BREAKING NEWS: EEO-1 Data Collection Opens
As projected, the 2024 EEO-1 Data Collection is officially open. The deadline to file the 2024 EEO-1 Component 1 report is Tuesday, June 24, 2025. EEOC notes in its announcement that
[a]s part of the EEOC’s efforts to identify continued cost savings for the American public, there will be a shorter collection period during which filers may submit their 2024 reports. The collection period will not extend beyond the Tuesday, June 24, 2025 “Published Due Date” deadline.
The announcement also notes “all communications sent to filers will be electronic. No notifications about the 2024 collection will be sent to filers via postal mail.” In past years, EEOC has sent paper notices of non-compliance following closure of the collection period.
In addition to the announcement, EEOC also posted a message from Acting EEOC Chair Andrea Lucas. Acting Chair Lucas reminds filers of their “obligations under Title VII not to take any employment actions based on, or motivated in whole or in part by, an employee’s race, sex, or other protected characteristics.” She reiterates
[t]here is no “diversity” exception to Title VII’s requirements.
Her message also relays the recent Executive Order directive to agencies to deprioritize “disparate impact” enforcement noting “[t]he EEOC is an executive branch agency, not an independent agency. We will fully and robustly comply with this and all Executive Orders. Under my leadership, the EEOC will prioritize remedying intentional discrimination claims.”
In closing, Acting Director Lucas again reminds filers they “must not use the information collected and reported in your organization’s EEO-1 Component 1 report to justify treating employees differently based on their race, sex, or other protected characteristic” and notes the “EEOC remains committed to helping employers comply with their obligations under federal employment antidiscrimination laws.”
We will continue to monitor this story and bring you any additional updates.
2025 Labor & Employment and Employee Benefits Hot Topics [Video]
Every day, employers face an evolving landscape of labor and employment legal challenges. Navigating these challenges requires thoughtful planning and skilled guidance in order to maintain an accommodating and legally sound workplace. Together, Jones Walker’s Labor & Employment Practice Group and Employee Benefits Team have put together a list of key issues that impact business operations helping employers understand these issues and ensuring their business remains compliant.
Accommodation and Leave
Americans with Disabilities Act (ADA) issues concerning reasonable accommodations and the interactive process
Leave requirements under the ADA and applicable state and federal laws
Pregnancy accommodation requirements
Latest hot topic issues under the Family & Medical Leave Act
Wage and Hour
Fair Labor Standards Act (FLSA) classification issues and navigating the salary basis and duties tests under the FLSA
Impact of incentive bonuses on overtime rates
Proper recording of employee worktime
Employee Benefits
Employer group health plan coverage remaining in effect for employees who are on leave or no longer working full time and who under the terms of the plan should be issued a COBRA notice
Failure to properly compute compensation for purposes of 401(k) deferral and matching contributions
Rehired employees who should be immediately eligible and vested under the employer’s 401(k) plan, based on prior service
Self-funded health plans that have not completed a non-quantitative treatment limitation (NQTL) analysis (regarding mental health parity requirements)
Lack of a prudent process for review of 401(k) investments and fees or regular RFPS for recordkeeper services, risking class action litigation for breach of fiduciary duty
Workplace Management
Handling employee complaints
Employee leave situations
Minimizing the risk for discrimination claims in connection with terminations
Social media violations — evaluating discipline/terminations in the context of compliance with the National Labor Relations Act
Health and Safety
Proper Occupational Safety and Health Administration (OSHA) recordkeeping
Benefit of company internal OSHA audits
Assistance in handling OSHA inspections
Trump administration changes and effects on enforcement
Immigration Compliance
Immigration and I-9 compliance/ICE raids and proper handling given the new White House administration
There are Two Sides to Every Story — Eleventh Circuit Grapples With Discrimination Standard
Anyone who has ever made an employment decision has probably been confronted with two (or more) very different interpretations of the same story. When faced with differing narratives of a workplace occurrence, how does one determine whether there is enough evidence to decide on something as important as whether an employee will keep their job?
The U.S. Court of Appeals for the Eleventh Circuit — the federal appellate court hearing cases from Florida, Georgia, and Alabama — confronted this question in a recent case involving two employees of a coal company who were terminated for refusing to submit to a drug test. In the case, Demarkus Hall and Eddie Hughes v. Coal Bed Services, Inc. and Pate Holdings, the Eleventh Circuit must now decide whether to affirm a decision by the district court, which awarded summary judgment in favor of the employer, dismissing the case.
The basic facts are these: Mr. Hall and Mr. Hughes were African American employees who complained of being assigned less desirable jobs and being passed over for training opportunities. Among other things, they also claim that (as opposed to white employees) a supervisor would not call them by their names. On the day at issue, Mr. Hall and Mr. Hughes were subjected to a drug screen of all employees on the job site. Mr. Hall and Mr. Hughes refused the drug test, as did at least one white employee. A white employee who refused the test was allowed to return to work after agreeing to submit to random drug testing. Mr. Hall and Mr. Hughes also asked to return to work but were denied, and the company terminated their employment. They then sued, alleging race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
The district court granted summary judgment in favor of the employer, finding that the employee who was allowed to return to work despite refusing the drug test was not a valid comparator. Specifically, the court concluded that the white employee was not similarly situated in all respects because he had been employed by the company longer and was not in the same exact position as Mr. Hall and Mr. Hughes. The District Court also held that Mr. Hughes and Mr. Hall had not presented a “convincing mosaic” of circumstantial evidence that would support an inference of discrimination because their evidence consisted solely of “bits and pieces.” The district court finally concluded that the employer had presented a non-pretextual reason for its decision to terminate Mr. Hall and Mr. Hughes due to their drug test refusal, because they had been employed for less time with the company and overall had less experience.
Mr. Hall and Mr. Hughes appealed this ruling to the Eleventh Circuit, and the EEOC filed an amicus brief supporting the former employees’ position. The two basic issues heard before the court in oral argument on May 6, 2025, were: (1) how close must a comparator be in deciding whether an employee is subjected to disparate treatment; and (2) how much evidence is required to establish a “convincing mosaic” of discrimination? At oral argument, Judge Newsom reminded company counsel of something all employers ought to keep in mind when making employment decisions: “But it seems to me, there are two stories to tell.”
The three judges hearing the case did not necessarily tip their hand on how they would decide, though one judge did encourage the parties to mediate or settle the case. For now, though, the case is a good reminder that employers should always consider all sides of the story (including treatment of other employees) before deciding what to do, and that things may not always be as crystal clear as originally thought. The decisions will not always be easy, but this case is a reminder to take all considerations into account before making them.
Basics of Lactation Accommodation in the Golden State
California and federal laws require lactation accommodations for breastfeeding employees. The federal lactation accommodation law called the PUMP Act has many of the same requirements as the state law, however there are some details of state law that California employers should take note of.
Here are the key points employers need to know.
California’s lactation accommodation laws are among the most comprehensive in the United States. Under California Labor Code Sections 1030-1034, employers are required to provide:
Reasonable Break Time: Employers must provide reasonable break time for employees to express breast milk. This break time should ideally coincide with any existing break time provided to the employee. If it doesn’t, the break time for expressing milk does not need to be paid.
Private Space: employers must provide a room or other location, other than a bathroom, in close proximity to the employee’s work area, which is private and free from intrusion while the employee is expressing milk. The location must be safe, clean, and free of hazardous materials and have the following:
A surface for a breast pump and personal items;
A place to sit; and
Have access to electricity or alternative devices like extension cords.
Moreover, the employee must have access to a sink with running water and a refrigerator or other cooling device suitable for storing milk in close proximity to the employee’s workspace.
“No Kings Day” Protests Set to Disrupt Trump’s $45M Birthday Military Parade
“No Kings Day” Protests Set to Disrupt Trump’s $45M Birthday Military Parade. On June 14, a date that commemorates both the 250th anniversary of the U.S. Army and the 79th birthday of former President Donald J. Trump, the streets of the nation’s capital are expected to swell, not only with tanks, soldiers, and fighter jets, […]
Beltway Buzz, May 16, 2025
The Beltway Buzz™ is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
Republican Legislators Push Ahead With Agenda. This week, the U.S. House of Representatives’ Committee on Ways and Means advanced—on a party-line 26–19 vote—a tax reform package that included Republicans’ top fiscal priorities. The bill makes permanent many provisions of the 2017 Tax Cuts and Jobs Act and includes other measures, such as an expansion of the child tax credit. Of particular interest to the Buzz, the bill also provides temporary (2025 through 2028 tax years) above-the-line deductions for qualified tips and overtime premium pay. There is still quite a long way to go for this bill, and changes are expected, especially considering that some Republicans in the U.S. Senate have already expressed some reservations about the proposal.
OMB Approves EEO-1 Changes. On May 12, 2025, the Office of Management and Budget (OMB) approved changes to the EEO-1 form that removes employers’ option to disclose non-binary employee data. The U.S. Equal Employment Opportunity Commission (EEOC) requested the changes pursuant to President Trump’s Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The proposed instruction booklet filed with OMB indicates that the 2024 EEO-1 filing period would begin on May 20, 2025. There has been no word yet from the EEOC in light of OMB’s approval of the change. Kiosha H. Dickey and James A. Patton, Jr. have the details.
PBGC Nominee on the Move. On May 15, 2025, the U.S. Senate Committee on Health, Education, Labor and Pensions voted to advance the nomination of Janet Dhillon to serve as the director of the Pension Benefit Guaranty Corporation (PBGC). Created by the Employee Retirement Income Security Act of 1974, PBGC protects workers’ retirement benefits through its single-employer and multiemployer insurance programs. Dhillon previously served as chair of the EEOC. Her nomination now awaits a vote on the Senate floor.
House Committee Examines OSHA. On May 15, 2025, the House Committee on Education and the Workforce’s Subcommittee on Workforce Protections held a hearing entitled “Reclaiming OSHA’s Mission: Ensuring Safety Without Overreach.” The hearing focused on the Occupational Safety and Health Administration’s (OSHA) regulatory and enforcement agenda during the Biden administration and “explore[d] common-sense solutions that can return OSHA to fulfilling its purpose of advancing workplace safety.” Legislators and witnesses discussed OSHA’s proposed heat standard, the final “walkaround rule,” and the Severe Violator Enforcement Program. With regard to OSHA’s heat proposal, Republicans and their witnesses criticized its one-size-fits-all proscriptions—arguments that are likely to be made at OSHA’s public hearing on the proposal in June.
Disparate Impact Follow-Up. President Trump’s recent executive order directing federal agencies to limit the use of disparate-impact theories of liability is having a ripple effect at implementing agencies and among stakeholders. Here is the latest fallout:
Department of Energy Rescinds Regulations. The U.S. Department of Energy—not an agency that we normally deal with at the Buzz—took steps this week to rescind forty-seven regulations. Included is a direct-to-final rule, entitled, “Rescinding Regulations Related to Nondiscrimination in Federally Assisted Programs or Activities (General Provisions).” With regard to a regulatory provision concerning nondiscrimination in federally assisted programs or activities, the direct-to-final rule states the following:
Furthermore, absent a specific, identified, instance of intentional discrimination, statistical information indicating that certain protected groups are underrepresented in some occupations or professions does not obligate any FFA [federal financial assistance] recipient to take remedial or affirmative action under this part. To the contrary, any affirmative action for which “measures of success” depend on “whether some proportional goal has been reached” amounts to “outright racial balancing” which is “patently unconstitutional.” For these reasons, DOE is rescinding 10 CFR 1040.8 in its entirety.
Former EEO Officials Respond. While federal agencies begin implementing the executive order (EO), former EEOC and Office of Federal Contract Compliance Programs (OFCCP) officials issued a statement challenging the legal rationale underlying the EO, noting that President Trump’s executive order “may not change a clear statutory mandate and decades of legal precedent.” The statement further notes that contrary to the EO’s claim that the disparate impact theory eliminates meritocracy in the workplace, “disparate impact liability is a means to ensure that merit prevails and that unnecessary and unjustified criteria do not disqualify meritorious candidates on grounds linked to their race, sex, or other protected personal characteristic.” To be sure, the statement will have no impact on the administration’s current views, but it does serve as a reminder to employers and workers that while disparate impact may be deprioritized by the administration, it is still codified in federal law, has been affirmed by the Supreme Court of the United States, and is a viable legal theory for plaintiffs’ counsel.
Immigration: TPS Update.
In a notice published in the Federal Register on May 13, 2025, the U.S. Department of Homeland Security announced that it would not extend the designation of Afghanistan for Temporary Protected Status (TPS), which is set to terminate on May 20, 2025. Pursuant to the required sixty-day notice period, TPS for Afghanistan will now expire on July 14, 2025. According to the notice, “there are notable improvements in the security and economic situation such that requiring the return of Afghan nationals to Afghanistan does not pose a threat to their personal safety due to armed conflict or extraordinary and temporary conditions.”
Venezuela TPS. A bipartisan group of representatives has introduced the Venezuela TPS Act of 2025. The bill would automatically designate Venezuela for TPS for eighteen months—with an option for renewal—from the time the bill is enacted. Of course, enactment will be a significant challenge in the Republican-controlled U.S. Congress. Pursuant to a federal court ruling, Venezuela’s TPS designation has been extended through October 2, 2026, and work authorization remains valid through April 2, 2026.
RIP, Justice Souter. Supreme Court Justice David Souter died last week at the age of eighty-five. Appointed by President George H. W. Bush, Souter served on the Supreme Court from 1990 to 2009. The Buzz remembers Souter for his role in authoring two significant Supreme Court decisions on employment law. Souter authored the majority opinion in Faragher v. City of Boca Raton (1998), which held that “an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim.” Additionally, in Meacham v. Knolls Atomic Power Laboratory (2008)—a disparate-impact case under the Age Discrimination in Employment Act (ADEA) involving a reduction in force—the Court held that the employer, not the employee, has the burden of proving that its employment decision was based on reasonable factors other than age. Souter, writing for the 7–1 majority, stated that while “there is no denying that putting employers to the work of persuading factfinders that their choices are reasonable makes it harder and costlier to defend[,]” the Court must read the ADEA “the way Congress wrote it.”
Federal Court Nullifies EEOC Guidance on LGBTQ+ Protections
On May 15, 2025, a federal court vacated portions of the U.S. Equal Employment Opportunity Commission’s (EEOC) workplace harassment guidance, specifically, guidance on harassment based on sexual orientation and gender identity. The court vacated portions of the EEOC’s enforcement guidance because the EEOC allegedly “exceeded its statutory authority by issuing” it and by “requiring bathroom, dress, and pronoun accommodations inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.”
Quick Hits
A federal district court recently vacated parts of the EEOC’s guidance related to workplace harassment of LGBTQ+ employees.
Despite the Supreme Court’s holding in Bostock that discrimination based on sex in hiring or firing decisions violates Title VII’s prohibition on sex discrimination, the district court vacated the guidance based on the guidance’s “expanded” definition of sex discrimination to include sexual orientation and gender identity.
The court ruled that the EEOC exceeded its statutory authority by requiring accommodations related to bathrooms, dress, and pronouns, which it found inconsistent with Title VII of the Civil Rights Act of 1964 and recent Supreme Court precedent.
This decision follows President Trump’s executive order recognizing sex as binary and immutable, which has created uncertainty for employers regarding compliance with federal, state, and local antidiscrimination laws.
Background
In vacating the EEOC’s guidance related to LGBTQ+ workplace harassment, the U.S. District Court for the Northern District of Texas held that the EEOC’s April 2024 “Enforcement Guidance on Harassment in the Workplace” overstepped by stating Title VII’s prohibition on sex discrimination also prohibits discrimination based on sexual orientation or gender identity. The EEOC guidance flowed from the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia, where the Court ruled Title VII prohibits employers from firing workers for being “homosexual” or transgender. The Court specifically held: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” The Court’s key holding in Bostock went on to clearly state that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Following the Bostock decision, the EEOC published guidance in 2021 stating employers may not deny employees access to bathrooms, locker rooms, or showers aligning with gender identity. The 2021 guidance also stated an employer intentionally and repeatedly using an incorrect name or pronoun to refer to a transgender worker constituted unlawful harassment under Title VII. As noted in the district court’s memorandum opinion and order, the 2021 guidance was enjoined, but the EEOC issued new guidance in 2024, which the parties challenged.
On January 20, 2025, President Donald Trump released Executive Order 14168 (“Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”), which established that the federal government recognizes only two genders, male and female. This executive order instructed the EEOC to rescind portions of its harassment guidance that were inconsistent with the order.
On January 28, 2025, EEOC Acting Chair Andrea R. Lucas rolled back much of the Biden-era technical assistance related to discrimination and harassment against LGBTQ+ individuals. However, the April 2024 enforcement guidance has not been officially rescinded because the EEOC currently lacks a quorum.
The Court Order
The U.S. District Court for the Northern District of Texas granted summary judgment to the State of Texas and the Heritage Foundation, which had sued to block the EEOC’s 2024 guidance. The court concluded the EEOC may not legally:
define “sex” to include sexual orientation and gender identity; and
define “sexual orientation” and “gender identity” as a protected class under federal law; and
prohibit employers from repeatedly and intentionally using the wrong pronouns for transgender employees.
The court’s reasoning was based on its conclusion that the EEOC’s guidance is “final agency action” and that it “produces legal consequences and determines rights and obligations of covered employers.” According to the order, “the Guidance determines the legal obligations of employers in navigating accommodation requests from transgender employees.”
According to the court, the EEOC’s “Enforcement Guidance contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary. Second, the Enforcement Guidance contravenes Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.”
Next Steps
Employers will want to note that it is still unclear whether the court’s order—which states the guidance is “vacated”—has nationwide impact, making next steps unclear at this time. Moreover, the vacating of this guidance does not necessarily mean that employers are not required to abide by the EEOC’s enforcement guidance.
Despite the court’s order, employers should note that Bostock continues to be good law. Nevertheless, courts across the country have differed on whether the Bostock decision extends to bathrooms, locker rooms, showers, or similar facilities for employees to use, as well as pronoun and name usage. Various state and local laws and guidance both protect single-sex facility usage based on gender identity, and, alternatively (in government buildings), require usage of single-sex facilities based on birth sex. Indeed, many states and localities protect both gender identity as well as sexual orientation under relevant state and local antidiscrimination laws. Employers should carefully assess how to create and maintain workplaces free of harassment, discrimination, and retaliation under all applicable laws, including with regard to using employees’ names and pronouns.
Acting Chair Lucas and the Trump administration have indicated their opposition to the EEOC guidance at issue, so it is unlikely that they would appeal this case to a federal circuit court. Employers in all states may wish to review their policies and practices to ensure compliance with state and federal laws banning discrimination based on sex.
Ex Professor Accuses Penn State of Reverse Discrimination and Retaliation
Former Penn State writing professor Zack De Piero has filed a lawsuit against the university, alleging reverse discrimination and retaliation following his opposition to social justice and antiracist initiatives on campus.
Background
De Piero, a 40-year-old professor who identifies as white, claimed that his supervisors subjected him to embarrassment, harassment, and discrimination through various social justice and antiracism programs. He specifically objected to workshops and training sessions that required him to acknowledge “white privilege” and identify manifestations of “white supremacy” in culture and writing.
After lodging an internal complaint with the university, De Piero began to challenge the discourse on race during an online training session. Subsequently, other participants in the training filed a complaint against him, accusing him of bullying and harassment. The university’s investigation concluded that no bias or discrimination had been directed at De Piero or similarly situated individuals. However, it found that De Piero had engaged in aggressive and disruptive behavior. He received a written notice advising that his behavior was unacceptable and warning that future similar conduct could result in disciplinary action. His subsequent performance review reflected a decrease in two areas due to his disruptive behavior, although he received high marks for overall performance. Two months after receiving the review and shortly before the new school year began, De Piero resigned, later claiming constructive discharge.
The Suit
The lawsuit, initially filed in June 2023, alleges racial discrimination, a hostile work environment, and retaliation for exercising his First Amendment rights, in violation of the Civil Rights Act Title VII, 42 U.S.C. § 2000; 42 U.S.C. § 1983; 42 U.S.C. § 1981, and Pennsylvania’s Human Relations Act. The university responded with a motion to dismiss, arguing that engaging in uncomfortable discussions about race does not equate to race discrimination.
Ruling
On January 1, 2024, the Court partially granted and partially denied the defendants’ motion to dismiss. The Court reiterated the standards for each count alleged, noting that a claim of disparate treatment under Title VII, Section 1981, and the PHRA requires the plaintiff to demonstrate (1) membership in a protected class; (2) qualification for the position; (3) suffering an adverse employment action; and (4) circumstances suggesting intentional discrimination. The Court determined that the warning issued to De Piero was not disciplinary and that the negative performance rating did not materially alter his job conditions, as his contract was renewed and he received a raise.
On April 16, 2025, the Court dismissed the remainder of the case, granting Penn State’s motion for summary judgment. The Court rejected De Piero’s argument that institutional bias against his views on race created a hostile work environment, finding no evidence that his treatment deviated from legitimate workplace standards. The Court concluded that no reasonable jury could determine that De Piero was reprimanded or terminated due to his complaints.
The Legal Landscape
Given the recent ruling by the Supreme Court, which eliminated affirmative action in college admissions, the Trump Administration’s dismantling of DEI programs, and the current position of the Equal Employment Opportunity Commission’s (EEOC) focus on rooting out illegal DEI initiatives, claims such as these are expected to rise.
OMB Approves Proposed 2024 EEO-1 Instruction Booklet—Filing Site Expected to Open Soon
On May 12, 2025, the Office of Management and Budget (OMB) approved the 2024 EEO-1 Instruction Booklet submitted by the U.S. Equal Employment Opportunity Commission (EEOC) without changes. The now approved 2024 EEO-1 Component 1 Data Collection Instruction Booklet eliminates the option to report non-binary employees, stating that the reporting provides “only binary options (i.e., male or female) for reporting employee counts.” It also sets a shortened reporting period stating that the filing platform will open on May 20, 2025, and close on June 24, 2025.
Quick Hits
The OMP approved the EEOC’s proposed 2024 instruction booklet on EEO-1 data collection on May 12, 2025.
The approved 2024 instruction booklet states that the data collection period will open on May 20, 2025, and close at 11:00 p.m. (EDT) on June 24, 2025.
The approved 2024 instruction booklet removes the option to provide information about non-binary employees.
While the EEOC has not yet posted updates on the EEO-1 landing page, it is expected that the agency will promptly open the 2024 EEO-1 filing platform. While it is not clear if the platform will open on May 20, 2025, it is expected that once the EEOC opens the platform, it will set a filing period of five weeks. Due to the expected opening of the filing platform and the shortened filing period, EEO-1 filers may want to consider working now toward gathering the data necessary for the filings.
Changes to EEO-1 Report Approved
As an update to our previous post, the EEOC’s request for a non-substantive change to remove the option for employers to voluntarily report non-binary data on the EEO-1 data collection has been approved without change.
We are now waiting to see when EEOC will open the 2024 EEO data collection portal. In the proposed instructions filed with the requested change, EEOC indicated May 20, 2025 as the anticipated opening.
We are continuing to monitor the situation and will report back with any updates.
Equal Protection Not on the Menu This Time
In North End Chamber of Commerce (“NECC”) v. City of Boston, the NECC and several restaurants in the North End neighborhood of Boston (“Plaintiffs”) filed suit against the City of Boston (“City”), alleging that the City unlawfully curtailed and later banned on-street dining in the North End. The Court granted the City’s motion to dismiss Plaintiffs’ complaint (“Complaint”).
In response to the COVID-19 pandemic in 2020, the City implemented an outdoor-dining program authorizing restaurants in designated areas to offer dining on public streets. In 2022, the City imposed an “impact fee” of $7,500 on participating North End restaurants and a monthly fee of $480 for each parking space used by the restaurants’ outdoor patios. The City did not charge these fees to participating restaurants in any other Boston neighborhood. The City also limited the outdoor-dining season in the North End to five months, compared to the eight-to-nine months outside of the North End. The following year the City completely banned on-street dining in the North End but not elsewhere. Plaintiffs then filed the Complaint.
The City moved to dismiss, claiming the Complaint failed to state a claim upon which relief could be granted and that it violated Rule 8(a)(2) of the Federal Rules of Civil Procedure (“Rule 8”). The Court agreed with the City as to compliance with Rule 8. Rule 8 requires a plaintiff to write “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Court concluded that the Complaint, which was over two hundred pages long and “omitted virtually no detail,” contained excessive assertions that were unnecessary to advance the causes of action. The Court warned that “unnecessary prolixity” is disfavored by the Court because it imposes a significant burden on both the Court and the responding party.
Plaintiffs also claimed that the NECC lacked associational standing to sue either directly or on behalf of its members. The Court disagreed, holding that the NECC had standing to sue for its equitable relief claim, but did not have standing to sue for monetary damages. The NECC was not entitled to compensation for the various injuries suffered by its members, and the member restaurants were necessary parties to assess each of their damages separately.
The Court next concluded that Plaintiffs’ equal protection claims failed. First, the Court reasoned that Plaintiffs failed to allege the sort of discrimination that would trigger strict scrutiny. Strict scrutiny is triggered if the action in question burdens a suspect class, has discriminatory intent with respect to racial or national origin, or impinges upon a fundamental right. The Court disagreed that the Constitution vested Plaintiffs with a fundamental right to on-street-dining. Nor did the City’s policies explicitly differentiate among individuals based on a suspect classification, such as race, ethnicity, or national origin. The Court also disagreed that the City acted with discriminatory intent where Plaintiffs failed to identify a “clear pattern” of conduct historically targeting the North End or “white, Italian Americans.” Nor was there evidence that the regulations had disproportionate impact on persons of Italian heritage. Plaintiffs therefore failed to plausibly allege the sort of discrimination that would trigger strict scrutiny.
The Court proceeded to apply rational-basis review, under which a classification will withstand a constitutional challenge so long as it is rationally related to a legitimate state interest and is neither arbitrary, unreasonable nor irrational. Here, to justify the fees imposed on Plaintiffs, the City considered the “unique impacts of outdoor dining on the quality of residential life,” such as “trash, rodents, traffic, and parking problems.” To justify the ban on on-street dining in the North End, the City cited the North End’s high density of restaurants and foot traffic, narrow streets and sidewalks, resident parking scarcity, and other related considerations. The City also pointed to the scheduled closures of the Sumner Tunnel and continued congestion around the North Washington Street Bridge construction project. The Court concluded that the City’s explanations for the policies sufficiently showed that the reasons underlying the policies were rationally related to legitimate government interests.
The Court also addressed Plaintiffs’ “class-of-one” claim, whereby an equal protection claim may in some circumstances be sustained when a plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference. The Court reasoned that neither the neighborhood itself nor the restaurants therein were similarly situated to those outside the North End because the North End is exceptionally dense and located adjacent to two major construction projects. The Court also held that Plaintiffs failed to plausibly plead that the City acted with bad faith or had malicious intent to injure them, and therefore concluded that the Complaint failed to plausibly plead a class-of-one claim.
Plaintiffs also asserted violations of procedural and substantive due process. As the Court explained, the former ensures that government will use fair procedures with respect to a constitutionally protected property interest, and the latter functions to protect individuals from particularly offensive actions by officials even when the government employs facially neutral procedures in carrying out those actions. The Court held that both claims failed because Plaintiffs plainly did not have a property interest in on-street-dining licenses.
Finally, Plaintiffs alleged that the impact and parking fees imposed on Plaintiffs for the outdoor-dining program constituted an unlawful tax. The Court disagreed. The fees were not an unlawful tax where: (1) they were charged in exchange for a benefit (a permit to authorize on-street dining that would otherwise be unlawful); (2) Plaintiffs paid the fee by choice, and had the option to avoid the charge by not participating in the program; and (3) the charges were collected to compensate the governmental for its expenses in providing the services rather than to raise revenue. For example, the impact fee paid for services that were related to the program, including rat baiting, power washing of sidewalks, and painting of street lane lines. The parking fees were paid directly to garages to provide parking for residents who lost it as a result of the outdoor-dining program. Plaintiffs therefore failed to show that the fees were unlawful taxes.
For all these reasons, the Court allowed the City’s Motion to Dismiss.
Employment Law This Week – Episode 390 – Independent Contractor Rule, EEO-1 Reporting, and New York Labor Law Amendment [Video, Podcast]
This week, we’re covering the U.S. Department of Labor’s (DOL’s) decision to halt enforcement of the Biden-era independent contractor rule, the upcoming EEO-1 reporting season (starting on May 20), and New York State’s new labor law amendment, reducing damages for first-time frequency-of-pay violations.
DOL Halts Enforcement of Independent Contractor Rule
The DOL will no longer enforce the Biden-era independent contractor rule, which sought to tighten the criteria under which a hired worker can be considered an independent contractor for purposes of the Fair Labor Standards Act. The agency will now revert to the less stringent “economic realities” test.
EEO-1 Reporting Begins Soon
The proposed 2024 EEO-1 Component 1 data collection season is scheduled to begin on May 20, with a deadline to file by June 24. As expected, Component 2 pay data collection will not be required this year or in the coming years.
New York Amends Labor Law to Limit Damages in Frequency-of-Pay Lawsuits
New York Governor Kathy Hochul signed into law a budget bill that includes an amendment to the New York Labor Law that dramatically limits the relief employees can seek for first-time violations of frequency-of-pay provisions.