Wearable Technologies and Employment Risks – EEOC Issues New Guidance
From smart watches to exoskeletons, wearable technologies are quickly changing the landscape of the American workplace. Several states and administrative agencies have responded to this shift by enacting new laws and issuing regulatory guidance concerning the use of such technologies. The latest of these responses includes a fact sheet issued by the U.S. Equal Employment Opportunity Commission (EEOC) titled “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws.” The fact sheet provides guidance on how employers can use wearable technologies while maintaining compliance with various federal employment laws. More broadly, the fact sheet signals growing concern over the use of employee-monitoring technologies.
The General State of Wearable Technologies
Wearable technologies are digital devices worn or carried by employees that are used to track and collect certain types of information. Smart watches and GPS devices are common examples of wearable technologies. However, wearable technologies include a broad range of devices, such as environmental or proximity sensors which alert employees of nearby hazards, smart glasses or helmets which measure electrical activity in the brain, and exoskeletons which provide employees with increased strength and mobility.
Wearable technologies are becoming increasingly common in the workplace – and for good reason. By augmenting employees’ physical and perceptual abilities, these technologies can enhance workplace productivity and safety. Wearable technologies can be particularly valuable for companies struggling with an aging workforce or shortages of skilled labor. They can also be particularly valuable in construction, manufacturing, and warehousing industries which experience hundreds of thousands of non-fatal injuries and thousands of fatal injuries per year.
However, these benefits come with risks. One of the biggest risks is employee privacy. Several state and federal laws, such as the Americans with Disabilities Act (ADA) and state biometric information laws, protect certain information given by employees to their employers. Other risks include employee health, data security, and data interpretation. Since the wearable technologies industry is likely to expand in the future, government regulators have started to enact new laws and to adapt existing laws to account for these risks. The EEOC fact sheet on wearable technologies represents one piece related to this growing concern.
EEOC Guidance on Wearable Technologies
The EEOC’s recent guidance on wearable technologies provides several important considerations for employers. The EEOC has explained how employers can implement wearable technologies in the workplace while maintaining compliance with a variety of federal employment laws. It remains to be seen whether the EEOC under the Trump Administration will rescind or amend this guidance that was issued at the end of Biden’s Administration.
Medical Examinations and Disability-Related Inquiries
The EEOC’s guidance provides that wearable technologies may constitute “medical examinations” and/or “disability-related inquiries” in violation of the ADA.
To determine whether a test or procedure is a medical examination under the ADA, the EEOC will consider several factors, including whether the test measures an employee’s performance, whether the test is normally given in a medical setting, and whether medical equipment is used. Wearable technologies may be deemed to be conducting medical examinations when they track and collect information about an employee’s physical or mental condition, such as blood pressure monitors and eye trackers. Wearable technologies may also be deemed to be conducting medical examinations where they are conducting diagnostic testing, such as EEGs.
Disability-related inquiries, on the other hand, are questions that are likely to elicit information about an employee’s disability. Employers may be making disability-related inquiries where employees are required to provide health information, such as information about prescription drug use or a disability, in connection with using wearable technologies.
The ADA generally limits medical examinations and disability-related inquiries to situations where they are “job related and consistent with business necessity.” This may include situations where an employee makes a request for reasonable accommodation or where an employer is concerned that an employee poses a direct threat of serious harm due to their medical condition. Medical examinations and disability-related inquiries are also permitted: (1) when required under federal law or safety regulations; (2) for certain employees in positions affecting public safety, such as police officers or firefighters; and (3) when they are voluntary and part of an employee health program. If an employer uses wearable technologies to conduct medical examinations or disability-related inquiries outside of one of these exceptions, under the EEOC’s guidance, the employer risks violating the ADA.
Non-Discrimination
The EEOC’s guidance also provides that employers must not use information collected by wearable technologies to discriminate against employees based on a protected characteristic. Protected characteristics include, but are not limited to, race, color, religion, sex, national origin, age, disability, and genetic information.
For example, according to the EEOC, employers may violate non-discrimination laws by:
Using data from wearable technologies to infer that an employee is pregnant, then taking an adverse action against the employee as a result.
Relying on data from wearable technologies which produces less accurate results for certain protected classes, then taking adverse actions against those employees based on that data.
Tracking an employee to a medical center and then researching the purpose of the employee’s visit in a way that elicits genetic information.
Moreover, employers may not selectively use wearable technologies on a discriminatory basis nor use information from wearable technologies to make employment decisions which have a disproportionate adverse effect on the basis of a protected characteristic.
Reasonable Accommodations
The EEOC’s guidance also suggests that employers may need to make exceptions to the use of wearable technologies as reasonable accommodations under Title VII (religious belief, practice, or observance), the ADA (disability), or the Pregnant Workers Fairness Act (pregnancy, childbirth or related medical conditions).
Confidentiality
If an employer collects medical or disability-related data from wearable technologies, the employer, generally, must maintain that data in separate medical files and treat it as confidential medical information.
Other Laws and Guidance on Wearable Technologies
The guidance expressed in the EEOC fact sheet is similar to that presented by other administrative agencies. For example, the National Labor Relations Board’s (NLRB) former General Counsel Jennifer Abruzzo issued a memorandum in October 2022 addressing various technologies in the workplace, including wearable technologies. The memorandum warned that wearable technologies may impair or negate employees’ ability to engage in protected activity due to “the potential for omnipresent surveillance.”
In addition, several state legislatures have enacted laws regulating employee-monitoring technologies, including wearable technologies. Some of these laws regulate the collection and handling of employee biometric information.[1] Other laws regulate certain forms of employee location tracking,[2] or regulate employee surveillance more broadly.[3]
Key Takeaways
Employers who use wearable technologies in the workplace should:
Assess the type of information collected by the wearable technologies and determine whether that collection would constitute an improper medical examination or disability-related inquiry under the ADA.
Evaluate the accuracy and validity of the information collected by the wearable technologies before making any adverse employment decisions based on that information.
Refrain from using information collected by wearable technologies to discriminate against employees on the basis of a protected characteristic.
Consider whether any state or local laws govern the use of wearable technologies or the information collected by the wearable technologies.
Because the legal framework governing wearable technologies is quickly evolving, employers would be wise to consult with employment counsel to ensure their continued compliance with federal and state laws, regulations, and guidance.
Note: Since this post was written, the EEOC Fact Sheet appears to have been removed from the EEOC website. This may indicate that the new administration is not inclined to follow or issue the same guidance.
FOOTNOTES
[1] See, e.g., 740 Ill. Comp. Stat. 14/1 et seq.; Tex. Bus. & Com. Code § 503.001; Wash. Rev. Code § 19.375; H.B. 24-1130, 74th Gen. Assemb., 2nd Reg Sess. (Colo. 2024).
[2] See, e.g., Haw. Rev. Stat. § 378‑102; N.J. Stat. Ann. § 34:6B-22; Cal. Penal Code § 637.7; N.H. Rev. Stat. § 644-A:4.
[3] See, e.g., N.Y. Civ. Rights Law § 52-C; Conn. Gen. Stat. Ann. § 31-48d.
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Love Actually (Might Cause Legal Troubles for Employers)
Valentine’s Day is around the corner, so the time is right to consider the legal pitfalls of office romances.
Quick Hits
A romantic entanglement between coworkers that ends badly could provoke a harassment or retaliation lawsuit.
Many employers discourage or prohibit dating between supervisors and employees.
A number of strategies can help employers reduce the legal risk of workplace romances.
While love can be a “many splendored thing,” workplace romances may sometimes lead to harassment lawsuits, retaliation lawsuits, workplace disruptions, or loss of valuable talent. While workplace romances are not per se illegal, relationship problems sometimes lead to unwanted attention, misunderstandings, or even unprofessional behavior in the workplace. Because employers are required to ensure that their employees aren’t subject to sexual harassment or retaliation at work, these situations, while ostensibly personal, can lead to company involvement.
While employers certainly don’t have a direct say in personal relationships, employers can implement policies that discourage or prohibit romantic relationships at the workplace, especially those between supervisors and supervisees. Such policies aim to prevent favoritism and conflicts of interest, especially where a supervisor would be in a position to help or harm their sweetheart’s (or ex-sweetheart’s) career either during a relationship or after the relationship has ended.
Finally, employers can direct employees to inform HR about workplace relationships to confirm that those relationships are consensual. Some employers ask dating employees to sign a “love contract,” asserting that their relationship is consensual and not sexual harassment. Such documentation protects both the company and the participants in the relationship.
Next Steps
To mitigate the legal risk of office romances, employers may want to consider:
reminding employees about written policies against harassment that occurs in person or online;
requiring professional behavior at the workplace, communicating this policy clearly with specific examples of what is (and is not) considered professional behavior, and stating the specific consequences for those who display unprofessional behavior at the workplace or work-related events;
providing anti-harassment training during work hours, and reminding workers that emails, texts, and other communications sent on the employer’s devices and networks may be monitored by the employer; and
requiring workers to report sexual harassment or retaliation to HR, a manager, or a confidential hotline, and reminding managers that it’s illegal to retaliate against an employee for reporting harassment.
New Massachusetts Employer EEO Reporting Begins Monday, February 3, 2025
As we previously reported, certain Massachusetts employers will now be required to annually submit Equal Employment Opportunity (EEO) reporting to the state. Massachusetts Governor Maura Healey signed the legislation into law in July 2024 and the first deadline arrives Monday, February 3, 2025. The Executive Office of Labor and Workforce Development recently issued FAQs clarifying what’s required.
Who Is Impacted: Employers with 100 or more employees in Massachusetts at any time during the prior calendar year and who are already required to submit EEO reports to the U.S. Equal Employment Opportunity Commission (EEOC).
What: Covered employers must submit copies of their EEO-1, EEO-3, and EEO-5 reports to the state secretary. Next year, they will need to submit copies of their EEO-1 and EEO-4 reports. Employers should file the same copy of the EEO report that they most recently filed with the EEOC. Large, multi-state employers should submit the report covering their Massachusetts establishments.
When: The EEO-1 reports must be submitted annually by February 1, 2025, and the other reports are due biannually by the same date with EEO-3 and EEO-5 reports due this year and EEO-4 reports due next year. Since February 1st falls on a Saturday this year, the reports are due Monday, February 3, 2025.
Where: Reports can be submitted to the Secretary of State’s office through a web portal. They can be submitted in PDF, JPG, or PNG format.
The new law additionally requires employers with 25 or more employees in Massachusetts to include salary ranges in job postings. This requirement was originally set to take effect on July 31, 2025 but the posted FAQs indicate that it has been pushed back to October 29, 2025. The state has also indicated it will publish additional guidance on these new job posting requirements at a later date.
Legal Precedents Offer Novel Ways for Federal Employee Whistleblowers to Fight Retaliation
The system of anti-retaliation protections for federal employees who blow the whistle or speak out about their agency’s conduct is infamously weak. Under the Whistleblower Protection Act (WPA) and other laws, federal employees seeking relief for an adverse action taken against them for whistleblowing must rely on the Merit Systems Protection Board (MSPB). This quasi-judicial entity is plagued by delays and threatened by politicization.
However, there are several potentially effective but under-utilized legal precedents that can permit federal employees facing retaliation to obtain relief in federal court and not solely rely on the WPA for relief. These precedents have been established by the U.S. Courts of Appeal for the District of Columbia and Fourth Circuits, and offer novel ways to have cases heard in federal court or otherwise bolster retaliation complaints. By utilizing these methods, federal employees can feel more confident and in control, knowing they have better chances of gaining meaningful relief if they face retaliation for whistleblowing, oppose discrimination, prevent the violation of their privacy, and enforce their rights to engage in outside First Amendment protected speech.
First Amendment Rights for Federal Employees
The landmark 1995 case Sanjour v. EPA upheld the First Amendment rights of federal employees to criticize the government in activities outside their employment. This created a legal precedent that provides a strong shield for federal employees to make First Amendment challenges to agency regulations stifling whistleblowing when made outside of work. The case permits federal employees at the GS-15 level or below (higher level federal workers were not discussed in the decision, as the applicant for relief was at the GS-15 level) to seek pre-enforcement injunctive relief if a rule or regulation (which would include an Executive Order) has an improper chilling effect on First Amendment protected speech of an employee’s outside speaking or writing.
William Sanjour was the branch chief of the Hazardous Waste Management Division within the EPA who challenged rules written by the Federal Office of Government Ethics that restricted EPA workers’ rights to speak to environmental community groups.
Because the EPA had warned Sanjour that his acceptance of a cost reimbursement for travelling to North Carolina to give a speech critical of EPA policies concerning waste incineration was in violation of a regulation and could result in adverse action, Sanjour could challenge the “chilling effect” on speech of the government’s rule. The D.C. Circuit upheld the constitutional challenge to a regulation that had a chilling effect on First Amendment protected speech.
If he had waited until he was subjected to retaliation he would have been required to use the WPA to remedy the adverse action. But because Sanjour was challenging an unconstitutional chilling effect of a government regulation, he could obtain injunctive relief directly in federal court and avoid the long delays and other problems when pursuing a case before the presidentially appointed MSPB.
The key precedent established in Sanjour v. EPA, by the U.S. Court of Appeals for the District of Columbia Circuit, was that the Court could issue a nationwide injunction preventing the implementation of the regulation because of its chilling effect on the First Amendment right of employees to criticize the federal government. The court recognized that federal employee speech to the public on matters of “public concern” was protected under the First Amendment, and served a critical role in alerting the public to vital issues:
“The regulations challenged here throttle a great deal of speech in the name of curbing government employees’ improper enrichment from their public office. Upon careful review, however, we do not think that the government has carried its burden to demonstrate that the regulations advance that interest in a manner justifying the significant burden imposed on First Amendment rights.”
The precedent in Sanjour v. EPA means that federal employees who plan on making public statements (outside speaking or writing on matters of public concern) can seek a federal court injunction preventing future retaliation based on their First Amendment rights, if they have a reasonable basis to believe that their government employer would take adverse action against them if they made the public disclosures or violated the regulation. Significantly, First Amendment protected speech should cover criticisms of government policy. Policy disagreements alone may not even be covered under the WPA.
The Sanjour case covers outside speaking and writing, not workplace activities. It affirms a federal employee’s right to engage in conduct such as TV interviews, writing op-eds, and speaking before public interest groups, even if the speech engaged in is highly critical of the government or their government-employer. However, employees would have to give a disclaimer making sure that the public understood they were speaking in their private capacity, and the employee could not release confidential information.
Mixed Cases Combining Title VII Discrimination with Whistleblower Retaliation
Precedent established by two landmark federal employee whistleblower retaliation cases holds that federal employees may have their WPA retaliation case heard in federal court in instances where it is a “mixed case” that also involves discrimination or retaliation under Title VII of the Civil Rights Act. The scope of retaliation covered under Title VII is broader than the coverage under the WPA, and by combining both claims a federal employee can significantly increase both their procedural and substantive rights.
Specifically, when an employee is a member of a protected class (Title VII covers race, religion, sex, national origin, among other classes) it is often hard to distinguish whether retaliation originates from their membership in a protected class, their filing complaints of retaliation under Title VII, or their filing complaints of retaliation covered by the WPA. There is often significant overlap in these types of cases.
While federal employees’ retaliation cases under the WPA are forced to remain with the MSPB, under the Civil Service Reform Act, discrimination cases (and cases of retaliation based on protected activities or whistleblowing covered under Title VII) may be removed to federal court if the MSPB does not issue a final ruling within 120 days.
Dr. Duane Bonds was a top researcher at the National Institutes of Health on sickle cell disease who blew the whistle on the unauthorized cloning of participants’ cells. Dr. Bonds faced retaliation for blowing the whistle, including sex discrimination, harassment in the workplace, and eventual termination.
In 2011, the United States Court of Appeals for the Fourth Circuit ruled in Bonds v. Leavitt that Dr. Bonds’ retaliation and discrimination complaint must be considered a “mixed case” and heard together. Under the Civil Service Reform Act, the court allowed Dr. Bonds to pursue her mixed discrimination and retaliation case before a federal court, and she was not required to continue to pursue her WPA case before the MSPB.
In its ruling in Bonds v. Leavitt, the Fourth Circuit cited an earlier D.C. Circuit ruling in Ikossi v. Department of Navy, which similarly allowed a female whistleblower to pursue a “mixed case” alleging both retaliation and discrimination in federal court. Kiki Ikossi was retaliated against after filing complaints to the Navy Research Lab HR Office for workplace gender discrimination in the early 2000s.
The Bonds and Ikossi decisions are controlling precedent in both the District of Columbia and Fourth Circuit judicial circuits. Thus, these precedents would be binding of federal courts in the District of Columbia, Maryland, and Virginia.
The precedents in Bonds v. Leavitt and Ikossi v. Department of Navy mean that federal employees who face discrimination in addition to retaliation may combine their complaints and pursue their case in federal court if the MSPB delays a ruling (which is the norm given its backlog of cases). However, the rules permitting a mixed case are complex, and require employees to identify their invocation of that right when filing an initial complaint. By carefully following the complex timing and filing requirements mandated under both the WPA and Title VII an employee can have his or her whistleblower case can be heard in federal court, and avoid many of the problems associated with cases pending before the MSPB.
Privacy Act Rights for Federal Employees
Linda Tripp is most famous for her role in the impeachment of President Clinton. However, her retaliation case established a strong precedent protecting federal employees under the Privacy Act. Tripp successfully challenged the Department of Defense when it illegally released confidential information from her security clearance file.
The illegally released file was an act of retaliation for her role in presidential impeachment proceedings. However, Tripp did not seek relief under the WPA. Instead, she was able to bring a Privacy Act complaint before a federal court. The Privacy Act covers requests for information concerning yourself, and federal employees are covered under the law with the same rights as other non-government employees. The Privacy Act prevents federal agencies from collecting or maintaining information based on an individual’s First Amendment activities, it prevents the improper disclosure of information to various persons, including any personal information a government employee or manager may provide to individuals outside of the federal government.
The Privacy Act requires the federal government to provide applicants access to all government records related to the applicant that are not restricted from access under very specific exemptions. Once obtaining the documents a the requestor can request correction of any inaccurate information, or inclusion into a file of the requestor’s statement as to why the documents are not accurate. It requires agencies to maintain a record of who they share information with. The law prohibits improper leaks of information. Moreover, of particular interest to whistleblowers, the law prohibits the government from maintaining records related to any person’s First Amendment protected activities.
The law provides all persons, including federal employees, the right to file a lawsuit in federal court to obtain access to their files and seek damages for the actual harm caused by any leaks or violations of the law. A court can also order an agency to correct information in government files that are inaccurate and prevent agencies from maintaining information in violation of law. Persons who filed successful Privacy Act complaints are entitled to attorney fees and costs related to their lawsuit.
Thus, the Privacy Act offers numerous potential avenues for a whistleblower to use those provisions to obtain protection, information, and relief. For example, as in the Tripp case, when the federal government leaked information covered under the Privacy Act to discredit her, Tripp successfully pursued a Privacy Act for damages and fees. She could attack the illegal retaliation caused by the leak of information through the Privacy Act, and avoid the many limitations of the WPA.
Conclusion
For decades, attempts to reform the WPA and give federal employees the right to have whistleblower retaliation cases heard in federal courts have stalled. Over the years, however, legal challenges to retaliation that avoid the limits of the WPA have produced strong precedents allowing specific federal employees to pursue cases in federal courts as long as they strictly follow the correct technical procedures required under each of the specific law or Constitutional provision.
Federal employee whistleblowers are essential to rooting out fraud, abuse, and misconduct throughout the government. Leveraging these strong legal precedents, which can supplement remedies offered under the WPA, can offer critical avenues to protect federal employees from retaliation and ensure they receive the proper relief when it occurs.
Useful Resources
Government Webpages:
Overview Of Federal Sector EEO Complaint Process
U.S. Office of Special Counsel
U.S. Merit Systems Protection Board
Privacy Act of 1974
Minneapolis Settles $600,000 Lawsuit Over Derek Chauvin Incident
Minneapolis Settles $600,000 Lawsuit Over Derek Chauvin Incident. Minneapolis has agreed to pay $600,000 to settle a lawsuit filed by a woman who accused former Officer Derek Chauvin of using excessive force in a 2020 incident, which bears striking similarities to the event that led to the death of George Floyd four months later. The […]
U.S. Department of Education Confirms That It Will Enforce 2020 Title IX Rule
On January 31, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter” (DCL) announcing that it would enforce Title IX of the Education Amendments of 1972 under the provisions of the 2020 Title IX Rule, rather than the recently invalidated 2024 Title IX Final Rule.
The DCL and Executive Order 14168 (“Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”) have significant implications for schools, colleges, universities, and other recipients of federal financial assistance that are subject to Title IX. These institutions will likely need to review and revise their policies, procedures, and practices to ensure compliance with the 2020 Title IX Rule and the executive order and to prepare for potential enforcement action by OCR or the U.S. Department of Justice.
Quick Hits
OCR will enforce Title IX protections under the 2020 Title IX Rule, not the 2024 Title IX Final Rule.
The 2020 Title IX Rule provides procedural protections for complainants and respondents and requires supportive measures.
The 2024 Title IX Final Rule, which was criticized for impermissibly expanding the definition of “sex” to include gender identity and other categories, has been invalidated by federal courts.
OCR’s new course for enforcement aligns with Executive Order 14168. The 2020 Title IX Rule, issued by the first Trump administration in May 2020, defines “sexual harassment,” provides procedural protections for complainants and respondents, requires the provision of supportive measures to complainants, and clarifies school-level reporting processes. The 2024 Title IX Final Rule, issued by the Biden administration in April 2024, expanded the definition of “on the basis of sex” to include gender identity, sex stereotypes, sex characteristics, and sexual orientation, and mandated that schools allow students and employees to access facilities, programs, and activities consistent with their self-identified gender.
The DCL follows a series of federal court decisions that vacated or enjoined the 2024 Title IX Final Rule, finding that it violated the plain text and original meaning of Title IX, which prohibits discrimination on the basis of sex in federally funded education programs and activities. The most recent decision, issued by the U.S. District Court for the Eastern District of Kentucky on January 9, 2025, stated that the 2024 Title IX Final Rule “turn[ed] Title IX on its head” by allowing males to identify as and thus become women and vice versa, and by requiring schools to treat such claims as valid. The court also noted that “every court presented with a challenge to the [2024 Title IX] Final Rule has indicated that it is unlawful.” On this note, the DCL states that OCR’s enforcement measures will interpret the word “sex” to mean “the objective, immutable characteristic of being born male or female.”
The DCL also aligns with President Trump’s Executive Order 14168, issued on January 20, 2025, after the president was sworn in for his second term of office. The executive order declares that “[i]t is the policy of the United States to recognize two sexes, male and female” that are “not changeable and are grounded in fundamental and incontrovertible reality.” It directs all executive agencies and departments to “enforce all sex-protective laws to promote this reality,” to use “clear and accurate language and policies that recognize women are biologically female, and men are biologically male,” and to refrain from using federal funds to “promote gender ideology,” a concept that the executive order defines as including a “spectrum of genders that are disconnected from one’s sex.”
The executive order also rescinds several previous executive orders, presidential memoranda, and agency guidance documents issued by the Biden administration that addressed sexual orientation and gender identity issues. The order instructs the attorney general to issue guidance to agencies to “correct” what it describes as the “misapplication of the Supreme Court’s decision in Bostock v. Clayton County, Georgia (2020) to sex-based distinctions in agency activities.” (In Bostock, the Supreme Court of the United States held that Title VII of the Civil Rights Act of 1964’s prohibition against unlawful sex discrimination encompassed discrimination based on sexual orientation or gender identity.)
The executive order authorizes agency action to “ensure that intimate spaces [such as prisons, shelters, and bathrooms] designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity.” It also prohibits the use of federal funds “for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
Next Steps
In light of OCR’s “Dear Colleague Letter” and President Trump’s Executive Order 14168, schools, colleges, universities, and other recipients of federal financial assistance may want to consider:
reviewing and revising their policies, procedures, and practices to ensure compliance with the 2020 Title IX Rule and executive order; and
providing training and education to staff, faculty, and students on the new requirements and changes related to Title IX enforcement.
Beltway Buzz, January 31, 2025
NLRB: President Trump Fires GC Abruzzo, Member Wilcox. With the arrival of the new Trump administration, many labor policy watchers have been wondering when President Donald Trump would take action regarding the National Labor Relations Board (NLRB). Well, this week, President Trump not only fired NLRB General Counsel Jennifer Abruzzo (which was widely anticipated), but he also dismissed Board Member Gwynne Wilcox. The moves leave the Board in a state of legal limbo, as the remaining Board members—Chair Marvin Kaplan, a Republican, and Member David Prouty, a Democrat—do not constitute an operating forum (though routine operations of the Board—such as processing election petitions—will continue). Moreover, filling Abruzzo’s place is Acting General Counsel Jessica Rutter, who is unlikely to make moves to reverse the Board’s controversial decisions that we’ve chronicled at the Buzz. Jennifer G. Betts, Rodolfo R. Agraz, and Zachary V. Zagger have the details.
Administration Offers Federal Employees “Deferred Resignation” Option. The Office of Personnel Management (OPM) this week presented most federal employees with an employment buyout option: (1) stay in their current positions without “full assurance regarding the certainty” of the viability of the position or agency; or (2) resign by February 6, 2025, and “retain all pay and benefits regardless of your daily workload … until September 30, 2025.” Frequently Asked Questions that accompany the directive clarify that employees are not expected to work during the deferred resignation period. The directive comports with the administration’s goals of returning federal employees to in-person work and creating a “[m]ore streamlined and flexible workforce.” While there are many layers to this issue—including potential legal challenges and the roles that union contracts may play—significant federal employee departures could result in administrative disruptions and backlogs at agencies such as the NLRB, U.S. Equal Employment Opportunity Commission (EEOC), U.S. Department of Labor (DOL), and the U.S. Department of Homeland Security (DHS), and may trickle down to employers in the form of delayed agency responses and processing times.
EEOC Commissioners and GC Removed. According to media reports, President Trump has removed EEOC Commissioners Charlotte A. Burrows and Jocelyn Samuels, and also discharged EEOC General Counsel Karla Gilbride. While Gilbride’s removal was expected—President Biden removed Sharon Fast Gustafson in March 2021—the removal of sitting commissioners is unprecedented. Title VII of the Civil Rights Act of 1964 creates staggered five-year terms for EEOC commissioners, but it does not establish a process for removal. Samuels’s and Burrows’s terms were set to expire in mid-2026 and 2028, respectively, which would have assured Democratic control of the Commission for one and a half years into President Trump’s administration. Now only Kalpana Kotagal, a Democrat, and Acting Chair Andrea Lucas, a Republican, remain on the Commission, leaving it without a functioning quorum (day-to-day enforcement and litigation activities will continue even in the absence of a quorum). President Trump now has the opportunity to establish a Republican majority on the Commission, pending potential legal challenges to the removal of Samuels and Burrows. Nonnie L. Shivers, Tiffany Stacy, and Zachary V. Zagger have the details.
EEOC Acting Chair Sets Forth Priorities. On January 28, 2025, EEOC Acting Chair Andrea Lucas issued a press release, titled, “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace,” in which she outlined the steps the Commission would take to implement President Trump’s Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” According to the release, Acting Chair Lucas has, among other actions:
“Announced that one of her priorities—for compliance, investigations, and litigation—is to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”
“Ended the use of the ‘X’ gender marker during the intake process for filing a charge of discrimination.”
“Commenced review of the content of EEOC’s ‘Know Your Rights’ poster, which all covered employers are required by law to post in their workplaces.”
“Removed materials promoting gender ideology on the Commission’s internal and external websites and documents, including webpages, statements, social media platforms, forms, trainings, and others.”
Importantly, Acting Chair Lucas acknowledges that she lacks the authority to amend or withdraw the Commission’s guidance on harassment in the workplace, despite instructions to do so in the executive order, and even though she believes the guidance is “fundamentally flawed.” An affirmative majority vote by the Commission would be necessary for such an action, as it would to amend the Commission’s regulations implementing the Pregnant Workers Fairness Act. Nonnie L. Shivers and Zachary V. Zagger have the details.
BLS: Union Membership Decline Continues. This week the Bureau of Labor Statistics (BLS) released its 2024 data regarding union membership rates. Overall, the percentage of workers who were members of labor unions dipped ever so slightly to 9.9 percent (it was 10 percent in 2023). Similarly, the private-sector unionization rate decreased from 6 percent in 2023 to 5.9 percent in 2024. Thus, even with President Biden’s “whole of government” approach to promoting unionization and myriad decisions from the NLRB benefiting labor unions, the overwhelming majority of workers prefer union-free workplaces.
Fred Korematsu and a “Morally Repugnant” Executive Order. Civil rights icon Fred Korematsu was born in Oakland, California, on January 30, 1919. In 1942, at the age of 23, Korematsu was arrested and convicted for refusing to be forcibly relocated to a military internment camp following President Franklin D. Roosevelt’s issuance of Executive Order 9066, which authorized the internment of Japanese Americans during World War II. Korematsu appealed his conviction, arguing that the executive order violated the Fifth Amendment of the U.S. Constitution. In 1944, the Supreme Court of the United States upheld his conviction, writing:
Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.
In the decades following Korematsu’s 1944 release from the Central Utah War Relocation Center in Topaz, Utah, the U.S. government took steps to right the wrongs of the executive order. For example, in 1976, President Gerald Ford rescinded the order, and in 1983, Korematsu’s conviction was vacated. President Bill Clinton awarded Korematsu the Presidential Medal of Freedom in 1998. But the Supreme Court’s odious decision in Korematsu v. United States wasn’t formally overruled until 2018 in Trump v. Hawaii, where Chief Justice John Roberts—referring to the order as “morally repugnant”—wrote:
The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.”
The Changing Landscape of AI: Federal Guidance for Employers Reverses Course With New Administration
In the midst of the multiple executive orders issued in the first days of the Trump administration, on 23 January 2025, the White House issued an executive order entitled Removing Barriers to American Leadership in Artificial Intelligence (AI EO). At a high-level, President Trump issued the AI EO to (1) implement the revocation of President Biden’s executive order on artificial intelligence (AI), entitled the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (EO 14110) and (2) create President Trump’s AI action plan to ensure that AI systems are “free from ideological bias or engineered social agendas.” As a result of the AI EO, the Equal Employment Opportunity Commission (EEOC) and Department of Labor (DOL) pulled or updated a number of AI-related publications and other documents from their websites. This alert provides an overview of the AI EO as well as the changes to guidance from the EEOC and DOL. It also outlines best practices for employers to ensure compliance at both the federal and state levels.
Revocation of President Biden’s EO 14110
Similar to the White House’s executive order entitled Protecting Civil Rights and Expanding Individual Opportunity (DEI EO)1 issued on 21 January 2025, the AI EO implemented the revocation of an executive order on the same subject issued during the Biden administration, EO 14110. EO 14110 required the implementation of safeguards (i) for the development of AI and (ii) to ensure AI policies were consistent with the advancement of “equity and civil rights.” EO 14110 also directed agencies to develop plans, policies, and guidance on AI, which they did before the end of 2024.
In connection with rescinding EO 14110, the White House issued a fact sheet and asserted that EO 14110 “hinder[ed] AI innovation and impose[d] onerous and unnecessary government control over the development of AI”. It directed executive departments and agencies to revise or rescind all actions, including policies, directives, regulations, and orders, taken under EO 14110 that are inconsistent with the AI EO. Further, the AI EO mandates that the director of the Office of Management and Budget (OMB) revise OMB Memoranda M-24-10 and M-24-18 (which address the federal government’s acquisition and governance of AI) within 60 days. To the extent that an action cannot be immediately suspended, revised, or rescinded, then the AI EO authorizes agencies to allow exemptions until the actions may be suspended, revised, or rescinded.
AI Action Plan
As part of its stated goal to “enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security,” the AI EO directs the assistant to the president for science and technology, the special advisor for AI and crypto, and the assistant to the president for national security affairs to develop an AI action plan within 180 days. Such AI action plan will be developed in coordination with the assistant to the president for economic policy, the assistant to the president for domestic policy, the director of the OMB, and any relevant heads of executive departments and agencies.
Updates to Existing Federal Agency Guidance on AI
Dovetailing with the AI EO, on 27 January 2025, the EEOC removed AI-related guidance2 from its website. This guidance, published in May 2023, addressed how existing federal anti-discrimination law may apply to employers’ use of AI when hiring, firing, or promoting employees.
Similarly, the DOL noted on its website that the “AI & Inclusive Hiring Framework”3 published in September 2024 by the Partnership on Employment & Accessible Technology, and the DOL’s October 2024 “Artificial Intelligence Best Practices”4 guidance may now be outdated or not reflective of current policies. Both publications are also unavailable in certain locations in which they were previously accessible.While the DOL and the EEOC updated and removed their AI-related guidance respectively, the Office of Federal Contract Compliance (OFCCP) website still maintains its 29 April 2024 nonbinding guidance on how federal contractors and subcontractors should use AI to ensure compliance with existing equal employment opportunity obligations under federal law.5
Best Practices for Employers
As with any change to executive branch and federal agency guidance, employers should continue to monitor developments that may impact AI-related policies. Further, employers should review current AI policies for compliance with the recent executive branch equal employment guidance related to diversity, equity, and inclusion.6 While guidance and enforcement priorities at the federal level have changed, employers must still comply with the various state-level regulations on AI, as many states have passed regulations addressing the use of AI in employment decisions.7 For example, in 2019, Illinois enacted the Artificial Intelligence Video Interview Act, whereby employers who use AI to analyze video interviews must provide notice to the candidate, obtain their consent, and provide an explanation of the AI technology used. Illinois also amended the Illinois Human Rights Act8 to prohibit discrimination by employers who utilize AI in recruitment, hiring, promotion, professional development, and other employment decisions. More recently, in 2024, Colorado enacted a law in 2024 that prohibits algorithmic discrimination in “consequential decisions,” which is defined to include those related to employment or employment opportunity.9 Moreover, with this shift in guidance at the federal level, employers should anticipate increased state and local regulation of AI in employment.10
Conclusion
There are likely to be many more developments in the coming days and weeks. Our Labor, Employment, and Workplace Safety practice regularly counsels clients on the issues discussed above and is well-positioned to provide guidance and assistance to clients on these significant developments.
Footnotes
1 See K&L Gates LLP Legal Alert, Uncharted Waters: Employers Brace for Significant and Unprecedented Changes to Employment Law Enforcement Under New Administration, January 24, 2025, https://www.klgates.com/Uncharted-Waters-Employers-Brace-for-Significant-and-Unprecedented-Changes-to-Employment-Law-Enforcement-Under-New-Administration-1-24-2025.
2 See K&L Gates Legal Alert, Employer Use of Artificial Intelligence to Avoid Adverse Impact Liability Under Title VII, May 31, 2023, https://www.klgates.com/EEOC-Issues-Nonbinding-Guidance-on-Permissible-Employer-Use-of-Artificial-Intelligence-to-Avoid-Adverse-Impact-Liability-Under-Title-VII-5-31-2023.
3 See K&L Gates Legal Alert, DOL’s AI Hiring Framework Offers Employers Helpful Guidance on Combatting Algorithmic Bias, November 12, 2024, https://www.klgates.com/DOLs-AI-Hiring-Framework-Offers-Employers-Helpful-Guidance-on-Combatting-Algorithmic-Bias-11-12-2024.
4 See K&L Gates Legal Alert, The DOL Publishes Best Practices That Employers Can Follow to Decrease the Legal Risks Associated With Using AI in Employment Decisions, December 16, 2024, https://www.klgates.com/The-DOL-Publishes-Best-Practices-That-Employers-Can-Follow-to-Decrease-the-Legal-Risks-Associated-With-Using-AI-in-Employment-Decisions.
5 See K&L Gates Legal Alert, OFCCP Guidance Expands Federal Scrutiny of Artificial Intelligence Use by Employers, July 16, 2024, https://www.klgates.com/OFCCP-Guidance-Expands-Federal-Scrutiny-of-Artificial-Intelligence-Use-by-Employers-7-16-2024.
6 Supra note 1…
7 820 ILCS 42/1.
8 775 ILCS 5/2-101-102.
9 Col. Rev. Stat. 6-1-1701-1707.
10 See K&L Gates Legal Alert, The Texas Responsible AI Governance Act and Its Potential Impact on Employers, January 13, 2025, https://www.klgates.com/The-Texas-Responsible-AI-Governance-Act-and-Its-Potential-Impact-on-Employers-1-13-2025.
McDermott+ Check-Up: January 31, 2025
THIS WEEK’S DOSE
Senate Finance, HELP Committees Hold RFK Jr. Nomination Hearings. The Senate Finance Committee must vote on Robert F. Kennedy (RFK) Jr.’s nomination before it moves to the full Senate for confirmation.
Senate VA Committee Holds Oversight Hearing on Community Care. The hearing followed a House Veterans’ Affairs (VA) Committee hearing on the same issue last week, covering many similar topics.
Senate Aging Committee Holds Hearing on Fiscal Health for Seniors. The hearing focused on the causes of inflation, and health-related discussion centered mostly on prescription drugs and Medicaid.
Trump Issues EOs and Actions Focused on Abortion, Care for Transgender Children. The actions were highly anticipated and follow themes from his campaign.
White House Issues, Rescinds Memo Freezing Funding for Federal Assistance Programs. The original memo, now rescinded, directed agencies to temporarily pause all federal financial assistance funding that could be implicated by Trump’s executive orders (EOs).
Trump Administration Offers Deferred Resignation to All Federal Employees. The offer is in place through February 6 and states that employees who take advantage of this offer would be paid through September 2025.
CONGRESS
Senate Finance, HELP Committees Hold RFK Jr. Nomination Hearings. RFK Jr., nominated for Secretary of Health and Human Services (HHS), testified before the Senate Finance Committee on January 29 and before the Senate Health, Education, Labor, and Pensions (HELP) Committee on January 30. Some senators serve on both committees and therefore were able to question him twice. Republicans largely asked RFK Jr. about his positions and plans for issues such as Medicaid, rural health, food safety, transparency, and abortion. RFK Jr. noted that he would work with Members of Congress on such issues, if confirmed. While some Democrats agreed that the healthcare system was broken, they noted disagreement with several of RFK Jr.’s positions. Democrats on both committees largely questioned his qualifications and alleged that he had inconsistent views on issues such as abortion and vaccines. RFK Jr. defended his past statements and noted his belief that Democrats were misrepresenting his positions.
The next step for RFK Jr.’s nomination is a Senate Finance Committee vote, which has yet to be scheduled. His nomination would then move to the Senate floor. If every Democrat on the floor opposed him, he could only lose three Republican votes and still be confirmed.
Senate VA Committee Holds Oversight Hearing on Community Care. During the hearing, members heard from veterans, family members, and experts about how veterans continue to lack access to timely mental health and healthcare services in the Community Care program. Witnesses unanimously agreed that the VA fell short in providing access to timely and quality care for its veterans, and that the VA often restricted the use of the Community Care program. Democratic members focused on the recent firing of federal inspectors general and how federal funding cuts would impact these health programs, while Republican members focused on accountability and the inappropriate management of the VA.
Senate Aging Committee Holds Hearing on Fiscal Health for Seniors. The hearing included a panel of economic and social security experts to discuss how inflation has affected the lives of seniors. The hearing focused widely on what is causing inflation, and healthcare discussion centered on Medicaid, high prescription drug costs, and the Inflation Reduction Act (IRA). Republicans largely blamed inflation on government spending and welfare programs, while Democrats focused on the impact that inflation will have on housing, prescription drug, and retirement costs for older Americans.
ADMINISTRATION
White House Issues, Rescinds Memo Freezing Funding for Federal Financial Assistance Programs. Late on January 27, the Office of Management and Budget (OMB) released a memo directing federal agencies to pause all activities related to obligations or disbursement of all federal financial assistance and other relevant agency activities that may be implicated by President Trump’s recent EOs. The memo explicitly excluded Medicare and Social Security but caused widespread confusion as to the breadth of programs that could be impacted. Concerns were exacerbated by the release of an internal OMB listing of programs being investigated, which was far broader than the programs many stakeholders considered likely to be impacted by the EOs issued to date.
In the health arena, Medicaid was not given the protection that Medicare and Social Security received and also appeared on the OMB listing. Many organizations dependent on government funding were unable to access their funds on January 28, and the website used to track and disburse Medicaid funding was not operating correctly either. A lawsuit was immediately filed, and OMB released a Q&A factsheet noting that any program providing direct benefits to individuals was exempt from the pause, including Medicaid and the Supplemental Nutrition Assistance Program. OMB’s factsheet also noted that the only programs implicated were those impacted by seven specific Trump EOs, including those that address government diversity, equity, and inclusion programs; the Hyde Amendment; and gender ideology. Despite this communication, it remained unclear who would determine the scope of the temporary pause and how long the pause would last.
These actions from the Trump Administration were met with concern and criticism from impacted stakeholders and congressional Democrats, who noted that Congress approved these funds and that they are not optional. In response to the lawsuit, a federal judge granted an administrative stay that temporarily paused the order until February 3. On January 29, the Trump Administration rescinded the original OMB memo. Confusion remains, however, as Trump Administration officials stated that the rescission only applies to the memo, and that they will continue to proceed with freezing federal funds implicated by the EOs. In response, another federal judge has indicated that he may intervene with a broader action to prohibit the freeze in payments.
Trump Issues EOs and Actions Focused on Abortion, Care for Transgender Children. The anticipated actions provide further insight on the new Administration’s direction in these areas:
Enforcing the Hyde Amendment. This EO directs OMB to issue guidance ensuring that agencies comply with the Hyde Amendment, which is passed by Congress annually and prohibits federal funding for abortion.
Memo on the Mexico City Policy. This memorandum reinstates the so-called Mexico City Policy that prohibits foreign organizations that receive US federal funding from providing or promoting abortions. The policy has consistently been revoked by Democratic presidents and reinstated by Republican presidents, dating back to President Reagan.
Ending Gender-Affirming Care for Children. Entitled “Protecting Children from Chemical and Surgical Mutilation,” this EO states that federal agencies shall not “fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another.” It defines a child as an individual under 19 years of age, and it defines “chemical and surgical mutilation” to include a range of services and medications, including certain applications of puberty blockers, sex hormones, and surgery. The EO directs agencies that provide research or education grants to medical institutions to ensure that grantees do not perform any care that is prohibited under this EO. It directs HHS, TRICARE, and the federal employee health benefits program to not cover this care, and it directs HHS to take action through vehicles such as Medicare or Medicaid conditions of participation, Section 1557, and mandatory drug use reviews.
Reinstating Service Members Discharged Under the Military’s COVID-19 Mandate. This EO reinstates service members who were discharged for refusing to comply with the COVID-19 vaccine mandate that was imposed in August 2021 and rescinded in January 2023.
Additional EOs are reportedly forthcoming as early as today. We will continue to provide updates on EOs impacting healthcare.
Trump Administration Offers Deferred Resignation to all Federal Employees. Federal employees have until February 6 to decide if they would like to accept the offer. The offer states that employees who accept will receive pay and benefits through September 30. The notice has caused widespread confusion and concern among federal employees, and labor representatives are urging federal employees to reject the offer, as it may not be enforceable. The administration subsequently released a frequently asked questions document with further information. The Trump Administration’s goal is to reduce the size of the federal workforce through voluntary means, but officials have indicated an intention to go further in the future, noting in the offer that they cannot provide assurance on the certainty of positions. Reductions in the federal workforce could have implications for federal healthcare programs.
QUICK HITS
Date Set for Trump Address to Joint Session of Congress. On March 4, President Trump will address both chambers for the first time since returning to office.
Trump Administration Removes Inspectors General. The Trump Administration fired 18 inspectors general across federal agencies, including the previous HHS Inspector General Christi Grimm. The action received broad criticism for violating a required 30-day notice to Congress to dismiss inspectors general. Senate Judiciary Chairman Grassley (R-IA) and Ranking Member Durbin (D-IL) issued a joint inquiry seeking “a lawfully-required substantive rationale behind his recent decision to dismiss Inspectors General (IGs) from 18 offices.”
CMS Issues Statement on IRA Medicare Drug Price Negotiations. The brief statement indicates that the Trump Administration is committed to incorporating stakeholder feedback and increasing transparency in the IRA drug price negotiation program.
NEXT WEEK’S DIAGNOSIS
The Senate Finance Committee has yet to schedule a vote on RFK Jr.’s nomination, but it could occur next week, before moving to the full Senate floor. The Senate will be in session all of next week, and the House will be in session starting on Tuesday. The House Energy & Commerce Committee Health Subcommittee will hold a hearing on combatting existing and emerging illicit drug threats. In addition, the House Budget Committee reportedly plans to mark up a budget resolution to formally begin the reconciliation process, although it has not yet been formally announced.
Massachusetts Pay Transparency Law: FAQs & February Deadline
The Commonwealth of Massachusetts Executive Office of Labor and Workforce Development recently published FAQs that provide guidance on the Commonwealth’s new Salary Range Transparency Act (“the Act”). The Act requires employers with 100 or more employees at any time during the prior calendar year to submit their Equal Employment Opportunity (“EEO”)-1 reports to the Commonwealth by February 1 of each year. The FAQs include information for employers on their reporting requirements under the Act. Individual data will not be made public; only aggregated data will be published.
Key Takeaways and Clarifications from the FAQs:
Employers need not create new reports or make changes to their existing EEO-1 report. Employers may “file the same copy of the EEO report you filed with the Equal Employment Opportunity Commission (“EEOC”).” Employers have the option, however, to customize a report reflecting the required data for only Massachusetts-based employees.
Employers are not required to submit W-2 income earnings data by race/ethnicity, sex, and job category to the Commonwealth, since pay data is not part of the current EEOC reporting requirements.
The initial EEO-1 report is due by February 1, 2025, and annually on the same date thereafter. Since February 1 falls on a Saturday this year, reports will be accepted until Monday, February 3, 2025. The other EEO reports are due by the same deadline but on a biennial basis: EEO-3 and EEO-5 this year (2025), and EEO-4 next year (2026).
Employers must submit the report in PDF, JPG, or PNG format to the Secretary of State’s office through the web portal. The web portal for filing the EEO-1 reports is live, and can be accessed here.
In addition to the February deadline for wage data reporting, the Act also requires Massachusetts employers to disclose salary ranges for most employment postings by October 29, 2025. We expect the Commonwealth to release additional guidance for employers on the pay disclosure requirements. In the meantime, more general information on the upcoming requirements can be found in our recent Workplace blog post: Massachusetts Governor Signs Pay Transparency Law – Blank Rome Workplace.
Compliance Efforts with Trump EOs Begin in the EEOC
On Tuesday, January 28, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) issued a statement titled “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace,” marking a shift to align with the Trump administration’s Executive Order 14166 issued last week. The EEOC’s Acting Chair, Andrea Lucas, announced a renewed focus on protecting women from sexual harassment and sex-based discrimination in the workplace. According to Lucas, this shift involves rolling back certain policies from the Biden administration that focus on gender identity, emphasizing the protection of sex-based rights and the biological distinctions between men and women.
Executive Order 14166 called for federal agencies to uphold laws that protect men and women as biologically distinct sexes. It directed federal agencies to remove any policies, statements, or communications promoting gender ideology and sought to reinforce sex-based rights and accommodations, including safeguarding women’s access to single-sex spaces like bathrooms and locker rooms.
As part of her agenda, Acting Chair Lucas has taken several actions:
Prioritizing Sex-Based Rights: Lucas has made it a priority for the EEOC to defend the biological and binary nature of sex in investigations, litigation, and compliance efforts.
Revising Policies: The EEOC removed its “pronoun app” from Microsoft 365 profiles, ended the use of “X” gender marker on discrimination charge forms, and eliminated the “Mx.” prefix option from forms.
Reviewing Materials for Compliance: The agency has started revising its “Know Your Rights” poster and is in the process of removing what it considers gender ideology-related content from internal and external materials.
Certain changes require a majority vote of the Commission, meaning that Acting Chair Lucas cannot unilaterally change some documents, like the 2024 Commission’s Enforcement Guidance on Harassment in the Workplace. However, Acting Chair Lucas has expressed strong opposition to aspects of the Guidance that promote gender identity-based claims, particularly concerning access to sex-segregated facilities and the use of pronouns. She argues that it is not harassment to maintain distinctions between the sexes in certain workplace settings, such as bathrooms or locker rooms, and that doing so is essential for protecting women’s safety and privacy.
Trump’s Executive Orders Considered: Implications for Private Employers – Part Two
President Trump issued an unprecedented number of executive orders in his first week in office. In our previous update on January 27, we discussed the orders directing the elimination of diversity, equity and inclusion (“DEI”) programs in the federal agencies and government contracting, and adopting a policy of recognizing two unalterable sexes (rather than self-designated gender identity) in the enforcement of federal laws regarding sex-based rights, protections, opportunities and accommodations. In addition, President Trump has signed multiple immigration-related orders focusing on border security, restrictions on birthright citizenship, enhancement of vetting and screening of immigrants seeking entry into (and already residing in) the United States, and the prioritization of both civil and criminal enforcement of violations of the Immigration and Naturalization Act (“INA”) and other federal laws.
This update discusses the anticipated impact of the immigration-related orders on private employers and, in particular, a renewed and more aggressive focus on Form I-9 audits by the U.S. Immigration and Customs Enforcement (“ICE”) division of the U.S. Department of Homeland Security (“DHS”).
The Impact of Certain Immigration-Related Orders on the Private Sector
Two immigration-related orders signed by President Trump are particularly relevant to private sector employers:
“Protecting the American People Against Invasion” directs the “efficient and expedited removal” of individuals not legally authorized to reside or work in the U.S. and prioritizes both civil and criminal enforcement, including by taking agency action to ensure that “employment authorization is provided in a manner consistent with [the INA], and that employment authorization is not provided” to anyone not legally authorized to be in the U.S.; and
“Securing Our Borders” contains broad directives for the removal and prosecution of individuals “who violate the immigration laws” (and the prosecution of “those who facilitate their unlawful presence” in the U.S.), as well as the detention of unauthorized individuals who are apprehended as a result of agency enforcement actions.
Given the explicit directives in these orders and the administration’s enforcement-focused rhetoric, employers should expect and prepare for an uptick in both Form I-9 audits and unannounced worksite enforcement actions by ICE.
Form I-9 Process and Obligations
Form I-9 places compliance obligations on both the employee and the employer. The employee must attest, under penalty of perjury, to their identity and provide prescribed documentation evidencing their authorization to work in the U.S. The employer must (A) ensure that the form is correctly completed, (B) physically examine the identity and work authorization documentation presented by the employee to determine whether it reasonably appears to be genuine, and (C) comply with prescribed document retention requirements.1 The employer is also required to attest, under penalty of perjury, that, upon examination, the verification documents presented with the Form I-9 appeared both genuine and to relate to the named employee and, to the best of the employer’s knowledge, the employee is thereby authorized to work in the U.S. Forms I-9 must be completed (including with respect to the examination of the identity and work authorization documentation) within three business days of the employee’s date of hire.
Agency-Initiated Audits
ICE inspections2 of an employer’s Forms I-9 may be lead-driven (i.e., based on actual information or tips that an employer has hired unauthorized workers) or randomly initiated. ICE launches a Form I-9 audit by serving the employer with a notice of inspection (“NOI”). The NOI requires the employer to provide ICE with copies of the Forms I-9 and supporting documents within three business days of receipt of the NOI. ICE also may request additional records like lists of current and former employees (including dates of hire and termination), payroll and tax information, organizational documents of the employer (i.e., Articles of Incorporation, business licenses, taxpayer identification number, etc.), E-Verify or SSN Verification Service data (if applicable), copies of social security number “no-match” letters and relevant immigration-related communications with the U.S. Citizenship and Immigration Services and/or Department of Labor, and information about any prior Form I-9 audits.
If your business is served with a NOI, begin by contacting your immigration counsel for support. Carefully review the NOI to determine the scope of the audit, and respond only with those documents actually requested in the NOI. You should keep a copy of the entire response “package” provided to ICE.
ICE will review the information provided and inform you of the outcome of its audit via one of the following:
Notice of Inspection Results (“compliance letter”), if you are found to be in compliance with the law.
Notice of Suspect Documents, if ICE determines that an employee is not authorized to work. This notice will generally advise you of the potential civil and criminal penalties for continuing to employ that individual, and of your ability to begin remedial actions in “good faith” within 10 days of receiving the notice. You also may dispute such a determination prior to terminating the affected employee.
Notice of Discrepancies, if ICE is unable to determine work eligibility for an employee. This may trigger a follow-up visit from ICE and require you to request new and different employment verification documents and terminate the employee if such documents cannot be produced.
Notice of Technical or Procedural Failures, if ICE identifies technical or procedural errors in its review of the submitted Forms I-9. This notice generally advises of a 10-day period within which to correct the identified error, unless you have engaged in a pattern or practice of hiring unauthorized workers.
Warning Notice, if ICE identifies one or more substantive errors in the submitted Forms I-9 and there is an expectation that you will comply with all Forms I-9 compliance requirements in the future.
Notice of Intent to Fine, if ICE uncovers substantive failures, uncorrected procedural or technical failures, or ICE determines that you knowingly hired or continue to employ unauthorized individuals. Once served with a Notice of Intent to Fine, you may have the opportunity to negotiate a settlement with ICE or request a hearing before an administrative law judge (“ALJ”).
Final Order, if a written request for an ALJ hearing is not timely received. This Final Order is not appealable.
Penalties for Form I-9 violations may include significant monetary fines, criminal penalties, cease and desist orders to stop continued employment of unauthorized individuals, and contract debarment.
Employer Self-Audits
We encourage all employers to conduct a Form I-9 self-audit (i) to ensure ongoing compliance with applicable law, (ii) to identify any substantive and/or technical or procedural errors that may be corrected, and, (iii) to avoid or mitigate costly monetary penalties for noncompliance. Employers should look for common issues like incomplete or late Forms I-9, and missing or misplaced verification documents. Self-audits should cover Forms I-9 and verification documents for all active employees and terminated employees within the mandatory Form I-9 retention period and may not be conducted in a manner that is discriminatory or retaliatory. Specifically, an employer may not conduct an internal audit selectively based on an employee’s citizenship status or national origin, or in retaliation against any employee(s). The self-audit also should include a review of the employer’s Form I-9 collection, timing, and retention processes.
Conclusion
As we noted in our January 27 update, the breadth and tone of the executive orders issued by President Trump during his first week in office made clear that this administration’s enforcement priorities will be far more aggressive than those of the prior administration. While the laws requiring employment eligibility verification have been in effect for decades, the approach to enforcing those laws has shifted. Employers must be aware of and take steps to prepare for more frequent audits, inspections and worksite enforcement actions under the current administration.
1The INA requires an employer to retain Forms I-9 and collected identity and work authorization documentation for (i) three years after the date of hire or (ii) one year after the date of the individual’s termination from employment, whichever is later.
2Note that the U.S. Department of Justice’s Immigrant and Employee Rights Section and the U.S Department of Labor also have authority to initiate Form I-9 inspections, which may be triggered not only by complaints or suspicions of the employment of unauthorized workers, but also as a result of civil rights and discrimination complaints (for example, based on claims of discriminatory or retaliatory Form I-9 collection or self-audit processes).