Quick Hits

• On September 3, 2025, New Jersey enacted A4429, which expands prohibitions on employer-sponsored meeting topics and clarifies exemptions under New Jersey’s “captive audience” law.
• The law defines “political matters” more broadly to include labor organizations or associations.
• The law may face legal challenges such as federal preemption under the National Labor Relations Act or under the First Amendment.
• The act took effect on December 2, 2025.

Overview of the Amendment

Prior to the amendment, New Jersey prohibited employers from requiring employees to attend employer-sponsored meetings or participate in communications with the employer, or its agents or representatives, regarding the employer’s opinion about religious or “political matters.”

Previously, “political matters” covered topics such as political party affiliation and membership in political or community organizations. The amended law now contains a definition of political matters, which is “matters which relate to an electioneering communication and the employee’s decision to join or support any political party or political, civic, community, fraternal, or labor organization or association.” Therefore, employers may not require employees to attend meetings or participate in communications that convey the employer’s political opinions, including anti- or pro-union messaging.

Exemptions

Employers may host voluntary employer-sponsored meetings or participate in communications regarding political matters, as long as employees are clearly informed that they may refuse to attend the meeting and/or accept the communications without penalty.

In addition, the law carves out several important exemptions to the prohibition, including:

• communicating information that is required by law;
• communicating information necessary for employees to perform their required job duties, including attendance at meetings or participating in communications;
• requiring employees to attend training to reduce or prevent unlawful workplace harassment or discrimination; and
• requiring attendance at meetings or participation in communications in certain narrow contexts for institutes of higher education, political organizations, government entities, and religious organizations.

Posting Requirement

Employers are required to post a notice of employee rights under the law in a conspicuous location reserved for employment-related notices and in an area commonly frequented by employees. As of December 9, 2025, New Jersey has not published a formal notice or provided any guidance to employers on the posting requirement.

Legal Challenges

The broad prohibitions the amendment imposes on employers could lead to legal challenges. First, the National Labor Relations Act already regulates mandatory employer-sponsored meetings and may preempt the law. Second, the law may be challenged under the First Amendment of the U.S. Constitution. For example, on October 3, 2025, the U.S. District Court for the Eastern District of California issued a preliminary injunction that blocks the enforcement of California’s similar “captive audience” bill (Senate Bill 399) on the grounds that it is likely unconstitutional.

Next Steps

New Jersey employers may want to review A4429’s requirements before planning any employer-sponsored meetings involving political matters and determine the potential impacts of the law.

Before holding meetings on political matters, including unionization, New Jersey employers are required to notify employees that attendance is voluntary and that refusal to attend will not result in discipline.

Ogletree Deakins’ Morristown office and Traditional Labor Relations Practice Group will continue to monitor developments and provide updates on the New Jersey and Traditional Labor Relations blogs once New Jersey provides additional guidance on the law’s posting and notice requirements.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• The State Department is expanding its social media presence review to include H-1B and dependent H-4 visa applicants during consular visa adjudication.
• This process is currently in place for all F, M, and J students and exchange visitors.
• The additional vetting has resulted in the State Department canceling and rescheduling visa appointments.

On December 3, 2025, the State Department announced an expansion of screening and vetting for H-1B and dependent H-4 visa applications. Starting December 15, 2025, H-1B and H-4 visa applicants are instructed to adjust the privacy settings on all their social media profiles to “public.” The announcement is an expansion of the policy that is already in place for all F, M, and J students and exchange visitors. The State Department uses social media and other available information to identify national security risks and determine visa eligibility during consular adjudications. Derogatory information may result in the denial of the visa or a request to provide additional information to determine the applicant’s eligibility.

The enhanced screening is causing embassies and consulates to cancel and reschedule H-1B and H-4 visa appointments as they implement the additional vetting process. Expanded vetting may contribute to delays in visa appointment scheduling and processing times.

Key Takeaways

The State Department has expanded its social media screening to include H-1B and H-4 visa applicants, effective December 15, 2025. The State Department has instructed all individuals subject to the review to set their social media profiles to public. Visa applicants should expect delays in visa appointment scheduling and visa issuance.

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• Local minimum wage ordinances in California are applicable to the hours worked in a locality and enforceable by multiple mechanisms, with monetary penalties and other relief available where violations have occurred.
• Claims tied to local minimum wage shortfalls often include derivative claims—waiting-time penalties, wage statement violations, unpaid overtime, unfair competition, and Private Attorneys General Act (PAGA) civil penalties—magnifying exposure.
• Noncompliance with a local ordinance can expand into multi-year, multi-theory wage litigation and culminate in class-wide relief.

The Legal Framework: Pay Rates Based on Where Employees Work

California’s wage and hour regime requires payment of at least the applicable minimum wage “for all hours worked.” State law both permits and enforces local minimum wage ordinances that exceed the state rate. Courts have upheld such ordinances and confirmed they are not preempted by federal law. Employers must therefore apply the most protective wage rule in effect for the employee’s actual work location.

This location-based principle applies with particular force to remote and hybrid arrangements. If a nonexempt employee performs work within a city or county that has adopted a higher local minimum wage, the employer must pay at least that local rate for the hours worked there. The relevant jurisdiction is the place of performance, not the employer’s corporate domicile or payroll processing location.

Local rates vary materially and are subject to frequent change. For example, the 2025 minimum wage rates included $19.18 per hour in San Francisco, $19.90 per hour in Emeryville, $19.20 per hour in Mountain View, and $19.65 per hour in West Hollywood, among others, with some jurisdictions adopting tiered structures or special treatment for small employers. Employers paying only the state minimum wage—$16.50 per hour in 2025 and $16.90, effective January 1, 2026—might underpay in those localities unless they adjust to the higher local thresholds.

Managing Remote Workforces: Considerations for Employers

Employers may want to integrate local minimum wage compliance into the design of their remote-work programs, payroll operations, and recordkeeping. The following are options that employers may wish to consider:

• Implementing focused location tracking. This means requiring remote employees to designate and update their primary work location(s) and disclose any temporary relocations, integrating geolocation data or attestations into HRIS and timekeeping systems, and, where employees split time across jurisdictions, paying the applicable local rate for the hours worked in each location.
• Building a verified wage–rate registry. Consider maintaining an up-to-date matrix of state and local minimum wage rates (including small-employer tiers, if applicable), effective dates, and posting requirements, automating alerts for scheduled increases and emergency adjustments, and building hard-coded rate changes into payroll calendars.
• Auditing and remediating. Consider conducting periodic internal audits to compare paid rates to local requirements for all remote employees. Where underpayments are identified, to mitigate risk, consider promptly correcting prospectively and paying make-whole amounts, including liquidated damages for minimum wage violations.
• Aligning policies, training, and postings. Updating handbooks, remote-work policies, and manager guidance to reflect location-based wage obligations, while providing employees with applicable local wage postings or digital equivalents, as required, can be effective.
• Coordinating with vendors and affiliates. If staffing agencies, contractors, or affiliates supply labor, it is sensible to ensure that pay practices and contractual obligations align with local minimum wage requirements for work performed, as joint and derivative liability can arise from any failures.

Key Takeaways

The combination of varied local rates, protective state standards, and potent private enforcement tools has raised the stakes for employers in California. By anchoring pay practices to the location of work, maintaining robust records, and operationalizing local ordinance compliance, employers can begin to take steps to reduce their wage-and-hour exposure in the state.

Ogletree Deakins’ California Class Action and PAGA Practice Group and Wage and Hour Practice Group will continue to monitor developments and will provide updates on the California, Class Action, and Wage and Hour blogs as additional information becomes available.

Further information on the minimum wage rates and requirements of California localities can be found in the Ogletree Deakins Client Portal, specifically in the California minimum wage law summaries. (Full law summaries are available for Premium-level subscribers; Snapshots and Updates are available for all registered client-users.) For more information about the Client Portal or to inquire about a Client Portal subscription, please contact clientportal@ogletree.com.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• A number of state laws enacted in 2024 or 2025 aim to expand insurance coverage for fertility treatments or give employees time off for reproductive losses or to care for a newborn in intensive care.
• More states could decide to continue this trend in 2026.
• The 2025 federal budget reconciliation bill instituted Trump Accounts with $1,000 contributions for newborns who are American citizens.

The following states and localities recently passed laws concerning insurance coverage or leaves of absence related to pregnancy, childbirth, or fertility treatments.

• California: On September 29, 2024, Governor Gavin Newsom signed Senate Bill (SB) No. 729 into law, requiring large insured group health plans to cover diagnosis and treatment of infertility. This includes coverage for in vitro fertilization (IVF) with up to three egg retrievals and unlimited embryo transfers. This law took effect on July 1, 2025. Another law took effect in January 2024 to require California employers to provide five days of paid leave for employeesafter amiscarriage, stillbirth, failed surrogacy, failed adoption, or unsuccessful assisted reproduction procedure.
• Colorado: Governor Jared Polis signed into law a bill that expands the state’s Family and Medical Leave Insurance (FAMLI) program to provide up to twelve weeks of paid leave for parents with a child in a neonatal intensive care unit (NICU). It will take effect on January 1, 2026.
• District of Columbia: The Expanding Access to Fertility Treatment Amendment Act of 2023 mandates that large insured group health plans cover diagnosis and treatment of infertility, including IVF and fertility preservation methods. It took effect on January 1, 2025.
• Florida: Lawmakers passed a bill to require state health insurance plans to cover medically necessary fertility preservation services. The law took effect on July 3, 2025, without the governor’s signature. It applies to insurance policies issued on or after January 1, 2026.
• Georgia: On May 1, 2025, Governor Brian Kemp signed a House Bill (HB) 94, which mandates health insurance coverage for medically necessary fertility preservation services for patients with certain diseases, such as cancer, sickle cell disease, and lupus. It applies to insurance coverage renewed or issued after January 1, 2026. The governor also signed a different HB 428 to codify the right to obtain IVF in the state. That law took effect on July 1, 2025.
• Illinois: Governor J.B. Pritzker signed the Neonatal Intensive Care Leave Act (NICLA), which provides unpaid leave for parents with a child in a NICU. It will take effect on June 1, 2026.
• Tennessee: On April 24, 2025, Governor Bill Lee signed the Fertility Treatment and Contraceptive Protection Act (House Bill 533), which codified the right to obtain fertility treatments and contraception in the state. This law took effect on July 1, 2025.

At the federal level, on October 16, 2025, President Donald Trump issued an executive order that permits employers to offer standalone benefit packages to employees to cover IVF and other infertility treatments. The order also announced an agreement with a drug manufacturer to reduce prices for fertility medications.

On July 4, 2025, President Trump signed the budget reconciliation bill, which includes a provision to put $1,000 into Trump Accounts for newborns who are U.S. citizens. For babies born between January 1, 2025, and December 31, 2028, the U.S. government will deposit $1,000 into a Trump Account, invested in a stock-market index fund. The federal deposits are expected to start in July 2026. The money can earn interest over time and be withdrawn any time after the child turns eighteen years old. An employer can contribute up to $2,500 per year to the Trump Account of an employee’s child, and the employer’s contribution will not count toward the employee’s taxable income.

When combined, these state and federal actions represent a mounting policy trend to provide support for individuals trying to conceive and care for newborns.

The out-of-pocket costs for IVF, pregnancy, and childbirth remain an impediment for some Americans. Among reproductive-age women who reported needing fertility services at some point, 12 percent said cost was the primary reason they did not receive fertility services, according to 2024 research from the Kaiser Family Foundation (KFF). Meanwhile, 27 percent of large companies that offered health benefits covered IVF in 2024, KFF reported.

Next Steps

Employers must comply with any new state laws that require insurance coverage for fertility treatments and time off for reproductive losses or to care for a newborn in intensive care. Time off under state family leave programs may run concurrently with qualified leave taken under the federal Family and Medical Leave Act (FMLA), depending upon eligibility.

Ogletree Deakins will continue to monitor developments and will provide updates on the California, Colorado, District of Columbia, Employee Benefits and Executive Compensation, Florida, Georgia, Healthcare, Illinois, Leaves of Absence, State Developments, and Tennessee 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.

Jennifer L. Colvin is a shareholder in Ogletree Deakins’ Chicago office.

Sheri L. Giger is a shareholder in Ogletree Deakins’ Pittsburgh office.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• The Dole Act provides minimum liquidated damage awards of $50,000 for certain USERRA violations and mandates awards for attorneys’ fees for successful USERRA plaintiffs.
• The Dole Act expands USERRA retaliation protections.
• The Dole Act makes it easier for USERRA claimants to obtain early case injunctive relief.
• The Dole Act sets a 3 percent interest rate on back pay awards.

The Dole Act provides broad benefits for veterans and service members, including provisions relating to Veterans Community Care Programs, nursing homes, long-term care, medical treatment, educational assistance, disabilities, and homeless veterans. Included with these benefits is the Employment and Training portion of the act, which provides several increased USERRA workforce protections discussed below.

Increased Retaliation Protections

Before the Dole Act, USERRA’s prohibitions against retaliation were limited to “discrimination in employment” and “adverse employment action.” Under the Dole Act these protections are expanded to also include “other retaliatory action.” Though the judiciary has not yet applied the Dole Act, the statute creates an arguable presumption that plaintiffs no longer need to prove adverse employment action to support a claim for retaliation under USERRA. By shifting the focus away from adverse employment actions and discrimination, employment plaintiffs may no longer be required to show a material change in employment conditions or significant harm to prove retaliation.

Increased Liquidated Damages

Before the Dole Act, USERRA allowed liquidated damages against a state, private, or local government employer where the employer’s failure to comply with USERRA was found to be “willful.” Before the Dole Act the liquidated damages were to be in amount equal to claimant’s lost wages and benefits. The Dole Act makes two significant changes to USERRA liquidated damages: (1) changing the standard to where an employer “knowingly failed” to comply with USERRA and (2) providing a minimum liquidated damages award of $50,000 even where no lost wages and benefits are recovered by the USERRA claimant. This means a court can now require an employer to pay the greater of either (1) $50,000 or (2) the sum of lost wages and benefits and prejudgment interest awarded.

Prejudgment Interest Rate Set

Before the Dole Act, USERRA did not set a prejudgment interest rate for awards of lost wages or benefits. In addition to setting a floor on liquidated damages, the Dole Act also sets a 3 percent interest rate for prejudgment awards of lost wages or benefits. This means that a court can now require an employer to pay 3 percent interest on lost wages and benefits resulting from a USERRA violation.

Mandatory Attorneys’ Fee Awards

Before the Dole Act attorneys’ fees were allowed for prevailing USERRA plaintiffs but they were not required. The Dole Act requires the awarding of attorneys’ fees for successful USERRA plaintiffs in actions against state or private employers, actions before the Merit Systems Protections Board, and in the Federal Circuit Court of Appeals. This entitlement to attorneys’ fees can potentially expose an employer to extensive attorneys’ fees in a case where a USERRA plaintiff receives a small monetary recovery. This change combined with the liquidated damages and prejudgment interest changes provides significant enhancement for prevailing USERRA plaintiffs.

Clarified Protection for Career Military Members

Before the Dole Act, USERRA’s stated purpose was to “encourage noncareer service in the uniformed services.” This statement was open to interpretation over whether USERRA protected regular military members on long-term, active duty, or full-time National Guard duty. The Dole Act amended USERRA’s purpose to “encourage service in the uniformed services” broadening the scope of USERRA’s protections to include those part of the regular active-duty forces as well as those whose uniformed service in the reserves or national guard could be considered “career service.” This change inherently amplifies USERRA’s application to voluntary service and broadens USERRA’s protections.

Broader Pretrial Injunctive Relief

The Dole Act allows USERRA plaintiffs to receive an injunction early in their lawsuit to stop USERRA violations if they demonstrate:

1. a violation or threatened violation of USERRA;
2. “the harm to the person outweighs the injury to the employer”;
3. “a likelihood of success on the merits”; and
4. “awarding such relief is in the public interest.”

The Dole Act also prevents courts from denying injunctive relief on the basis that claimants may later recover back pay due at the conclusion of the USERRA litigation. Taken together these changes provide a clear framework for obtaining injunctive relief in USERRA actions and allow this relief in cases where back pay is being requested.

Conclusion

The Dole Act provides significant enhancements to the protections provided by USERRA for employees who serve in the uniformed services. These increased protections bolster retaliation protections and provide easier access to early case injunctive relief. The Dole Act also provides more favorable terms for prevailing USERRA plaintiffs including an award of mandatory attorneys’ fees for prevailing plaintiffs, a set prejudgment interest rate, and minimum liquidated damages of $50,000. These increased protections elevate the risk to employers for USERRA violations and demonstrate the need for employers to understand and comply with USERRA’s provisions.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments with respect to USERRA and the Dole Act and will provide updates as additional information becomes available. Amy Quick Glenos and James A. Patton, Jr. are the co-chairs of the Military Workforce Practice Group.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• Illinois has enacted significant amendments to the Workplace Transparency Act (WTA), effective January 1, 2026, which will impact employment, separation, and settlement agreements by broadening the definition of “unlawful employment practice” and adding protections for “concerted activity.”
• The amendments prohibit certain unilateral agreement terms, tighten confidentiality requirements in separation and settlement agreements, expand participation rights in legal proceedings, and increase available remedies.

What’s Changing

Broader definition of “unlawful employment practice.” Previously focused on discrimination, harassment, and retaliation, the WTA will now cover any practice unlawful under state or federal employment laws, including those enforced by the Illinois Department of Human Rights, Illinois Department of Labor, Illinois Labor Relations Board, U.S. Equal Employment Opportunity Commission, U.S. Department of Labor, Occupational Safety and Health Administration, and National Labor Relations Board. This expansion sweeps in wage and hour, safety, labor, and other employment claims.

Protection for “concerted activity.” Agreements may not prohibit or restrict employees, prospective employees, or former employees from engaging in concerted activities to address work-related issues (as defined by the National Labor Relations Act as of January 19, 2025, and certain Illinois labor statutes). “Concerted activity” includes acting together for mutual aid or protection, collective bargaining, union organizing, and discussing wages, hours, and working conditions.

Prohibited unilateral terms in conditions of employment. Any unilateral condition of employment or continued employment may not: (1) shorten an applicable statute of limitations, (2) apply non-Illinois law to an Illinois employee’s claim, (3) require a non-Illinois venue for an Illinois employee’s claim, or (4) state that confidentiality is the employee’s preference. Such terms are void to the extent they deprive employees of substantive or procedural rights or remedies concerning unlawful employment practices.

“Mutual” agreements remain permissible with updated acknowledgments. Provisions that would be impermissible as unilateral conditions may still be included as a “mutual condition of employment or continued employment” if in writing, supported by actual, knowing, bargained-for consideration, and if the agreement expressly acknowledges the individual’s rights to report unlawful employment practices and criminal conduct, participate in proceedings related to unlawful employment practices (including private litigation and arbitration), make truthful statements required by law, seek confidential legal advice, and engage in concerted activity to address workplace issues. The amendments broaden these acknowledgments beyond prior law.

Stricter rules for confidentiality in separation and settlement agreements. Where an agreement includes confidentiality regarding alleged unlawful employment practices, the promise of confidentiality must be supported by separate, bargained-for consideration that is distinct from consideration for a release of claims. Employers may not unilaterally state that confidentiality reflects the employee’s preference. Confidentiality provisions cannot restrict future or prospective concerted activity related to workplace conditions. Some commentary indicates confidentiality regarding alleged unlawful employment practices must expire within five years of the alleged conduct, so employers may want to consider this emerging interpretation in drafting.

Expanded right to participate in proceedings. The WTA clarifies that employees (including prospective and former employees) may participate in administrative, legislative, judicial, and arbitral proceedings concerning alleged unlawful employment practices or criminal conduct, including providing deposition testimony, when requested by court order, subpoena, or written request from an agency or the legislature.

New remedies. In addition to reasonable attorneys’ fees and costs, individuals may recover consequential damages for establishing a violation of the WTA or for successfully defending against an employer’s claim for breach of a confidentiality obligation under the WTA.

Effective date and scope. The amendments apply to agreements entered into, modified, or extended on or after January 1, 2026. Employers may want to align all templates and practices in advance of that date.

Practical Implications and Drafting Considerations

Reassessing scope and carve-outs in confidentiality/nondisparagement. Employers may want to expand carve-outs to expressly permit truthful statements and disclosures about any alleged unlawful employment practices, not only discrimination-related claims, and include clear acknowledgments of rights to report to agencies, to participate in any related proceedings (including arbitration and depositions), to make legally required disclosures, to seek confidential legal advice, and to engage in concerted activity.

Separate consideration for confidentiality in separation/settlement. Employers may want to allocate a distinct sum—or otherwise document separate bargained-for consideration—specifically for confidentiality related to alleged unlawful employment practices. Employers may want to ensure that settlements do not include unilateral statements that confidentiality is the employee’s preference, and they do not restrict future or prospective concerted activity regarding workplace conditions. Consider whether to set a confidentiality term limit consistent with emerging guidance referencing a five-year expiration for confidentiality regarding alleged unlawful employment practices.

Auditing unilateral agreement terms. Employers may want to remove or revise any unilateral provisions that (a) shorten statutes of limitations, (b) select non-Illinois law for Illinois claims, (c) require non-Illinois venues, or (d) declare confidentiality as the employee’s preference. Employers that preserve such terms in settlement agreements may want to restructure them as mutual conditions supported by bargained-for consideration and the required acknowledgments.

Concerted activity language. Employers may want to ensure no agreement language restricts concerted activity. Consider affirmative statements recognizing employees’ rights to engage in concerted activity to address workplace issues. Also consider aligning confidentiality and nondisparagement provisions accordingly.

Arbitration and participation rights. Employers may want to confirm that arbitration agreements do not impede employees’ rights to testify or participate in proceedings (including arbitrations) concerning alleged unlawful employment practices or criminal conduct when requested by subpoena, order, or agency/legislative request. Employers may also want to determine where acknowledgments should be udpated.

Updating timing safeguards in separation/settlement agreements. Consider maintaining the WTA’s existing procedural safeguards for confidentiality in separation/settlement agreements, including written agreements, voluntary preferences, notice of the right to consult counsel, and twenty-one-day review/seven-day revocation periods, and layering in the new separate consideration and concerted activity constraints.

Preparing for expanded remedies exposure. Employers may want to recalibrate risk assessments and approval protocols, given the WTA’s new consequential damages remedy and fee-shifting for violations and certain defenses. When recalibrating, consider ensuring matter management and template controls reflect this heightened exposure.

Action Plan for Employers

Comprehensive agreement audit. Employers that inventory and review all employment-related agreements that could be executed, modified, or extended on or after January 1, 2026, including offer letters, employment agreements, confidentiality/NDA agreements, restrictive covenant agreements, arbitration agreements, and all separation and settlement templates will be well-prepared when the new requirements take effect. Consider identifying and remediating unilateral terms that contravene the amendments and expand carve-outs and acknowledgments accordingly.

Redrafting separation/settlement confidentiality. Employers may want to create a separate consideration line item or clear allocation for confidentiality relating to alleged unlawful employment practices. Employers may also want to remove unilateral “employee preference” statements, ensure the clause does not restrict future or prospective concerted activity and consider a defined confidentiality term consistent with current guidance, and retain WTA-required review and revocation periods and attorney-review notices.

Standardization of “concerted activity” acknowledgments. Consider embedding an express acknowledgment of employees’ rights to engage in concerted activity in applicable agreements, alongside the updated acknowledgment of rights to report and participate in proceedings and depositions/arbitral processes.

Choice-of-law/venue/statute-of-limitations review. Employers may want to remove or restructure as mutual any provisions that shorten limitations periods, select non-Illinois law for Illinois claims, or require out-of-state venues. Employers may also want to confirm any mutual provisions meet WTA conditions and include the expanded acknowledgments.

HR and legal training. To prepare for compliance with the law, consider training HR, legal, and business stakeholders on the amended WTA’s scope, the broadened definition of unlawful employment practices, concerted activity protections, the separate-consideration requirement for confidentiality, and the enhanced remedies.

Implementation timeline. Employers may want to target completion of drafting updates, internal trainings, and template rollouts before January 1, 2026. Applying updated language to any agreement entered into, modified, or extended on or after the effective date is an important element in this step.

Ogletree Deakins’ Chicago office will continue to monitor developments and will post updates on the Illinois, Traditional Labor Relations, Unfair Competition and Trade Secrets, Wage and Hour, and Workplace Safety and Health blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Several federal agencies—including the U.S. Department of Homeland Security (DHS), U.S. Department of Energy (DOE), U.S. Department of State (DOS), U.S. Department of Veterans Affairs (VA), the Consumer Financial Protection Bureau (CFPB), the U.S. General Services Administration (GSA), the U.S. National Archives and Records Administration (NARA), the Federal Reserve Board, and others—have now published AI strategies in response to M-25-21. This first wave of plans confirms a federal approach oriented toward accelerating AI adoption and foreshadows operational implications for contractors and grant recipients. Agencies are also working toward an impending end-of-year deadline to finalize detailed policies that will tighten expectations and documentation for AI used by contractors in federal work.

Here, we address some of the common goals and restrictions agencies are adopting in their AI strategies, the immediate lessons for contractors and grant recipients, the practical labor and employment implications, and what these moves portend for the future of AI in federal contracting.

Quick Hits

• As the number of covered agencies with published AI strategies pursuant to OMB Memorandum M-25-21 grows, companies with federal contract work gain new insights into best practices, and sometimes risk management warnings, from their partner agencies.
• Pursuant to OMB Memorandum M-25-22, further clarity on agency expectations regarding AI acquisition is expected from individual covered agencies by December 29, 2025.
• Federal contractors may want to review their partner agencies’ strategic AI plans to ensure their internal policies and procedures align with the government’s expectations.

M-25-21: Accelerate Adoption (With Guardrails)

Agencies with published AI strategy plans converge on several goals, including scalable AI infrastructure, quality data, an AI-ready workforce, and proportional risk governance.

• Standardized, secure AI development and testing are critical to ensure secure pathways to production. In other words, AI must operate within existing security and compliance boundaries. For example, one of DHS’s goals for enabling AI infrastructure involves shifting to a continuous authorization model to implement a secure-by-design policy and provide AI developers with access to existing, secure systems.
• Agencies are building catalogues that prioritize AI data standards and traceability. The DOE has established a robust data governance structure to ensure consistent and effective data management across its enterprise. It has also established a chief data officer position, a chief artificial intelligence officer, as well as a data and AI governance boards, to lead data initiatives and enforce policies for managing data.
• Agencies are scaling AI literacy for all personnel while recruiting for specialized roles such as data science, machine learning (ML) engineering, model evaluation, AI ethics, and cybersecurity. GSA touts its investment in training opportunities and community-building, offering agency-wide learning sessions and hosting initiatives such as “Friday Demo Days,” where employees share their generative AI projects.
• Agencies seek to foster public trust when using high-impact AI—AI with an output that will serve as a principal basis for decisions or actions that have a legal, material, binding, or significant effect on an individual’s or entity’s rights, liberties, privacy, safety, and more. For such systems, M-25-21 directs agencies to implement minimum risk management practices, such as pre-deployment testing, impact assessments, human oversight, continuous monitoring, and appeal mechanisms. Several agencies are operationalizing these requirements through their chief artificial intelligence officers (CAIOs). NARA has implemented an “AI Use Case Inventory,” empowered its CAIO to grant waivers only in “exceptional circumstances,” and will only do so “with a clear, written determination that adhering to a practice would increase risk or impede critical operations.” Likewise, the VA’s CAIO and CFPB’s respective chief information officers will have the authority to suspend or terminate any AI uses that fail to meet minimum safeguards.

For contractors, the shift in federal AI policy provides guidance on agencies’ expectations. As federal agencies roll out AI plans that accelerate the adoption of automated tools across the employment lifecycle, organizations should anticipate parallel compliance obligations and risk management needs. Companies that do substantial business with the federal government, especially with agencies that have released an AI strategy, may want to consider adopting clear acceptable-use policies for AI that prohibit the entry of sensitive client or controlled unclassified information (CUI) into unapproved tools to align with their partner agencies’ expectations as expressed in their strategy plans. Likewise, the use of AI in hiring, promotion, termination, or other high-impact decisions directly implicates federal anti-discrimination law, recent U.S. Equal Employment Opportunity Commission (EEOC) guidance addressing algorithmic decision-making, Office of Federal Contract Compliance Programs (OFCCP) requirements pertaining to protected veteran and disability status, and a growing patchwork of state and local automated employment decision tool regimes. In addition, AI-enabled workplace monitoring and productivity systems such as timekeeping, productivity scoring, and surveillance can trigger National Labor Relations Act (NLRA) concerns around interference with protected concerted activity, privacy obligations under state and federal laws, and wage-and-hour risks.

For federal contractors, it is best practice for any systems used for these purposes to mirror the partner agency’s minimum risk-management practices and require human validation of outputs. And employers generally may want to consider proactively testing for and remediating adverse impacts, implementing human-in-the-loop controls for high-stakes decisions, ensuring clear notice and consent where required, and providing reasonable accommodations for applicants and employees interacting with AI systems. Finally, as agencies invest in workforce literacy, training paths, clear workflows for AI use cases, and role-specific competence, entities competing for federal work or grants that do the same may have an advantage.

M-25-22: More to Come on AI Acquisition

M-25-22 imposes guardrails on the procurement of AI systems that contractors are particularly likely to feel. M-25-22 applies to any contract awarded pursuant to a solicitation issued on or after September 30, 2025. Presently, OMB’s memorandum broadly requires agencies to include contract terms barring vendors from using non-public government data to train publicly or commercially available AI algorithms without explicit consent. Relatedly, contracts must clearly delineate ownership and intellectual property (IP) rights of the government and contractor, data portability, and long-term interoperability. Additionally, M-25-22 urges agencies to “maximize” the use of AI products and services that are developed and produced in the United States.

In addition to the agency strategy plans issued in September 2025, covered agencies have until December 29, 2025, to revisit and update, where necessary, existing internal procedures on acquisition to comply with OMB’s requirements and ensure that their respective agencies’ use of acquired AI conforms to OMB Memorandum M-25-21. Those policies must, at a minimum, enable relevant agency officials to:

• review planned acquisitions of AI systems or services, and provide feedback on AI performance and risk management practices;
• convene a cross-functional team of relevant officials to coordinate and make decisions regarding the acquisition; and
• ensure the use of appropriate contract terms for IP rights.

In practice, the December 29, 2025, policies will likely clarify:

• how agencies will require contractors to identify and document AI used in performance, particularly where federal contractor information (FCI) and CUI is processed;
• minimum documentation for high-impact uses;
• recordkeeping expectations for training and evaluation methodologies; and
• sourcing preferences and restrictions to effectuate OMB’s goal of maximizing AI products and services that are developed and produced in the United States.

Implications and Practical Considerations for Contractors

Between M-25-21, existing AI strategies issued pursuant to M-25-21, M-25-22, and the forthcoming agency policy revisions pursuant to M-25-22, agencies are signaling their alignment with some common patterns. Contractors might not want to wait for contract-by-contract direction. Internal readiness will be critical to certify compliance and respond promptly to documentation requests. Critical steps include the following:

• Matching governance to risk. NARA, for example, will establish a rigorous, multi-layered control system for high-impact AI that includes comprehensive risk assessments by the system owner, a mandatory independent validation by technical and cybersecurity teams, and formal, written risk acceptance from a designated senior official. While approvals for low-risk uses could be quick, when the use of AI implicates rights or safety, contractors can likely expect longer review periods, tighter security, and more burdensome oversight.
• Ensuring secure AI architecture. The DOE’s testbeds and DHS’s application programming interface (API) gateways suggest agencies may favor enterprise channels for shared access. Contractors that have such architecture in place may be advantaged in hitting the ground running.
• Publishing annual public inventories, waiver disclosures, and other notices as required. Like many other agencies, the Federal Reserve’s AI Program Team will maintain records of all determinations and waivers, report to OMB within thirty days of annual certifications and significant modifications, and otherwise fulfill the transparency requirements of M-25-21’s Section 4(a)(iv) by sharing summaries of the above with OMB and the public. Contractors likewise can expect their AI roles to be visible, and prepare public-facing explanations that are accurate, accessible, and justifiable.
• Continuous monitoring and reevaluation throughout the AI life cycle. The DOE has identified the need to invest in secure, scalable, and high-performance AI through development, testing, deployment, and continuous monitoring. For contractors, logging, evaluation, and retention protocols will be a priority.
• Maximizing the use of AI and services developed and produced in the United States. Subject to details in the agencies’ December 29 plans, agencies are likely to increasingly scrutinize origin, ownership, supply chains, and security posture when using certain foreign technologies.

Conclusion

Federal agencies are moving quickly to implement a consistent AI blueprint, scaling adoption through secure platforms, workforce readiness, safeguards for high-impact uses, and transparency measures. The December 29, 2025, policy deadline will crystallize these expectations, particularly for contractors. And as contract language is standardized in the Federal Acquisition Regulation (FAR) and agency supplements, clarity on this evolving technology will both allow for more predictable uses and introduce additional compliance burdens and enforcement risks. Early adopters of AI inventories, strong data governance policies, consistent human oversight, rigorous testing, and alignment with partner agency expectations will be best positioned to avoid costly retrofitting.

Ogletree Deakins’ Cybersecurity and Privacy, Government Contracting and Reporting, Governmental Affairs, Technology, and Workforce Analytics and Compliance Practice Groups will continue to monitor developments and will provide updates on the Cybersecurity and Privacy, Government Contracting and Reporting, Governmental Affairs, Technology, and Workforce Analytics and Compliance 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’ Administration Resource Hub.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

NLRB Nominee Clears Committee Hurdle. On December 3, 2025, the U.S. Senate Committee on Health, Education, Labor, and Pensions (HELP) advanced the nomination of Scott Mayer to be a member of the National Labor Relations Board (NLRB) by a vote of 12–11. Mayer now joins fellow NLRB nominees, James Murphy (nominated to be a member of the Board) and Crystal Carey (nominated to serve as the Board’s general counsel), in awaiting a vote by the full Senate. If confirmed, Mayer and Murphy would join current Board member David Prouty and return a functioning quorum to the agency.

After Mayer’s nomination was approved by the HELP Committee, Senate Majority Leader John Thune (R-SD) added Mayer’s name to another tranche of executive branch nominees to be confirmed en banc. This latest group of ninety-seven nominees also includes the aforementioned Murphy and Carey. As of this writing, Thune has started the process of teeing up a Senate floor vote for this group of nominees.

If Mayer, Murphy, Carey or any other nominee is not confirmed before the end of this first session of the 119th Congress, of which there are only two scheduled weeks remaining, then the nominations will be sent back to President Donald Trump and these individuals will have to be renominated. When the second session of the 119th Congress begins in January 2026, the Senate could vote to let any particular nominee remain, meaning that the nominee would continue where he or she left off in the confirmation process. Of course, Senate Democrats are free to withhold consent and force President Trump to renominate candidates.

Federal Judge Enjoins New York Labor Law. A federal judge of the U.S. District Court for the Eastern District of New York has enjoined New York state’s enforcement of its amended labor law. Enacted on September 5, 2025, the New York law empowers the state’s Public Employment Relations Board to assert jurisdiction over private-sector union elections and labor-management disputes—subjects traditionally within the sole purview of the NLRB. The judge ruled that the law was likely preempted by the National Labor Relations Act and that New York’s arguments that “unique circumstances”—such as the Board’s lack of a quorum and the ongoing litigation concerning Board members’ for-cause removal protections—created an exception to preemption, were without merit.

USCIS Freezes Immigration Benefit Requests. On December 2, 2025, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum, titled, “Hold and Review of all Pending Asylum Applications and all USCIS Benefit Applications Filed by Aliens from High-Risk Countries.” Effective immediately, the memorandum instructs USCIS personnel to: (1) place a hold on all applications for asylum and for withholding of removal “regardless of the alien’s country of nationality”; (2) place a hold on all benefit requests from applicants of the nineteen countries listed in President Trump’s June 4, 2025, travel ban proclamation; and (3) re-review benefits requests from foreign nationals of those nineteen travel-ban countries who entered the United States on or after January 20, 2021. According to the memorandum, the purpose of the policy change is to “fully assess all national security and public safety threats along with any other related grounds of inadmissibility or ineligibility.”

State Department to Scrutinize Online Presence of H-1B Applicants. Beginning December 15, 2025, the U.S. Department of State will begin vetting the social media profiles of H-1B visa applicants. Consequently, the State Department is instructing “all applicants for H-1B and their dependents (H-4) … to adjust the privacy settings on all of their social media profiles to ‘public.’” In June 2025, the State Department initiated a similar online vetting process for F, M, and J student visa applicants.

OSHRC Chair Sworn In. Jonathan Snare has been sworn in as chair of the Occupational Safety and Health Review Commission (OSHRC). Snare is a veteran of the U.S Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA), and he was serving as deputy solicitor of labor at the time President Trump nominated him for the OSHRC role. Snare will need another commissioner to join him to restore a functioning quorum to the three-member Commission.

Tennessee Special Election Makes History. On December 4, 2025, Matt Van Epps (R-Tennessee) was sworn in as a member of the U.S. House of Representatives, just two days after winning a special election to represent Tennessee’s Seventh District in Congress. The special election was held to replace outgoing Republican Representative Mark Green, who retired less than one year into his fourth term in Congress to pursue an opportunity in the private sector. After his swearing in, Van Epps claimed that this was the first time in history that a graduate of the United States Military Academy at West Point (Van Epps was an Army helicopter pilot) succeeded a fellow West Point alumnus (Green was an Army flight surgeon) for the same congressional seat.

Quick Hits

• In Athena v. Pelican Brewing Co., the Court of Appeals of the State of Oregon held that the pay required under Oregon law for meal periods lasting less than thirty minutes is considered a wage, as opposed to a penalty.
• Because the court considered the pay for a shortened meal period to be a wage under Oregon law, the court also found that employees have a private right of action to recover wages based on shortened meal periods, subject to a six-year statute of limitations, and employers may be liable for civil penalties for willful violations.

Background

Oregon employers are required to provide unpaid, uninterrupted meal periods of at least thirty minutes to nonexempt employees who work six or more hours in one work period. Employees must be relieved of all duties during the meal period, otherwise, the employer must pay the employee for the entire thirty-minute meal period.

In this case, former hourly employees of Pelican Brewing Co. and Kiwanda Hospitality Group, Ltd., brought a class action wage and hour case seeking compensation for meal periods lasting less than thirty minutes. The former employees alleged they received meal breaks lasting less than thirty minutes and that they were not paid for those meal breaks as required by Oregon law. The court addressed whether such “pay” for shortened meal periods constitutes a wage or penalty under Oregon law, and some legal implications of that distinction.

The Court’s Decision

The court considered the text and context of the relevant Oregon administrative rule, OAR 839-020-0050(2)(b), which provides “if an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period,” and held that the “pay” required under this regulation was intended to refer to a wage rather than a penalty because the employee has not stopped working for purposes of wage and hour laws.

The court’s classification of the pay required for shortened meal periods as a wage rather than a penalty has several consequences:

• Private right of action: Because the court concluded that the relevant administrative rule requires employers to pay a wage for a shortened meal period, the court further held that employees have a private right of action to recover those wages under the state’s wage law.
• Six-year statute of limitations: Actions for unpaid wages must be commenced within six years, although shorter time frames may apply to actions for certain penalties.
• Penalty wages for willful nonpayment: In addition, because the pay for shortened meal periods is a wage, employers may be liable for penalty wages based on willful violations of the meal break rule.
• No additional wages: The court also held that nothing in the rule entitles an employee to an additional wage, beyond being paid for thirty minutes, for a shortened meal period. For example, an employee who takes a fifteen-minute meal break is not entitled to pay for both the remaining fifteen minutes of that break and thirty additional minutes.

The court further found that in enacting the meal period rule, the Oregon Bureau of Labor and Industries acted within the scope of its delegated authority to define work periods during which an employee is owed a wage.

Key Takeaways for Employers

In light of this case, employers may want to continue to ensure that their policies and practices comply with meal and rest break requirements under Oregon law and that supervisors and employees are trained on these requirements. In particular, employers may want to continue to monitor meal periods to ensure nonexempt employees take their full meal periods and are completely relieved of all duties.

Ogletree Deakins’ Portland (OR) office will continue to monitor developments and will post updates on the Hospitality, Oregon, and Wage and Hour blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• The Fifth and Sixth Circuits recently rejected the NLRB’s Thryv remedial framework that had enabled the Board to order employers to pay damages for “all direct or foreseeable pecuniary harms” to aggrieved employees in unfair labor practice cases.
• The rulings affirm that the NLRB lacks statutory authority for the Thryv remedies and is limited to equitable remedies, such as reinstatement and backpay.
• The rulings also deepen a circuit split, as the Sixth, Fifth, and Third Circuits have all issued decisions opposing the NLRB’s interpretation of the NLRA, while the Ninth Circuit has permitted a broader interpretation that includes foreseeable damages.

Circuit Split

In Thryv, the NLRB announced that employers that engage in unfair labor practices—such as discriminatory firings—are liable for “all direct or foreseeable pecuniary harms” resulting from those practices. This new remedy represented a significant expansion of the standard make-whole relief that the NLRB typically awards, pursuant to its statutory authority to “take such affirmative action including reinstatement of employees with or without backpay.” Instead of just providing for lost wages in the form of backpay, Thryv enabled the NLRB to hold employers liable for paying for discharged employees’ out-of-pocket medical expenses, childcare costs, transportation expenses, credit card fees, penalties on early withdrawals from retirement accounts, and a wide variety of other costs when those costs were arguably attributable to the unlawful firing.

Since Thryv was issued, four circuit courts have considered the NLRB’s authority to award these expanded remedies, and a clear circuit split has emerged. The Fifth and Sixth Circuits recently joined the Third Circuit in rejecting the NLRB’s Thryv remedies, making the split lopsided toward rejecting Thryv remedies.

On November 5, 2025, the Sixth Circuit, in NLRB v. Starbucks Corporation, vacated the Thryv remedy, rejecting the NLRB’s categorical approach to “all direct or foreseeable pecuniary harms,” reasoning that such awards mirror compensatory and consequential damages in tort and contract and thus exceed the statute. That decision followed closely on the heels of the Fifth Circuit’s ruling on October 31, 2025, in Hiran v. NLRB, that the NLRB was limited to providing equitable remedies—such as reinstatement and backpay—and lacked statutory authority to impose penalties requiring employers to compensate employees for all foreseeable harms resulting from unfair labor practices.

Both rulings contrast with the Ninth Circuit’s decision upholding Thryv remedies in January 2025, in International Union of Operating Engineers, Stationary Engineers, Local 39 v. NLRB. In the Ninth Circuit’s view, Thryv remedies are consistent with the purposes of the NLRA to make workers whole for losses suffered due to unfair labor practices and are akin to backpay and restitution, which “restore the economic strength that is necessary to ensure a return to the status quo ante at the bargaining table.” The Ninth Circuit reaffirmed that holding on October 20, 2025, in an amended opinion that included a lengthy dissent arguing that the NLRB “has no authority to order this type of monetary relief,” as it is “unauthorized by statute and forbidden by the Seventh Amendment.”

Compensatory vs. Equitable Damages

In its recent ruling, the Fifth Circuit observed a distinction in the types of remedies available to the NLRB, finding that the NLRA only allows the NLRB to issue equitable remedies, such as backpay, and not legal consequential remedies. The court said the NLRB “broke new ground” with the Thryv decision in asserting that it could order damages for direct and foreseeable remedies. The court rejected the NLRB’s attempts to characterize the foreseeable remedies as equitable because they were designed to restore the status quo, stating “that feature alone does not render the ordered relief equitable.”

“In demonstrating no principled distinction between legal and equitable relief, the Board’s result diverges sharply from the well-established principle that compensatory damages are a form of legal relief,” the Fifth Circuit wrote. “The Board is not entitled to re-create established distinctions in the law, or in its governing statute, to serve parochial purposes.”

Similarly, the Sixth Circuit said the NLRB in Thryv had “located newfound, categorical authority to ‘order respondents to compensate affected employees for all direct or foreseeable pecuniary harms.’” While the NLRA grants the NLRB a remedial power to take “affirmative action” to effectuate the policies of the NLRA, the court held that power only encompasses equitable remedies. The court explained that Thryv remedies are not equitable but legal in nature, and the substance—paying money for losses incurred “as a result” of an unfair labor practice—tracks compensatory and consequential damages in tort and contract. While equitable remedies often restore the status quo, legal damages frequently do too. Simply asserting that a remedy “restores” the status quo, as the NLRB urged in defending Thryv, does not transform legal damages into equitable relief.

The Sixth Circuit noted the structure of the NLRA suggests that the NLRB has limited remedial power, stating, “That the NLRA nowhere specifies monetary relief is thus a strong indicator that Congress did not design the Act to empower the Board with such legal remedial power.”

The Sixth Circuit further cited the Supreme Court of the United States’ 2024 decision in SEC v. Jarkesy, which called into question whether federal agencies can seek civil penalties in administrative enforcement actions, as such penalties implicate the Seventh Amendment right to a jury trial.

Next Steps

The NLRB’s Thryv decision, which allows the Board to redress “direct or foreseeable pecuniary harms,” has exposed employers to increased liability in unfair labor practice cases and has made them more challenging to settle.

However, the recent Sixth and Fifth Circuit rulings reinforce the argument that the power to award broad monetary relief exceeds the statutory authority of the NLRB, which is limited to equitable remedies, such as backpay. While the Ninth Circuit’s affirmance of the Thryv framework supports the Biden-era NLRB’s approach in this area, it is currently the only circuit to recognize the Thryv remedies. The growing circuit split squarely tees up the issue for Supreme Court review.

Notably, the split has widened against a backdrop of an NLRB that lacks a quorum to issue new decisions. The current Board’s composition indicates that policy shifts at the agency level are not imminent, leaving administrative law judges (ALJs) and regional offices to interpret and apply existing precedent.

For now, federal court approval of remedies under Thryv hinge on geography:

• In the Third, Fifth, and Sixth Circuits, employers can seek to confine monetary exposure for unfair labor practices to equitable remedies such as backpay through appellate enforcement proceedings.
• In the Ninth Circuit, employers should be prepared to litigate causation and quantification of “direct or foreseeable” pecuniary harms, while preserving challenges to awards of such remedies on appeal for potential Supreme Court review.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts