Safety on Set: Navigating Compliance in the Entertainment Industry
For businesses operating across multiple states, the complexities of workplace safety compliance can be daunting, particularly when laws and standards may vary by location. This issue is especially impactful in the dynamic entertainment sector, where adherence to continuously changing safety regulations is essential. The responsibility becomes even more significant when the industry is in the metaphorical – and sometimes literal – spotlight. High-profile and industry-specific incidents, such as stunts or set-building gone awry, can not only lead to civil, criminal, and regulatory enforcement actions, but also a level of public attention not often seen in other sectors.
Federal regulations play a critical role, with agencies like OSHA creating the baseline foundation for safety and health standards. Under the OSH Act, all employers have an obligation to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm, in addition to following specific standards. Many states, such as California, have adopted their own safety and health standards which match or exceed the federal requirements. Compliance pressures from state laws, such as those regulating heat illness prevention and wildfire smoke exposure, have become more prevalent and can significantly affect regions where cast and crew members work outdoors. Collective bargaining agreements with entertainment trade unions may further adjust the bar for employers.
In addition to navigating the patchwork of federal, state, and local regulations governing workplace safety and health, entertainment industry employers must also face the court of public opinion. Safety incidents not only have a negative effect on impacted employees, but also make headlines, potentially jeopardizing or even halting production. Given these pressures, selecting the right partner for workplace safety is as important as ever.
For these reasons, employers in the entertainment industry should evaluate their safety programs routinely and proactively address potential hazards
States Shifting Focus on AI and Automated Decision-Making
Since January, the federal government has moved away from comprehensive legislation on artificial intelligence (AI) and adopted a more muted approach to federal privacy legislation (as compared to 2024’s tabled federal legislation). Meanwhile, state legislatures forge ahead – albeit more cautiously than in preceding years.
As we previously reported, the Colorado AI Act (COAIA) is set to go into effect on February 1, 2026. In signing the COAIA into law last year, Colorado Governor Jared Polis (D) issued a letter urging Congress to develop a “cohesive” national approach to AI regulation preempting the growing patchwork of state laws. In the letter, Governor Polis noted his concern that the COAIA’s complex regulatory regime may drive technology innovators away from Colorado. Eight months later, the Trump Administration announced its deregulatory approach to AI regulation making federal AI legislation unlikely. At that time, the Trump Administration seemed to consider existing laws – such as Title VI and Title VII of the Civil Rights Act and the Americans with Disabilities Act which prohibit unlawful discrimination – as sufficient to protect against AI harms. Three months later, a March 28th Memorandum issued by the federal Office of Management and Budget directs federal agencies to implement risk management programs designed for “managing risks from the use of AI, especially for safety-impacting and rights impacting AI.”
On April 28, two of the COAIA’s original sponsors, Senator Robert Rodriguz (D) and Representative Brianna Titone (D) introduced a set of amendments in the form of SB 25-318 (AIA Amendment). While the AIA Amendment seems targeted to address the concerns of Governor Polis, with the legislative session ending May 7, the Colorado legislature has only a few days left to act.
If the AIA Amendment passes and is approved by Governor Polis, the COAIA would be modified as follows:
The definition of “algorithmic discrimination” would be narrowed to mean only use of an AI system that results in violation of federal or Colorado’s state or local anti-discrimination laws.
The current definition is much broader – prohibiting any condition in which use of an AI system results in “unlawful differential treatment or impact that disfavors an individual or group of individuals on the basis of their actual or perceived age, color, disability, ethnicity, genetic information, limited proficiency in the English language, national origin, race, religion, reproductive health, sex, veteran status, or other classification protected under the laws of this state or federal law.” (Colo. Rev. Stat. § 6-1-1701(1).)
Obligations on developers, deployers and vendors that modify high-risk AI systems would be materially lessened.
An exception for a developer of an AI system offered with “open model weights” (i.e., placed in the public domain along with specified documentation), as long as the developer takes certain technical and administrative steps to prevent the AI system from making, or being a substantial factor in making, consequential decisions.
The duty of care imposed on a developer or deployer to use reasonable care to protect consumers from any known or foreseeable risks of algorithmic discrimination of a high-risk AI System would be removed.
This is a significant change from the focus on procedural risk reduction duties and away from a general duty to avoid harm.
Developer reporting obligations would be reduced.
Deployer risk assessment record-keeping obligations would be removed.
A deployer’s notice (transparency) requirements for a consumer who is subject to an adverse consequential decision from use of a high-risk AI system would be combined into a single notice.
An additional affirmative defense for violations that are “inadvertent”, affect fewer than 100,000 consumers and are not the result of negligence on the part of the developer, deployer or other party asserting the defense would be added
Effective dates would be extended to January 1, 2027, with some obligations pushed back to April 1, 2028, for a business employing fewer than 250 employees, and April 1, 2029, for a business employing fewer than 100 employees.
Even if the AIA Amendment is passed, COAIA will remain the most comprehensive U.S. law regulating commercial AI development and deployment. Nonetheless, the proposed AIA Amendment is one example of how the innovate-not-regulate mindset of the Trump Administration may be starting to filter down to state legislatures.
Another example: in March, Virginia Governor Glenn Yougkin (R) vetoed HB 2094, the High-Risk Artificial Intelligence Developer and Deployer Act, which was based on the COAIA, and a model bill developed by the Multistate AI Policymaker Working Group (MAP-WG), a coalition of lawmakers from 45 states. In a statement explaining his veto, Governo Youking noted that “HB 2094’s rigid framework fails to account for the rapidly evolving and fast-moving nature of the AI industry and puts an especially onerous burden on smaller firms and startups that lack large legal compliance departments.” Last year California Governor Gavin Newsom (D) vetoed SB 1047, which would have focused only on large-scale AI models, calling on the legislature to further explore comprehensive legislation and states that “[a] California-only approach may well be warranted – especially absent federal action by Congress.”
Meanwhile, on April 23, California Governor Newson warned the California Privacy Protection Agency (CPPA) (the administration agency that enforces the California Consumer Privacy Act (CCPA)) to reconsider its draft automated decision-making technology (“ADMT”) regulations to leave AI regulation to the legislature to consider. His letter echoes a letter from the California Legislature, chiding the CPPA for its lack of the authority “to regulate any AI (generative or otherwise) under Proposition 24 or any other body of law.” At its May 1st meeting, the CPPA Board considered and approved staff’s proposed changes to the ADMT draft regulations, which include deleting the definitions and mentions of “artificial intelligence” and “deep fakes.” The revised ADMT draft regulations also include these revisions (along others):
Deleting the definition “extensive profiling” (monitoring employees, students or publicly available spaces or use for behavioral advertising) and shifting focusing on use to make a significant decision about consumers. Reducing regulation of ADMT training. However, risk assessments would still be required for profiling based on systemic observation and training of ADMT to make significant decisions or to verify identity or for biological or physical profiling.
Streamlining the definition of ADMT to “mean any technology that processes personal information and uses computation to replace … or substantially replace human decision-making [which] means a business uses the technology output to make a decision without human involvement.”
Streamlining the definition significant decisions to remove decisions regarding “access to,” and limited to “provision or denial of” the following more narrow types of goods and services: “financial or lending services, housing, education enrollment or opportunities, employment or independent contracting opportunities or compensation, or healthcare services,” and clarifying that use for advertising is not a significant decision.
Deleting the obligation to conduct specific risk of error and discrimination evaluations for physical or biological identification or profiling, but the general risk assessment obligations were largely kept.
Pre-use notice obligations were streamlined.
Opt-out rights were limited to uses to make a significant decision.
Giving businesses until January 1, 2027, to comply with the ADMT regulations.
(A more detailed analysis of the CCPA’s rule making, including regulation unrelated to ADMT, will be posted soon.)
MAP-WG inspired bills also are under consideration by several other states, including California. Comprehensive AI legislation proposed in Texas, known as the Texas Responsible AI Governance Act, was recently substantially revised (HB 149) to shift the focus from commercial to government implementation of AI systems. (The Texas legislature has until June 2 to consider the reworked bill.) Other states have more narrowly tailored laws focused on Generative AI – such as the Utah Artificial Intelligence Policy Act which requires any business or individual that “uses, prompts, or otherwise causes [GenAI] to interact with a person” to “clearly and conspicuously disclose” that the person is interacting with GenAI (not a human) “if asked or prompted by the person” and, for persons in “regulated occupations” (generally, need a state license or certification), disclosure must “prominently” disclose that a consumer is interacting with generative AI in the provision of the regulated services.
What happens next in the state legislatures and how Congress may react is yet to be seen. Privacy World will keep you updated.
Increased Workplace Protections for Volunteer Emergency Service Providers in Montana
Takeaways
Only certain volunteer emergency service providers and members are subject to HB 128.
Employers may not terminate volunteer emergency service providers or members after their probationary period has ended for being absent or late to work due to performing emergency volunteer services.
Employees must provide written notice of their status as a volunteer emergency service provider or membership of a volunteer emergency service unit or organization.
Non-exempt employees are not owed regular pay for time missed from work for performing volunteer emergency services.
Related link
HB 128: An Act Protecting Volunteer Emergency Service Providers From Termination by a Public or Private Employer Under Certain Conditions; and Providing for a Legal Cause of Action for Wrongful Termination.
Article
On April 16, 2025, Montana Governor signed into effect HB 128: An Act Protecting Volunteer Emergency Service Providers From Termination by a Public or Private Employer Under Certain Conditions; and Providing for a Legal Cause of Action for Wrongful Termination. The purpose of this bill is to provide employment protection for certain volunteer service providers who are late or absent for work due to their volunteer positions. The bill also increases communication and transparency between these workers and their employers.
Under HB 128, a public or private employer is prohibited from terminating an employee whose probationary period has ended because the “employee elected to serve as a volunteer emergency services provider or joined a volunteer emergency unit or organization, including but not limited to a municipal, rural, or subscription fire department.” For purposes of this bill, “‘volunteer emergency services provider’ means a volunteer firefighter as defined in M.C.A. § 7-33-4510 or a volunteer emergency medical technician as defined in M.C.A. § 50-6-202, and who are not paid full-time by the entity for which services are performed in the local service area.”
Pursuant to HB 128, employees must provide notice to their employer if they serve as a volunteer services provider or join a volunteer emergency unit or organization. Employees serving before the effective date of the bill (April 16, 2025) are required to provide written notification of their service within 30 days of the effective date of the bill. After the effective of date of this bill, employees who become volunteer emergency service providers or join volunteer emergency units or organizations, must provide this written notice within 30 days of their change of status or within 30 days of hire. Once an employer receives written notice, they cannot terminate an employee for being absent or late to work due to performing volunteer emergency service duties if the employee’s probationary period has been completed. The bill incorporates a probationary period of twelve (12) months, commencing on the date that the employee begins work, unless an employer establishes an alternative probationary period. M.C.A. § 39-2-910 (1). Employers may extend a probationary period prior to its expiration but the original probationary period with extensions cannot exceed 18 months. M.C.A. § 39-2-910(2).
There are several conditions that the employee and employer must follow under the bill:
An employee who will be absent or late to work due to performing volunteer emergency service duties must provide notice to their employer as soon as possible. If an employee’s “absence or delay would imperil public safety or prevent the [employer] from performing an essential function, the [employer] may require the employee to request and receive” prior authorization to respond to an emergency.
Non-exempt employees may not claim regular pay for the time absent due to performing volunteer emergency service duties. An employer may deduct regular pay for time not worked.
Employers determine whether an employer may leave work to respond to an emergency.
State Department Updates DS-160 Submission Rules
The U.S. Department of State has recently updated its procedural guidelines for visa applicants, introducing a new requirement that may impact how travelers plan their application process. The DS-160, the mandatory Online Nonimmigrant Visa Application, must now be submitted at least 48 working hours before an interview at a U.S. embassy or consulate is scheduled. This change, although seemingly minor, has implications that applicants should consider as they navigate the often complex visa process.
What Is the DS-160?
The DS-160 is a comprehensive electronic State Department form that collects personal, travel, and employment information from applicants seeking a U.S. visa. Completing this document and submitting it online is the first required step in the nonimmigrant visa application process. After submission, applicants receive a confirmation page with a barcode, which is essential for scheduling a visa interview.
What’s Changing — and Why It Matters
Previously, applicants were able to schedule interview appointments promptly after submitting their DS-160 forms. However, under the new rules, the State Department requires at least 48 working hours between the time the DS-160 is submitted and the scheduling of the visa interview. This change may have been implemented to streamline internal processing and allow embassies and consulates sufficient time to review the submitted information before applicants schedule interviews.
Key Points to Know:
48 Working Hours: It’s important to note that this timeframe refers to business days, which excludes weekends and U.S. federal holidays. For example, if an applicant submits the DS-160 on a Friday afternoon, the earliest they could potentially schedule an interview would be the following Tuesday.
Planning Is Crucial: This adjustment underscores the importance of proactive planning. Visa applicants should not only complete their DS-160 but also consider building in extra time to account for the processing window as well as the availability of interview appointments at their preferred embassy or consulate.
No Exceptions: The State Department emphasizes that this requirement is firm, so rushing or attempting to bypass the 48-hour rule is not advisable. Missing this mandate may cause delays in scheduling interviews or receiving visas, which may affect applicants’ overall travel timeline.
Considerations for Applicants:
Submit DS-160 Early: Considering this new requirement, applicants may wish to complete and submit the DS-160 long before thinking about scheduling an interview. Planning ahead may help ensure a smooth progress through the application process.
Coordinate Forms and Fees: Be sure that all components of your application—such as paying the visa fee—align with the DS-160 submission timing. Interviews cannot be scheduled unless all prerequisites, including this submission window, are satisfied.
Monitor Embassy Availability: Some U.S. embassies and consulates have longer waiting periods for interview slots due to high demand. Applicants should look up the interview appointment availability at their local missions to better strategize when to submit the DS-160.
Why the Rule Might Be Beneficial
Although this new policy introduces an additional layer of waiting time, it might yield improved outcomes for applicants. By allowing embassies and consulates a buffer to review submitted forms, officials can catch errors or inconsistencies ahead of the interview.
Takeaways
While the new 48-hour DS-160 submission rule may require adjustments to travel plans or visa preparation timeline, it’s not insurmountable. With foresight, organization, and careful planning, applicants can comply with the requirement and ensure their visa process flows smoothly. Every step in the visa application sequence exists to promote clarity and efficiency, and understanding these changes may help avoid last-minute frustrations. For those seeking to visit the United States, staying informed of procedural updates like this demonstrates the importance of being detail-oriented and proactive.
California Court of Appeal Affirms Enforceability of Prospective Meal Period Waivers (US)
In a ruling that clarifies a previously unsettled area of California employment law, a California Court of Appeal affirmed the enforceability of written, prospective meal period waivers for shifts between five and six hours long. The April 21, 2025 decision in Bradsbery v. Vicar Operating, Inc. explained that advanced “blanket” waivers are valid under the law if freely revocable and absent evidence of coercion or unconscionability. For California employers, Bradsbery provides much-needed guidance on how to properly implement meal period waivers in compliance with the law.
The Legal Context
Under California Labor Code Section 512, employees are entitled to a 30-minute duty-free meal period after five hours of work. The law permits employees to waive this meal period for shifts no longer than six hours if the waiver is made by mutual consent.
The issue in Bradsbery was whether this mutual consent could be documented in a standing, written waiver signed at the outset of employment, referred to as a “blanket” or “prospective” waiver, rather than being obtained anew for each qualifying shift.
The Case
Plaintiffs La Kimba Bradsbery and Cheri Brakensiek filed a class action against their former employer, Vicar Operating, Inc., alleging they were improperly denied meal periods. In its defense, Vicar relied on written agreements, voluntarily signed by both employees, which waived meal periods on shifts of six hours or less.
The trial court found for Vicar, stating that such waivers are enforceable in the absence of evidence of unconscionability or coercion. On appeal, the plaintiffs argued that allowing these prospective, “blanket” waivers undermines the protective intent of California’s meal period laws and should be found invalid and unenforceable.
The Ruling in Bradsbery
Upholding the lower court’s decision, the court explained that because the law is silent as to when or how a meal period waiver must be executed, employers may use prospective, written waivers unless such waivers are proven to be coercive or unconscionable.
In reviewing the plaintiffs’ signed agreements with Vicar, the court found no evidence of coercion or unconscionability, noting that the written waivers were revocable at any time, and there was no evidence that the employees unknowingly signed the waivers or that Vicar coerced them into signing the waivers because it had greater bargaining power. Moreover, the plaintiffs produced no evidence that Vicar discouraged employees from taking meal periods or from revoking the waivers, which the court clarified might lead to a different result in future cases where evidence of duress or a lack of informed consent exists.
Why Does This Matter to California Employers?
For California employers, the Bradsbery decision provides long-awaited confirmation that prospective meal period waivers are enforceable. However, Bradsbery also provides important insight into what California courts will consider when analyzing the enforceability of such waivers.
In light of this decision, California employers should review their current policies and agreements related to meal period waivers for compliance with the following best practices.
The agreement must explicitly state that employees are free to refuse to sign or to revoke the waiver at any time after signing without fear of retaliation.
For long-term employees, consider revisiting the agreement periodically and reminding employees of the terms and conditions of the waiver, including the revocation provision.
For new employees, ensure that employees understand that it is their choice to waive meal breaks and that employees understand the scope of what the waiver covers.
Monitor and document usage to ensure that waivers are only applied when employees work a shift of less than six hours. California employers should also consider documenting any instances of revocation to show that employees are free to refuse or revoke the waiver without retaliation.
Make sure waivers are clear and distinct, not buried in a long document, printed in small type, or worded confusingly – in other words, the kind of things California courts examine when asked to determine unconscionability.
It is crucial that all supervisors and managers understand the scope of these waivers and they should be provided training on how to assist employees who seek to revoke these waivers and how to engage with employees who have waived their meal periods. Contact your local Squire Patton Boggs attorney for assistance with reviewing your meal break waiver procedures for compliance with California law.
Washington Lawmakers Pass ‘Mini-WARN Act’ to Require Notice of Site Closings and Mass Reductions in Force
Washington is close to being the latest state to enact a “mini-WARN Act” that would require employers with fifty or more full-time employees to provide at least sixty days’ notice to the state, any union, and/or employees affected by a business site closing or mass reduction in force.
Quick Hits
Washington State is on track to enact a “mini-WARN Act” requiring employers with fifty or more employees to provide at least sixty days’ notice before business closures or mass reductions in force.
The Washington bill’s notice requirements would go beyond the federal WARN Act.
The legislation includes protections for employees on paid family or medical leave, preventing them from being included in mass reductions, except in limited situations.
Employers that fail to comply with the notice requirement could face significant financial penalties, including back pay plus the cost of benefits for affected employees and civil penalties for violations.
On April 27, 2025, the Washington State Legislature delivered Senate Bill (SB) 5525 to Governor Bob Ferguson’s desk for signature. The bill, titled the “Securing Timely Notification and Benefits for Laid-Off Employees Act,” would provide employee protections in the context of business closings and mass reductions in force (RIF) similar to the federal Worker Adjustment and Retraining Notification (WARN) Act.
The legislation would require most covered employers to provide notice and information beyond what is required by the WARN Act before closing a business location or undertaking a “mass layoff” and protect employees from being included in a reduction while they are taking Washington’s paid family or medical leave. The bill would also grant the Washington State Employment Security Department (ESD), aggrieved employees, or the employees’ union bargaining representative a private right of action to enforce.
‘WARN-Plus’ Notice
SB 5525 tracks the federal WARN Act and would prohibit employers with fifty or more full-time employees from ordering the closing of a business location or “mass layoff” without after a sixty-day period following written notice of such action to the ESD and the affected employees or the employees’ union.
The bill also would require employers to provide a notice, which would contain what the federal WARN Act notice requires, plus:
the name/address of the impacted site and the company contact person;
whether the action is permanent or temporary (and, if temporary, whether it lasts longer or less than three months);
the anticipated date of first employment loss and schedule of losses;
the impacted job titles and names of employees in jobs (the ESD notice must also include the employees’ addresses); and
whether the action “is the result of, or will result in, the relocation or contracting out of the employers’ operations or employees’ positions.”
Employers would be required to provide additional notice if the closure or RIF goes beyond the scheduled dates in the original notice.
Exceptions
The bill would excuse notice in certain circumstances:
the employer is “actively seeking capital or business” at the time the notice is required that could enable the employer to avoid a business closing or mass reduction, and the employer “reasonably and in good faith believe[s]” that providing notice would prevent it from obtaining the capital or business;
the business closing or reduction in force is based on reasons “not reasonably foreseeable at the time the notice would have been required”;
the business closing or reduction in force is due to “a natural disaster,” such as a flood, earthquake, or tornado; and
the mass reduction in force is at certain construction projects in which the employer informed the affected employees that their job was limited to the duration of a particular portion of the project or all affected employees are on a union referral or dispatch system on a “multiemployer construction project.”
Paid Family and Medical Leave Protection
Unless notification is excused, employers would not be permitted to include in a mass reduction in force any employee currently taking paid family or medical leave under the Washington Paid Family and Medical Leave law. Lawmakers passed SB 5525 after considering a similar bill, HB 1313, that did not contain the paid family or medical leave protection.
Separately passed legislation, House Bill (HB) 1213, also on the governor’s desk, would expand the job restoration rights and insurance protection under Washington’s Paid Family and Medical Leave Act (WPFML), adding to the protections provided by SB 5525.
Damages, Penalties, and Right of Action
Under SB 5525, employers that fail to provide the required notice to each aggrieved employee would be liable for various damage including back pay (calculated as the higher of the final rate of compensation or the average regular rate over their last three years, whichever is higher) to each aggrieved employee for each day of violation up to sixty days.
In addition, damages would also include “[t]he value of the cost of any benefits to which the employee would have been entitled had their employment not been lost, including the cost of any medical expenses incurred by the employee that would have been covered under an employee benefit plan.”
However, employers would get credit for payments during the violation period to the employee for wages, voluntary and unconditional payments, and the WARN Act and payments to third parties, such as health insurance premiums or contributions to a defined contribution pension plan.
Employers that fail to provide requisite notice to ESD would also face civil penalties of not more than $500 for each day of the violation.
Also, SB 5525 would allow ESD, aggrieved employees, or the aggrieved employees’ bargaining representative to file a civil lawsuit on behalf of the aggrieved employees, “other persons similarly situated, or both,” within three years of alleged violations. Courts would be able to award reasonable attorneys’ fees and costs to prevailing parties. Courts would also be able to reduce a civil penalty, if they find the employer “conducted a reasonable investigation in good faith and had reasonable grounds to believe its conduct was not a violation.”
Next Steps
Unless Governor Ferguson vetoes SB 5525 before May 17, it will go into effect on July 26, 2025, or ninety days after the close of the legislative session.
EEO-1 Reporting (Maybe) — Get Ready Nonetheless!!
On April 15, 2025, the Equal Employment Opportunity Commission (EEOC) sought approval of its 2024 EEO-1 Component 1 data collection. The EEOC’s new proposed 2024 EEO Component 1 Instruction Booklet (the “Booklet”) changes some reporting obligations for employers. If approved, employers will have from May 20, 2025, to June 24, 2025, to file their reports. Private employers with at least 100 employees must file the EEO-1 report annually. In addition, federal government contractors with 50 employees previously were required to file EEO-1 reports. What is less clear is whether government contractors with less than 100 employees will have to file their EEO-1 report. The EEOC’s proposed Instruction Booklet still requires federal contractors to file. The Booklet does not address whether President Trump’s Executive Order 14173, eliminating Executive Order 11246, changes these reporting obligations.
One major proposed change to the EEO-1 report is the removal of the option for employers to report employees who identify as nonbinary. Employers previously could report nonbinary employees in a separate comment box. If approved, that option would not be available. The instruction booklet does not require employers to collect or report pay data.
Next Steps
We will monitor whether the 2024 Instruction Booklet is approved. In the meantime, employers should collect data by employee job category, as well as by sex and race/ethnicity, now so they are ready to report in May or June.
Physician and Health Care Noncompete Law: New Legislation in 2025
It has been a busy year for health care noncompete legislation. Multiple states have enacted legislation, set to take effect in 2025, banning or limiting noncompete agreements for physicians and other health care workers. Although this post only covers enacted legislation, many other states have proposed legislation pending.
Arkansas: On March 4, 2025, Arkansas enacted a law amending the state’s noncompete statute to ban physician noncompetition agreements. The term “physician” is defined to include any person authorized or licensed to practice medicine under the Arkansas Medical Practice Act and any person licensed to practice osteopathy in Arkansas. The law takes effect in the summer of 2025.
Louisiana: Louisiana enacted a law, effective January 1, 2025, limiting noncompetition agreements for physicians. Effectively, employers cannot have a noncompetition agreement with primary care physicians once they have been employed for three years or with any other type of physician after they have been employed for five years.
The law defines primary care physicians as those who predominantly practice “general family medicine, general internal medicine, general pediatrics, general obstetrics, or general gynecology.” For primary care physicians, the law prohibits a noncompetition provision longer than three years “from the effective date of the initial contract or agreement.” It also prohibits employers from including a noncompetition provision in “[a]ny subsequent contract or agreement between the employer and primary care physician executed after the initial three-year terms.” In the event a primary care physician terminates their employment during the initial three-year term, an employer may enforce a noncompete covenant that prevents the physician from carrying on or engaging in a business similar to that of the employer in the parish in which the primary care physician’s principal practice is located and no more than two contiguous parishes in which the employer carries on a like business. The parishes must be specified in the agreement, and the agreement cannot exceed a period of two years from the date of the physician’s termination.
The same limitations apply for all other types of physicians, except an employer may enforce a noncompetition agreement against a non-primary care physician if the employer terminates the physician’s employment within the first five years (as opposed to three for primary care physicians).
The law explicitly excludes certain physicians: specifically, physicians employed or under contract with a rural hospital or physicians employed or under contract with a federally qualified health care center. Furthermore, the law only applies to employment-based agreements. Louisiana’s statute specifically permits noncompetition and nonsolicitation agreements in the sale-of-business context. Louisiana Rev. Stat. § 23:921(C).
Maryland: Maryland enacted a law, which takes effect July 1, 2025, limiting noncompetition agreements for employees who (1) earn less than $350,000 per year, and (2) are either (i) required to be licensed under Maryland’s Health Occupations Article or (ii) are employed in a position that provides direct patient care. For such employees, a noncompete agreement must be limited to one year and cannot exceed ten miles from the primary place of employment.
Pennsylvania: Last summer, Pennsylvania enacted the Fair Contracting for Health Care Practitioners Act (the “Act”), which became effective January 1, 2025. The Act, which is not retroactive, limits certain noncompetition provisions entered by licensed medical doctors, osteopaths, nurse anesthetists, registered nurse practitioners, and physician assistants. Specifically, outside the sale-of-business context, the Act only permits noncompete provisions for health care practitioners if (1) the provision does not exceed one-year post-employment, and (2) the employer seeking to enforce the provision notifies certain patients within 90 days of the health care practitioner’s termination.
Utah: Utah passed a law on March 26, 2025, effective May 7, 2025, that prohibits a “health care services platform” from requiring a health care worker to enter into a noncompetition agreement. The law defines “health care services platform” as “a person that operates or offers for use” an “electronic program, system, or application through which a health care worker may accept a shift to perform a health care service or role, as an independent contractor, at a health care facility.”
Arkansas, Louisiana, Maryland, Pennsylvania, and Utah are not the only states that impose heath care-specific limitations on noncompetition agreements. For instance, Texas, Florida, Colorado, Tennessee, and Washington, D.C., among other states, have long-standing limitations on physician-based noncompetition agreements. Most states impose some form of restrictions, ranging from very minor limitations to outright bans. Employers expecting to enter noncompetition agreements with health care employees should work with counsel to understand the state-specific limitations and requirements. We will continue to monitor and report on developments in this highly dynamic area of law.
Illinois Broadens Scope of Whistleblower Act, Strengthening Protections for Whistleblowers in the State
The Illinois Whistleblower Act (the “Act”) provides protections to employees who make reports of certain fraudulent and illegal conduct occurring in their workplaces. In the past legislative session, the Illinois General Assembly broadened and expanded these protections with the enactment of Public Act 103-0687 (the “Amendments”). The Amendments, which became effective on January 1, 2025, redefine key terms in the Act, expand the scope of conduct that is protected, and enhance the penalties and enforcement actions available for violations of the Act.
Redefinition of Employee
Most notably, the Amendments clarify the definition of an “employee” to which the Act applies. Specifically, “employees” covered by the Act exclude independent contractors. The Amendments adopt the stringent ABC test to determine whether a worker is an employee covered by the Act or is an independent contractor who is not covered.
The ABC test looks to whether (1) the worker is free from the control of the employer; (2) the worker performs work in the usual course of business of the employer; and (3) the worker is in an independently established trade or occupation.
The Amendments also redefine “employee” to include licensed physicians working at facilities that receive state funds.
Increased Scope of Protections
The Amendments increase protections related to employee disclosures. Employers may not take retaliatory action against an employee who discloses or threatens to disclose:
During an investigation, court proceeding, or an administrative proceeding, information related to the conduct of the employer if the employee has a good faith belief the employer has violated a law or regulation or poses a substantial and specific danger to employees, public health, or safety;
To a government or law enforcement agency, information related to the conduct of the employer if the employee had a good faith belief the employer has violated a law or regulation or poses a substantial and specific danger to employees, health, or safety; and
To a supervisor, principal officer, board member, or supervisor in an organization with a contractual relationship with the employer, information related to the conduct of the employer if the employee has a good faith belief that the employer has violated a law or regulation or poses a substantial and specific danger to employees, public health, or safety.
The Amendments similarly increase protections for employee refusals. To that end, employers may not take retaliatory action against an employee for refusing to participate in an activity that the employee has a good faith belief would result in a violation of law or regulations.
The Amendments further clarify what constitutes retaliatory action by an employer. Retaliatory action is defined as adverse action by an employer that would dissuade a reasonable worker from making a protected disclosure or refusal under the Act. Retaliatory action specifically includes, but is not limited to, action that would interfere with the employee’s future employment or action that constitutes an immigration-related practice prohibited by the Illinois Human Rights Act, as well as contacting or threatening to contact immigration authorities.
Heightened Penalties and Additional Enforcement
The Amendments impose heightened penalties for violations of the Act.
Specific additional penalties include the ability for employees to obtain injunctive relief; 9% yearly interest on their back pay; front pay; liquidated damages of up to $10,000; and a civil penalty of $10,000 payable to the employee. The Amendments also include a provision that allows the Illinois Attorney General to initiate civil actions against employers for violations of the Act.
Conclusion
Following enactment of these Amendments, employers who operate in Illinois must now navigate a broader scope of protected activities and ensure compliance with these enhanced protections against retaliation.
Illinois employers would be wise to review and revise their internal policies, training programs, and reporting mechanisms to align with these new protections. Employers should consult with counsel if they have questions as to the implications of these Amendments as well as their compliance with the Illinois Whistleblower Act.
Multistate Monday: Employment Verification and Immigration Inspections, Part II [Podcast]
In this episode of our Multistate Monday podcast series, Dee Anna Hays (co-chair of the firm’s Multistate Advice and Counseling Practice Group), Susan Gorey, and Stephanie Generotti continue their discussion on E-Verify, I-9 requirements, and state-specific mandates. In part two of their conversation, they focus on three types of warrant-based scenarios—administrative, judicial, and operational search—and explain the purpose and scope of each type of warrant. They also emphasize the importance of employers being prepared to respond appropriately to each scenario by designating a point of contact and training frontline employees who may be the first to encounter a U.S. Immigration and Customs Enforcement (ICE) agent.
Find part one of this series here
Proportional Fault Indemnification Provisions Held Enforceable in Alabama
The Alabama Supreme Court found that an indemnification provision was enforceable that required a subcontractor to indemnify a general contractor on a proportional-fault basis against liability for death or personal injury.
JohnsonKreis Construction Company, Inc. subcontracted with Howard Painting, Inc. to perform work on a hotel project in Birmingham, Alabama. The subcontract included an indemnification provision that required Howard to indemnify JohnsonKreis for “personal injury, death […] and/or property damage arising out of or related to Subcontractor’s […] negligence or fault […] but only to the proportional extent of Subcontractor’s responsibility for same.” The subcontract also required Howard to name JohnsonKreis as an additional insured. During the project, an employee of one of Howard’s subcontractors died after falling from a window on an upper floor of the hotel. The deceased employee’s estate filed a lawsuit against JohnsonKreis and Howard.
Disputes arose between Howard and JohnsonKreis regarding the scope of indemnity and coverage. JohnsonKreis and its insurer sued Howard and its insurer for breach of the subcontract for various claims, including (a) failing to comply with safety protocols, (b) failing to comply with stated insurance requirements (which included naming JohnsonKreis as an additional insured), (c) bad faith against Howard’s insurer, and (d) subrogation/contribution.
Howard argued in its motion for summary judgment that JohnsonKreis was not entitled to indemnification because Alabama does not permit the apportionment of damages among joint and several tortfeasors. The trial court agreed with Howard’s argument and entered summary judgment in its favor.
JohnsonKreis and its insurers appealed. The Alabama Supreme Court held that the subcontract’s proportional indemnification provision was valid and enforceable and reversed the trial court. Specifically, the court explained:
It is true, as [Howard] argues, that the damages available on a wrongful-death claim under Alabama law are punitive in nature and that a wrongful-death plaintiff is entitled to a single recovery that “cannot be apportioned [by a jury] among joint tort-feasors,” i.e., neither Alabama’s wrongful-death statute, see § 6-5-410, Ala. Code 1975, nor our common law provides for indemnity or contribution in a wrongful-death case. Tatum v. Schering Corp., 523 So. 2d 1042, 1045 (Ala. 1988). However, this is not a wrongful-death case — it is a contractual dispute based on the language of a particular subcontract agreement — and that general rule may be altered by an indemnification agreement between the parties. See Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So. 3d 722, 728 n.1 (Ala. 2009) (“Here, the indemnity agreement is part of a contractual relationship between two parties, and the dispute between them is not one of a claimant and a tortfeasor.”). Specifically, as we most recently reiterated in Mobile Infirmary Ass’n v. Quest Diagnostics Clinical Laboratories, Inc., 381 So. 3d 1133 (Ala. 2023), this Court has recognized that “parties may enter into agreements that allow an indemnitee to recover from the indemnitor even for claims resulting solely from the negligence of the indemnitee,” i.e., this Court has recognized that parties may freely reach “a contractual agreement providing a form of otherwise barred joint-tortfeasor contribution.” 381 So. 3d at 1141. See also Holcim, 38 So. 3d at 729 (“[I]f two parties agree that the respective liability of the parties will be determined by some type of agreed-upon formula, then Alabama law will permit the enforcement of that agreement as written.”), and Parker Towing Co. v. Triangle Aggregates, Inc., 143 So. 3d 159, 167 (Ala. 2013) (“The general rule in Alabama is that, in the absence of a statutory or contractual basis otherwise, there is no contribution or indemnity among joint tortfeasors.” (emphasis added)). Cf. Industrial Tile, Inc. v. Stewart, 388 So. 2d 171, 176 (Ala. 1980) (“[I]f the parties enter into an agreement whereby one party agrees to indemnify the other, including indemnity against the indemnitee’s own wrongs, if expressed in clear and unequivocal language, then such agreements will be upheld.”). In fact, in Mobile Infirmary, supra, the main opinion specifically referenced the legality and the enforceability of an agreement requiring “that each party was required to indemnify the other for any proportional share of fault in the case of potential joint liability” — almost the exact language included in the subcontract agreement at issue in this case. 381 So. 3d at 1143.
Thus, the subcontract agreement, to the extent that it required Howard to indemnify JohnsonKreis against liability for personal injury or death occurring on the project site to the proportional extent of Howard’s responsibility for such injury and death, appears, contrary to the trial court’s sole finding, to have been valid and enforceable under Alabama law. Accordingly, the trial court’s decision is due to be reversed.
The Alabama Supreme Court remanded the case to the trial court for further proceedings. A copy of the court’s entire decision can be found here.
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Navigating California’s New Regulations on Automated Decision-Making Tools
The California Civil Rights Department (CRD) has recently approved regulations under the Fair Employment and Housing Act (FEHA) to address discrimination in employment resulting from the use of automated decision-making systems, including artificial intelligence (AI) and algorithms. These regulations apply to all employers covered by the FEHA and will likely take effect in July, once they complete the final administrative process of approval by the Office of Administrative Law.
Definition of Automated Decision Systems
An automated decision system (ADS) is defined as a computational process that makes or assists in making decisions regarding employment benefits such as hiring, promotion, selection for training programs, or similar activities. An ADS can result from AI, machine learning, algorithms, statistics, or other data processing techniques. The definition of ADS does not include word processing software, spreadsheet software, or other commonly used software for day-to-day work.
Regulations Against Discrimination
Under these regulations, it is unlawful for an employer to use ADS or selection criteria that discriminate against applicants or employees based on protected categories defined under FEHA. Evidence of anti-bias testing of ADS or similar practices may support defenses against discrimination claims. Anti-bias testing involves evaluating automated decision-making systems to identify and mitigate biases that may lead to unfair or discriminatory outcomes, ensuring the system operates equitably across different demographic groups. However, methods of conducting anti-bias testing may vary depending on the ADS used.
Recordkeeping
The regulations require preserving ADS data and related records for four years from either the date of the data’s creation or the personnel action involved, whichever occurs later, similar to other types of personnel records and selection criteria. Other revisions include adding ADS to regulations in the definition of “application” or included in “recruitment activity.” Additionally, the regulations specify that using ADS for certain skill testing may necessitate providing reasonable accommodations for religious beliefs or disabilities, ensuring non-discriminatory practices.
Compliance for Employers
For employers in California, the regulations clarify that when using ADS for any aspect of employment, caution should be applied to avoid discrimination.