Quick Hits

• The Court of Appeal for British Columbia in Aspen Technology, Inc. v. Wiederhold, 2025 BCCA 261, ordered a stay in favour of arbitration, reversing a Chambers decision that had voided an employer’s arbitration clause.
• The appellate court found no need for fresh consideration because the arbitration clause formed part of the original incentive plan terms referenced in the 2008 employment offer.
• The court rejected public policy and unconscionability arguments, emphasizing that challenges to arbitral jurisdiction must respect the competence-competence principle unless the Dell or “brick wall” tests are truly met.
• The decision offers guidance on drafting incentive plans and employment agreements in Canada, specifically concerning arbitration provisions.

Background

David Wiederhold, an executive employee for the employer, sought to recover approximately $103,000 in unpaid bonuses and commissions, claiming entitlement under the company’s annual incentive plan. The employer sought to stay the action in favour of arbitration, relying on an arbitration clause in the incentive plan that required disputes to be resolved by arbitration in Boston, Massachusetts, under Delaware law.

The Chambers judge initially found the arbitration clause void and inoperative, citing a lack of fresh consideration, public policy concerns regarding the Employment Standards Act (“ESA”), and the disproportionate cost of arbitration (the “brick wall” principle). The Court of Appeal overturned this decision, finding errors in the lower court’s legal analysis and holding that the arbitration clause was enforceable.

Takeaways from the Court of Appeal’s Decision

The employee’s civil action hinged on three key questions: (1) whether the arbitration clause was supported by consideration; (2) whether the clause contravened public policy by ousting the ESA; and (3) whether the cost of arbitrating rendered the clause unconscionable. The Court of Appeal answered all three in the employer’s favour.

First, the court held that the employee’s 2008 offer letter explicitly entitled him to participate in “the FY ’08 Sales Account Manager incentive plan, in accordance with the terms of such plan” (emphasis added by the court), thereby making the arbitration requirement a condition for participating in the incentive plan and part of the original employment contract negotiation. Since the clause was included in the initial employment contract and not introduced as a post-contractual modification, no additional consideration was necessary.

Second, the court found no evidence, expert or otherwise, that an arbitrator applying Delaware law (as specified in the agreement) would disregard mandatory ESA protections. Without such evidence, the public policy challenge, which argued that it would deprive Mr. Wiederhold of the benefits of the mandatory provisions of the ESA, failed at the Dell “superficial review” stage and should have been left for the arbitrator to address. In other words, after a brief review of the record, it was not possible to conclude that the arbitration clause violated public policy. As such, the Chambers judge erred in assuming, without any evidence of Delaware law, that the impugned terms of the plan were void for reasons of public policy.

Third, the court addressed concerns about the cost of arbitration, including a mandatory up-front filing fee of approximately $11,000 CAD. While the lower court believed this created a “brick wall” that could prevent the employee from pursuing his claim, the Court of Appeal clarified that cost alone does not render an arbitration clause unconscionable. For a clause to be set aside on grounds of unconscionability, there must be both an inequality of bargaining power and an improvident bargain. The Court of Appeal found that the lower court failed to conduct a proper unconscionability analysis, having focused solely on the cost aspect without determining whether the necessary elements of unconscionability were present. In the absence of proof of both inequality of bargaining power and an improvident bargain, the arbitration clause could not be set aside on these grounds.

Lastly, the decision reinforces the “competence-competence” principle, which dictates that courts will generally defer questions about an arbitrator’s jurisdiction to the arbitrator, unless the Dell or “brick wall” exceptions are clearly met. The court will only intervene at the outset if, based on a superficial review of the record, it is evident that the arbitration agreement is void, inoperative, or incapable of being performed.

Practical Implications

• Incorporation language: The language of incorporation is crucial. The Court of Appeal’s ruling indicates that by explicitly binding an employee to “the terms of such plan,” an employer may include an arbitration clause in the original employment offer without needing to renegotiate or provide additional consideration each year. However, the situation may differ if the arbitration clause in the incentive plan requires that any dispute about the employment relationship be referred to arbitration. In that case, it might not be considered a term of the plan but rather a term of the contract imposed after the offer letter had been signed. This distinction is significant because, as clarified by the Court of Appeal, when the arbitration clause is limited to disputes arising under the incentive plan itself, and the employment offer expressly incorporates the plan’s terms, the clause is part of the original bargain and does not constitute a post-contractual modification. No fresh consideration may be required in such circumstances. Conversely, if the arbitration clause extends to all employment-related disputes beyond the scope of the incentive plan, it may be viewed as a substantive change to the employment contract. In that scenario, the clause could potentially be unenforceable unless supported by fresh consideration, since it would not have been contemplated as part of the original agreement between the parties. Therefore, careful drafting and clear incorporation language may help ensure that arbitration provisions are enforceable and that their scope is properly limited to avoid unintended legal consequences.

• Choice-of-law and severability clauses: Pairing a choice-of-law clause with a severability clause can help ensure that, even if a foreign law is chosen, statutory rights under local law are preserved. Although the Court of Appeal did not need to sever the Delaware choice-of-law clause, the presence of severability language gave the court comfort that the employee’s statutory rights would remain intact if necessary.

• Transparent arbitration rules: Employers can help address concerns about the enforceability and fairness of arbitration clauses by selecting well-known, transparent arbitral rules. Using established arbitration organizations and clearly defined procedures can demonstrate that meaningful remedies remain available to employees and that the process is not unduly burdensome or opaque. Transparent rules also make it easier to show that the arbitration process is accessible and fair, which may help counter arguments that the clause is unconscionable or creates a “brick wall” to dispute resolution.

Next Steps

Ogletree Deakins will continue to monitor activity in this area. Employers with cross-border workforces may wish to review existing arbitration, forum-selection, and choice-of-law clauses in light of this decision.

Ogletree Deakins’ Canada offices will continue to monitor developments and provide updates on the Arbitration and Alternative Dispute Resolution and Cross-Border blogs as additional information becomes available.

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Quick Hits

• Lawmakers recently passed a law to substantially revise Delaware’s paid family and medical leave program.
• Employers began contributing to the paid leave program on January 1, 2025.
• Employees can start receiving benefits on January 1, 2026.

Under the Healthy Delaware Families Act, which was enacted in 2022, employees can take up to twelve weeks of paid leave per year to care for a new child, or six weeks of paid leave per year to address their own serious health condition, care for a family member with a serious health condition, or address the impact of a family member’s overseas military deployment. Employers with ten or more employees must register for the state program and submit payroll taxes to fund it, or create a private benefit plan by partnering with an approved insurance carrier or third-party administrator.

On July 30, 2025, Governor Matt Meyer signed House Bill 128, which amended the paid leave program in the following ways:

• Employers cannot require employees to use their accrued paid time off before receiving the state benefits. 
• An employer that meets its obligations through a private plan is not required to provide claim documentation to the Delaware Department of Labor, unless there is an appeal, inquiry, or audit.
• The Paid Family Medical Leave Insurance Program is the primary payor of benefits.
• Disability insurance benefits can be offset by family and medical leave benefits paid to an employee pursuant to the terms of a disability insurance policy.

If an employee’s claim is approved, the employee can receive 80 percent of his or her weekly wages up to $900 per week. To be eligible, an employee must have worked for his or her employer for at least twelve months and for at least 1,250 hours during the most recent fifty-two weeks. The paid leave under the state program runs concurrently with unpaid leave under the federal Family and Medical Leave Act (FMLA).

Next Steps

Thirteen states and Washington, D.C., have enacted paid family and medical leave laws in recent years. Like employees in Delaware, Minnesota employees will begin receiving paid leave benefits beginning January 1, 2026. Employers in Delaware may wish to review and update their leave policies and practices to ensure compliance with the new state law. They may wish to coordinate with their third-party payroll vendors to confirm that payroll taxes are submitted as legally required.

Ogletree Deakins will continue to monitor developments and will provide updates on the Delaware and Leaves of Absence blogs as new information becomes available.

Robert C. Perryman is of counsel in Ogletree Deakins’ Philadelphia 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

• Numerical visa limits have been reached for EB-2 immigrant visas for FY 2025, which ends on September 30, 2025.
• No further immigrant visas or green cards will be issued for the EB-2 visa category until October 2025.

The availability of immigrant visa numbers for employment-based preference immigrants is governed by Section 201 of the Immigration and Nationality Act (INA). For FY 2025, the numerical limit for employment-based preference immigrants has been set at 150,000 visas across all visa categories. Specifically, the EB-2 category is statutorily mandated to receive 28.6 percent of this number (42,900 immigrant visas). Once this numerical limit is reached, the category becomes unavailable until the next fiscal year, and no further permanent resident cards (green cards) will be issued for that preference category.

The annual numerical limit for employment-based immigrants will reset on October 1, 2025, the start of the federal government’s next fiscal year. Starting on that date, U.S. Citizenship and Immigration Services (USCIS) may resume approving applications for permanent residency with a current priority date in the EB-2 category, and embassies and consulates may resume issuing immigrant visas in the EB-2 category.

Next Steps

Although EB-2 adjustment of status filings will not be approved until the beginning of the new fiscal year, eligible applicants may continue filing EB-2 adjustment of status applications with USCIS, provided their priority date is current under the final action dates chart of the Visa Bulletin.

Applicants can expect USCIS to begin issuing new EB-2 green cards starting on October 1, 2025.

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

• The “Gen Z stare” is a neutral, expressionless response that reflects the unique communication styles of Generation Z, often misunderstood by older generations as disengagement or hostility.
• The stare may stem from a Gen Z member’s preference for digital interactions and evolving social norms, rather than a lack of enthusiasm or a disinterest in engagement.
• Understanding and addressing this behavior can help foster positive workplace relations and improve communication among generations.

What Is the ‘Gen Z Stare’?

The “Gen Z stare,” a term that likely emerged from a viral social media video, refers to a neutral, expressionless stare in response to a situation that traditionally would be considered to elicit a verbal or emotional response. The behavior, as the name suggests, has been associated with Gen Z individuals born between 1997 and 2012. It is often observed in workplaces when a Gen Z employee responds to a customer, manager, or even a coworker with a stare instead of a smile or small talk.

Is the Behavior a Sign of Disengagement or Hostility?

While the behavior is often seen as a sign of disengagement, boredom, or defiance, many suggest that there may be more behind it. Gen Z is the first generation to grow up entirely in the digital age, making them “digital natives.” The digital age has prioritized fast-paced content and online communication. Those pressures were exacerbated by the pandemic, as it limited in-person interaction during the formative years for many in Gen Z. As a result, some individuals in Gen Z may be less comfortable with small talk or less inclined to follow traditional social cues, particularly in professional or customer service settings.

The stare may simply reflect a broader general shift in communication and accepted social behaviors. Some suggest the behavior may even be Gen Z’s form of active listening. It could also be a response to questions they view as nonsensical or communication seen as inauthentic. Others posit that the stare is a defense mechanism or form of emotional regulation expressed to handle uncomfortable situations.

What Are Some Practical Implications for Employers?

Regardless of the reasons behind the stare, employers may consider adapting to Gen Z’s unique communication style and other perceived differences to maintain positive employee relations as Gen Z increasingly enters the workforce. The “Gen Z stare,” in particular, has several implications for employers.

• Performance Problems

Managers, particularly those from the older Millennial, Gen X, and Baby Boomer generations, may perceive, rightfully or wrongfully, the Gen Z stare as a lack of enthusiasm, poor customer service, or outright insubordination. In retail and hospitality workplaces, the stare may also be perceived as poor customer service and may lead to negative customer reviews.

However, before taking formal corrective action, employers may want to understand the possible reasons behind and meanings of the behavior. They may further want to communicate to their employees how the stare can be interpreted in the workplace and remind employees of their expectations for behavior and communication. Taking an extra step to understand the issue can go a long way to improving employee relations and helping Gen Z adapt to the workforce.

Another solution for employers may be to train managers and staff on how to handle generational differences in communication and social interaction. Intentional customer service training that treats professionalism, empathy, and client care are learned skills, not assumptions. When employers invest in this area, they do not just smooth generational friction—they build a workforce that communicates with credibility and earns trust.

• Harassment and a Hostile Work Environment

It is unlikely that any single instance of the Gen Z stare alone will meet any definition of harassment. However, given that many interpret or misinterpret it as a sign of hostility or exclusion, it is possible that the stare and its repeated use in workplace situations could be considered part of a broader pattern of behavior that contributes to a hostile work environment claim.

At the same time, the behavior may be a defense mechanism for some employees in uncomfortable situations. The prevalence of the behavior could be a sign of other workplace issues. Employees faced with discipline or corrective actions for such behavior may view it as unwarranted or retaliation. Employers may want to be attentive to the behavior pattern, document concerns, and investigate complaints thoroughly when they arise.

• Credibility Evaluations in Workplace Investigations

Investigators often rely on nonverbal cues to assess truthfulness and engagement. However,  Gen Z’s baseline expression may differ significantly from that of older generations. It may be important to avoid automatically interpreting a neutral or blank expression as evasiveness or dishonesty. An investigator may want to question an individual about behaviors like the Gen Z stare during an investigation to make sure witness information and behavior are appropriately understood.

• Job Interviews and Recruitment

Similarly, job applicants or candidates for job promotions may exhibit the Gen Z stare without appreciating how it may be received by interviewers or evaluators. Employers may want to keep in mind that the stare is not necessarily hostile, and instead, may be a form of active listening or a different communication method. Employers may want to consider these other potential reasons before dismissing what could otherwise be talented and qualified candidates. They may further want to assess their interviewing and recruitment practices to ensure they effectively assess candidates from younger generations.

Next Steps

The “Gen Z stare” represents a notable shift in communication styles as members of Gen Z enter the workforce. While the neutral, expressionless response is often misinterpreted, several underlying factors contribute to this behavior, such as Gen Z’s comfort with digital communication and the impact of limited in-person social interaction during the pandemic. By recognizing and addressing this communication style, employers can foster a positive workplace environment and overall workplace culture.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Engagement, Employment Law, Hospitality, Retail, and Workplace Investigations and Organizational Assessments blog as additional information becomes available.

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Quick Hits

• All 2025 VETS-4212 filings are due by September 30, 2025.
• Federal contractors and subcontractors with a single covered contract of $150,000 or more are required to file VETS-4212 reports.
• There are indications that the VETS-4212 platform is experiencing technical issues that could impact filers, especially those that file larger numbers of reports.

Who must file VETS-4212 reports?

Federal contractors or subcontractors with a single contract of $150,000 or greater, regardless of the number of employees, are required to file VETS-4212 reports. The U.S. Department of Labor’s (DOL) Veterans’ Employment and Training Service’s (VETS) frequently asked questions (FAQ) guidance states that the contract or subcontract may be with “any department or agency of the United States” and includes procuring personal property and services such as “utility, construction, transportation, research, insurance, and fund depository.” The FAQs state that this filing requirement applies to banks, financial institutions, or private sector entities insured by the Federal Deposit Insurance Corporation (FDIC) if a single contract meets the dollar threshold. Federal contracts can include “agreements to serve as fund depositories, agreements for federal share and deposit insurance, and agreements to serve as an issuing and paying agent for U.S. savings bonds and savings notes.”

What data must be filed?

The single-page VETS-4212 form is split into two data sections for the reporting location. On the left side of the form, Column A shows the total number of protected veterans broken down into the ten EEO-1 occupational categories, and Column B shows the total number of employees in each of the ten EEO-1 occupational categories. The right side of the data section shows hiring activity for the report location for the last twelve months, including the total number of protected veteran hires during the previous twelve months in Column C and the total number of hires in Column D. The form does not require that hiring activity be broken down by EEO-1 occupational category. The upper part of the form contains company identification information and information on the location for which the VETS-4212 form is being filed. The VETS-4212 reporting process still requires contractors to provide DUNS numbers as part of the filing, unlike the EEO-1 reports, which utilize Unique Entity Identifier (UEI) numbers.

What are the technical issues that some filers have experienced and what is their impact?

There are reports of filers being unable to upload batch files through the filing platform. Batch files are used to file multiple individual reports using a single data file. The FAQs state that companies with more than ten hiring locations are encouraged to use the batch upload process to “expedite processing.” Filers can also manually input their data into the filing system, but there can be substantial time savings using the batch files when filing large numbers of reports. If filers are unable to upload batch files, they can manually enter the data, which for large filers could require significant additional time and personnel resources. Filers can also contact VETS to request assistance with the batch uploads.

There are also indications that the “Download All Reports” button in the filing platform has not been consistently working. This button allows filers to download all filed reports into a single PDF through the click of one button. Filers also have the option to download each filed report individually. While the loss of the download all function is not a major concern for a filer with a small number of reports, it can become an issue for a filer with fifty, one hundred, or several hundred reports, as downloading a substantial number could require significant additional time. While downloading filed reports is not necessarily required as the filing platform maintains copies of filed reports, many filers use the downloaded reports to review the filings and save the downloaded reports as PDFs as a record of their filings. If this issue persists, it could mean that filers with numerous locations will have to either spend substantial amounts of time manually downloading individual reports or complete their report review in the filing platform without saving copies of their filed reports.

Based on the upcoming filing September 30 deadline and reports of filing platform technical issues, covered government contractors and subcontractors may want to consider preparing now so they can complete their required filings by the September 30, 2025, deadline.

Ogletree Deakins’ Government Contracting and Reporting Practice Group will continue to monitor developments and will provide updates on the Government Contracting and Reporting and Government Contractors blogs as additional information becomes available.

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Quick Hits

• North Carolina’s Workplace Violence Prevention Act (WVPA) permits employers to seek civil no-contact orders to protect employees from “unlawful conduct,” including threats or acts of physical violence, and protects employees from retaliation for absences due to domestic violence or harassment.
• Senate Bill 311 amended the WVPA to allow employers to request civil no-contact orders on behalf of the business itself—not just individual employees.
• Peaceful demonstrations and labor activities protected under the National Labor Relations Act remain lawful.
• The law took effect July 9, 2025.

The Law and Order Act: Workplace Violence Prevention/Mass Picketing

Senate Bill 311, known as “The Law and Order Act,” is omnibus legislation that includes a range of judicial reforms, including criminalizing assaults on utility workers, identifying offenses related to embalming fluid, increasing penalties for certain intentional acts, and making significant amendments to the WVPA, codified at N.C. Gen. Stat. Chapter 95, Article 23.

Under the WVPA, employers may pursue civil no-contact orders on behalf of employees facing “unlawful conduct,” which is defined to include threats or acts of physical violence. The law also prohibits discrimination or retaliation against employees who miss work due to domestic violence or related harassment.

The law as amended expands the definition of “unlawful conduct” to address certain forms of mass picketing. Employers may now seek civil no-contact orders not only on behalf of individual employees, but also on behalf of the business itself, when the conduct in question affects the workplace. The statute defines “mass picketing” as:

“Picketing, with or without signs, that constitutes an obstacle to the ingress and egress to and from the premises being picketed or any other premises, or upon the public roads, streets, highways, or other ways of travel or conveyance, either by obstructing by their persons or by placing of vehicles or other physical obstructions.”

The law identifies three specific behaviors as unlawful conduct under this expanded definition:

1. hindering or preventing lawful work or employment through mass picketing, unlawful threats, or force;
2. obstructing workplace entrances or exits via mass picketing; and
3. blocking public roads, highways, or transportation infrastructure through similar tactics.

Additionally, the law prohibits workplace “obstruction,” defined as a “sustained or deliberate physical blockage that substantially and materially prevents ingress or egress and causes demonstrable disruption to operations or public safety.”

The revised WVPA authorizes employers to request civil no-contact orders on behalf of specific employees, prohibiting contact from individuals engaged in unlawful conduct and on behalf of the employer, to restrict access to the workplace by individuals or groups engaged in obstructive mass picketing. Importantly, there is no requirement that physical harm or property damage occur in order for an employer to obtain such an order. However, the law does mandate that respondents be notified prior to the issuance of a permanent order.

The law contains important exceptions to protect lawful protest and labor activity. It defines “peaceful demonstration” as (i) conduct that does not involve lawlessness or create a risk to property or safety; or (ii) speech that is not intended to incite or produce imminent lawless action and is unlikely to do so.

In addition, the law makes clear that it does not apply to actions protected under the National Labor Relations Act (NLRA) or the North Carolina Constitution, provided such actions do not involve violence, threats, or deliberate obstruction of workplace access points. As a result, peaceful demonstrations, informational picketing, and protected labor activities remain lawful and outside the scope of this enforcement.

Senate Bill 311 passed with strong bipartisan support, receiving a 46-0 vote in the North Carolina Senate and a 100-7 vote in the North Carolina House of Representatives.

Key Takeaways

Session Law 2025-71, originally introduced as SB 484 and later incorporated into SB 311, expands the protections available under the WVPA. Effective July 9, 2025, the law broadens the definition of “unlawful conduct” to include certain forms of mass picketing, obstruction, and specific actions that hinder lawful work, block workplace access points, or obstruct public roadways. Employers now have the authority to seek civil no-contact orders not only on behalf of individual employees, but also on behalf of the business itself, when such conduct affects the workplace. Importantly, there is no requirement of physical injury or property damage to obtain relief. However, the law preserves protections for peaceful demonstrations and labor activities under the NLRA. The law does not protect demonstrations or activities that involve threats, violence, or intentional interference with workplace operations. Employers may want to review their workplace security protocols to ensure readiness to use these new legal tools if necessary.

Ogletree Deakins’ Charlotte and Raleigh offices and Workplace Violence Prevention Practice Group will continue to monitor developments and will provide updates on the North Carolina and Workplace Violence Prevention blogs as additional information becomes available.

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Quick Hits

• The Supreme Court of California recently determined that employers need to show they tried to understand and comply with the state minimum wage rules in order to avoid paying liquidated damages after a violation.
• What constitutes a reasonable attempt will vary depending on the type of employer and the context.
• Arguing that the employer was ignorant of the minimum wage law is not sufficient for a good-faith defense.
• For paid sick leave claims, there is no private right of action to recover administrative penalties.

Background on the Case

A California resident, Laurance Iloff, sued Bridgeville Properties Inc. and its chief executive officer for failing to pay the state minimum wage and paid sick leave. From 2009 to 2016, Iloff performed maintenance on the structures, grounds, and water system for the property, which includes rental homes, cabins, and a post office. Under an informal agreement, Bridgeville allowed him to live there rent-free, but did not pay him any wages or benefits.

In January 2017, Iloff brought a claim to the state labor commissioner after Bridgeville ended the arrangement. The labor commissioner determined that he was entitled to unpaid wages, liquidated damages, penalties, and interest. After Bridgeville appealed the claim to a state appellate court, Iloff added an additional claim related to failure to provide paid sick leave. In July 2022, the appellate court rejected the liquidated damages and the paid sick leave claims. On appeal, the Supreme Court of California reversed the lower court’s decision and found in favor of Iloff.

Because both parties did not expect wages to be paid, Bridgeville argued that Iloff was an independent contractor who did not qualify for minimum wage, overtime, or paid sick leave. However, the Supreme Court of California reasoned that he was an employee because he worked under the control and direction of Bridgeville, and the work was part of Bridgeville’s usual course of business.

The court concluded that the state legislature intended to require employers asserting a good-faith defense to show they took steps to adhere to state minimum wage laws. “While the form and extent of the required attempt is context dependent, the burden is on the employer to show it made an attempt to determine what the law required that was reasonable under the circumstances,” the court stated.

A court may decline to award liquidated damages or reduce the amount of the award only if the employer “had reasonable grounds for believing that his act or omission was not a violation,” the court stated.

Liquidated damages serve as a deterrent to make employers less likely to violate the state minimum wage law. “Liquidated damages would be much less effective as an enforcement tool and a means of deterring minimum wage violations if an employer could evade them merely by showing that it was ignorant of the law,” the court stated.

Paid Sick Leave

Under the Healthy Workplaces, Healthy Families Act of 2014, California generally requires employers to provide workers forty hours of paid sick leave per year.

In this case, the Supreme Court of California concluded the state’s paid sick leave law permits employees to bring claims before the state’s labor commissioner or before a court via a Berman appeal, which is an administrative appeal of a labor commissioner’s hearing decision. However, employees in California do not have a private right of action to seek administrative penalties for violations of the paid sick leave law.

Key Takeaways

The decision illustrates the perils that employers face in California for noncompliance with the state’s numerous wage-and-hour laws, including properly classifying workers as employees and providing statutorily required paid sick leave.

While the decision confirms that an employer must make some showing to avail itself of a good-faith defense to a minimum wage claim, the fairly unique fact pattern in this case—including a worker who was not paid anything by the defendants—is distinguishable from most situations facing employers. As other California appellate decisions have shown, employers can argue against penalties when they have “reasonably and in good faith” sought to comply with California law, particularly where the law is unsettled.

Ogletree Deakins will continue to monitor developments and will provide updates on the California, Leaves of Absence, and Wage and Hour blogs as new information becomes available.

Alexander M. Chemers is a shareholder in Ogletree Deakins’ Los Angeles office.

Isabella B. Urrea is an associate in Ogletree Deakins’ Los Angeles 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 Chair Law (Ley Silla) is now enforceable, as well as complementary health and safety dispositions.
• Employers must analyze their workplace(s) to determine if adjustments are needed, especially if employees perform their services standing more than three continuous hours.

Question 1: Is the Chair Law applicable to all employers?

Answer 1: While the law was enacted focusing on the retail industry, it does not exempt employers in other industries. All employers may want to have evidence that they have analyzed their workplaces and, based on their analysis, have determined whether adjustments are necessary.

Question 2: How do I analyze my workplace and determine if I must adjust?

Answer 2: The health and safety dispositions issued on July 17, 2025, outline key elements for analysis. One of the most relevant questions employers must ask themselves is whether employees render their services in a standing position for more than three continuous hours. If the answer is yes, further analysis needs to take place to determine which corrective actions are feasible to implement.

Question 3: Do employees need to be seated at all times while rendering services?

Answer 3: No. The law aims to improve working conditions, so employees do not have to stand for their whole work shift, thereby preventing health and safety risks. However, the dispositions emphasize that safety shall be a priority. Per the services rendered by the employees, if the employees could be harmed while performing their services while sitting, chairs should not be in the workspace. Instead, employers should designate a specific place for sitting during employee work breaks.

Question 4: Is there a specific amount of time employees must be seated?

Answer 4: No. Neither the law nor its complementary health and safety dispositions establishes a duration for sitting breaks or rest periods. The law only stipulates that employees shall not stand for more than three continuous hours. The goal is to improve working conditions and ensure that employees are not prohibited from taking seated breaks when the nature of the work allows it.

Question 5: Are there additional actions that can be taken to prevent work risks for employees who render services in a standing position?

Answer 5: Yes. The complementary health and safety dispositions recommend:

• providing ergonomic footwear while standing; and
• adjusting the floors in the workplace so that they have a cushioned surface (e.g., mats, carpets, or soft anti-fatigue materials).

Ogletree Deakins’ Mexico City office will continue to monitor developments and will provide updates on the Cross-Border blog as additional information becomes available.

Pietro Straulino-Rodríguez is the managing partner of the Mexico City office of Ogletree Deakins.

Natalia Merino Moreno is an associate in the Mexico City office of Ogletree Deakins.

María José Bladinieres Ruiz is a law clerk in the Mexico City office of Ogletree Deakins.

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Congress: We’re Back, Baby! The U.S. Congress is back in Washington, D.C., this week after its annual August recess. As they return, Republican senators are exploring options to tinker with U.S. Senate procedures to allow them to more quickly advance President Donald Trump’s nominees. Indeed, we are still awaiting Senate-confirmed positions at the National Labor Relations Board (NLRB), U.S. Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA), Wage and Hour Division (WHD), and Employee Benefits Security Administration (EBSA), among others.

But chief among our legislators’ priorities in the coming weeks will be funding the federal government beyond its current September 30, 2025, deadline (an evergreen issue both on Capitol Hill and, consequently, here at the Buzz). In addition to the challenging politics of such an endeavor, Congress is scheduled to be out the week beginning September 22, giving lawmakers only twelve legislative days to work. In light of all this, a continuing resolution to extend current funding until a later date is the most likely solution to avoid a shutdown.

Regulatory Agenda Released. After an inadvertent leak a few weeks ago, on September 4, 2025, the Trump administration released the Spring 2025 Unified Agenda of Regulatory and Deregulatory Actions. The agenda provides a roadmap of federal agency rulemaking activities for the next six months. Below are some key labor/employment-related items.

• OSHA (DOL)
  • Heat Injury and Illness Prevention. The agenda lists no new updates regarding a potential final rule or new proposal, though an accompanying press release from OSHA states that the agency “is continuing to examine how to establish standards specifically related to heat-related injury and illness prevention.”
• WHD (DOL)
  • Independent Contractor (IC). According to the agenda, “The Department intends to rescind the 2024 IC rule and is considering how it will proceed with respect to independent contractor classification under the FLSA employee or under the FLSA.” DOL is no longer enforcing the 2024 IC rule. A proposal is expected in September.
  • Joint Employer. The first Trump administration issued a rule regarding joint employment under the Fair Labor Standards Act (FLSA) that was rescinded by the Biden administration in July 2021. Now, “The Department is considering a notice of proposed rulemaking to adopt regulations that would guide WHD’s enforcement of FLSA joint employer liability, and help promote greater uniformity among court decisions nationwide.” A proposal is slated for December 2025.
  • Overtime? According to a press release, “The department will determine whether certain salaried employees are exempt from FLSA minimum wage and overtime requirements.” However, that entry is listed in the “Long-Term Actions” section of the agenda, meaning that the department does not expect any action on the issue within the next twelve months.
  • Federal Contractors’ Minimum Wage. Looks like the administration is going to clarify the minimum wage requirements for employees of federal contractors.
• Immigration
  • Practical Training. Later this month, U.S. Immigration and Customs Enforcement is expected to issue a proposed rule to “amend existing regulations to address fraud and national security concerns, protect U.S. workers from being displaced by foreign nationals, and enhance the Student and Exchange Visitor Program’s capacity to oversee the program.” As we’ve discussed in the Buzz, USCIS Director Joseph Edlow is on record as stating that he’d like to “remove the ability for employment authorizations for F-1 students beyond the time that they are in school.”
  • Reforming the H-1B Nonimmigrant Visa Classification Program. In December 2025, U.S. Citizenship and Immigration Services (USCIS) “will propose to reform the H-1B program by revising eligibility for cap exemptions, providing greater scrutiny for employers that have violated program requirements, and increasing oversight over third-party placements, among other provisions.”
  • Biometrics. USCIS will propose to collect biometric information from individuals “throughout the entirety of the immigration lifecycle,” including in both enforcement proceedings and the adjudication of any immigration application, petition, or benefit. This proposal is scheduled for October 2025.
  • Weighted Selection Process for H-1B Petitions. USCIS will amend the current H-1B lottery process to “favor beneficiaries whose proffered wages correspond to higher Occupational Employment and Wage Statistics wage levels.” The proposal will not affect the recently implemented beneficiary-specific selection procedure.

Neither the EEOC nor the NLRB included submissions in the agenda.

Treasury Issues ‘No Tax on Tips’ Guidance. While President Trump’s “no tax on tips” promise was enacted as part of the One Big Beautiful Bill Act, there has been a lot of uncertainty regarding who may qualify for relief under the provision. Pursuant to the act, workers may deduct up to $25,000 in tips from their income per year through 2028 when such tips are “received by an individual in an occupation which customarily and regularly received tips on or before December 31, 2024, as provided by the Secretary.” (Emphasis added.) This week, the U.S. Department of the Treasury released a preliminary list of occupations that will qualify for the deduction, noting that formal regulations are still to come, but that such regulations “will be substantially the same as this preliminary list.” The list includes occupations in various hospitality positions (including casino workers), dancers, musicians and singers, porters and bellhops, hairdressers, golf caddies, home service providers (e.g., plumbers), and “digital content creators.” Michael K. Mahoney, Stephen Kenney, and Zachary V. Zagger have the details.

House Spending Bill Reveals Republican Employment Policy Priorities. Speaking of funding the federal government, this week, the U.S. House of Representatives Committee on Appropriations’ Labor, Health and Human Services, Education, and Related Agencies Subcommittee voted to advance its fiscal year (FY) 2026 bill. The measure would provide funding for agencies such as DOL and the NLRB during the government’s 2026 fiscal year, which runs from October 1, 2025, to September 30, 2025. The bill includes the following labor and employment–related policy provisions:

• Elimination of funding for the Office of Federal Contract Compliance Programs (OFCCP), consistent with President Trump’s Executive Order 14173.
• Elimination of funding for the Bureau of International Labor Affairs and the Women’s Bureau.
• A cut of $25 million from WHD and $50 million from OSHA.
• A prohibition on the use of funds to implement the current Biden-era independent contractor rule, which—as we noted above—the current WHD has already stated it will no longer enforce.
• A continuation of a long-standing prohibition against the NLRB’s use of funds to implement electronic voting for union elections.

Of course, given the government funding issues noted above, these provisions will have multiple hurdles to overcome if they are to be enacted into law.

The Harlem Hellfighters. This week, the U.S. Army’s 369th Infantry Regiment, often referred to as the “Harlem Hellfighters,” was awarded the Congressional Gold Medal. The 369th was the first African-American regiment to serve with the American Expeditionary Forces during World War I. However, due to many white American soldiers’ refusal to serve alongside African-American soldiers, the 369th was assigned to the French Fourth Army. The 369th spent 191 days on the front lines, more than any other regiment of its size, and 170 of its members were awarded the French Croix de Guerre for their bravery on the battlefield. According to the ‘‘Harlem Hellfighters Congressional Gold Medal Act,” which was enacted in 2021, “It is generally believed that the 369th was dubbed the ‘Harlem Hellfighters’ by German soldiers, who found the men to be incredibly determined and courageous in battle.”

Quick Hits

• The Washington State Supreme Court recently ruled that job applicants can sue for violations of the state’s pay transparency law without having to show they applied in good faith or that they were “bona fide” applicants. All that is required is that they applied to a specific job posting.
• Washington’s pay transparency law requires employers to include wage scale, salary range, and benefits information in all job listings.

With hundreds of purported class action lawsuits filed primarily by a few serial plaintiffs, many of which were stayed, parties have been waiting for the Washington State Supreme Court to opine on who is a job applicant under the Washington Equal Pay and Opportunities Act (EPOA). These lawsuits, such as the Branson lawsuit, seek statutory damages of $5,000 per job applicant.

In a class action, workers sued Washington Fine Wine & Spirits, which does business as Total Wine and More, for not including a salary or wage range in job listings. The liquor retailer argued that the statute only intended to protect bona fide or good-faith job applicants, meaning those who applied for a job with a genuine interest in obtaining that job. The company expressed concerns that many unqualified individuals could apply for jobs just to file suit and get the remedy. However, the plaintiffs argued that the law protects anyone who applied for the job.

In a 6-3 majority decision, the state’s high court, relying on the plain and ordinary meaning of “job applicant,” concluded that an individual does not have to show that he or she is a “bona fide” or “good-faith” job applicant. Instead, the court found that a job applicant is any individual who “submits a formal application or request for a job,” regardless of the applicant’s subjective intent to obtain employment.

The dissent, however, argued that the majority stretched the meaning of “job applicant” to include even those who suffered no harm, which does not comport with the legislature’s intent to protect Washington workers seeking job opportunities. The dissent also recognized the significant risk employers could face as a result of the majority’s decision, stating that “employers could be exposed to nearly limitless class-action liability for a single noncompliant job posting.”

Next Steps

In recent years, lawmakers in fourteen states and Washington, D.C., have passed pay transparency laws to reduce longstanding pay disparities across gender and racial groups. Employers in Washington State may wish to carefully review their existing and future job postings to ensure compliance with state pay transparency laws.

The state legislature recently amended the EPOA to include a five-day cure period following notice of a noncompliant posting. To avoid notices not reaching the appropriate person, employers may wish to consider adding a sentence to job postings with an email address to which job applicants can send notices about noncompliance.

Ogletree Deakins will continue to monitor developments and will provide updates on the Class Action, Pay Equity, Retail, Wage and Hour, and Washington blogs as new information becomes available.

The Ogletree Deakins Client Portal tracks developments and provides real-time updates on Pay Transparency and Washington employment laws, including the Washington Pay Transparency law. Full law summaries are available for Premium-level subscribers. Snapshots and Updates are available for all registered client-users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Adam T. Pankratz is a shareholder in Ogletree Deakins’ Seattle office.

Mathew A. Parker is a shareholder in Ogletree Deakins’ Columbus 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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