Labor & Employment – Page 10

Do Weekends Count? SCOTUS Decides They Don’t for Voluntary-Departure Deadline

Takeaways

Voluntary-departure deadlines are extended to the next business day when they fall on weekends or legal holidays.
Courts may review final orders of removal and all questions of law arising from them.
The decision provides clarity for immigration judges and attorneys.

ECHA Will Propose EU-Wide Restrictions on Certain Hexavalent Chromium Substances

The European Commission (EC) requested that the European Chemicals Agency (ECHA) assess the risks posed by certain hexavalent chromium substances. ECHA announced on April 29, 2025, that it has concluded that a European Union (EU)-wide restriction for hexavalent chromium substances is justified because the substances “are among the most potent workplace carcinogens and pose a serious risk to workers’ health.” ECHA states that it expects to begin a six-month public consultation on a ban on hexavalent chromium substances, except in the following use categories when defined limits for worker exposure and environmental emissions are met:

Formulation of mixtures;
Electroplating on plastic substrate;
Electroplating on metal substrate;
Use of primers and other slurries;
Other surface treatment; and
Functional additives/process aids.

ECHA states that this restriction could replace the current authorization requirements under the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regulation, ensuring that the risks associated with hexavalent chromium substances are effectively controlled once they are no longer subject to REACH authorization. ECHA notes that it included barium chromate in the scope of the restriction to avoid regrettable substitution.
ECHA states that stakeholders will have the opportunity to provide information during the six-month consultation, which is expected to start on June 18, 2025. ECHA plans to organize an online information session to explain the restriction process and help stakeholders take part in the consultation. ECHA’s Committees for Risk Assessment (RAC) and Socio-Economic Analysis (SEAC) will evaluate the restriction proposal and scientific evidence received during the consultation.

District Court Upholds Browsewrap Agreements in Pennsylvania Wiretap Class Action

Online retailer Harriet Carter Gifts recently obtained summary judgment from the district court in a class action under Pennsylvania wiretap law. At the heart of this case is the interpretation and application of the Pennsylvania Wiretapping and Electronic Surveillance Control Act of 1978 (WESCA), a statute designed to regulate the interception of electronic communications. The court’s primary task was to determine whether the actions of Harriet Carter Gifts and NaviStone constituted an unlawful interception under this law.
In 2021, the district court sided with the defendants, granting summary judgment because NaviStone was a direct party to the communications, and thus, no interception occurred under WESCA. However, the Third Circuit Court of Appeals overturned this decision. The appellate court clarified that there is no broad direct-party exception to civil liability under WESCA. Consequently, the case was remanded to determine “whether there is a genuine issue of material fact about where the interception occurred.”
On remand, the district court examined whether Popa could be deemed to have consented to the interception of her data by NaviStone through the privacy policy posted on Harriet Carter’s website. The court focused on whether the privacy policy was sufficiently conspicuous to provide constructive notice to Popa.
The enforceability of browsewrap agreements, which are terms and conditions posted on a website without requiring explicit user consent, was another critical aspect of the case. The court found that Harriet Carter’s privacy policy was reasonably conspicuous and aligned with industry standards. The court noted that the privacy policy was linked in the footer of every page on the Harriet Carter website, labeled “Privacy Statement,” and was in white font against a blue background. This placement was consistent with common industry practices in 2018 when the violation was alleged, which typically involved placing privacy policies in the footer of websites.
This led the court to conclude that Popa had constructive notice of the terms, reinforcing the notion of implicit consent. Notably, the court found implicit consent without any evidence that Popa had actual knowledge of the terms of the privacy statement. Rather, the court found a reasonably prudent person would be on notice of the privacy statement’s terms.
Based on these findings, the court granted summary judgment in favor of the defendants. The court determined that Popa’s WESCA claim failed because she had implicitly consented to the interception by NaviStone, as outlined in Harriet Carter’s privacy statement.
The case of Popa vs. Harriet Carter Gifts, Inc. and NaviStone, Inc. emphasizes the necessity for clear and accessible privacy policies in the digital era. It also brings attention to the complex legal issues related to user consent and the interception of electronic communications.

President Trump Nominates Assistant U.S. Attorney Panuccio to Serve as EEOC Commissioner

In what may provide the U.S. Equal Employment Opportunity Commission (EEOC) the ability to move forward with implementing policy changes, issuing new guidance, and rescinding other guidance, President Donald Trump nominated Brittany Panuccio, currently an assistant U.S. attorney in the Southern District of Florida, to serve as a commissioner. If confirmed, Panuccio would give the EEOC a quorum, which it has lacked since the president fired two sitting Democratic commissioners in January 2025.

Quick Hits

President Trump nominated Brittany Panuccio, an assistant U.S. attorney in Florida, to serve as an EEOC commissioner.
The EEOC currently has only two commissioners, one less than needed for a quorum.
Once the EEOC has a quorum, it will be able to engage in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that advances the administration’s agenda.

By statute, the EEOC is composed of five political appointees: a chair, vice chair, and three commissioners. Title VII of the Civil Rights Act of 1964 dictates that no more than three commissioners may be from the same political party, and once confirmed, they serve five-year terms on the Commission. Thus, in addition to the EEOC’s acting chair, Andrea Lucas, if Panuccio is confirmed, the president can nominate another Republican to serve as a commissioner.
Further, Title VII demands that for there to be a quorum at the agency, there must be three active commissioners. Thus, Panuccio’s confirmation will resolve the EEOC’s current dilemma, i.e., being unable to vote on topics such as official guidance, policies, regulatory proposals/rulemaking, subpoena enforcement, and litigation (although by memorandum of understanding, much of the litigation decision-making has been delegated to the general counsel in the absence of a quorum).
We anticipate, based on statements made by Acting Chair Lucas and other informal guidance, that once the Commission has a quorum, it will make certain types of charges, litigation, and other policy matters a priority. This prioritization includes:

focusing on investigating and litigating with an expanded definition of what constitutes an adverse action when considering employer diversity, equity, and inclusion (DEI) programs (e.g., where a DEI program results in one protected class failing to receive the same or similar mentorship or feeling ostracized or discriminated against because of such programs);
eliminating systemic investigation and litigation of otherwise neutral employer policies that may have a disparate impact on a protected class;
eliminating recognition of “gender identity” as it relates to the EEOC’s sexual harassment guidance and similar guidance, particularly concerning restrooms, locker rooms, sleeping quarters, and other sex-specific workplace facilities, which, in the view of Acting Chair Lucas, impinges on the rights of women;
eliminating existing EEOC policy, guidance, and regulations associated with abortion as a pregnancy-related condition under the Pregnant Workers Fairness Act; and
an increased focus on investigation and litigation of employment discrimination based on religion or national origin (e.g., Judaism and American), race (particularly those employees who feel preferential programs exclude them in the name of DEI), and sex (particularly from those employees who think that the focus on gender identity, transgender rights, and sexual orientation has impinged on their rights).

The lack of a quorum has prevented the EEOC from investigating charges consistent with Acting Chair Lucas’s perspective concerning various active agency guidance (several of which she condemned in public statements), enforcing administrative subpoenas (due to a 2024 delegation of authority), pursuing noncontroversial, nonsystemic, noncostly litigation (due to a 2021 continuing resolution); and seeking dismissal of certain cases approved under prior EEOC leadership.
More importantly, the lack of a quorum has kept the Commission from engaging in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that furthers the current administration’s agenda. Such a lack of quorum has seemingly caused confusion and a state of “unknown” in the employment law community (given Acting Chair Lucas’s statements without the proper quorum to push such agenda items), as well as inhibited the EEOC from voting to pursue controversial, costly, and systemic lawsuits.
If Panuccio is confirmed, the EEOC will be able to discuss and vote on various matters. While we do not know how Panuccio will vote, we expect significant changes in policy and internal operations within the EEOC that are consistent with the areas identified above. Employers can expect the EEOC to begin working on rescinding guidance and policies that run afoul of the current administration’s agenda, adopting updated guidance and policies, and proposing new and updated regulations. Further, there may be a change in the types of “priority” cases within the EEOC’s enforcement and litigation divisions.
While the EEOC has no authority to overturn case law, it certainly can become a burden on employers’ resources during investigations of charges of discrimination.
By continuing to ensure policies and practices are lawful and compliant with antidiscrimination statutes, employers should be able to achieve the appropriate balance in the days to come.

When Emotional Support and Service Animals Fall Short: ADA Lessons From Fisher v. City of Lansing

On April 29, 2025, in Fisher v. City of Lansing, the U.S. District Court for the Western District of Michigan ruled that the City of Lansing did not fail to accommodate an employee’s request to bring an emotional support dog to work. The court found that the proposed accommodation failed to address a key obstacle that prevented the employee from performing an essential job function.
This decision has broad implications for employers facing an increase in accommodation requests related to mental health conditions and the presence of service or emotional support animals in the workplace.
Quick Hits

Under the Americans with Disabilities Act (ADA), an employee must propose a reasonable and necessary accommodation that addresses a key obstacle that prevents the employee from performing a necessary function of the position.
The ADA does not include emotional support animals in its definition of “service animals.”
Where an employee admits he or she can perform the essential job functions without the requested accommodation, even if not optimally, it weakens any claim that the accommodation is necessary.

Background
Aaron Fisher, a firefighter for the City of Lansing, Michigan, suffers from post-traumatic stress disorder (PTSD). Fisher requested permission to bring a service dog to work, stating that his symptoms worsened while on emergency calls. Although the City of Lansing required employees to submit a reasonable accommodation request form with medical documentation to Human Resources (HR), Fisher bypassed this policy. Fisher submitted his request only to his battalion chief, who initially approved it. However, HR denied the request after discovering the arrangement and determining that Fisher had provided insufficient documentation.
Fisher later submitted another request, this time including a letter from his physician stating he needed an “emotional support animal during work hours.” The city again denied the request. Fisher responded by filing a lawsuit under the ADA and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA), claiming discrimination and retaliation.
In its motion for summary judgment, the city argued Fisher did not need a service dog to perform his essential job functions. The City of Lansing also contended that the presence of a dog could hinder Fisher’s ability to respond quickly to emergencies, that the dog might not always remain under Fisher’s control, and Fisher had not demonstrated a medical necessity for the accommodation.
The Court’s Decision
The court granted summary judgment in the city’s favor, holding that Fisher had not shown that a service dog was necessary for him to perform his essential job function. Fisher’s own testimony indicated he could perform his duties—though not optimally—without the dog. Additionally, the letter from Fisher’s psychologist recommended an emotional support animal but did not state that he could not perform his job without it. While the court did not decide whether Fisher’s dog qualified as a “service animal” under the ADA, it pointed out that the ADA authorizes “service animals” but not “emotional support animals.”
The court also observed that Fisher received a positive performance evaluation and had accrued substantial sick leave and overtime hours after the city denied his accommodation request. These facts supported the conclusion that Fisher could perform his job without the accommodation. Ultimately, the court found Fisher had not met his to prove the dog was a necessary accommodation and dismissed the case.
Key Takeaways for Employers
This case highlights several important considerations for handling ADA accommodation requests:

Under EEOC guidance, employers may require employees to provide adequate medical documentation to support accommodation requests and follow a consistent formal review process if the “requirements are job related and necessary for the conduct of the business.”
Distinguishing between service animals and emotional support animals can be useful. ADA regulations authorize accommodations related to service animals, but not emotional support animals.
Assessing whether the accommodation is necessary for the employee to perform essential job functions is valuable. If the employee can perform those duties without the accommodation, it may not be required.
Employers may also want to communicate clearly with employees about the status of their accommodation requests and provide documented explanations for any denial.

Employers that consider these factors may be more able to effectively manage accommodation requests and remain compliant with the ADA.

Major Changes to AAA Employment Arbitration Rules: What Employers and Litigants Need to Know

Effective May 1, 2025, the American Arbitration Association (“AAA”) implemented significant revisions to AAA Employment/Workplace Arbitration Rules and Mediation Procedures. According to the AAA, these revisions aim to improve transparency, efficiency, and fairness in the arbitration process, while also addressing the evolving needs of workplace disputes. The changes carry important practical considerations for anyone involved in employment arbitration before the AAA. Below we discuss the key updates and what they mean for litigants.
1. Expanded Scope – More Disputes Covered
One of the most significant updates is the expansion of the rules’ scope. Previously, the rules were vulnerable to the argument that they only covered disputes between bona fide employers and their employees, leaving open the question of whether employment law claims brought by independent contractors would be subject to the AAA rules. With the new changes, the rules explicitly provide that they apply to all workplace and work-related disputes, including those involving independent contractors. This change bolsters the argument that arbitration agreements between independent contractors and hiring entities may be enforced under the same arbitral forum rules and procedures as those between employers and employees, which in turn may increase the odds that a reviewing court will compel arbitration of claims between an independent contractor and a hiring entity where the arbitration agreement references the AAA Employment/Workplace Arbitration Rules and Mediation Procedures.
2. Administrative Changes – Clarifying Case Management
The AAA has strengthened its arbitrators’ authority to decline or cease administration of a case if required administrative or arbitrator fees are not paid. This change largely falls in line with existing California state law (Code of Civil Procedure, section 1281.98), but now applies the California rule across the country. Failure to pay arbitration administration fees could now result in the AAA withdrawing from the process entirely, potentially pushing disputes into court. Employers, hiring entities, and their counsel should confirm that internal processes are set up to handle the prompt disposition of administration fees to avoid any potential disruptions to ongoing arbitration proceedings.
Additionally, similar to how the strengthened fee enforcement reduces the risk of parties stalling proceedings, the AAA has extended the automatic stay period from 60 to 90 days when a party seeks court intervention at the outset of a case. This change provides courts with more time to address important threshold issues before arbitration proceeds, helping ensure that early legal challenges are resolved without prematurely advancing the arbitration process. This change may also have significance for cases involving the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”) or California Private Attorney General Act (“PAGA”), where there may be a need for a judicial determination as to the scope of arbitration if there is a disagreement between the parties.
3. Procedural Updates – Embracing Virtual Hearings and Streamlining
Reflecting the post-pandemic shift toward remote work, the AAA has made virtual hearings the default format in employment cases – though parties can still agree to in-person proceedings, or arbitrators can decide the format.
Additionally, the new rules allow the AAA to consolidate multiple claims brought by the same party in separate matters under the same contract. For employers or hiring entities facing such a scenario, this rule change will offer streamlined proceedings but also increase the complexity and potential exposure of a single arbitration.
4. Expanded Arbitrator Powers – Subpoenas, Depositions, and Sanctions
Under the newly revised rules, arbitrators have significantly enhanced authority, including the ability to:

Issue subpoenas for witnesses and documents[1]
Order depositions
Modify or clarify awards on their own or at the parties’ request
Impose sanctions for misconduct

The AAA also reworked Rules 21 and 22, which pertain to the exchange of information, to emphasize the arbitrator’s authority to grant necessary information exchange as required for a party to fairly present its claims and defenses.
Additionally, the AAA revised arbitrator authority for allowing motions, including dispositive motions. The former rules provided general guidance on the arbitrator’s authority to grant interim measures, while the revised rules explicitly outline the arbitrator’s authority to allow motions, including dispositive motions, thereby clarifying the scope and process for such motions.
5. Confidentiality and Transparency – What Will Be Published
Under the new confidentiality rules, arbitrators have authority to resolve disputes over confidentiality between parties. The AAA will continue to publish redacted arbitration award summaries and release quarterly data on employment caseloads.
The AAA’s rule revisions mark a meaningful shift in how employment disputes will be managed and resolved in arbitration. Whether you are an employee, independent contractor, or employer, understanding these changes is crucial to navigating the arbitration process effectively.

FOOTNOTES
[1] State and federal law place limitations on arbitrators’ subpoena powers. Under California law, although arbitrators generally have authority to issue subpoenas for both witness testimony and document production for arbitration hearing and depositions, pre-hearing discovery is limited to certain circumstances. (Code of Civil Procedure, section 1282.6). Similarly, the Federal Arbitration Act (“FAA”) permits arbitrators to compel witnesses and document only at the arbitration hearing, not for general pre-hearing discovery. (Federal Arbitration Act (“FAA”), 9 U.S.C. section 7).
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ADA’s Interactive Process May Require Employers to Follow Up with Third Parties

A recent press release from the U.S. Equal Employment Opportunity Commission (EEOC) announcing a $250,000 settlement and consent-decree resolution of a disability discrimination lawsuit may serve to remind employers of the importance of thoroughly evaluating an employee’s requested reasonable accommodation. This could involve following up with third parties, such as a vocational counselor or the manufacturer of assistive systems and equipment.

Quick Hits

The EEOC’s recent settlement of a lawsuit related to a company’s alleged failure to accommodate a blind employee’s request to use a screen reader app may highlight for employers the importance of thoroughly evaluating reasonable accommodation requests.
The EEOC’s lawsuit alleged that the employer had violated the Americans with Disabilities Act by failing to take reasonable steps to facilitate the employee’s use of screen reader software (despite the employer’s having access to available resources and support for the technology) and firing the employee because she required a reasonable accommodation.
The settlement may serve as a reminder to employers of the value of engaging in a meaningful interactive process that considers available resources when addressing accommodation requests, especially those involving new technologies.

Background
As detailed in the EEOC’s federal complaint, The Results Companies, LLC, hired a blind employee as a telephonic customer service representative for its call center—a role the employee had served in for sixteen years with other employers. Because of her blindness, the employee required a screen reader application, Job Access with Speech (JAWS), to navigate computer desktops and websites.
According to the EEOC, upon her hire by the company, the employee requested to use JAWS as an accommodation for her disability. She provided a copy of JAWS software supplied to her by Texas Workforce Solutions – Vocational Rehabilitation Services (TWS-VRS), a state-run vocational rehabilitation program that assists individuals with disabilities in finding and keeping employment. This software was intended to be installed on the company’s computers for the employee’s use. The company’s IT specialist, who was not familiar with JAWS, found the software to be out of date. The company asked the employee to resign from employment until she obtained the latest version of the software, at which point she would be rehired.
Several months later, after the employee’s TWS-VRS counselor confirmed with the company that the upgraded JAWS software would be compatible with its systems, TWS-VRS purchased the upgraded software and provided it to the IT specialist. At the same time, the employee gave contact information for her TWS-VRS counselor and the publisher of the JAWS software to assist with the installation at no cost to the company.
However, when the employee returned to work the following month, the software still had not been installed, and no one had ever contacted the software publisher. The supervisor and the IT specialist were given two hours to attempt to set up JAWS, but they were unsuccessful. Although the IT specialist told the site operations director (who was the supervisor of the employee’s supervisor) that he thought the compatibility issues could be resolved with more time, that was not permitted. Instead, the employee was discharged from employment.
What the ADA Requires
The Americans with Disabilities Act (ADA) requires employers, absent an undue hardship, to provide reasonable accommodation to employees with disabilities to enable them to perform their essential job functions and enjoy the privileges and benefits of employment. According to the EEOC, an undue hardship means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. EEOC guidance provides that as part of the reasonable accommodation obligation, employers and employees should engage in an interactive process by which the employer may obtain information about the employee’s work-related limitations and the parties can explore possible accommodations.
The EEOC’s Lawsuit
The EEOC brought suit in federal court on the employee’s behalf, asserting that the company had failed or refused to accommodate the employee’s disability. The EEOC contended that providing her with the use of the JAWS software would not have caused an undue hardship, and that the company failed to avail itself of free and easily accessible resources to resolve compatibility issues with the software that would have allowed the employee to perform her essential job functions.
In announcing the settlement, EEOC district director Travis Nicholson stated, “It is important for employers to meaningfully participate in the interactive process once an employee requests a reasonable accommodation and gather information specific to the situation at hand, even if they may not be familiar with the requested accommodation.” Specifically, regarding the use of software as a reasonable accommodation, EEOC trial attorney Alexa Lang added, “Employers must meaningfully assess their technical capabilities and available resources.”
What Does This Mean for Employers?
This settlement highlights at least two instructive points for employers to consider when facing requests for reasonable accommodation that may be unfamiliar to them. First, relying on tried-and-true ways of performing essential job functions may not always be an adequate defense against an ADA failure-to-accommodate claim, so a thoughtful and thorough exploration of the proposed accommodation may be in order, including by contacting outside resources provided by the employee. This may be even more important when the accommodation involves new technologies. Second, failing to tap available assistance or put adequate time and effort into trying to make technology work can leave an employer open to liability under the ADA.

Supreme Court Revives ERISA Litigation Dismissed in Second Circuit: Will the Supreme Court’s Adoption of a Liberal Pleading Standard Increase ERISA Class Actions Under Section 406?

On Thursday, April 17, a unanimous Supreme Court held that a less demanding pleading standard is applicable when plaintiffs bring an Employee Retirement Income Security Act of 1974 (ERISA) class action under ERISA Section 406, despite concerns that this might lead to a flood of meritless claims. This recent decision affects nearly all employers. The underlying question in Cunningham v. Cornell University, et al.—whether pleading a prohibited transaction claim under ERISA Section 406 involving a plan and a party in interest also required pleading elements of ERISA Section 408, which lays out exemptions to that prohibition—has been answered unanimously by the Supreme Court on Thursday, April 17. Succinctly, the Court held that “[t]o state a claim under §1106(a)(1)(C), a plaintiff need only plausibly allege the elements contained in that provision itself, without addressing potential §1108 exemptions.”
1. Procedural History of Cunningham v. Cornell University, et al.
The lawsuit, Cunningham v. Cornell University, U.S., No. 23-1007, alleged various breaches of fiduciary duty and prohibited transactions under ERISA. Specifically, the plaintiff class alleged that payments made to the plan’s service providers constituted prohibited transactions because the fees charged for investment management and recordkeeping were too high. The plaintiff-appellant class participates in “403(b)” retirement plans administered by Cornell University (Cornell). A 403(b) retirement plan is analogous to a 401(k) plan, but a 403(b) plan is sponsored by certain tax-exempt organizations, including nonprofits and not-for-profits.
The district court granted Cornell’s motion to dismiss the prohibited transaction claims, and the Second Circuit Court of Appeals affirmed the dismissal. The Second Circuit, on appeal, held that “to state a claim for a prohibited transaction pursuant 29 U.S.C. § 1106(a)(1)(C), it is not enough to allege that a fiduciary caused the plan to compensate a service provider for its services; rather, the complaint must plausibly allege that the services were unnecessary or involved unreasonable compensation, see id. § 1108(b)(2)(A), thus supporting an inference of disloyalty.”
2. The Supreme Court Unanimously Weighs In
The Supreme Court disagreed. The Court held that the reference in ERISA Section 406 to the exemptions in ERISA Section 408 does not reflect a heightened pleading standard for violations under ERISA Section 406. Instead, Justice Sotomayor, penning the Opinion for the judges, explained that the exemptions in ERISA Section 408 are presented in the “orthodox format of an affirmative defense” and requiring plaintiffs to plead and disprove all potentially relevant exemptions would be “impractical.”
The unanimity of the Opinion is significant. Justices Brett Kavanaugh and Samuel Alito expressed their concern during oral argument regarding the ramifications of the plaintiff-appellants’ position. Even going as far as suggesting it “seems nuts” to plead a prohibited transaction simply due to the existence of a recordkeeping arrangement. Justice Kavanaugh said that accepting the petitioners’ position would be an “automatic ticket to pass go” and get to discovery, summary judgment; the litigation would substantially increase. Even Justice Sotomayor, who penned the majority opinion, noted she had “serious concerns” that the Court’s ruling could lead to an “avalanche” of meritless litigation, going so far as to outline methods for district courts to manage a potential influx of cases.
Specifically, the Opinion suggested utilizing Rule 11 sanctions on meritless complaints and potentially cost shifting (awarding defense attorneys’ fees and costs if they prevail on a motion to dismiss). The Opinion even suggested that district courts should more frequently employ the “not commonly used” Federal Rule of Civil Procedure 7(a)(7) to handle allegations that service provider transactions are prohibited by ERISA. Under Rule 7(a)(7), district judges can require plaintiffs to argue that the affirmative defenses in ERISA Section 408 are inapplicable—namely, that the prohibited transaction exemption does not apply—in a brief replying to a defendant’s answer to the claim.
3. Potential Implications of this Decision
Even prior to this ruling, ERISA class actions were already growing. In 2024, over 136 class action lawsuits alleging ERISA violations were filed. While ERISA class actions have not reached the 2020 high of 200 ERISA class action lawsuits, there has undoubtedly been an upward trend in bringing these suits. And, with the newly clarified liberal pleading standard, both for-profit and nonprofit employers may see an uptick in lawsuits alleging violations of ERISA Section 406. While ERISA Section 408 is not considered part of the pleading requirements for a ERISA Section 406 violation, employers can still rely on ERISA Section 408 exemptions as affirmative defenses.

Spilling Secrets: Trade Secrets on Trial – Strategic Decisions for the Courtroom [Podcast]

What’s the secret to winning a trade secret trial? Find out in this compelling episode of Spilling Secrets, where Epstein Becker Green attorneys Katherine G. Rigby, James P. Flynn, and Adam Paine break down the art of navigating these high-stakes cases.
From designing winning courtroom tactics and leveraging key witnesses to using storytelling as a tool to clarify complex trade secret claims, our panelists offer actionable insights and essential tips for safeguarding confidentiality and determining the right trial format to secure the best outcomes for your business.

Indiana’s Amended Physician Non-Compete Statute Bars Physician-Hospital Agreements Starting July 1

Takeaways

Indiana’s 2025 amendment to its Physician Non-Compete Statute invalidates non-compete agreements between physicians of all types and hospitals (or specific hospital-related entities) entered into after 06.30.25.
Although the 2025 amendment defines key terms such as “noncompete agreement,” it does not affect the statute’s original or 2023 restrictions or requirements or employers’ existing agreements.
Employers should immediately assess their practices and procedures for protecting against unfair competition by physicians.

Canada Implements Temporary Employment Insurance Measures Responsive to Economic Impacts of Trade War

Quick Hits

The Canadian government has amended the Employment Insurance Act to temporarily suspend certain repayment rules for severance payments due to job separations occurring between March 30, 2025, and October 11, 2025.
Employees who receive both severance pay and employment insurance benefits during the specified period will not have to repay their employment insurance benefits.
Repayment obligations for employment insurance can still apply to terminations before March 30, 2025, even if severance payments are made after that date.

Of particular interest to employers and employees, the temporary measures suspend certain rules relating to monies paid because of a temporary or permanent separation from employment. These temporary rules will apply to any monies paid as a result of a separation of employment that occurs between March 30, 2025, and October 11, 2025.
The temporary measures outline that severance payments made because of a separation between these dates will no longer trigger repayment obligations where an individual receives both severance pay and employment insurance benefits. Previously, an employee who had received employment insurance payments and later received severance payments would have a repayment obligation. A similar suspension of repayment obligations was implemented in response to the deleterious effects of COVID-19.
Employment insurance repayment obligations can still apply to any termination of employment that occurred before March 30, 2025, even if payments are made after that date.
These changes will certainly be relevant in assessing severance packages and termination settlements, but for the time period outlined above, it appears that employees will be able to keep both employment insurance benefits and termination pay.

The Founders Sound the Alarm on the President’s Unchecked Power to Terminate Appointees at Will

“[I]f this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance.”
U.S. Supreme Court Justice Joseph Story, Commentaries on the Constitution (1833)
President Trump has clearly communicated his administration’s belief in presidential supremacy, emphasizing his authority to fire any federal appointee or employee, even those for whom Congress has required “good cause” for discharge. Regarding federal employee whistleblowers, the assertion of these powers wreaked havoc on the laws designed to protect employees who lawfully report waste, fraud, and abuse. President Trump fired both the Special Counsel and a Member of the Merit Systems Protection Board, both of whose jobs were protected under the federal laws that created the positions. More recently, President Trump has threatened to fire the Chairman of the Federal Reserve Board, another appointee whose position is protected under law.
By testing the unitary executive theory in the courts, the debate over the limits of the President’s authority to remove executive officers will soon be decided. The final decisions regarding the President’s removal authority will have a lasting impact on all federal employee whistleblowers, as the legal framework designed to protect these whistleblowers was all premised on the independence of the officials making final determinations in retaliation cases. If these officials are not independent (i.e., are not free from the threat of discharge by a sitting President), one of the most important safeguards included in the whistleblower laws covering federal employees will be compromised.
As the debate over Presidential powers moves through the halls of Congress, the Courts, and ultimately by the voters of the United States, the concerns raised by the Founders of the United States need to be carefully considered. The policy issues they identified years ago continue to resonate today.
The first Founder to comment on the President’s authority to remove officials was Alexander Hamilton. While the States were debating whether to approve the Constitution, Alexander Hamilton directly addressed this issue in Federalist No. 77. Hamilton explained that “the consent of [the Senate] would be necessary to displace as well as to appoint.” Hamilton recognized that the U.S. Constitution required a check and balance on the President’s authority to remove all non-judicial appointees who were confirmed by the Senate.
In other words, the issue was not whether or not the President had the constitutional power to fire appointees, but rather whether the Constitution required Senate approval for any such termination. Hamilton understood that, not only was the President’s power to terminate limited, but he went further and stated that any such termination had to be approved by the body that had originally approved the appointment (i.e., the Senate).
In 1803, a pivotal constitutional law issue arose in the landmark case Marbury v. Madison. The decision was authored by the most respected Supreme Court Justice in history, Chief Justice John Marshall. Justice Marshall explained that the President’s power of removal was controlled by Congress. Congress established the terms of the law establishing the office in question. This reasoning was not just accepted; it was a cornerstone of the unanimous decision, grounded in Congress’s authority to create inferior offices and define the rules governing them. The Constitution explicitly designates these powers not to the President, but to Congress.
In discussing the President’s removal authority, Chief Justice Marshall explained: “Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern…but when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled.” Thus, if Congress creates a position for which the occupant cannot be fired “at will,” and termination from that position must follow the restrictions placed on it by Congress.
Justice Marshall further explained that a President is barred from simply removing officers at his pleasure if Congress did not grant the President such powers: “[Mr. Marbury] was appointed; and [since] the law creating the office gave the officer a right to hold for five years, [he was] independent of the executive, [and] the appointment was not revocable.”
The most authoritative discussion of the policies underlying the power of a President to remove inferior officers was carefully explained by Supreme Court Justice Joseph Story’s widely respected 1833 Commentaries on the Constitution. In his text, he provides a thorough explication of the history and background of the removal authority and its significance within U.S. Constitutional law. Justice Story explained the polices that strongly weighed against expanding Presidential powers to include a unilateral right to fire federal appointees or employees, if Congress set limits on such removals.
In the Commentaries, Justice Story warned of the catastrophic impact of unrestrained presidential removal powers:
“[I]f this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance.
***
“Even in monarchies, while the councils of state are subject to perpetual fluctuations and changes, the ordinary officers of the government are permitted to remain in the silent possession of their offices, undisturbed by the policy or the passions of the favorites of the court. But in a republic, where freedom of opinion and action are guaranteed by the very first principles of the government, if a successful party may first elevate their candidate to office, and then make him the instrument of their resentments, or their mercenary bargains; if men may be made spies upon the actions of their neighbors, to displace them from office; or if fawning sycophants upon the popular leader of the day may gain his patronage, to the exclusion of worthier and abler men, it is most manifest, that elections will be corrupted at their very source; and those, who seek office will have every motive to delude and deceive the people.
***
[S]uch a prerogative in the executive was in its own nature monarchical and arbitrary; and eminently dangerous to the best interests, as well as the liberties, of the country. It would convert all the officers of the country into the mere tools and creatures of the president. A dependence so servile on one individual would deter men of high and honorable minds from engaging in the public service. And if, contrary to expectation, such men should be brought into office, they would be reduced to the necessity of sacrificing every principle of independence to the will of the chief magistrate, or of exposing themselves to the disgrace of being removed from office, and that, too, at a time when it might no longer be in their power to engage in other pursuits.’
Six years later, in ex parte Hennen (1839), the U.S. Supreme Court unanimously upheld the principle that Congress had the authority to limit the removal authority of the President “by law,” for all appointments that were not “fixed by the Constitution.” Crucially, Hennen held that “the execution of the power [of removal] depends upon the authority of law, and not upon the agent who is to administer it.”
Hennen has never been overturned by the Supreme Court.
The 1903 case Shurtleff v. United States followed Hennen. The Court held that Congress had the authority to limit the removal authority of the President whenever it used “clear and explicit language” to impose such a limitation. Shurtleff has not been overruled by the Supreme Court.
That brings us to the landmark case primarily relied upon by those supporting the imperial powers of the President: Myers v. United States. This case has been mischaracterized as promoting a unitary executive. Far from it. The Court’s 6-3 holding –with distinguished justice Oliver Wendell Holmes Jr. and Louis Brandeis among the dissenters– did not diminish or overturn the precedents established by Hennen or Shurtleff.
The issue at hand was not whether Congress could limit the removal authority of the President. Rather, the case decided a radically different issue: Whether the President needed to obtain the approval of the Senate any time he sought to terminate any official who was confirmed by the Senate. The case concerned an older established doctrine that, because a Senate vote was necessary to confirm certain appointments, a Senate vote should also be needed to remove that official.
The limited scope of the case was clarified by James M. Beck, the Solicitor General of the United States, who argued the case on behalf of the President. His statement to the court was clear: “[I]t is not necessary to decide” the issue of a President’s general removal authority. Further in his argument, after being questioned about the scope of the President’s removal authority, Beck explained that “it is not necessary for me to press the argument [against removal restrictions] that far (i.e., beyond the issue of Senate approval of removal decisions).” In essence, the case of Myers centered on an old argument about Senate interference with executive duties. This issue is fundamentally distinct from the debate today, which focuses on legislative regulations on the President’s ability to fire executive officers.
Justice Brandeis, in his dissent, further elaborated the very narrow nature of the issue decided in Meyers: “We need not determine whether the President, acting alone, may remove high political officers.” Brandeis’ dissent, along with those of Justices Holmes and James Clark McReynolds need to be understood in the context of the Founders’ views on executive power as expressed by Alexander Hamilton (Federalist No. 77), Chief Justice Marshall (Marbury v. Madison), and Justice Story (Commentaries on the Constitution). Justice Brandeis’ explanation of past precedent needs to be given its just weight in the debates that are unfolding today: “In no case has this Court determined that the President’s power of removal is beyond control, limitation, or regulation by Congress.”
Supporters of unrestrained presidential power to fire executive officers often reference the congressional debates on the establishment of the Department of Foreign Affairs in 1789 as their primary justification. However, this reliance again overlooks the historical context of the discussions regarding the president’s authority over foreign affairs.
The congressional vote regarding the removal of an executive officer did not address the constitutional question of whether Congress had the authority to impose restrictions on the president’s ability to terminate such officers. Instead, the issue being decided concerned an opposite proposition. The debate was over an amendment that would have stripped the President of the unilateral authority to remove the Secretary of Foreign Affairs. The amendment sought to strip the President of the power to fire the Secretary of Foreign Affairs. The specific clause the amendment sought to strike from the bill was the ability for the secretary “to be removed from the office of the president of the United States.”
The amendment was introduced by Virginia Congressman Alexander White, who had in the prior year participated in the Virginia convention that voted to approve the Constitution. Congressman White was very clear that the purpose of his amendment was not to decide whether or not Congress had the authority to set restrictions on a President’s removal authority. The issue was whether the Constitution prevented the President from having any such authority. Congressman White was simply raising the issue discussed in Federalist No. 77, i.e., whether the authority of the Senate to approve an appointment implied a requirement that the Senate concur in any removal. The issue was not whether the President had imperial powers, but instead was whether the President’s authority to terminate officers should be severely restricted.
Congressman White explained the meaning of his amendment as follows: “As I conceive, the powers of appointing and dismissing to be united in their natures, and a principle that never was called in question in any government, I am adverse to that part of the clause which subjects the secretary of foreign affairs to be removed at the will of the President”.
Although his amendment was not approved, Congressman White’s perspective—that the power of removal should be radically restricted—was supported by many members of the First Congress. But in defeating White’s amendment, the First Congress did not enact any law that would restrict Congress from placing limits on the removal powers of a president. That issue was simply not before the First Congress.
Regardless of the various arguments now being raised concerning the President’s removal authority, the warnings articulated by Justice Story have never been refuted. If the Supreme Court were to conclude that Congress lacked the authority to limit the President’s power to fire, at-will, any and all executive officers, the fear articulated by Justice Story would become the law of the land, and as he warned, would be “eminently dangerous to the best interests, as well as the liberties, of the country”.

Joseph Story, Commentaries on the Constitution of the United States, § 1533 (1st ed. 1833).
Compl. Dellinger v. Bessent, No. 1:25-cv-00385 (D.D.C. Feb. 2, 2025) ECF 1, Attachment A.
Tom Jackman, Federal Judge Rules Trump’s Firing of Merit Board chair was illegal, Wash. Post (Mar. 4, 2025), https://www.washingtonpost.com/dc-md-va/2025/03/04/trump-firing-cathy-harris-mspb-illegal/.
Colby Smith & Tony Romm, Trump Lashes Out at Fed Chair for Not Cutting Rates, New York Times, (Apr. 17, 2025), https://www.nytimes.com/2025/04/17/business/economy/trump-jerome-powell-fed.html.
The Federalist, No. 77 (Alexander Hamilton).
Marbury v. Madison, 5 U.S. 137 (1803).
See McAllister v. United States, 141 U.S. 174 at 189). (reaffirming the holding of Marbury v. Madison in regard to Presidential Powers 141 U.S. 1704).
U.S. Const, art. 1, § 8 (“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”); art 2 § 2 (“. . .the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone . . .”)(emphasis added).
Marbury v. Madison, 5 U.S. 137, 162 (1803).
Id. at 161
Story, supra n 1, § 1533.
Story, supra n. 1, at § 1533.
Story, supra n. 1, at § 1533.
Ex parte Hennen, 38 U.S. 230, 259 (1839).
Id at 260
Shurtleff v. United States, 189 U.S. 311, 315 (1903).
Shurtleff v. United States, 189 U.S. 311, 23 S. Ct. 535 (1903).
Myers v. United States, 272 U.S. 52 (1926).
Id at 63.
Id. at 66.
Id. at 310.
Id. at 314.
Elliot’s Debates, Vol. 4 , p. 350 (June 16, 1789).
Id.