Michigan’s Earned Sick Time Act Amended: Employer Takeaways
On February 20, 2025, Michigan lawmakers voted to amend the Earned Sick Time Act (ESTA) to provide greater clarity and flexibility to both employees and employers with respect to paid time off, taking immediate effect. This action followed earlier votes this week by the Michigan legislature on the minimum wage law. Governor Whitmer has now signed both pieces of legislation into law.
Key changes to ESTA as of February 21, 2025, are as follows:
Employers are expressly permitted to frontload at least 72 hours of paid sick time per year, for immediate use, to satisfy ESTA’s leave requirement. Employers who frontload hours do not need to carry over unused paid sick time year to year and do not have to calculate and track the accrual of paid sick time for full-time employees. For part-time employees, frontloading in lieu of carryover is also an option, including frontloading a prorated number of hours. Employers choosing to frontload a prorated amount must follow notice, award amount, and true-up requirements.
If paid sick time is not frontloaded, employees still must accrue 1 hour of paid sick leave for every 30 hours worked, but employers may cap usage at 72 hours per year. Only 72 hours of unused paid sick time is required to roll over from year to year for employers who provide leave via accrual.
New hires can be required to wait until 120 days of employment before they can use accrued paid sick time, which could potentially benefit seasonal employers. This waiting period appears to be permitted for frontloading and accruing employers alike, although the bill’s language with respect to frontloading employers is somewhat unclear. This may be an issue for clarification by the Department of Labor and Economic Opportunity, which under the amendment will be responsible for all enforcement of the law.
ESTA now provides several exemptions, including:
An individual who follows a policy allowing them to schedule their own hours and prohibits the employer from taking adverse personnel action if the individual does not schedule a minimum number of working hours is no longer an “employee” under ESTA.
Unpaid trainees or unpaid interns are now exempt from ESTA.
Individuals employed in accordance with the Youth Employment Standards Act, MCL 409.101-.124, are also exempt from ESTA.
Small businesses, defined as those with 10 or fewer employees, are only required to provide up to 40 hours of paid earned sick time. The additional 32 hours of unpaid leave, required under the original version of ESTA, is no longer required. Small businesses, like other employers, are permitted to provide leave via a frontload of this entire applicable amount or to provide the time via accrual. If small businesses use the accrual method (1 hour of paid sick time for every 30 hours worked), they may cap paid sick time usage at 40 hours per year and only permit carryover of up to 40 hours of unused paid sick time year to year. Small businesses have until October 1, 2025, to comply with several ESTA requirements, including the accrual or frontloading of paid earned sick time and the calculation and/or tracking of earned sick time.
Employers can now use a single paid time off (PTO) policy to satisfy ESTA. Earned sick time may be combined with other forms of PTO, as long as the amount of paid leave provided meets or exceeds what is otherwise required under ESTA. The paid leave may be used for ESTA purposes or for any other purpose.
The amendments clarify that an employee’s normal hourly rate for ESTA purposes does not include overtime pay, holiday pay, bonuses, commissions, supplemental pay, piece-rate pay, tips or gratuities.
The amendments specify that the Department of Labor and Economic Opportunity is responsible for enforcement of the Act. Prior provisions that included a private right of action for employees to sue their employers for possible ESTA violations have been removed.
The amendments remove a “rebuttable presumption” of retaliation that was contained in the original Act.
ESTA now permits employers to choose between one-hour increments or the smallest increment used to track absences as the minimum increment for using earned sick time.
The amendments allow a means for employers to require compliance with absence reporting guidelines for unforeseeable ESTA use. To do this, an employer must comply with steps outlined in the amendment including disclosure of such requirements to employees in writing.
The amendments specify that employers must provide written notice to employees including specified information about the Act within 30 days of the effective date. This would mean a date of March 23, 2025.
The amendments allow for postponement of the effective date of ESTA for employees covered by a collective bargaining agreement that “conflicts” with the Act. The effective date for such employees is the expiration date of the current collective bargaining agreement.
The amendments likewise allow for the postponement of ESTA’s effective date for employees who are party to existing written employment agreements that “prevent compliance” with the Act. Reliance on such provisions requires notification to the state.
Some provisions of the bill give rise to continuing confusion or ambiguity, including:
The amended law continues to contain a provision requiring the display of a poster from the Department of Labor and Economic Growth, which appears to be effective immediately upon the date the bill is signed into law. However, no updated poster exists.
The statute’s reference to “conflict” between a collective bargaining agreement and ESTA is not well defined, including how this provision will apply to a collective bargaining agreement that, perhaps intentionally through prior negotiations, includes no current provisions for sick time.
Whether the amended law is intended to exclude nonprofit organizations from the scope of covered employers is unclear. The reference to nonprofits was stricken, but there is no affirmative language excluding them from the broad “employer” definition that remains in the law.
The availability of a 120-day waiting period for a frontloading employer is somewhat unclear, due to the provisions that frontloaded time must be “available for immediate use.”
The date employees may first use earned sick time, in relation to the time frame for employers to finalize and issue policies, would benefit from clarification. The amendment states that accrual begins on the effective date of the Act, and time may be used “when it is accrued.” However, employers appear to have a 30-day time frame to finalize and issue policies defining how they choose to provide ESTA’s benefits.
The extent of employer recordkeeping and/or inspection obligations are unclear under the current law. Previous provisions detailing such requirements are no longer included.
Additional Authors: Luis E. Avila, Francesca L. Parnham, and Carolyn M.H. Sullivan
Delaware Policymakers Act to Enhance Deal Protection Devices and Liability Safe-Harbors and Limit Books and Records Inspections and Litigation Fees
On February 17, 2025, Delaware policymakers, including the governor and a group of bipartisan legislative leaders, took noteworthy steps to enhance transactional certainty and deal protection devices and decrease director, officer, and controlling stockholder liability and related litigation expenses and fees. First, in Senate Bill 21, the legislature has proposed amendments to the Delaware General Corporation Law (DGCL) that would increase protections for directors, officers, and controlling stockholders from fiduciary duty claims and liability when using certain cleansing procedures and decrease stockholders’ access to corporate books and records (Proposed Amendments). Second, in Senate Concurrent Resolution 17, the legislature has requested that the Council of the Corporation Law Section of the Delaware State Bar Association (Council) prepare a report with recommendations for legislative action regarding incentives and caps related to fees granted by the Delaware courts to attorneys representing plaintiff-stockholders (Requested Report). Although the Proposed Amendments remain subject to approval by the Delaware legislature and governor, they are immediately relevant to all companies and investors, and particularly those considering whether to incorporate or remain in Delaware. Overview of the Proposed Amendments
The Proposed Amendments would significantly modify Sections 144 and 220 of the DGCL. These changes are intended to counteract case law developments in the Delaware litigation and transactional landscape over the past decade and provide all stakeholders with greater clarity and transactional certainty going forward. Specifically, amended Section 144 would codify variations on the deal protection devices used for cleansing breach of fiduciary duty claims by approval of disinterested stockholders (under Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015), in the absence of a conflicted controlling stockholder transaction) and by approval of both an independent director committee and unaffiliated stockholders (under Kahn v. M & F Worldwide Corp., 88 A.3d 635 (2014), as a conflicted controlling stockholder transaction). Amended Section 220 would largely restrict the inspection of records other than specified formal corporate records. Each of these topics has figured prominently in the recent discourse regarding Delaware’s prominence as a corporate home and source of corporate law and the possibility of a shift toward other jurisdictions. Delaware now appears poised to quickly respond to that discourse by adopting the state-of-the-art Proposed Amendments which will offer corporate constituents unparalleled clarity and transactional certainty moving forward.
Proposed Amendments to Section 144
Section 144 currently provides a limited safe harbor from voidness of interested transactions. The Proposed Amendments to Section 144 would prevent equitable relief, damages, or other sanctions against directors, officers, and controlling stockholders in conflicted transactions under certain circumstances. Amended Section 144 offers cleansing of fiduciary duty claims and liability in three different scenarios: (1) conflicted transactions without a conflicted controlling stockholder (Non-Controller Transactions); (2) conflicted controlling stockholder transactions other than a going-private transaction (Controller Transaction); and (3) conflicted controlling stockholder going-private transaction (Going Private Transaction).
Similar to Corwin and MFW, amended Section 144 would permit fiduciary duty claims related to Non-Controller Transactions to be cleansed by disinterested stockholder approval, while fiduciary duty claims related to Going Private Transactions would require approval by both an independent director committee and disinterested stockholders. In a noteworthy shift, under amended Section 144, claims and liability related to Controller Transactions could be cleansed by disinterested director or independent committee approval instead of both. However, in another notable shift, the requirements for utilizing these deal protection devices under amended Section 144 would be less stringent than under existing law in a few important ways, including that under amended Section 144, (i) a cleansing procedure need not be in place from the outset, (ii) disinterested stockholder approval is determined on a votes cast basis, (iii) an independent committee must only be majority composed by independent directors, (iv) the independence of public company directors is presumably satisfied by applicable stock exchange standards, and (v) Controller Transactions may be cleansed by only one of disinterested stockholder or independent committee approval. Amended Section 144 would also address the critical threshold matter of how a controlling stockholder is defined, by prescribing a standard that is higher and narrower than at Delaware common law, requiring either majority voting power, or one-third voting power in director elections and power to exercise managerial authority over the corporation.
Proposed Amendments to Section 220
Section 220 currently provides stockholders with rights to demand inspection of corporate books and records related to a proper purpose as a stockholder and the right to petition the Delaware Court of Chancery to compel such an inspection based on a credible basis for the inspection. As amended, Section 220 would retain that general framework but would generally limit inspections to specified formal books and records and restrict the stockholder’s ability to obtain redress from the court. Amended Section 220 would also prevent the court from ordering inspection of other corporate records such as informal records and director texts and emails, unless the corporation failed to maintain stockholder meeting minutes and consents for the past three years, board meeting minutes and actions, and financial statements for the past three years (and, if the corporation has publicly listed stock, director and officer independence questionnaires). Amended Section 220 would also increase the standards applicable to an inspection petition, by requiring (i) the books and records to be specifically related to the purpose and (ii) the stockholder to describe its purpose and the demanded books and records with reasonable particularity. By limiting the scope of books and records available for inspection under Section 220, the Proposed Amendments would also clarify and generally limit the books and records available pursuant to a director’s inspection demand.
Requested Report regarding Litigation Fees
In the Requested Report, the legislature has asked the Council to report on potentially appropriate legislative action regarding attorneys’ fees in litigation, expressly including incentives and caps on those fees. The legislature’s request acknowledges the difficulty and importance of striking the right balance in this sensitive area, while suggesting that the legislature may be inclined to impose limits on corporate litigation fees. This is a topic that has also factored into the discourse over whether companies intend to remain incorporated in Delaware. Although the Proposed Amendments were not subjected to the Council’s drafting and review process which has applied as a matter of course to DGCL amendments for more than 50 years, the Requested Report may indicate the legislature’s desire for this matter to run the Council’s typical gamut involving law firms spanning the spectrum of clients and interests. If the Requested Report does lead to legislative caps on attorneys’ fees in corporate litigation, then that would add to the insulating effect of the Proposed Amendments and further reduce companies’ exposure to litigation expenses.
Outlook
Delaware has responded to critics aggressively in a way that may have lasting effects on the corporate, M&A, and litigation landscape. We view these legislative actions as important developments for any board, management team, or investor and in any conversation regarding whether to incorporate, remain, or invest in Delaware or another jurisdiction. At a minimum, the Proposed Amendments would clarify a path forward for recordkeeping and conflict transaction authorization, while emphasizing the benefits of good corporate hygiene, the inclusion of independent directors, and the presence of empowered board committees. From the perspective of the corporate franchise, this demonstrates Delaware’s commitment to flexibility, an enabling corporate statute, responsiveness to corporate constituents, and legal certainty, and these are all factors that have been identified as key elements in the conversation over Delaware’s continued global leadership in corporate law. However, the Proposed Amendments and the Requested Report are not yet law; we anticipate that the precise implications will continue to play out over the coming months and years and will be monitoring for further developments.
View Senate Bill 21
View Senate Concurrent Resolution 17
McDermott+ Check-Up: February 21, 2025
THIS WEEK’S DOSE
Senate Passes Budget Resolution. The “skinny” bill was put on the Senate floor shortly after President Trump expressed support for the House’s version.
Administration’s Federal Workforce Cuts Hit HHS. Thousands of employees were let go across the divisions of the US Department of Health and Human Services (HHS).
President Trump Issues Several EOs. The executive orders (EOs) relate to in vitro fertilization, COVID-19 vaccine mandates, independent agencies, deregulation, and the federal workforce.
Legal Challenges Continue to Block Gender-Affirming Care EO. A federal judge issued a second 14-day stay as the court considers the legality of the order.
CONGRESS
Senate Passes Budget Resolution. Last week, the Senate and House Budget Committees each passed separate, and very different, budget resolutions as their first steps toward negotiating a unified budget resolution that must pass both bodies in order for work to proceed on reconciliation. These resolutions reflected each chamber’s preferred approach. The Senate is moving a two-part reconciliation strategy by advancing a “skinny” resolution that only addresses immigration, energy, and defense priorities (but which still may utilize healthcare as a pay for). The Senate would act later to advance a separate resolution to extend the 2017 tax cuts. The Senate’s goal is to provide President Trump with a quick win, then take the additional time members think will be necessary to pass a reconciliation package tackling tax cuts. In contrast, the House is proceeding with a budget resolution that includes tax cuts and a minimum of $1.5 trillion in spending reductions. The House approach clearly puts healthcare on the table for significant cuts. Medicaid is a particular focus given that the resolution would require the House Energy & Commerce Committee to come up with $880 billion in savings.
While the House was in recess this week, Senate Majority Leader Thune (R-SD) scheduled a vote on the recently advanced Senate budget resolution. Then, on February 19, President Trump endorsed the House’s one-big-bill approach. This Senate still moved forward with the scheduled vote, passing the resolution 52 – 48 and indicated that doing so will provide a backstop if House efforts fail. Senator Paul (R-KY) was the only Republican to vote no.
House Republican leaders plan to bring their budget resolution to the House floor as soon as next week, but the timing is uncertain as several Republican members of Congress have expressed hesitation about supporting it. Some are Republicans in swing districts who are concerned about the magnitude of Medicaid cuts. Others are members who oppose voting to increase the debt limit, which is also included in the budget resolution.
ADMINISTRATION
Administration’s Federal Workforce Cuts Hit HHS. Over the weekend, the Trump administration reduced HHS’s workforce by several thousand employees across several agencies, including the US Food & Drug Administration, the Centers for Medicare & Medicaid Services (CMS), the Centers for Disease Control and Prevention, and the National Institutes of Health. Many who were let go had probationary status (meaning they were hired or promoted less than a year ago) or temporary status (which could include employees who have spent years in their role). The laid-off employees had worked on a variety of issues, such as Medicare and Medicaid quality initiatives, medical device approvals, public health preparedness, and artificial intelligence. At this time, there is no transparency as to the positions eliminated or even the overall counts. Per a recent EO, the agencies could be restricted from adding staff, as the EO permits hiring of no more than one employee for every four employees that depart.
President Trump Issues Several EOs. The administration continues to highlight and implement its agenda through EOs. Relevant EOs issued this week include the following:
IVF. This EO directs the assistant to the president for domestic policy to submit a list of policy recommendations to protect in vitro fertilization (IVF) access and reduce the out-of-pocket and health plan costs for the treatment. The fact sheet can be found here. Like many other EOs, additional steps would need to be taken before any changes occurred.
COVID-19 Vaccine Mandates. This EO mandates the withholding of federal funds from educational entities that require students to receive a COVID-19 vaccination to attend in-person education programs. It requires the secretaries of education and HHS to issue guidelines for compliance, a report on noncompliant entities, and a planned process for each agency’s implementation. The fact sheet can be found here. It is unclear how much practical impact this EO may have, because most of these directives have ceased to be enforced.
Independent Agencies. This EO requires independent agencies, including the Federal Trade Commission, to submit proposed regulations to the Office of Information and Regulatory Affairs before publication in the Federal Register. The EO directs the Office of Management and Budget (OMB) to establish performance standards and management objectives for independent agencies and to review independent agency actions for consistency with the president’s priorities. The EO also states that only the president and attorney general can provide interpretations of law for the executive branch.
Deregulation. This EO directs agency heads to work in coordination with Department of Government Efficiency team leads and OMB to review all regulations subject to their jurisdiction for consistency with law and administration policy. Within 60 days, agencies must submit to OMB a list of certain regulations, including those that are unconstitutional, are not authorized by statutory authority, and impose undue burdens on small businesses. The EO states that agencies should deprioritize actions that enforce regulations that go beyond the powers vested by the Constitution and should ensure that enforcement actions are compliant with law and administration policy. The EO also directs OMB to issue implementation guidance.
Federal Workforce. This EO requires HHS to terminate the secretary’s advisory committee on long COVID-19, and CMS to terminate the health equity advisory committee. It also directs non-statutory components and functions of certain foreign affairs governmental entities to be eliminated, as allowed under applicable law, and directs such entities to submit a report stating whether components of the entity are statutorily required.
COURTS
Legal Challenges Continue to Block Gender-Affirming Care EO. Lawsuits continue to be filed against actions taken by the Trump administration, including EOs and other administrative announcements. This includes a lawsuit filed by the attorneys general of Washington, Oregon, Colorado, and Minnesota, along with three doctors who provide gender-affirming care to youth. On February 14, a federal judge issued a two-week temporary restraining order that blocks the withholding of funds to healthcare entities that provide gender-affirming care to patients under 19. This is the second judge to take action on this EO. On February 13, another judge issued a two-week temporary restraining order blocking enforcement of the EO.
QUICK HITS
CBO Publishes Explainer on Scoring. The document explains how the Congressional Budget Office (CBO) prepares cost estimates for legislation. This process is top of mind for stakeholders as the budget reconciliation process (which is expected to include healthcare-related budgetary offsets) continues.
NEXT WEEK’S DIAGNOSIS
Congress will be in session next week, with the House potentially voting on its budget resolution. The Senate will continue work to confirm President Trump’s nominees, including a nomination hearing for Dan Bishop as deputy director of OMB. Health-related hearings include:
A House Energy & Commerce Health Subcommittee hearing on pharmacy benefit managers.
A House Veterans’ Affairs Committee hearing on electronic health record modernization.
A House Oversight and Government Reform Committee hearing on the US Government Accountability Office’s 2025 high-risk list.
A Senate Special Committee on Aging hearing on the opioid epidemic.
We expect the administration to continue taking executive actions related to healthcare.
ESTA Amendment Submitted to Gov. Whitmer- What it Means for Employers This Morning
The Michigan House and Senate recently agreed on bills to amend both the Michigan Improved Workforce Opportunity Wage Act and the Earned Sick Time Act (ESTA). The bills have been submitted to Governor Whitmer for signature.
Varnum attorneys are analyzing these changes that are expected to be approved and signed into law. Stay tuned for a more comprehensive advisory regarding these changes to follow.
In the meantime, employers who planned to roll out ESTA policies and programs today should pause their efforts in light of this development. The ESTA amendments may impact many employer policies and approaches to ESTA compliance. More will be clear shortly based on the Governor’s review and analysis of the changes.
Charlotte E. Jolly, Francesca L. Parnham, and Carolyn M.H. Sullivan also contributed to this article.
‘What Is a Woman?’ Alabama Governor Signs Bill Declaring There Are Only Two Sexes
On February 13, 2025, Alabama Governor Kay Ivey signed into law Senate Bill 79 / Act 2025-3, declaring that there are only two sexes, male and female. Originally introduced on February 4, 2025, the legislation amends Alabama Code § 1-1-1, which defines certain words used throughout the Alabama Code. Officially codified as the “‘What Is a Woman?’ Act,” the act carries implications for various aspects of public policy, legal definitions, data collection, and protections of sex-based rights and spaces.
Quick Hits
Alabama’s “‘What Is a Woman?’ Act” applies “wherever state law classifies individuals on the basis of sex or otherwise mentions individuals as being male or female, men or women, or boys or girls.”
According to the act, there are only two sexes: male and female.
Under the act, public entities may establish certain single-sex spaces or environments without running afoul of anti-discrimination laws.
The act becomes effective on October 1, 2025.
About the Act
The act follows President Donald Trump’s Executive Order 14168, titled, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” declaring there are two sexes. The act applies throughout the Alabama Code where the law classifies individuals based on sex or as “male” or “female” and proclaims that men and women “are legally equal but not physically the same.” It aims to prevent “unjust sex discrimination” while “maintaining safety, privacy, and fairness for both sexes.”
These definitions apply for purposes of applying the act’s provisions:
“(1) Boy. A human male who has not yet reached adulthood.
(2) Father. The male parent of a child or children.
(3) Female. When used in reference to a natural person, an individual who has, had, will have, or would have, but for a developmental anomaly, genetic anomaly, or accident, the reproductive system that at some point produced ova.
(4) Girl. A human female who has not yet reached adulthood.
(6) Male. When used in reference to a natural person, an individual who has, had, will have, or would have, but for a development anomaly, genetic anomaly, or accident, the reproductive system that at some point produces sperm.
(7) Man. An adult human of the male sex.
(9) Mother. The female parent of a child or children.
(10) Person. Includes an individual, corporation, partnership, company, or other business entity.
(14) Sex. When the term is used to classify or describe a natural person, the state of being male or female as observed or clinically verified at birth.
(18) Woman. An adult human of the female sex.”
The act allows public entities to establish single-sex spaces or environments “when biology, privacy, safety, or fairness” are at stake. The law explicitly provides that school districts, public schools, state agencies, and political subdivisions that “collect[] vital statistics related to sex as male or female for the purpose of complying with anti-discrimination laws …” shall identify individuals as “either male or female.”
Implications
The act reflects an ongoing push to define sex and gender identity in the United States. The bill’s sponsor, Senator April Weaver (R-Alabaster), said the law is a necessary measure “for clarity, certainty and uniformity in the courts and in the laws of Alabama,” and Governor Ivey called the act “common sense.” Detractors of the act say it does not protect women and is a restrictive approach relying on gender stereotypes that discriminates against transgender Alabamians. Nine states have similar laws, and several others are pushing to enact similar laws this year.
This act may change the way public employers are currently collecting and reporting data from employees, students, and others, and may implicate issues relating to bathrooms, locker rooms, and other typically sex-segregated spaces. The act affects any aspect of Alabama law where the law classifies individuals based on sex or as “male” or “female,” which could implicate state anti-discrimination laws and other employment laws for both public and private employers. The implications for private employers are less clear than those for public employers, but the act could affect any required reporting to public entities where individuals may be classified based on sex. As with any legislative change, the act may spark discussions about its implications, but it remains to be seen how this law will shape the legal and social landscape in Alabama.
Recent Executive Orders: What Employers Need to Know to Assess the Shifting Sands
In January 2025, President Trump issued a flurry of executive orders. Several may significantly impact employers; the key aspects of these orders are described below, although this is not an exhaustive summary of every provision.
1. Diversity, Equity, and Inclusion (DEI) Programs and Affirmative Action Compliance Obligations
The “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” Executive Order contains many provisions that may significantly impact federal contractors and private employers. First, this order revoked Executive Order 11246 (E.O. 11246), which, among other things, required federal contractors to engage in affirmative action efforts, including developing affirmative action plans concerning women and minorities. In addition to revoking E.O. 11246, President Trump’s order requires that the Office of Federal Contract Compliance (OFCCP) immediately cease promoting diversity, investigating federal contractors for compliance with their affirmative action efforts, and allowing or encouraging federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin. Further, the order states that federal contract recipients will be required to certify that they do not “operate any programs promoting diversity, equity, and inclusion (DEI) that violate any applicable Federal anti-discrimination laws.” This order does not impact affirmative action obligations concerning individuals with disabilities and protected veterans.
Second, private sector DEI efforts are also addressed in the order, which effectively states that the President believes such practices are illegal and violate civil rights and anti-discrimination laws. This order further provides that the Attorney General, in coordination with relevant agencies, must submit a report that identifies the most “egregious and discriminatory” DEI practices within the agency’s jurisdiction, including a plan to deter DEI programs or principles (whether the programs are denominated as DEI or not); identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profits, large foundations, select associations and/or education institutions with endowments over one billion dollars; identify “other strategies to encourage the private sector to end illegal DEI discrimination;” and identify potential litigation and regulatory action or sub-regulatory guidance that would be appropriate.
In recent weeks, several corporations have rolled back or limited their DEI programs, presumably in anticipation of, or in reaction to, this order. Notably, the order does not prohibit all DEI policies and initiatives; rather, it impacts only those determined to be discriminatory and illegal, e.g., quotas or explicit preferences for women and/or minorities. Policies focusing on workplace inclusion, broadly defining diversity, and adhering to merit-based hiring may reduce the risk of violating this order.
2. Sex and Gender as Protected Characteristics
The “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” Executive Order redefines federal policy about sex and gender, stating that the federal government will only recognize sex (meaning biological sex – male or female) and not gender. This order directs federal agencies to end initiatives that support “gender ideology”; use the term “sex” not “gender” in federal policies and documents; enforce sex-based rights and protections using the order’s definition of “sex”; and rescind all agency guidance that is inconsistent with the order, including the Equal Employment Opportunity Commission’s “Enforcement Guidance on Harassment in the Workplace” (April 29, 2024), among others. This order also mandates that all government-issued identification documents, including visas, reflect the biological sex assigned at birth and seeks to limit the scope of the U.S. Supreme Court decision in 2020 that held that “sex discrimination” includes gender identity and sexual orientation. This order also directs the EEOC and U.S. Department of Labor (DOL) to prioritize enforcement of rights as defined by the order.
3. Artificial Intelligence
In 2023, former President Biden issued an executive order regarding the potential risks associated with artificial intelligence (AI), which resulted in the DOL releasing guidance on May 16, 2024, entitled “Department of Labor’s Artificial Intelligence and Worker Well-being: Principles for Developers and Employers.” On January 23, 2025, President Trump issued an executive order regarding AI entitled “Removing Barriers to American Leadership in Artificial Intelligence,” which rescinded President Biden’s order. President Trump’s order instructs federal advisors to review all federal agency responses to President Biden’s order and rescind those that are inconsistent with President Trump’s order. Accordingly, the DOL and any other related federal agency guidance, including the 2024 AI guidance issued by the OFCCP, will be rescinded. Employers incorporating such guidance into their policies and practices should respond appropriately. Despite this change in the federal landscape, employers should keep in mind that several states have recently passed laws governing AI use in the workplace, highlighting potential violations under federal and state anti-discrimination laws through AI use.
Below are links to the relevant Executive Orders.
Executive Order 14173 – “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”
Executive Order 14168 – “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”
Executive Order 14151 – “Ending Radical And Wasteful Government DEI Programs And Preferencing”
Executive Order 14179 – “Removing Barriers to American Leadership in Artificial Intelligence”
Proposed Legislation Targets Nonprofits Supporting Immigrant Communities
Proposed legislation introduced in the US Senate last week would deny tax-exempt status to certain organizations that support undocumented immigrants. The legislation would change the eligibility requirements for 501(c)(3) tax-exempt status.
Fixing Exemptions for Networks Choosing to Enable Illegal Migration Act
On February 10, US Senator Bill Hagerty (R-TN) introduced S.497, the “Fixing Exemptions for Networks Choosing to Enable Illegal Migration Act” or the “FENCE Act” (Act). The Act would amend Section 501(c)(3) of the Internal Revenue Code to provide that an organization is only described in Section 501(c)(3) if it “does not engage in a pattern or practice of providing financial assistance, benefits, services, or other material support” to individuals the organization “knows or reasonably should know to be unlawfully present in the United States.”
The Act states that the added language “shall not be construed … to require a religious organization to act in violation of its religious belief.” The Act also states that the provision “should not be construed to require proof of citizenship or verification of an individual’s immigration status to be presented.”
If enacted, the Act could affect both new organizations seeking tax-exempt status and existing tax-exempt organizations that serve immigrant populations. New organizations applying for tax-exempt status under Section 501(c)(3) could be required to certify or otherwise establish that they will not provide prohibited support to persons described in the Act. An organization denied exempt status may appeal that decision through an administrative process and may ultimately seek a declaratory judgment in a court proceeding if needed. Existing organizations working with immigrant populations could also be impacted by, for example, an Internal Revenue Service (IRS) audit to evaluate whether an organization continues to operate exclusively for tax-exempt purposes within the meaning of Section 501(c)(3) or is engaged in activities that would be prohibited because of the Act. During an audit of a tax-exempt organization for this purpose, the IRS may examine the organization’s activities and finances to determine whether the organization complies with the criteria for exemption under Section 501(c)(3). Based on the examination, an organization could be asked to adjust its activities to ensure compliance or face an adverse determination as to its tax-exempt status. An organization has the right to appeal an adverse determination resulting from an audit through an administrative process similar to an organization denied tax-exempt status and it may also ultimately litigate the issue in court if needed.
S.497 has been referred to the Senate Finance Committee. It currently has no cosponsors, and there is no companion bill in the US House of Representatives.
Congress Advances KOSMA Bill Targeting Social Media Use by Minors
Varnum Viewpoints:
KOSMA Restrictions: The Kids Off Social Media Act (KOSMA) aims to ban social media for kids under 13 and limit targeted ads for users under 17.
Bipartisan Support & Opposition: While KOSMA has bipartisan backing, critics argue it could infringe on privacy and First Amendment rights.
Business Impact: KOSMA could affect companies targeting minors, requiring compliance with new privacy regulations alongside existing laws like COPPA.
While COPPA 2.0 and KOSA are discussed more frequently when it comes to protecting the privacy of minors online, the U.S. Senate is advancing new legislation aimed at regulating social media use by those 17 and under. In early February, the Senate Committee on Commerce, Science and Transportation voted to advance the Kids Off Social Media Act (KOSMA), bringing it closer to a full Senate vote.
KOSMA Restrictions
KOSMA would prohibit children under 13 from accessing social media. Additionally, social media companies would be prohibited from leveraging algorithms to promote targeted advertising or personalized content to users under 17. Further, schools receiving federal funding would be required to limit the use of social media on their networks. The bill would also grant enforcement authority to the Federal Trade Commission and state attorneys general.
Bipartisan Support & Opposition
KOSMA has received bipartisan support, with advocates such as Senator Brian Schatz (D-HI), who introduced the bill in January, citing the growing mental health crisis amongst minors due to social media use. Supporters argue that while existing laws like COPPA protect children’s data, they do not adequately address the considerations of social media since they predate the platforms. However, much like similar state laws that have come before it, KOSMA is rife with opposition as well. Opponents argue that this type of regulation could erode privacy and impose unconstitutional restrictions on young people’s ability to engage online. Instituting a ban as opposed to mandating appropriate safeguards, opponents argue, infringes on First Amendment rights.
Business Impact
Although KOSMA only applies to “social media platforms,” the definition of this term could be interpreted broadly and potentially include many companies that publish user-generated content within the scope of KOSMA’s restrictions. KOSMA identifies specific types of companies that would be exempt from the definition of social media platforms, such as teleconferencing platforms or news outlets. If KOSMA were to go into effect, companies across the country that are knowingly collecting data from minors or targeting them with personalized content or advertising would have an additional layer of regulatory consideration when assessing their privacy practices pertaining to the processing of data related to minors—on top of existing federal and state laws.
Trump Administration Outlines Plans for a ‘Golden Era’ of American Energy
The Trump Administration is beginning to roll out its policy plans to “dominate” the global energy space. These plans tackle energy transition issues in a dramatically different manner than did the Biden Administration, particularly by leaning into fostering the development of resources, including fossil fuels, nuclear, and hydroelectric power that provide reliable “baseload” supply. This comes as no surprise given President Trump’s promise to “drill, baby, drill” at the inauguration.
We previously reported on the Trump Administration’s early plans for energy policy, and in the weeks since those plans are coming into sharper focus. Key policy blueprints include the following:
A memorandum released by US Department of Energy (DOE) Secretary Chris Wright on February 5 classified as a plan for “Unleashing the Golden Era of American Energy Dominance” and framing out DOE’s initial slate of actions.
An executive order issued on February 14 establishing the “National Energy Dominance Council” to advise the president on ways to increase domestic energy production and take full advantage of the nation’s “amazing national assets” including oil, natural gas, biofuels, uranium and critical minerals, geothermal heat, and the “kinetic energy of moving water. The council is tasked with preparing a detailed report on the state of “energy dominance” to be prepared within 100 days.
The council will be made up of at least 17 cabinet members and other federal officials, and the US Secretary of the Interior will serve as the Council Chair. The executive order stresses the importance of energy dominance on national security, and the Energy Dominance Council chair will be given a seat on the National Security Council.
We break down the policy framework, which dovetails with the USEP Environmental Protection Agency’s priorities (summarized here), and accompanying context for the Trump Administration’s energy-related plans below. Highlights include:
Renewing focus on fossil fuels like oil and natural gas in place of wind and solar.
Prioritizing lowering the cost of energy to consumers instead of emissions reductions.
Promoting nuclear technology.
Preparing for increased energy demand.
Streamlining government oversight.
Renewed Focus on Oil and Natural Gas
In a stark contrast from the Biden Administration’s focus on wind and solar, the Golden Era plan focuses heavily on fossil fuels by calling to refill the Strategic Petroleum Reserve and ending the Biden Administration’s pause on natural gas exports to countries without free trade agreements. DOE announced its first natural gas export permit approval on February 14.
The 100-day Energy Dominance report will also include specific recommendations for approving natural gas pipelines in New England, California, Alaska, and other areas “underserved by American natural gas.” Separately, President Trump has promised to revive the Constitution Pipeline, intended to transport natural gas from Pennsylvania to New York, which has been stalled since 2020.
In terms of advancing renewable energy, the Golden Era plan mentions only the potential for research and development funding for geothermal and hydropower.
Pivoting From Emissions Reduction to Cost Reduction
Citing the need to reduce inflation and compete with the global economy, DOE plans to roll back Biden Administration efforts to combat climate change in favor of policies that reduce costs for industry and consumers.
Touting the ease at which America’s fossil fuel reserves can be deployed for use, DOE seeks to prioritize the development of these resources instead of Biden Administration priorities such as wind and solar. To this end, DOE’s Golden Era plan announces an end to “net-zero” policies, stating such policies result in higher energy costs and reduced energy reliability without meaningfully reducing global emissions. Additionally, DOE announced it will postpone appliance efficiency mandates and will conduct a comprehensive review of efficiency standards using consumer choice and affordability as a “guiding light.” The postponement echoes arguments made by conservatives in challenges to Biden Administration energy efficiency standards. (For more, see here.)
In addition, the Energy Dominance report will include advice on “identifying and ending practices that raise the cost of energy” as well as ways to encourage private sector and state and local government investments in energy production and infrastructure.
Promoting Nuclear Technology
DOE’s Golden Era plan also includes efforts to launch the “long-awaited American nuclear renaissance” with the goal of leading the world in the “commercialization of affordable and abundant nuclear energy.” Without many specifics, the plan announces that DOE will work to fund nuclear research and development and enable the “rapid deployment and export of next-generation nuclear technology.” The plan further acknowledges the need to modernize nuclear weapons systems and pursue nuclear nonproliferation agreements.
The “Energy Dominance” report will also include recommendations on actions federal agencies can take to facilitate bringing small modular nuclear reactors online.
Preparing for Increased Electricity Demands
The Trump Administration desires to make the United States “the Artificial Intelligence Capital of the World.” (For more, see here and here.)
Artificial intelligence (AI) technology requires significant electricity. While abandoning its predecessor’s focus on “electrification” to reduce emissions, the Trump Administration seeks to ensure electricity production necessary for new technology. The Golden Era plan calls for research and development investments into “true technological breakthroughs” including high-performance computing, quantum computing, and AI. The plan further calls for improvements and expansion of the electrical grid, including a “renewed focus to growing baseload and dispatchable generation.”
Citing the goal of leading the world in AI, the Energy Dominance report will include recommendations on “rapidly and significantly increasing electricity capacity.”
Limiting Government Oversight
Finally, in keeping with the Trump Administration’s overarching theme of government efficiency, the “Golden Era” plan promises to streamline the “burdensome federal permitting process,” with specific focus on expediting the approval and construction of energy infrastructure. As part of this process, the Trump Administration is expected to roll back enforcement of the National Environmental Policy Act (NEPA) with the announcement of an interim rule called “Removal of National Environmental Policy Act Implementing Regulations.” Of late, NEPA-related decisions, including the regulations underlying NEPA regulations, have been under increased scrutiny with cases pending before both the US Supreme Court and the DC Circuit Court of Appeals. (See discussion here.)
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DEEP DIVE: What Does Mr. Trump’s Executive Order Seizing Control of Federal Agencies Really Mean–and is It Constitutional?
So last night Mr. Trump attempted to seize control of more or less the entire federal government. He signed an executive order purporting to bring all independent agencies–including the FCC, FTC, SEC, and perhaps most chillingly the Federal Election Commission–under his individual control.
No other president has done this. Most have avoided even the appearance of interfering in the workings of these agencies for fear of being viewed as wielding inappropriate control over the affairs of agencies designed by Congress to be independent.
But just because this feels like something a dictator would do– and to be clear, it is– does that mean Mr. Trump is actually trying to become one, and, if so, is it unconstitutional?
Maybe. And, maybe.
First, what even is an independent agency?
Independent agencies oversee certain functions of the federal government that require expertise and precision lawmaking that are generally beyond the ability of a Congress composed of–at best generalist lawmakers. These agencies have incredible power over areas of government function that require unique supervision to assure sound policy– like telecommunications, environmental protection, or how elections are conducted.
Independent agencies are unique because they tend to wield both executive and legislative powers. Using the FCC as an example, the Commission may issue rulings interpret or expand the law– such as the recent TCPA revocation ruling the FCC adopted last year. But they may also serve an executive role by bringing enforcement actions and issuing penalties– such as the recent Telnyx order.
And just to make sure everyone understands the difference between legislative and executive functions– legislative power involves MAKING THE LAW. Executive power involves ENFORCING THE LAW.
At the federal level Congress is responsible to MAKE the law. The president is responsible to faithfully ENFORCE the law.
That’s it.
(I look forward to a presidential debate one day–assuming either elections or debates will exist in the future–where the two candidates debate nothing more than who will better faithfully enforce the laws passed by Congress since that is, essentially, their only job.)
Now sometimes making and enforcing the law can blend. For instance when Congress passes a vague enactment–never!–an agency may attempt to interpret the law via an enforcement action. This happens when an agency sues a company for violating the law based on conduct that was never previously deemed to violate that law. We call this “regulation by enforcement” and basically everybody hates it because it is very unfair.
Still regulation by enforcement was quite common during the Obama era– the CFPB loved to regulate by enforcement– and we saw a bit of it during Biden’s presidency, particularly with the FTC “telemarketing sweep” where it decided, for the first time it was a violation of the TSR for engage in lead generation. Eesh.
All right, now that you understand the background what actually happened?
So late yesterday Mr. Trump ordered all independent agencies to report directly to his delegee, the Director of the Office of Management and Budget Russel Vought–who is now instantly one of the most powerful men in the world– so that he, Vought, can dictate their policy, priorities, and budget. As the order states Vought is to: “review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities…”
In other words, the independent agencies are now to serve Mr. Trump and not the American people as a whole.
Cringe.
To be sure, Mr. Trump is casting his order as one intended to hold the agencies accountable to the people. Per his “fact sheet” the agencies must be brought within the President’s control because he was appointed by the people to control them.
Sort of.
Independent agencies used to be non-political. But beginning largely with the Obama administration these agencies have become increasingly political. But the heads of most of these agencies are appointed directly by the president and the president’s party generally control the policies and priorities of the agency.
So, for example, President Trump just appointed Brendan Carr as Chairman of the FCC. Biden appointed Jessica Rosenworcel. Carr will, presumably, guide the Commission consistent with a republican state of mind, just as Rosenworcel guided the Commission with a democratic state of mind. So the agencies are within the control of “the people” because the people decide the president and the president’s party controls the agency and the president picks the head of the agency. And for all past administrations since the 1930s this control and accountability has been deemed sufficient.
But not for Mr. Trump. Not this time.
This time he has decided that these agencies will not move without his direct control. The only way for agencies to be accountable to “the people” is for the agencies to answer directly to him.
Get it?
At best this is ultimate bureaucratic micromanagement. At worst, it is a mechanism by which Mr. Trump can set all of the machinery of government to work to serve his personal agenda– wherever the whims of the day may take him.
Yeah, I know, sounds like a dictator. (For those of you who really like Trump, just imagine Hillary Clinton becoming president in 2028 and having all of these new fun toys to play with Trump left for her.)
So… is it legal?
Maybe. And it depends just how expansive the intended control Mr. Trump is trying to seize really is.
If all Mr. Trump’s order is intended to do is dictate that no federal agency shall take any enforcement action without his approval– or, stated alternatively, that Mr. Trump is plans to dictate (there’s that word again) what enforcement activity the agencies engage in before it is taken–and nothing else, then I think this is likely constitutional.
Executive powers ARE preserved to the president in the Constitution and Congress can’t delegate away executive powers that don’t belong to it. So although this move would still make Trump the most powerful president since Lincoln the constitution permits this sort of thing in my view. So I have no problem with it. (I am a strict adherent to constitutional principles and have no problem with Mr. Trump helping himself to as much as the constitution permits.)
To the extent, however, Mr. Trump is stating he intends to dictate what regulations and rules are implemented by these agencies– i.e. that he intends to seize control of their LEGILSATIVE function– that would be a very serious problem. At that point the legislative and executive function would collapse into a single individual creating, as Madison wrote, “the very definition of tyranny.” Mr. Trump could then write the law to serve his agenda, and then have it enforced it as he saw fit. That would be unconstitutional in my view, and pretty horrifying frankly.
Unfortunately the Order is vague as to its implications and intentions on regulatory matters. The “fact sheet” speaks repeatedly about “executive power” yet suggests agencies must “submit draft regulations”–i.e. LEGISLATIVE actions– to the President. The order itself provides “No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.” So it does seem the big play is in play, but maybe not. The limitation requiring only “executive branch” employees to abide may mean this rule only applies to agency enforcement activities and not to broader rulemaking.
Like I said… unclear.
So where does this leave TCPAWorld?
First, none of this applies to rules the Commission has already passed. The new requirements kick in 60 days from now and all past activity appears to be protected from the need for Mr. Trump’s blessing. This means the FCC’s current TCPA revocation rule–set to go into effect April 11, 2025– is likely to go into effect on that date, although I could see an effort to have the ruling stayed based on this order.
Second, we can expect all FCC enforcement activity to effectively cease pending Mr. Trump’s review. How he plays this will be very interesting. We can imagine a highly weaponized version of the FCC that goes after left-wing interests in social media and broadcast television. Then again we can imagine a neutered FCC that does very little enforcement of anything. What is unclear is where Mr. Trump stands on telemarketing, “robocalls,” or the TCPA more broadly. So it is unclear where in the pantheon of priorities the TCPA and enforcement proceedings against callers and carriers will land.
Third, the courts will need to decide how much power Mr. Trump now wields over the FCC’s legislative functions. I am looking forward to a statement from Chairman Carr on this subject–I’d expect that to be out today. Perhaps it will be business as usual. Or perhaps all FCC rulemaking and policy will now flow through Mr. Trump’s office– meaning Trump will ultimately have to sign off on whether or not the FCC takes action on the R.E.A.C.H. petition everybody is focused on right now.
This last piece is critical to understand.
When something massive and bizarre happens the most immediate impact tends to be paralysis. I’d expect a whole lot of nothing for a few months while people take in the true enormity of what just happened. In the meantime only actions Mr. Trump expressly dictates are likely to gain any traction with the Commission for the time being.
President Trump Signs Executive Order Establishing the Make America Healthy Again Commission
On February 13, 2025, President Donald J. Trump signed an Executive Order establishing the President’s Make America Healthy Again Commission. This initiative, chaired by the newly-confirmed U.S. Health and Human Services Secretary Robert F. Kennedy Jr., aims to tackle the root causes of chronic diseases that affect millions of Americans.
According to the order, six in ten Americans have at least one chronic disease, and four in ten have two or more. The commission aims to review the American diet, “absorption of toxic material,” and “food production techniques,” as part of its objectives.
The Commission has outlined four main policy directives to achieve its goals: (1) requiring federally funded research to be transparent; (2) prioritizing researching the root causes of illness; (3) working with farmers to ensure our food supply is healthy and abundant; and (4) increasing the flexibility of health insurance coverage to provide better support for disease prevention.
The composition of the Make America Healthy Again Commission will include the Secretary of Health and Human Services as Chair, and the Assistant to the President for Domestic Policy as Executive Director, and top officials across several federal agencies related to health, the environment, food and drugs, and others.
The EO requires that within 100 days of the order, the commission will provide a preliminary assessment identifying the causes of childhood chronic disease in America.
Prosecutorial Reset: NLRB Acting General Counsel Rescinds Biden Guidance Memoranda En Masse
Not waiting for the appointment of a new General Counsel after President Trump’s discharge of both the previous General Counsel and then Acting General and suggesting that his motivation related to the workload of the Agency, on February 14, 2025, National Labor Relations Board’s current Acting General Counsel William B. Cowen rescinded nearly all of the Biden administration General Counsel’s substantive prosecutorial guidance memos.
While these memoranda do not have the weight of law or regulation, they do set out the agency’s priorities and key interpretations of the National Labor Relations Act. As a result, it marks a (not unexpected) complete reversal of the prosecutorial focus of the Office of the General Counsel from General Counsel Abruzzo’s tenure.
There were generally two types of rescissions. Some of the memos were rescinded in full, while others were rescinded “pending further guidance” – suggesting those areas where the new administration will be placing its focus.
The Acting GC’s memorandum did not address the impact of the NLRB’s current lack of a quorum on the Acting GC’s prosecutorial agenda. President Trump’s unprecedented firing of former NLRB Chair Gwynne Wilcox, which deprived the NLRB of a quorum, is currently being litigated.
The list of key rescinded memoranda and their policy impact are summarized below.
Abruzzo GC Memoranda Rescinded in Full
Rescinded General Counsel Memoranda
Topic and Relevant Policy
Memorandum GC 21-01
Offered guidance on mail-ballot elections, because “COVID-19 is no longer a Federal Public Health Emergency”.
Memorandum GC 21-02
Rescinded prior memos, including those that provided guidance on employment handbook rules, decertification petitions, and duty of fair representation cases, among other things.
Memorandum GC 21-03
Advocated greater enforcement of Section 7 rights regarding workplace health and safety in light of COVID-19.
Memorandum GC 21-08
Endorsed prosecuting universities that did not classify student-athletes as employees under the NLRA.
Memorandum GC 22-06
Offered an update on NLRB regional offices seeking broader remedies when prosecuting unfair labor practices (e.g., consequential damages, employer letters of apology).
Memorandum GC 23-02
Advocated prosecuting employers who used AI and algorithms in a way that could chill employee Section 7 activity.
Memorandum GC 23-05
Endorsed prosecuting employers that imposed on employees broadly worded severance agreements with expansive non-disparagement and confidentiality clauses.
Memorandum GC 23-08
Advocated prosecuting employers that imposed on employees noncompetition agreements outside limited cases.
Memorandum GC 24-04
Supported seeking full remedies (e.g., increased healthcare costs, lost pension contributions) for employees in unfair labor practice charge settlements with employers.
Memorandum GC 24-05
Proposed continuing to seek Section 10(j) injunctive relief against employers despite the higher procedural bar set by the Supreme Court in Starbucks Corp. v. McKinney.
Memorandum GC 25-01
Advocated prosecuting employers who imposed on employees stay-or-pay provisions (e.g., training repayment agreement provisions, quit fees, sign-on bonuses).
Abruzzo Memoranda Rescinded – Pending Further Guidance
Rescinded General Counsel Memoranda
Topic and Relevant Policy
Memorandum GC 21-05
Advocated Board prosecutors seek Section 10(j) injunctive relief to protect Section 7 rights from “remedial failure due to the passage of time.”
Memorandum GC 21-06
Endorsed NLRB regional offices seeking a “full panoply” of make-whole remedies, including “consequential damages to make employees whole for economic losses (apart from the loss of pay or benefits)”, such as credit card late fees or higher healthcare costs, in unfair labor practice cases.
Memorandum GC 21-07
Proposed Board prosecutors seek expanded remedies in formal and informal settlements, including consequential damages, front pay, and work authorization sponsorship for immigrant workers, employer letters of apology, among others.
Memorandum GC 22-01
Supported ensuring that immigrant workers’ Section 7 rights were protected, including by NLRB regional offices pursuing deferred action, parole, and a stay of removal, among other things, when immigrants allege they suffered unfair labor practices.
Memorandum GC 22-02
Endorsed NLRB regional offices seeking Section 10(j) injunctive relief in response to employers allegedly committing unfair labor practices during union organizing campaigns.
Memorandum GC 24-01
Offered guidance to Board prosecutors seeking a Cemex bargaining order against employers that allegedly fail to recognize and bargain with unions.
Memorandum GC 25-04
Provided insight on the interaction between federal anti-discrimination and labor law, including in cases where an employee engages in Section 7 activity that may be discriminatory.
As always, we will continue to monitor developments related to the Board and provide updates as they develop.