Understanding New York’s Legal Activities Law and Its Protections for Off-Duty Political and Religious Speech
With employee political speech becoming an increasing concern, employers in New York are reminded of the New York Legal Activities Law, which, among other things, offers protections to employees based on certain off-duty speech related to political or religious matters.
Quick Hits
New York law protects employees from discrimination based on protected off-duty engagement in political or religious matters.
Employers in New York may want to consider the protections provided to employees under the law before taking adverse action against employees for off-duty speech, as they may be protected for certain political or religious speech, excluding speech that incites violence or constitutes hate speech.
The New York Legal Activities Law, New York Labor Law Section 201-D, prohibits employers from taking adverse employment action against employees, including disciplining or discharging them, for their engagement in certain off-duty conduct or activities. The law expressly protects “political matters” and “religious matters,” both of which are broadly defined.
“Political matters” are defined as “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.”
“Religious matters” are defined as “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.”
With the increase in political polarization and the ease with which employees can post on social media, instances of employees being discharged for their off-duty conduct or speech are on the rise. New York employers will likely be well served to tread carefully and be mindful of the New York Legal Activities Law before taking adverse employment action against an employee for off-duty political or religious speech.
Inside the Exclusive- The EEOC’s New Enforcement Priorities, Part 3—Disability Discrimination [Podcast]
In this podcast recorded at our recent Corporate Labor and Employment Counsel Exclusive® seminar, Tae Phillips (shareholder, Birmingham), Jim Paul (shareholder, St. Louis/Tampa), and Scott Kelly (shareholder, Birmingham) continue their discussion of the EEOC’s evolving enforcement priorities—this time focusing on disability discrimination. Jim (who is co-chair of the firm’s Disability Access Practice Group) highlights a lack of new federal initiatives on disability access, a reduction in federal enforcement resources, and an increase in private and state-level actions regarding disability rights. The episode concludes with practical advice for employers to maintain strong disability accommodation policies and emphasizes the importance of remaining vigilant and proactive in handling disability accommodation requests despite shifting federal enforcement trends.
DOJ’s Subpoena Strategy on Transgender Care Faces Judicial and State Pushback
In our July 11, 2025 blog post, we flagged the Department of Justice’s sweeping subpoenas targeting providers of gender-affirming care for minors as legally aggressive, politically charged, and likely to face serious judicial scrutiny. That prediction has now been borne out.
Federal courts in Massachusetts and Washington have quashed DOJ subpoenas issued to Boston Children’s Hospital and QueerDoc, respectively, finding that the government failed to demonstrate a proper investigative purpose and appeared motivated by political aims rather than legitimate enforcement concerns.
What We Got Right
The subpoenas were overbroad and vulnerable to challenge. Both courts found the document requests—ranging from patient medical records to staff personnel files—far exceeded what was necessary for any legitimate fraud investigation.
DOJ’s legal theory was untested and expansive. We noted that DOJ’s reliance on the FDCA and FCA to investigate off-label prescribing and billing practices was novel. Courts agreed, rejecting DOJ’s attempt to criminalize routine medical care and provider-patient communications.
Political intent matters. Our concern that the subpoenas were part of a broader campaign to end gender-affirming care was confirmed by judicial findings that the subpoenas were issued in bad faith, with the true purpose of intimidating providers and deterring care.
What We’ve Learned
States are willing to band together. In a powerful show of solidarity, 20 states filed an amicus brief opposing DOJ’s motion to amend the Massachusetts ruling. Their argument: DOJ’s interpretation of the FDCA threatens to criminalize standard medical practice and intrudes on states’ sovereign authority to regulate healthcare.
Courts are not rubber-stamping federal subpoenas. Both rulings emphasized the need for judicial review of administrative subpoenas, especially when they implicate constitutional rights and state law protections.
The legal fight is far from over. DOJ has not yet appealed, but its broader enforcement strategy remains in play. More subpoenas may follow, and more challenges are likely.
What to Expect
Continued litigation. Providers in other jurisdictions may challenge similar subpoenas, especially in states with explicit protections for gender-affirming care.
Potential appeals. DOJ may seek appellate review to preserve its enforcement authority under § 3486 and the FDCA.
Legislative and regulatory responses. The controversy may prompt congressional oversight or efforts to clarify the limits of administrative subpoena power.
Expanded state coordination. The multi-state amicus brief signals a growing coalition prepared to defend gender-affirming care as a matter of public health, civil rights, and state sovereignty.
Strategic Takeaways
Challenge early and strategically. Courts are willing to scrutinize DOJ’s motives and legal theories. Providers should not assume compliance is mandatory.
Know your state protections. Massachusetts and other states have codified rights to gender-affirming care. These laws matter in federal subpoena disputes.
Prepare for public scrutiny. Courts are unlikely to seal these cases. Institutions should be ready to defend their practices publicly and legally.
Coordinate legal strategy. Multi-state collaboration and amicus support can be powerful tools in resisting politicized enforcement.
Conclusion
The early rulings validate many of the concerns we raised in July and underscore the importance of judicial oversight in politically sensitive investigations. As these cases proceed, courts, providers, and states will continue to navigate complex questions at the intersection of federal enforcement authority, medical ethics, and state sovereignty. The legal landscape remains dynamic—and worth watching closely.
Diagnosing Health Care – Current Tailwinds in Women’s Health – What Do They Mean for Your Business? [Podcast]
Why is now the moment for women’s health?
On this episode, Epstein Becker Green attorneys Rachel Snyder Good, Beth Scarola, and Laura DePonio sit down with Sheila Biggs, Vice President of Jarrard, to explore how women’s health is evolving from a niche focus into a mainstream industry priority. They discuss the forces accelerating growth, the opportunities for change, and the challenges that still need to be addressed across outcomes, access, and patient experience.
This episode unpacks several key topics, including:
what “women’s health” really means today—far beyond fertility and reproductive care;
how decades of underinvestment created new opportunities for innovation, equity, and growth;
why investors and policymakers are turning their attention to this space, and what’s driving the momentum;
the biggest gaps still to close in outcomes, access, and patient experience;
how storytelling and strategy can help reshape the public narrative around women’s health; and
where the industry is headed next—including insights related to the upcoming Women’s Health Innovation Summit.
Tune in to find out what’s driving unprecedented momentum across policy, investment, and innovation in the women’s health space.
AI in Recruiting and Employment Decision-Making – New California AI Regulations Strike a Balance Between Efficiency and Algorithmic Accountability
Introduction
The use of artificial intelligence (AI) in employment decision-making is no longer a theoretical, future-tense possibility. It is here and is reshaping how employers find, assess, and promote talent. As employers’ use of AI has increased, so has the development of AI regulation at the state and local level, including in California. As discussed in K&L Gates’ 29 March 2025 alert, California took a number of steps in 2025 to regulate the development and use of AI in employment to ensure that California employers’ use of AI tools is free of discrimination and bias.1 This alert takes a closer look at one of those recently implemented regulatory actions. On 1 October 2025, the California Civil Rights Council’s (CRC) March 2025 “Employment Regulations Regarding Automated-Decision Systems” took effect (CRC Regulations) under the Fair Employment and Housing Act (FEHA). Now, every California employer covered by the FEHA must practice algorithmic accountability when using Automated Decision Systems (ADS) and AI in employment decisions.2
The intent of the CRC Regulations is clear: innovation must serve fairness and equity, not undermine it. An AI tool’s efficiency, while powerful, cannot replace human oversight, judgment, and analysis. Under the CRC Regulations, human participation is required not only to understand how the tool impacts a candidate or employee’s opportunities but also to determine when and how to intervene when an ADS is used.
Defining Automated Decision System
Under the CRC Regulations, an ADS is defined as:
“A computational process that makes a decision or facilitates human decision making regarding an employment benefit…derived from [or] using artificial intelligence, machine learning, algorithms, statistics, or other data processing techniques.”3
The CRC Regulation’s definition of an “Artificial Intelligence System” is similarly broad—any “machine-based system that infers, from the input it receives, how to generate outputs,” whether those outputs are predictions, recommendations, or decisions.4
In practice, that scope captures most of the AI-based technology now shaping employment decisions, such as:
Resume filters that rank or score candidates;
Online assessments measuring aptitude, personality, or “fit;”
Algorithms targeting specific audiences for job postings;
Video-interview analytics evaluating tone, word choice, or expression; and
Predictive tools drawing on third-party data.
If a tool influences an employment outcome, directly or indirectly, it likely qualifies as an ADS under the CRC Regulations.
Key Compliance Duties and Risks
The CRC Regulations establish a framework that blends civil rights principles with technical oversight. Employers must now take the following steps when implementing ADS and Artificial Intelligence Systems:
Prevent Discrimination (Direct and Indirect)
It is unlawful to use any ADS or selection criteria that creates a disparate impact against a protected class under FEHA. Scrutinizing liability does not stop with the question of intent. Impact must be considered.
Conduct Bias Testing and Audits
ADS tools must undergo anti-bias testing or independent audits that are timely, repeatable, and transparent. A single validation at launch is not enough and will not demonstrate sufficient reasonable measures. Fairness checks must be integrated as regular and systemized maintenance practices.
Provide Notice and Transparency
Applicants and employees must receive pre-use and post-use notices explaining when and how ADS tools are used, what rights they have to opt out, and how to appeal or request human review.
Assert an Affirmative Defense Through Good-Faith Efforts
Employers facing claims under FEHA may defend themselves by showing reasonable, well-documented anti-bias measures including but not limited to: audits, corrective actions, and continuous oversight. But that defense is only as strong as the evidence supporting it.
Assume Responsibility for Vendors and Agents
Employers cannot outsource accountability. Bias introduced by a vendor or third-party platform remains the employer’s legal and ethical burden.
Retain Records for Four Years
FEHA now requires retention of ADS-related documentation for at least four years. This retention requirement includes but is not limited to: data inputs, outputs, decision criteria, audit results, and correspondence.
Through these requirements, the CRC makes it clear that, while automation in decision-making is not prohibited, employers must be responsible stewards when implementing such tools.
Practicing Algorithmic Accountability
At the crux of its framework, the CRC Regulations reflect a push towards algorithmic accountability. Algorithmic accountability requires that technology partners with human judgment. Employers cannot claim ignorance of how an algorithm operates or what data an AI tool uses. To the contrary, under the CRC Regulations, an employer that uses AI without understanding its foundation and logic now creates its own form of negligence and potential liability.
The CRC highlights the importance of retaining human input in decision-making despite the use of AI tools. At a minimum, employers must incorporate a human element at some point in the lifecycle of an employment decision to avoid running afoul of the CRC Regulations. Accountability means transparency in process, traceability in data, and intervention when fairness is jeopardized. It means partnering with AI and leveraging its strengths without surrendering ethical, legal, and managerial responsibilities.
Best Practices
To comply with the CRC Regulations, facilitate a culture of algorithmic accountability, and reduce risk, employers should consider the following practices:
Invest in Education and Awareness
Empower Human Resources and leadership teams with foundational understanding of ADS, its potential, its blind spots, and the social dynamics it can amplify. Oversight begins with literacy.
Engage Independent Auditors
External bias audits and model validations provide both credibility and objectivity. They also strengthen an employer’s affirmative defense by demonstrating due diligence.
Adopt Continuous Review and Monitoring
Bias is not a linear risk, and it can shift as data, users, and markets evolve. Regular audits, outcome monitoring, and feedback loops should become part of daily governance. Consult with outside counsel to build an appropriate cadence of audit-related protocol.
Institutionalize Documentation
Establish systems that capture, retain, and preserve ADS-related records including but not limited to: inputs, model parameters, audit logs, and decisions. These records must be maintained for at least the required four years.
Preserve Human Oversight
Employers should design decision flows that invite human touch, review, challenge, correction, and intervention.
The Bottom Line: Partner with AI, Do Not Defer to It
Ignorance of the law has never been a defense. Now, neither is efficiency. The CRC Regulations make clear that progress in automation must be matched by equal progress in accountability and must not replace human oversight.
1 See K&L Gates Legal Alert, 2025 Year-To-Date Review of AI and Employment Law in California, May 29, 2025, https://www.klgates.com/2025-Review-of-AI-and-Employment-Law-in-California-5-29-2025.
2 Employer is defined as “[a]ny person or individual engaged in any business or enterprise regularly employing five or more individuals, including individuals performing any service under any appointment, contract of hire or apprenticeship, express or implied, oral or written… Employees located inside and outside of California are counted in determining whether employers are covered under the Act. However, employees located outside of California are not themselves covered by the protections of the [California Fair Employment and Housing Act] if the allegedly unlawful conduct did not occur in California or the allegedly unlawful conduct was not ratified by decision makers or participants in unlawful conduct located in California.” Cal. Code Regs. tit. 2, § 11008.1(e).
3 Cal. Code Regs. tit. 2, § 11008.1(a).
4 Cal. Code Regs. tit. 2, § 11008.1(c).
Inside the Exclusive: The EEOC’s New Enforcement Priorities, Part 2—Religious Discrimination, Harassment, and Accommodations [Podcast]
In this podcast recorded at our recent Corporate Labor and Employment Counsel Exclusive® seminar, Tae Phillips (shareholder, Birmingham), Jim Paul (shareholder, St. Louis/Tampa), and Scott Kelly (shareholder, Birmingham) continue their discussion of the EEOC’s evolving enforcement priorities—this time addressing religious discrimination, harassment, and accommodations in the workplace. Jim (who is co-chair of the firm’s Disability Access Practice Group) examines recent trends, including the rise in religious accommodation requests, the impact of federal executive orders, and the challenges employers face in navigating religious and political overlap in employee requests. The conversation highlights the complexities of accommodating diverse religious beliefs while maintaining compliance with Title VII of the Civil Rights Act and fostering a respectful work environment.
Best Practices for College and University Employers When Conducting Reductions in Force
Reductions in force (RIFs), also referred to as layoffs, downsizing, or restructuring, remain one of the most challenging workforce management decisions college and university employers face. Beyond the operational and financial considerations, RIFs carry significant legal, reputational, and strategic risks and considerations. Institutions must carefully navigate federal, state, and local laws, as well as policies and procedures unique to higher education such as tenure and faculty handbooks, while also ensuring that their actions are fair, transparent, and sensitive to affected staff and faculty.
Below are key best practices and considerations institutions should keep in mind when planning and executing a RIF.
1. Employment Laws, Policies, and Contracts
Several employment laws intersect with RIFs, making compliance a critical priority:
Title VII of the Civil Rights Act and other anti-discrimination statutes (such as the Age Discrimination in Employment Act and the Americans with Disabilities Act) prohibit institutions from making termination decisions based on protected characteristics like race, sex, age, disability, or national origin.
State and local laws may expand protections (e.g., covering sexual orientation, gender identity, or caregiver status) or impose additional requirements around notice, severance, and earned leave payouts.
National Labor Relations Act (NLRA) protections may apply if a unionized workforce is involved, potentially requiring bargaining over the effects of a RIF. Unionized faculty and staff may have additional procedural protections, notice requirements, and severance provisions in their collective bargaining agreements.
Higher education employers should also review any policy and contractual obligations. The institution may have policies or practices around standard severance packages for staff terminations. High-level administrators, including but not limited to college presidents, may also have executive employment agreements with notice requirements, board votes, and payout or severance benefits. Faculty terminations are likely based on faculty teaching agreements and/or the provisions in faculty handbooks and special attention needs to be paid to concerns about academic freedom..
2. RIF-Specific Laws – WARN Act and State Mini-WARN Laws
The federal Worker Adjustment and Retraining Notification (WARN) Act requires certain employers to provide 60 days’ advance notice of mass layoffs or plant closings. Key considerations include:
Coverage: Applies to employers with 100 or more full-time employees.
Triggering Events: Plant closings involving 50 or more employees or layoffs affecting at least 33% of the workforce and 50 employees (or 500 employees at a single site).
Notice Obligations: Employees, unions, and local government agencies must be notified.
Several states, such as California, New York, and New Jersey, have mini-WARN laws that impose stricter thresholds or longer notice periods. Institutions must confirm their obligations under both federal and state statutes.
3. Conducting a Disparate Impact Analysis
Even when employers use neutral selection criteria for layoffs, they may inadvertently create a disparate impact on employees in legally protected categories. A disparate impact analysis is a critical risk mitigation tool:
Step 1: Identify Selection Criteria – Common factors include performance, skills, tenure, and redundancy of roles.
Step 2: Analyze the Demographics – Employers should evaluate whether selection disproportionately affects groups based on age, sex, race, or other protected characteristics.
Step 3: Adjust as Needed – If significant disparities exist, employers may consider revising criteria or exploring alternatives to minimize risk of a discrimination claim.
Documenting the decision-making process and analysis is key to defending against potential discrimination claims. Employers should work with outside legal counsel when doing any self-critical analyses, including disparate impacts, to maximize protection.
Higher education employers should be aware that certain selection criteria may have unintended disparate impacts on employees in legally protected categories. For example, selection criteria based on tenure status or rank may have a disparate impact on junior faculty or non-tenure track faculty which may tend to be more diverse.
4. Severance Agreements and Releases
Providing severance pay and release agreements can help ease the transition for employees and reduce legal exposure. Institutions should:
Offer Consideration: A severance payment or benefit not otherwise owed in exchange for a release of claims.
Comply with OWBPA: When obtaining releases of age discrimination claims under the Older Workers Benefit Protection Act (OWBPA), employers must meet strict requirements, including providing 21 days’ notice for individuals (45 days for group terminations), a 7-day revocation period, and detailed disclosures about the layoff group.
Tailor Agreements: Ensure severance agreements and releases are compliant with federal and state law and any applicable CBA provisions or institutional policy requirements, avoid overbroad confidentiality or non-disparagement provisions, and align with regulatory guidance from the EEOC and NLRB.
These times of transition can be difficult for higher education employees, so approaching them with compassion and thoughtfulness are important. As a result, many institutions should consider also providing job placement assistance for terminated employees.
5. Communication and Employee Relations
How an institution communicates about a RIF can significantly impact morale, reputation, and litigation risk:
Transparency: Clearly explain the institution’s rationale and decision-making criteria and how both support the institution’s broader educational mission to avoid the perception of unfairness. For faculty terminations, engage early with faculty governance bodies to ensure transparency and meet any procedural requirements in the faculty handbook.
Dignity and Respect: Deliver the news in a private and empathetic manner, and provide information about severance, benefits continuation, and support resources.
Support Services: Consider offering outplacement assistance, counseling, or job search resources.
External Stakeholders: Be prepared to address questions about academic continuity and program from stakeholders, including the institution’s Board, students and parents, accreditors, and local community.
6. Documentation and Consistency
Institutions should maintain thorough documentation to demonstrate that decisions were legitimate, consistent, and non-discriminatory. This includes:
Written records of business justifications for the RIF.
Documentation of the selection process and criteria applied, as well as compliance with termination provisions in the faculty handbook, CBA, or institutional policies, as applicable
Copies of employee communications, notices, and agreements.
Consistency across the organization is critical. Inconsistent application of criteria or benefits or failure to follow required policies can expose the institution to claims of unfair treatment.
7. Post-RIF Considerations
After implementing a RIF, institutions should:
Monitor Morale and Retention: The remaining faculty and staff may experience decreased engagement or productivity. Leadership visibility and communication are key.
Reassess Workload: Ensure that the remaining faculty and staff are not overburdened and that critical functions are adequately staffed. Assess the impact of the RIF on academic programs, student services, and mission continuity at the institution.
Review Litigation Risk: Monitor for EEOC charges, lawsuits, or union grievances that may arise.
Conducting a reduction in force in higher education is never easy, but careful planning, legal compliance, and empathetic execution can significantly mitigate risk. Institutions should:
Understand the legal framework, including federal and state employment laws, faculty handbooks and contracts, and any applicable institutional policies;
Conduct disparate impact analyses to identify and minimize discrimination risks;
Structure severance agreements to secure enforceable releases; and
Communicate with transparency and respect to maintain trust within and outside the campus community.
These steps are recommended at a high-level and are not a one size fits all. Employers should work with counsel to prepare actionable steps that are appropriate for its organization and consistent with its policies and practices and applicable law. By balancing compliance with compassion, institutions can navigate RIFs responsibly while protecting both the university and its academic mission.
What Can Employers Expect as the Government Shutdown Continues
The federal government has been shut down for almost a month with no end in sight — so far, the second-longest shutdown in United States history. An estimated 750,000 federal workers have been furloughed, and many essential workers are working without pay. During the shutdown, government-funded federal agencies have completely halted or significantly reduced their functions to only the most essential.
While the impacts of the shutdown can be felt in everyday life, from airport delays, closures of national parks and museums, and the impending potential suspension of benefits provided by the Supplemental Nutrition Assistance Program (SNAP),[1] they can also have a far-reaching effect on private businesses who rely on federal agencies for services, are federal contractors, or regularly interface with various federal agencies, including the Department of Labor, Equal Employment Opportunity Commission, the National Labor Relations Board, and the federal judicial system.
According to research conducted by the Society for Human Resources Management (SHRM), a shutdown lasting more than 28 days is estimated to impact 88% of private organizations’ ability to manage day-to-day operations and 80% of private organizations’ ability to meet yearly financial goals.
Here we will break down some of the effects felt by private businesses as a result of the shutdown, but the general takeaway is to expect and plan for continued disruption and delays both during the shutdown and once the federal government is back up and running. Once the shutdown ends, various agencies and departments will need time to start functioning again and process any backlog. The return to normalcy after a shutdown of this length will likely take quite some time and the effects will linger into 2026.
Federal Contractors
Employers who have federal contracts can likely expect late or delayed payments and project delays and disruptions, which may result in the need to furlough or lay off employees. Delayed payments can make it difficult for some employers to pay subcontractors or employees, which can raise various legal issues, including potential litigation or considerations under the Worker Adjustment and Retraining Act (WARN) or similar state laws, depending on the size of the layoffs.
Department of Labor (DOL)
The DOL has limited its enforcement and regulatory efforts but has continued to pursue essential activities. However, as laid out in the DOL’s contingency plan, updated on October 10, 2025, the work performed by many of the DOL’s subagencies, such as the Bureau of Labor Statistics and the Office of Federal Contract Compliance Programs, has been paused.
The DOL also has suspended many of its immigration activities, which include processing Labor Condition Applications, Permanent Labor Certifications, and Prevailing Wage Determinations, which can halt progress on temporary work visas or green card applications.
Relatedly, the E-Verify system, which is funded by the federal government, is unavailable during the shutdown, so employers will be unable to initiate queries, access cases, or resolve tentative nonconfirmations. But Immigration and Customs Enforcement (ICE), which is responsible for conducting I-9 audits and raids, will continue to operate and may subject employers to additional scrutiny, especially because employers still remain liable for I-9 violations and any unauthorized employment during the shutdown.
Equal Employment Opportunity Commission (EEOC)
The EEOC has reduced its workforce by over 90%, but, according to its contingency plan, it will continue to accept and screen new charges and pursue cases as necessary to “ensure that no private sector charging party loses their right to file a timely charge of discrimination.” This means, among other things, that the EEOC will continue to litigate cases where no extensions have been granted. The EEOC has halted work on conducting new investigations, scheduling and conducting mediations and hearings, and responding to requests for information or requests under the Freedom of Information Act.
Once the EEOC reopens, employers may begin to receive right-to-sue notices as their first notice of a charge filed during the shutdown or shortly beforehand. It will also take some time for the EEOC to resume normal operations and address pending matters, including scheduling mediations or hearings, that were paused during the shutdown. This could result in an influx of new litigation in the new year, especially since September, the month before the shutdown began, is a historically high-volume filing month for the EEOC.
National Labor Relations Board (NLRB)
In accordance with its contingency plan, the NLRB has paused nonessential operations, such as case handling, outreach, and public affairs. It will only continue to pursue claims where necessary to preserve rights that may be extinguished by delay. In the past, the shutdown would also mean that the NLRB’s ability to issue decisions would be frozen as well, but because the NLRB has been without a quorum since the beginning of 2025, this NLRB function has not been affected by the shutdown.
Occupational Safety and Health Administration (OSHA)
OSHA continues operating to respond to imminent threats to human life, workplace fatalities and catastrophes, and other essential or imminent concerns. But it has paused most workplace inspections and suspended activities related to compliance assistance, outreach programs, training, technical assistance, and rule-making activities. State-specific occupational safety and health agencies will continue to operate during the shutdown.
Department of Justice and Court System
Employers with pending civil cases in federal court may face delays in the resolution of those cases as a result of a reduction or backlog in the federal judiciary’s operations. The federal courts have been without funding for full, paid operations since October 20, 2025, and have maintained limited operations to perform constitutional functions. When the federal courts reopen, it will likely take some time to resume normal operations and resolve any backlogs created by the shutdown, meaning it may take slightly longer for civil cases to reach a resolution.
Criminal cases, however, which are considered essential to human safety, will continue to be processed by the Department of Justice.
Tips Going Forward
The shutdown has not suspended an employer’s obligation to comply with its federal obligations, such as I-9 compliance or compliance with OSHA standards, and employers should ensure continued compliance with federal regulations, obligations, and requirements.
While dealing with potentially unpredictable situations, be proactive and anticipate and address issues before they arise. Seek legal counsel when necessary to help understand employee rights or other legal issues.
Prepare to address concerns with employee morale and communicate openly with employees about the impacts on business or employees caused by the shutdown.
Expect and prepare for any backlog to be processed once agencies begin working after the shutdown is resolved and for continued delays for some time as operations return to normal.
Notes
[1] Some of the impacts from the government shutdown can have significant impact on employees personally and employee morale, especially heading into the end of the year and holiday season. Employers who may have employees impacted by the loss of SNAP benefits should consider collecting information on local resources to make such information readily available for employees who may need assistance. Employers who have the resources may also consider providing supplemental assistance to employees if possible.
Diagnosing Health Care: The Future of Women’s Health Is Looking Bright – What Could This Mean for You? [Podcast]
Why is now the moment for women’s health?
On this episode, Epstein Becker Green attorneys Rachel Snyder Good, Beth Scarola, and Laura DePonio sit down with Sheila Biggs, Vice President of Jarrard, to explore how women’s health is evolving from a niche focus into a mainstream industry priority. They discuss the forces accelerating growth, the opportunities for change, and the challenges that still need to be addressed across outcomes, access, and patient experience.
This episode unpacks several key topics, including:
what “women’s health” really means today—far beyond fertility and reproductive care;
how decades of underinvestment created new opportunities for innovation, equity, and growth;
why investors and policymakers are turning their attention to this space, and what’s driving the momentum;
the biggest gaps still to close in outcomes, access, and patient experience;
how storytelling and strategy can help reshape the public narrative around women’s health; and
where the industry is headed next—including insights related to the upcoming Women’s Health Innovation Summit.
Tune in to find out what’s driving unprecedented momentum across policy, investment, and innovation in the women’s health space.
DOJ Memo- Diverse-Slate Hiring, Supplier Selection, and Employee Resource Groups
As we covered in a prior client alert, the U.S. Department of Justice (“DOJ”) issued its “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” on July 29, 2025. Although the memo is directed primarily at federal funding recipients, all employers subject to federal civil rights laws should carefully assess their DEI programs and policies in light of DOJ’s current approach. Below we provide three key areas from the memo, as well as an initial compliance checklist for employers.
Three Key Areas for all Employers
The DOJ memorandum is advisory, clarifying how existing federal civil rights laws – including Title VII, Title VI, Title IX, the Equal Protection Clause, and the False Claims Act – apply to diversity, equity, and inclusion (DEI) initiatives. While the guidance does not prohibit all diversity programs, it ties the lawfulness of DEI efforts to program context, design, and implementation.
Below are examples illustrating how the principles in the DOJ memo apply to three workplace programs:
Diverse-Slate Hiring Requirements: The DOJ memo cautions that hiring procedures mandating a minimum number of candidates from specific racial or other protected groups may be unlawful if they function as quotas. Instead, employers should train recruiters and hiring panels to assess candidate skills and experience, broadening talent pools without relying on protected characteristics.
Preferences for Women- or Minority-Owned Businesses: Supplier selection programs that prioritize contracts based on race or sex may violate federal law when those traits serve as the basis for selection. Employers should use business-related metrics – such as supplier performance, capacity, and certifications – to ensure compliance while supporting organizational goals.
Affinity Groups and Employee Resource Groups: Current DOJ and EEOC guidance explains that employee resource groups should not restrict membership based on protected traits. Such groups should be voluntary, open to all employees, and focus on professional development or support.
Compliance Checklist for Employers
To support ongoing compliance and consistency as enforcement evolves, employers should consider the following steps:
Inventory Programs: Catalog all supplier programs, hiring policies, trainings, and employee resource groups to identify potential compliance issues.
Document Decisions: Ensure hiring, promotion, and termination decisions are based on job-related qualifications and not protected characteristics.
Update Supplier Processes: Revise supplier RFPs and selection criteria to emphasize business capabilities and certifications rather than ownership demographics.
Train Key Teams: Keep HR and procurement staff up-to-date on legal requirements and best practices regarding civil rights law compliance.
Engage Legal Counsel: Work with legal advisors to audit, revise, and implement programs and policies consistent with DOJ and federal agency guidance.
California’s October State Law Updates – What Employers Need to Know
Throughout October 2025, California Governor Gavin Newsom signed multiple employment-related Bills into law. These new measures address a wide range of workplace-related matters, including regulations aimed at the use of artificial intelligence, updates on paid leave, and amendments to mediation procedures. While some of these Bills will be subject to legal challenges that delay or block their application, many took effect immediately or will become effective on January 1, 2026. Accordingly, California employers are encouraged to begin updating policies, training programs, and internal templates to ensure compliance with these requirements.
AB 692 prohibits contractual provisions purporting to require a departing employee to repay any debt to the employer.
AB 692, signed into law on October 13, 2025, makes it unlawful for California employers to include specified provisions in any employment contract entered into on or after January 1, 2026. Specifically, AB 692 prohibits any term that would require the worker to pay an employer, training provider, or debt collector for a debt if the worker’s employment or work relationship terminates. Exceptions exist for certain agreements, including those involving discretionary bonuses or relocation payments, provided they meet set criteria, including: (1) repayment terms must be in a separate agreement from the primary employment contract; (2) the worker must be advised of the right to consult an attorney and given at least 5 business days to do so before signing; (3) any repayment obligation for early separation must be prorated based on the remaining retention period (up to 2 years) and cannot accrue interest; (4) the worker must have the option to defer receipt of the payment until the end of the retention period without repayment obligation; and (5) repayment may only apply if the employee leaves voluntarily or is terminated for misconduct. The bill provides penalties for violations at the amount of the greater of a worker’s actual damages or up to $5,000 per worker, injunctive relief, and attorneys’ fees and costs.
AB 406 expands qualifying reasons for use of paid and unpaid leaves under state law.
AB 406 expands the permitted uses of California Paid Sick Leave under the Healthy Workplaces, Healthy Families Act of 2014 (“HWHFA”), effective October 1, 2025. AB 406 also updates the state’s unpaid, job-protected leave provisions to align with these expanded uses starting January 1, 2026. Under the new amendments, employees now may use paid sick leave, and certain unpaid leave, if the employee or a covered family member are victims of certain crimes and need to attend related judicial proceedings. Covered proceedings include, but are not limited to, delinquency hearings, bail or release determinations, plea or sentencing hearings, postconviction proceedings, and any hearing where the victim’s rights are at stake. For this purpose, a “victim” includes individuals harmed physically, psychologically, or financially as a result of violent felonies, serious felonies, or felony theft and embezzlement, whether actual or attempted.
SB 513 broadens definition of “personnel records.”
On October 11, 2025, SB 513 was signed into law, amending California’s definition of personnel records to include “education or training records.” The law requires employers who maintain education or training records to ensure the records include the following information: the name of the employee, the name of the training provider, the duration and date of the training, the core competencies of a training course, and the resulting certification or qualification.
SB 590 extends eligibility for state paid family leave benefits.
SB 590, which also was signed into law on October 13, 2025, expands eligibility for benefits under the paid family leave program to include individuals who take time off work to care for a seriously ill designated person. The law’s definition of a “designated person” will include any care recipient related by blood or whose association with the individual is the equivalent of a family relationship. SB 590 will take effect July 1, 2028.
SB 617 adds to the notice requirements under CalWARN.
SB 617 was signed into law on October 1, 2025, expanding the information covered employers must include in their written notice required under the state’s Worker Adjustment and Retraining Notification Act (“CalWARN”). The amendments to CalWARN require employers to notify employees whether the company plans to coordinate services through the local workforce development board, another entity, or not at all. Covered employers must also provide the local workforce development board’s contact information and a description of its services in the notice as well, regardless of whether the company plans to coordinate services with the board, and the notice must include information about the statewide assistance program known as CalFresh, the CalFresh benefits helpline, and a link to the CalFresh internet website. CalWARN covers employers with 75 or more employees, including part-time employees, and requires 60 days’ advance notice for plant closures, layoffs of 50 or more employees, and relocations of at least 100 miles affecting any number of employees. SB 617 is slated to take effect on January 1, 2026.
California introduces new employer notice and training requirements related to law enforcement interactions at the workplace.
Under California’s new Workplace Know Your Rights Act, effective February 1, 2026, employers must provide employees a stand-alone written notice of workers’ rights when interacting with law enforcement at the workplace, in addition to providing notice to new hires thereafter. This notice builds on existing requirements to provide workers with notice of employee rights related to workers’ compensation, immigration agency inspections, immigration-related practices, and labor-related rights. The act also requires employers to notify an employee’s designated emergency contact if the employee is arrested or detained on their worksite and provide employees the opportunity to designate an emergency contact on or before March 30, 2026. The Labor Commissioner will develop and issue a template notice and videos for employers and employees related to the new law by July 1, 2026.
SB 303 introduces protections for an employee’s good faith participation in bias-mitigation training.
On October 1, 2025, Governor Newsom signed SB 303 into law, establishing that an employee’s assessment, testing, admission, or acknowledgment of their own personal bias, when made in good faith and solicited or required as part of a bias mitigation training, does not, by itself, constitute unlawful discrimination. Effective January 1, 2026, this law amends the California Fair Employment and Housing Act (“FEHA”), which requires employers to prevent workplace discrimination and harassment.
SB 19 criminalizes threats of mass violence against California workplaces.
On October 11, 2025, SB19 was also signed into law, criminalizing threats of mass violence made against workplaces, as well as schools, houses of worship, and medical facilities. In addition to verbal threats of violence, the law covers images or threats posted online. While SB 19 is not aimed directly at employers, the new law provides a resource for California employers to protect employees from threats of violence.
SB 464 expands pay-data reporting requirements.
On October 13, 2025, Governor Newsom signed SB 464 into law, expanding the state’s pay‑data reporting requirements for employers. Effective immediately, the law mandates that private employers with 100 or more employees collect and store demographic information used for pay‑data reporting separately from employees’ personnel files and requires courts to impose civil penalties against employers who fail to file the required report upon request from the CRD. Previously, courts had discretion in imposing civil penalties. Effective January 1, 2027, SB 464 also increases the number of job categories in which pay bands must be reported from 10 to 23.
SB 642 amends equal pay requirements to clarify certain definitions and extend the statute of limitations for wage-related actions.
SB 642, which was enacted on October 8, 2025 and took effect immediately, introduced several amendments to California’s equal pay requirements. The amendments revise the definition of “pay scale” to mean the employer’s good faith estimate of the salary or hourly wage range that the employer reasonably expects to pay for the position. SB 642 also defines “sex,” wages,” and “wage rates” for purposes of the equal pay requirements. The amendments also extend the time to bring a civil action to recover wages from two years to three years and provide that employees are entitled to obtain relief for the entire period of time in which a violation of its provisions exists, not to exceed six years.
SB 261 increases enforcement authority for wage judgments and mandates recovery of attorney fees.
SB 261, signed into law on October 13, 2025, expands the authority of the Division of Labor Standards Enforcement in wage‑claim matters, including actions to recover wages, penalties, and other demands for compensation. The law imposes new civil penalties, up to three times the outstanding judgment amount, on employers that fail to satisfy wage judgments within 180 days. Additionally, it mandates that prevailing employees (or the entity acting on their behalf) recover attorney fees and costs when enforcing such judgments.
SB 53 establishes broad AI regulations mandating standardized disclosure and transparency practices.
SB 53, also known as the Transparency in Frontier Artificial Intelligence Act, establishes several new requirements for certain “frontier” developers of artificial intelligence (“AI”) models. Effective January 1, 2026, SB 53 introduces comprehensive state-level requirements for developers of “frontier” AI models, meaning large-scale systems trained using massive computational resources. SB 53 applies to “large frontier developers,” defined as companies with annual revenues over $500 million that train foundation models using a quantity of computer power greater than 10^26 integer or floating-point operations. Covered developers are required to publish risk-mitigation frameworks, complete transparency reports before deploying models, and submit regular assessments to the California Office of Emergency Services. The law also mandates prompt reporting of critical safety incidents, including cybersecurity breaches or loss of model control with catastrophic potential. In addition, the bill introduces new whistleblower protections for AI safety professionals and authorizes the creation of a public cloud computing initiative, CalCompute, aimed at promoting equitable access to computer resources for safe and ethical AI development. While the law’s requirements are narrowly tailored to the most powerful AI systems, companies developing or deploying large-scale AI in California should closely monitor forthcoming guidance and begin evaluating their compliance readiness.
AB 250 extends statute of limitations for certain employment-related sexual assault claims.
On October 13, 2025, AB 250 became law, extending the timeframe during which certain sexual assault claims may be revived. Under the amended law, individuals may bring sexual assault claims, including derivative claims for wrongful termination and sexual harassment, among others, that would otherwise be barred prior to January 1, 2026 because the applicable statute of limitations has or had expired, by demonstrating that one or more entities legally responsible for damages engaged in a cover up. AB 250 defines a “cover up” as a “concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent.” The bill permits any such claim to proceed if already pending in court on October 13, 2025, or, if not filed by that date, to be commenced between January 1, 2026, and December 31, 2027.
SB 477 amends the California Fair Employment and Housing Act to expand circumstances for tolling the statute of limitations and clarifies definition of a “group or class complaint.”
On October 3, 2025, SB 477 was enacted. Effective January 1, 2026, the law will expand the circumstances for tolling the statute of limitations for California individuals to file a civil lawsuit under the California Fair Employment and Housing Act when the individual appeals a decision from, or enters into an agreement with, the California Civil Rights Department (“CRD”). The law also clarifies the definition of a “group or class complaint” and requires the CRD to fully resolve all related proceedings before issuing a right-to-sue notice for group or class matters.
AB 1523 revises rules for court-ordered mediation and increases maximum amount in controversy for mandatory mediation.
Effective January 1, 2027, AB 1523 amends California’s court-ordered mediation rules to increase the maximum amount in controversy for mandatory mediation from $50,000 to $75,000. Under AB 1523, a court only may order mediation when the case is set for trial, at least one party has expressed interest in mediation, no ongoing discovery disputes exist, and parties are notified of their option to choose a mutually agreeable mediator. If parties cannot agree on a mediator within 15 days, the court will select one at no cost. The mediation must be completed at least 120 days before the trial date and can be conducted remotely if all parties agree. The mediation must conclude with either a mutually acceptable agreement or a statement of non-agreement, and the determination of the case’s value will be made without prejudice.
AB 1514 extends independent contractor exemptions for manicurists and commercial fishers.
On October 3, 2025, Governor Newsom signed AB 1514 into law, extending the application of the temporary exemptions from the “ABC” test for employment status for licensed manicurists and commercial fishers. California law requires a 3-part test, commonly known as the “ABC” test, to determine if a worker is an employee or independent contractor and exempts specified occupations and business relationships from the application of the test. These exemptions include licensed manicurists and commercial fishers working on an American vessel. AB 1514 deletes the inoperative date for the manicurist exemption, which expired on January 1, 2025, and requires that, until January 1, 2029, the exemption is reapplied to certain licensed manicurists. AB 1514 also amends the inoperative date for an exemption for certain commercial fishers, which made such workers eligible for unemployment insurance benefits subject to certain conditions, from January 1, 2026 until January 1, 2031.
SB 809 establishes the Construction Trucking Employer Amnesty Program relating to classification of construction drivers as independent contractors.
SB 809, the third Bill signed into law by Governor Newsom on October 11, 2025, establishes the Construction Trucking Employer Amnesty Program (“CTEA Program”) and clarifies worker classification for certain construction trucking workers. Similar to California’s Motor Carrier Employer Amnesty Program, the CTEA Program allows eligible construction contractors to resolve misclassification claims involving construction drivers by entering into an agreement with the Labor Commissioner prior to January 1, 2029. These agreements must include certain elements, including, but not limited to, an agreement by the construction contractor to classify construction drivers as employees and to pay all wages, benefits, and taxes owed, if any. Separately, SB 809 also establishes that it is declarative of existing law that mere ownership of a vehicle used by a worker providing labor or services for remuneration does not render the individual an independent contractor. Finally, SB 809 establishes that it is declarative of existing law that Labor Code Section 2802, which requires reimbursement of necessary business-related expenses, applies to an employee’s use of a vehicle, including a personal or commercial vehicle, which the employee owns and uses to perform their duties.
SB 20 introduces worker protections related to high-exposure trigger tasks on artificial stone.
SB 20, known as the Silicosis Training, Outreach, and Prevention (STOP) Act, was signed into law by Governor Newsom on October 13, 2025. The STOP Act aims to enhance worker safety in the stone fabrication industry and address rising cases of silicosis among workers exposed to crystalline silica dust. The new law prohibits the use of dry cutting methods on artificial stone and requires employers to implement effective “wet” methods to suppress dust. Covered employers will also be required to train workers who perform high-exposure trigger tasks, as defined by the law, by July 1, 2026 and submit a written attestation that workers have received the mandatory training each year to the California Division of Occupational Safety & Health. The law also requires employers to report cases of silicosis to the state and provides that violations may result in fines or shutdown orders.
Germany’s Federal Labor Court Rules on Gender Discrimination in Pay
On October 23, 2025, Germany’s Federal Labor Court (Das Bundesarbeitsgericht (BAG)) held that female employees need not be content with comparing their pay with the median pay level of comparable male colleagues. In the case (Ref. No.: 8 AZR 300/24), the court held that gender-based discrimination is to be presumed where a woman earns less than a comparable male colleague, even if that colleague is a top earner. If the employer fails to rebut the presumption of gender-based pay discrimination, it must pay the remuneration earned by the male comparator included in the assessment. The full text of the decision has not yet been published. We will provide an update once the reasons for judgment are available.
Quick Hits
The Federal Labor Court of Germany ruled on October 23, 2025, that gender-based discrimination is presumed if a woman earns less than a comparable male colleague, even if he is a top earner.
The court clarified that the presumption of gender-based discrimination does not require a “preponderant probability” and that the size of the male comparator group and median pay levels are irrelevant; the employer must rebut the presumption if a female employee shows that a male colleague performing equivalent work is paid more.
Background
In the case at hand, a female employee sought retroactive equal pay with respect to several remuneration components of certain male colleagues. She based her claims, inter alia, on information provided by the employer in an intranet “dashboard” made available for the implementation of the German Pay Transparency Act (Entgelttransparenzgesetz). The pay of the comparators she identified exceeded the median pay level of all male employees in the same hierarchical tier. The employer argued that the cited top-earning colleagues did not perform the same work or work of equal value. It further submitted that the lower pay was justified by performance deficiencies on the employee’s part.
The Regional Labor Court of Baden-Württemberg (judgment of October 1, 2024 – Ref. No. 2 Sa 14/24) dismissed the employee’s claims for payment of the difference up to the pay of the highest-earning comparator and awarded only the difference up to the median. It reasoned that the presumption of gender-based discrimination could not be based solely on a single comparator of the other sex. Given the size of the male comparator group and the median pay levels of both sexes, there was, in its view, no preponderant probability of gender-based discrimination.
Decision of the Federal Labour Court
The Federal Labor Court partially set aside the decision of the Regional Labor Court and remitted the matter for further findings of fact.
However, the Federal Labor Court clarified that no “preponderant probability” of discrimination is required, as such a standard would be incompatible with EU law. Rather, gender-based discrimination is already to be presumed where the employee shows, and where necessary proves, that the employer pays a male colleague who performs the same work or work of equal value a higher pay level. It is then for the employer to rebut that presumption. The size of the male comparator group and the amount of the median pay levels of both groups of workers are irrelevant in the question of whether gender-based discrimination exists.
Outlook
Although the principle of “equal pay for equal work or work of equal value” and the requirement for a transparent pay structure already apply today, the Federal Labor Court’s judgment serves as a wake-up call for all companies that have still not prepared for the implementation of the European Union’s pay transparency directive (Directive (EU) 2023/970). The member states must implement the directive’s requirements by June 7, 2026. In Germany, an expert commission is expected to submit proposals to the competent ministry for implementing the pay transparency directive by the end of October 2025.
Teodora Ghiniou contributed to this article