers will want to review their hiring practices, including their application materials, before HB 3187 takes effect.

Effective: September 26, 2025

Oregon Sick Leave Use for Blood Donation (SB 1108)

Governor Kotek signed SB 1108 into law on May 28, 2025. SB 1108 allows eligible employees to use leave earned under Oregon’s sick time law to donate blood through a voluntary program approved or accredited by the American Association of Blood Banks or the American Red Cross. Employers may want to revise their sick leave policies now to comply with this new law.

Effective: January 1, 2026

Paystub Clarity (SB 906)

On May 28, 2025, Governor Tina Kotek signed SB 906 into law. SB 906 requires employers to provide employees with a written explanation of the earnings and deductions shown on their paystubs at the time of hire. Learn more about SB 906 from our article, “Oregon Enacts Wage Deduction Transparency Law.”

Effective: January 1, 2026

Changes to Paid Leave Oregon (SB 69, SB 858, and SB 859)

SB 69 allows an employer to require an employee to obtain certification from their healthcare provider that they are able to resume work after a period of medical leave under Paid Leave Oregon. The bill also exempts certain flight crew employees from the OFLA eligibility requirements if they meet federal hours of service requirements.

SB 858 makes technical changes to the Paid Leave Oregon program, including allowing an authorized agent to act on behalf of a deceased or incapacitated individual with respect to their Paid Leave Oregon benefits.

SB 859 allows the Oregon Employment Department to compromise, adjust, or write off certain debts and overpayments under the Paid Leave Oregon program.

Effective: September 26, 2025

Creation of BOLI’s Employer Assistance Division (HB 2248)

HB 2248 establishes the Employer Assistance Division within BOLI. The Employer Assistance Division will provide education, training, and interpretive guidance, including advisory opinions, to assist employers in complying with laws enforced by BOLI. Notably, under HB 2248, BOLI is prevented from imposing a penalty on employers that prove they relied on discussions with the Employer Assistance Division in taking any good faith action. Employers may look to the Employer Assistance Division as another resource when faced with compliance issues.

Effective: September 26, 2025

Ogletree Deakins’ Portland, Oregon, office will continue to monitor developments and will provide updates on the Construction, Healthcare, Leaves of Absence, Oregon, Traditional Labor Relations, and Unfair Competition and Trade Secrets blogs as additional information becomes available.

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Quick Hits

• The Supreme Court of California ruled that the FAA does not preempt a state law requiring prompt payment of arbitration fees, interpreting the requirement in the context of other statutes and legal principles that may excuse an untimely payment.
• The court clarified that employers may not automatically forfeit their right to arbitration for late fee payments if those delays are not willful or grossly negligent.
• The ruling emphasizes that parties can negotiate their own payment timelines in arbitration agreements.

In Hohenshelt v. Superior Court of Los Angeles County (Golden State Foods Corp., Real Party in Interest), the California high court addressed a state court split over whether the FAA preempts Code of Civil Procedure Section 1281.98, which imposes a thirty-day deadline to pay arbitration fees. California courts have interpreted the statute as deeming a failure to pay in a timely manner to be a material breach of the arbitration agreement, regardless of the circumstances, and automatically deny companies their rights to arbitration.

Some courts have held that such an inflexible rule hinders arbitration and conflicts with the FAA, which requires states to place arbitration agreements on equal footing as other contracts. According to those courts, because other contracts are not forced to comply with this stringent rule, the FAA preempts this law. Other courts have held that the statute is not preempted because it promotes the goals of the FAA by ensuring the timely payment of invoices and keeping arbitration proceedings moving without unnecessary delay.

In Hohenshelt, the California supreme court rejected a “rigid construction” of the statute  The court held that the statute is not preempted by the FAA, but also concluded that the law does not stop a court from excusing the untimely payment based on established contract principles unless the “nonperformance is willful, grossly negligent, or fraudulent.” Importantly, the court also held that the parties to the arbitration agreement can set by agreement the due date for arbitration fees payments.

Background

Section 1281.98 was added as part of the 2019 amendments to the California Arbitration Act in Senate Bill (SB) 707. The statute provides that when an employment or consumer arbitration requires the drafting party to pay arbitration fees and costs, “if the fees or costs are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration.” The statute then allows the employee or consumer to “unilaterally … [w]ithdraw the claim from arbitration and proceed” to court. The employee or consumer is entitled to mandatory sanctions and attorneys’ fees accrued in arbitration upon return to court.

In Hohenshelt, an employee of Golden State Foods Corp. sought to withdraw his claims from arbitration after the employer paid arbitration fees more than thirty days after the arbitrator invoiced them, but before a final payment deadline set by the arbitrator.

The California Second District Court of Appeal ruled that the clear language of Section 1281.98 requires that payments are “due upon receipt,” any extension of time for fee payment must be agreed upon by all parties, and that the statute does not let an arbitrator cure a party’s missed payment. The appellate court sent the claims back to the trial court even though the arbitration proceedings had been ongoing for a year and the employer had spent more than $50,000 in arbitration fees and costs.

FAA Preemption

The Supreme Court of California read the statute in a way that saves it from FAA preemption. The court said Section 1281.98 must be considered in the context of the “backdrop of longstanding statutes that authorize courts to prevent unjust forfeitures of contractual rights” and legislative history suggesting the law was meant to stop parties from “strategically withholding” the payment of arbitration fees and costs as a tactic to delay and frustrate the arbitration proceedings. (Emphasis in the original.)

The court interpreted Section 1281.98 as not mandating that fees “invariably be paid within 30 days of the arbitrator’s invoice regardless of the parties’ preferences.” Instead, the statute imposes a “default rule” for when fees are due, and “parties are free to contract for any due date they want by adopting their own ‘provision in the arbitration agreement stating the number of days in which the parties to the arbitration must pay any required fees or costs.’”

In this context, the supreme court found that the statute does not treat arbitration agreements differently from other contracts and does not undermine the goals of the FAA. The supreme court admitted that if the statute were read only by the plain text, without incorporating other elements of California law, “any failure to make timely payment, regardless of the circumstances, invariably results in forfeiture of arbitral rights, the statute would be anomalous in the context of general contract law principles.” This would result in FAA preemption. However, the court explained that “a drafting party can avoid forfeiture of its right to arbitration by showing that the delay was excusable” under other laws and background legal principles that generally apply to contracts.

Key Takeaways

The Supreme Court of California’s decision in Hohenshelt found that the FAA does not preempt Section 1281.98, by allowing courts to keep claims in arbitration even if arbitration fees are not paid in accordance with the statute. The ruling states that mere technical violations or oversights could excuse employers’ late payment so long as there is no evidence that the late payment was deliberate or due to gross negligence.

Additionally, the court said parties may agree to other terms as the statute only provides a “default rule.” That means employers concerned with the time limits in Section 1281.98 may include a provision in arbitration agreements setting when invoices are due. Employers may want to consider adding such a provision or revising and updating existing arbitration agreements with such a provision to avoid the deadline in Section 1281.98.

Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group will continue to monitor developments, and will provide updates on the Arbitration and Alternative Dispute Resolution and California blogs as additional information becomes available.

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