Global Equity Plan Reporting Obligations for Calendar-Year 2025: Part One
Global equity plans are complex, and administration requires collaboration between various departments, including legal, human resources, payroll, and tax. Plan administrators (and their teams) should be aware of their reporting obligations with respect to international equity awards. Many reports can be submitted by the local entity’s payroll team; however, certain countries require separate standalone submissions.
In Depth
The following reference chart summarizes selected reporting requirements for equity plans with international grantees. This reference – part one of two – highlights year-end reports (i.e., reporting obligations for prior calendar-year 2024 activity) with deadlines through June 30, 2025. It also includes certain quarterly filings. This resource does not include initial registration/exemption applications, reports due upon equity grants, or other standard payroll/tax reports. Additionally, reporting obligations may differ if certain exemptions apply, if the company implements a recharge agreement, or if the local entity is involved with administration of the plan.
Country
Report Type
Award Types
Report Description
Frequency
Due Date
Philippines
Securities
All Equity Awards
Applies only to plans that have obtained a registration exemption from the Philippines Securities and Exchange Commission
Annually
January 10, 2025, for prior calendar year activity
Thailand
Securities
Options
Report option grants and exercises to the Thailand Securities and Exchange Commission
Annually
January 15, 2025, for prior calendar-year activity
China
Exchange Control
All Equity Awards
For State Administration of Foreign Exchange (SAFE)-registered plans, report plan activity via statutory form to the applicable SAFE office
Quarterly1
January 6, 2025, for prior calendar-quarter activity
Vietnam
Exchange Control
All Equity Awards
Report aggregate share value to the State Bank of Vietnam
Monthly2
January 12, 2025, for prior month activity
Saudi Arabia
Securities
All Equity Awards
Report plan activity via online portal or email inbox to Capital Markets Authority
Quarterly
As soon as administratively feasible following the end of Q4 2024 data
Malaysia
Tax
All Equity Awards
For each entity in Malaysia, report option exercises/RSU vesting via Form BT (Appendix C) to the Inland Revenue Board
Annually
February 28, 2025, for prior calendar-year activity
France
Tax
Tax-Qualified Options
Tax-Qualified Restricted Stock Units
For tax-qualified options that are exercised or restricted stock units that vest, distribute statement describing grant activity to employees. A copy must also be provided to the applicable tax office.
Annually
March 1, 2025, for prior calendar-year activity
Singapore
Tax
All Equity Awards
Distribute statement describing tax gains activity to employees via Form IR8A (Appendix A)
Annually
March 1, 2025, for prior calendar-year activity
Ireland
Tax
Option Awards
Report option-related activity via Form RSS1
Annually
March 31, 2025, for prior calendar-year activity
Tax
All Equity Awards, Excluding Options
Report all other equity-related activity via Form ESA
Annually
Japan
Tax
All Equity Awards
For Japanese affiliates that are 50%+ owned by a non-Japanese company or a Japanese branch of a non-Japanese company, report plan activity
Annually
March 31, 2025, for prior calendar-year activity
China
Exchange Control
All Equity Awards
For SAFE-registered plans, report plan activity via statutory form
Quarterly
April 3, 2025, for prior calendar-quarter activity
Singapore
Tax
All Equity Awards Eligible for Qualified Employee Equity-Based Remuneration Scheme
Submit application form for tax deferral eligibility to Comptroller of Income Tax
Annually
April 15, 2025, for prior calendar-year activity
Israel
Tax
All Equity Awards
Report plan activity via Israel Tax Authority online platform
Annually3
April 30, 2025, for prior calendar-year activity
DHS Update Regarding Temporary Protected Status for Venezuela
Highlights
U.S. Department of Homeland Security ends 2023 Temporary Protected Status (TPS) designation for Venezuela
2021 TPS designation for Venezuela valid until Sept. 10, 2025, and 2023 TPS designation for Venezuela valid until April 7, 2025
Other TPS designations are not affected
The U.S. Department of Homeland Security (DHS) has terminated the 2023 Temporary Protected Status (TPS) designation for Venezuela, effective April 7, 2025, or 60 days following its publication on Feb. 5 in the Federal Register.
The formal notice, Termination of the October 3, 2023 Designation of Venezuela for Temporary Protected Status, describes how DHS has determined Venezuela no longer meets the conditions allowing its eligible nationals to remain in the U.S.
Venezuela currently has two separate TPS designations, each granting employment authorization to different groups of Venezuelans under distinct TPS programs. On Jan. 28, 2025, DHS announced that it vacated the previous Federal Register notice issued by the former administration.
There are two TPS designations for Venezuela from two different TPS programs for Venezuelans:
Type of TPS
Current Status
2021 TPS designation for Venezuela
TPS valid until Sept. 10, 2025
2023 TPS designation for Venezuela
TPS valid until April 7, 2025*
*TPS designation for Venezuela, announced on Oct. 3, 2023, originally was set to expire on April 2, 2025. As a result, the Employment Authorization Documents (EADs) issued under this designation will still expire on that date despite the TPS status (permitting the individual to remain in the U.S.) expiring on April 7, 2025.
Employment Authorization
Currently, Venezuelan nationals granted TPS are not eligible for an EAD extension. In addition, DHS is in the process of invalidating any EADs issued that show a Category Code of A12 or C19 for Venezuela with an Oct. 2, 2026, expiration date. For employers and employees, the consequences of the vacatur/termination notices include:
Venezuelan nationals granted TPS pursuant to the 2021 designation are work authorized until Sept. 10, 2025, unless an extension is granted
Venezuelan nationals granted TPS pursuant to the 2023 designation are work authorized only until April 2, 2025
The DHS secretary’s termination notice does not change the expiration date of the 2021 TPS designation. If the DHS does not make a timely determination by July 12, 2025, regarding the 2021 Venezuela TPS, the statute automatically extends the designation for six months. Otherwise, if the secretary decides to terminate the 2021 Venezuela TPS designation, it will end on Sept. 10, 2025.
Takeaways
Employers should review the copies of EADs, if available
Check for classification of A12 or C19
Check for country of birth: Venezuela
Individuals affected should consider consulting with immigration counsel to explore other available immigration alternatives.
Workplace AI – Presidential Change and Unknown Expectations for Retail Employers
The use of Artificial Intelligence (“AI”) in the workplace has spread rapidly since President Trump left the White House in early 2021. In recent years, retail employers have started using AI technology in a variety of ways from automating tasks, to implementing data-driven decision making, to enhancing customer experience. Though the Biden administration started to grapple with the use of AI in the workplace, the second Trump administration could mark a dramatic shift in the federal government’s response to these issues.
The Biden administration took a somewhat cautious approach to the proliferation of AI in the workplace. In response to criticism, including the possibility of AI technology allegedly exhibiting implicit biases in hiring decisions, President Biden issued an executive order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” which established parameters for AI usage and directed federal agencies to take steps to protect workers and consumers from the potential harms of AI.
President Trump repealed the Biden Executive order on January 23, 2025, but has not yet implemented his own policy. The Trump Executive Order directs the Assistant to the President for Science and Technology and other administration officials to develop an “Artificial Intelligence Action Plan” within 180 days of the order to advance the administration’s policy to “sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.” The specifics of the “Artificial Intelligence Action Plan” remain unclear. President Trump signed an executive order regarding AI during his first term in 2019 which encouraged AI research and implementation, however, the technology has since developed rapidly. Given the Executive Order’s statement that previous government action constituted “barriers to American AI innovation” it is likely the “Artificial Intelligence Action Plan” will promote the development and use of AI rather than create new red tape for employers.
In the wake of the Trump Executive order, federal agencies have taken down the limited guidance regarding the use of AI in the workplace they had released during the Biden administration. The Equal Employment Opportunity Commission (“EEOC”), for example, released guidance documents outlining the ways in which AI tools in the workplace could violate the ADA or Title VII of the Civil Rights Act, particularly with respect to hiring. The Department of Labor also issued guidance addressing wage and hour issues related to AI and laying out best practices for implementing these tools to ensure transparency in AI use and support workers who are impacted by AI. Both these documents have been pulled from their respective agencies’ websites.
President Trump’s decision to appoint David Sacks as an “AI & Crypto Czar” also signals what retail employers can expect from the administration moving forward. Sacks is an entrepreneur and venture capitalist who has espoused pro-industry stances on his podcast, “All-In.” He also has a personal stake in AI being utilized as employers as the owner of “Glue” a software program that integrates AI into work place chats as a rival to platforms like Slack or Teams.
If the federal government does not regulate AI’s use in the workplace, states may attempt fill this vacuum of regulation with legislation addressing emerging issues or counteracting the Trump administration’s actions. This could lead to a patchwork of different compliance standards for employers from state to state. New York City’s Local Law 144 creates obligations for employers including conducting bias audits where automated tools play a predominant role in hiring decisions. Illinois has prohibited employers from using AI in a manner that causes a discriminatory effect. Other states may further complicate this landscape in attempts to correct perceived issues with the use of AI in the workplace.
While President Trump’s stance encourages the use of AI, retail employers should remember that existing anti-discrimination statutes may still provide a vehicle to challenge employers’ use of AI. For example, if AI used in hiring disadvantages a certain race, the employer could still face liability under Title VII. Retail employers should be on the look-out for further actions from the Trump administration and developments regarding AI in the coming year.
Europe – The AI Revolution Is Underway but Not Quite Yet in HR?
A couple of weeks ago we asked readers of this blog to answer a couple of questions on their organisation’s use of (generative) artificial intelligence, and we promised to circle back with the results. So, drum roll, the results are now in.
1. In our first question, we wanted to know whether your organisation allows its employees to use generative AI, such as ChatGPT, Claude or DALL-E.
While a modest majority allows it, almost 28% of respondents have indicated that use of genAI is still forbidden, and another 17% allow it only for certain positions or departments.
This first question was the logical build-up to the second:
2. If the use of genAI is allowed to any extent, does that mean the organisation has a clear set of rules around such use?
A solid 50% of respondents have effectively introduced guidelines in this respect. A further 22% are working on it. And that is indeed the sensible approach. It is important that employees know the organisation’s position on (gen)AI, if they can use it and for what, or why they cannot. They should understand the risks of using genAI inappropriately and what may be the sanction if they use it without complying with company rules.
Essential in the rules of play is transparency. Management should have a good understanding of the areas within the organisation where genAI is being used. In particular when genAI is being used for research purposes or in areas where IP infringements may be a concern, it is essential that employees are transparent about the help they have had from their algorithmic co-worker. The risk of “hallucinations” in genAI is still very real, and knowing that work product has come about with the help of genAI should make a manager look at it with different and more attentive eyes.
Please also note in this respect that under the EU AI Act, as from last weekend, providers and deployers of AI systems must ensure that their employees and contractors using AI have an adequate degree of AI literacy, for example by implementing training. The required level of AI literacy is determined “taking into account [the employees’] technical knowledge, experience, education and training and the context the AI systems are to be used in, and considering the persons or groups of persons on whom the AI systems are to be used”.
Since we had anticipated there would be quite a number of organisations that still prohibit the use of genAI, we had also asked:
3. What was the main driver for companies’ prohibition of the use of genAI in the workplace?
The response was not surprising. Organisations are mostly concerned about the risk of errors in AI’s responses and of its inadvertently leaking their confidential information.
While this fear of leaks is completely justified for free applications, such as the free version of ChatGPT and popular search engines such as Bing and Google that are increasingly powered by Large Language Models (LLMs), this fear is largely unjustified for the paid versions. Their business model depends on trust, and they guarantee that in the paid version of their LLM, no data will ever get reused for training purposes. To our knowledge, there have been no incidents and not even the slightest indications that the large vendors would disregard their promises in this regard.
This leads to the somewhat ironic conclusion that prohibiting the use of genAI by your employees may be more likely to realise the risks that the company fears, as employees may then be tempted to use a free, less safe version of the application on their personal devices instead.
4. In which areas of HR do our respondents use AI?
Where respondents indicated other areas of use in HR, they mentioned intelligence gathering, improvement of communication and specific areas of recruitment, such as writing job descriptions and skills testing.
5. Does your organisations plan to increase its use of AI in the next twelve months?,
The narrow majority responded that this would not be the case:
Those respondents which anticipated increased use of AI considered that there will be an increased use generally, in all areas. Specific predictions for increased use are in areas such as the use of HR bots for benefits enquiries, and forecasting.
6. If your organisation does not currently employ AI in HR, why not?
The response to this question is probably the most surprising: a majority of organisations which are not yet using AI in HR are not reluctant for philosophical, technical or employment relations reasons, but have simply not yet got round to it. It is expected that the next 12-18 months will see an important increase in usage overall, which will also lead to a similar uptick in the HR sector.
We ended our survey with perhaps the most delicate question:
7. Do you expect that in the next 12 to 24 months, there will be redundancies within your organisation due to increased use of AI?
For the large majority of organisations, this is not the case.
To this same question, ChatGPT itself responded the following:
The use of AI in businesses can indeed lead to job loss in certain sectors, especially in roles that rely heavily on routine, repetitive tasks. For example, administrative roles, customer service, or even certain manufacturing and warehouse jobs could be replaced by AI, as it can often perform these tasks more efficiently and cost-effectively. On the other hand, AI can also create new jobs, especially in fields like data analysis, machine learning, AI development, and management. Businesses will likely focus more on roles that require creativity and strategy, areas where human input is essential, like decision-making and improving customer relationships. The key will be how companies combine the use of AI with upskilling their workforce, enabling employees to adapt to the changing job landscape.
As is often – though certainly not always – the case, ChatGPT is not wrong about this. We didn’t ask it specifically about its impact on staffing levels in HR, but we think that considerable comfort can be taken from its reference to the continued sanctity of roles where “human input is essential”. It is a very far-off future where many of the more sensitive and difficult aspects of HR management will be accepted as adequately discharged by an algorithm.
Managing Employee Assets: HR Strategies for the Entire Employment Lifecycle
In today’s complex regulatory environment, businesses encounter numerous legal challenges in hiring and in connection with employment agreements. From non-compete clauses to background checks and worker classification issues (to name just a few such contexts), employers must balance protecting their interests with adhering to federal, state and local laws.
This article delves into key hiring challenges and best practices, featuring insights from employment law professionals.
The Changing Landscape of Non-Compete Agreements
Employment agreements, especially those involving non-compete and non-solicitation clauses, have faced increasing scrutiny. States across the US, as well as federal agencies like the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB), are moving toward stricter regulations on these restrictive covenants.
Amit Bindra, a partner at the Prinz Law Firm, highlights that various states have enacted laws limiting the use of non-competes, initially for low-wage workers, and then expanding these laws to apply to more employees. For instance, Illinois passed the Freedom to Work Act, which banned non-competes for workers earning close to minimum wage. A few years later, Illinois amended its law to set a salary threshold for non-competes and non-solicits, while including other provisions in the amendment to tighten enforcement. After setting salary thresholds, some states attempted to ban most non-competes. Minnesota successfully passed such a law. Other state legislatures also passed such a ban (for example, New York), but governors vetoed a ban.
In May 2024, the FTC issued a final rule prohibiting most non-compete agreements, citing their negative impact on competition and worker mobility. The rule defines a non-compete clause as a term that prevents a worker from seeking or accepting employment or operating a business after the conclusion of their current employment. Employers are required to rescind existing non-compete clauses and notify employees of the change.
However, legal challenges have arisen regarding the FTC’s authority to implement this rule. In August 2024, a federal judge in Texas issued a nationwide injunction blocking the rule, stating that the FTC lacks the statutory authority to promulgate such a regulation.
The NLRB has also stepped into the fray. The NLRB’s General Counsel issued two memorandums regarding the intersection of restrictive covenants and the National Labor Relations Act, and one administrative law judge determined certain covenants were too broad.
Given these developments, Bindra suggests that “the legal people and the business people should always talk” to find alternative or creative ways to protect legitimate business interests beyond boilerplate non-compete agreements.
What Employers Should Do:
Review Existing Agreements: Ensure non-compete clauses comply with current state and federal laws.
Consider Alternatives: Non-disclosure agreements (NDAs) or trade secret protections might better serve business interests.
Stay Informed: Keep abreast of ongoing legal developments regarding non-compete clauses.
Background Checks and Compliance: Avoiding Pitfalls
Conducting thorough background checks is essential but comes with legal challenges. Employers must comply with laws such as the Fair Credit Reporting Act (FCRA) and state-level ‘ban-the-box’ laws, which regulate when and how an employer can inquire about a candidate’s criminal history.
Helen Bloch, founder of the Law Offices of Helen Bloch P.C., emphasizes the importance of timing in background checks. “You can’t ask that person about criminal convictions in general until you are ready to actually make a job offer.” she explains, and “the criminal conviction history that is permitted by law to investigate would then need to be relevant for the job at issue. So, for instance, in a daycare situation, criminal conviction history is definitely going to be relevant.”
Key Steps for Employers:
Timing Matters: Ask about criminal convictions only after extending a conditional job offer.
Consent is Critical: Obtain written permission before conducting background checks.
Provide Notice and Opportunity to Respond: If adverse action is taken based on a background report, applicants must be given an opportunity to contest inaccuracies.
Failing to adhere to these requirements can expose businesses to significant legal liabilities, including class-action lawsuits.
Classification Challenges: Employees vs Independent Contractors
Misclassification of workers as independent contractors instead of employees remains a major compliance challenge. Employers often misclassify to avoid paying benefits, payroll taxes, and overtime—actions that can result in severe financial penalties if discovered.
According to Bindra, “If a company gets it wrong, it could lead to collective actions, audits by state and federal labor departments and costly litigation.” Employers should determine classification based on the level of control they exert over the worker and the nature of the work performed.
Considerations When Classifying Workers:
Control Over Work: Does the worker control their schedule and methods?
Provision of Equipment: Is the worker using their own equipment?
Integration into Business: Is the work integral to the company’s core business?
Employers are encouraged to err on the side of caution when classifying individuals to avoid ambiguity in wage and hour disputes.
Exempt vs Non-Exempt Employees: Wage and Hour Compliance
Determining whether a worker is exempt or non-exempt from overtime pay under the federal Fair Labor Standards Act (FLSA) is crucial. Some positions, such as executive, administrative, and professional roles, may qualify for overtime exemptions, but employers must ensure they meet the specific criteria outlined by the U.S. Department of Labor. Max Barack, partner at the Garfinkel Group, notes that “the title is not what matters” when it comes to exemption status — it’s about job duties, salary levels, and the degree of independence.
Best Practices to Avoid Wage and Hour Pitfalls:
Conduct Regular Audits: Regularly review employee classifications.
Accurate Job Descriptions: Ensure job descriptions accurately reflect exempt duties.
Meticulous Time Tracking: Track work hours meticulously to avoid unpaid overtime claims
The Growing Role of Social Media and AI in Hiring
Social media has become a valuable tool in recruiting and screening candidates, but it also presents risks if not used appropriately. Employers should avoid requesting social media passwords or attempting to access private profiles, as many states have laws prohibiting such practices. According to Helen Bloch, “employers need to be cautious about how they use social media to evaluate candidates to avoid potential discrimination claims.”
Artificial intelligence (AI) is increasingly used in hiring processes, yet it can unintentionally introduce biases. AI screening tools may disproportionately exclude certain demographic groups if they are not carefully designed and monitored. The Equal Employment Opportunity Commission (EEOC) has issued guidance emphasizing that the use of AI in hiring must comply with anti-discrimination laws. States such as Illinois have also enacted legislation requiring transparency and fairness in AI-driven hiring decisions.
How To Mitigate AI Hiring Risks:
Ensure AI algorithms are regularly audited for potential biases.
Disclose the use of AI in hiring decisions and obtain applicant consent.
Regularly review hiring criteria to ensure compliance with anti-discrimination laws.
Train HR personnel to interpret AI-generated recommendations with a critical eye.
Addressing Salary History Bans and Pay Transparency Laws
Many states and local jurisdictions have enacted laws prohibiting employers from inquiring about a candidate’s salary history to promote pay equity. As Amit Bindra points out, employers must be mindful of these laws to avoid discrimination claims.
Instead of asking about past compensation, employers should focus on salary expectations and provide transparent salary ranges in job postings. This approach aligns with recent pay transparency laws in states like Illinois and Colorado, which require employers to disclose pay ranges upfront.
Best Practices for Compliance:
Remove salary history questions from job applications and interviews.
Clearly communicate salary ranges and benefits in job postings.
Train hiring managers to focus on qualifications and salary expectations.
Key Takeaways for Employers
Charles Krugel, another seasoned labor and employment attorney, emphasizes that “taking a proactive approach and staying compliant with the ever-changing employment laws is crucial to avoiding costly disputes and protecting business interests.” In light of these challenges, employers must stay proactive in their hiring practices by:
Regularly Updating Employment Agreements: Ensure compliance with the latest federal and state regulations regarding restrictive covenants and wage requirements.
Establishing Consistent Hiring Policies: From job postings to interviews, maintain uniform processes to avoid discrimination claims.
Conducting Thorough Due Diligence: Vet third-party background check providers and payroll services to ensure compliance.
Staying Informed on Changing Laws: Employment regulations are dynamic, and businesses must continuously adapt to avoid costly legal consequences.
Balancing Business Needs with Legal Compliance: Engage with legal counsel to ensure hiring strategies align with current regulations and best practices.
By understanding legal requirements and taking proactive measures, businesses can protect themselves from potential liabilities and ensure a smooth hiring process. Whether it’s ensuring compliance with non-compete agreements, background checks, or pay transparency laws, staying ahead of the curve is key to long-term success.
To learn more about this topic view Welcome to the Team! Recruiting & Hiring, Including Restrictive Covenants. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested to read other articles about Contractor vs. Employee Classifications.
This article was originally published on Financial Poise.
©2025. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
Kein digitales Zugangsrecht – Gewerkschaft scheitert mit Klage gegen Adidas
Spätestens seit der Corona-Pandemie erfreut sich das Home-Office großer Beliebtheit: Rund ein Viertel aller Erwerbstätigen in Deutschland arbeitet zumindest teilweise aus dem Home-Office. Doch während das mobile Arbeiten sowohl für Arbeitnehmer als auch Arbeitgeber eine Reihe von Vorteilen mit sich bringt, stellt es die – ohnehin über Mitgliederschwund klagenden – Gewerkschaften vor zunehmende Herausforderungen: Potenzielle Gewerkschaftsmitglieder, die von zu Hause aus arbeiten und nicht physisch auf dem Betriebsgelände erscheinen, sind schlicht schwieriger zu erreichen als ihre Kollegen, die täglich zur Arbeitsstätte pendeln und von den Gewerkschaften auf dem Firmenparkplatz angeworben werden können.
Die Industriegewerkschaft Bergbau, Chemie, Energie (IG BCE) nahm genau diese Herausforderung nun zum Anlass, von Adidas die Herausgabe der dienstlichen E-Mail-Adressen seiner Mitarbeitenden, Zugang zum konzernweiten sozialen Netzwerk Viva Engage sowie die Verlinkung ihrer Homepage auf der Startseite des Intranets des Sportartikelherstellers zu verlangen. In einer in der vergangenen Woche ergangenen Entscheidung erteilte das Bundesarbeitsgericht den Gewerkschaftsforderungen und damit einem „digitalen Zugangsrecht“ jedoch eine Absage.
In seiner Entscheidung (BAG, Urt. v. 28.01.2025, Az. 1 AZR 33/24) stellte der erste Senat um die Präsidentin des Bundesarbeitsgerichts Inken Gallner klar, dass Arbeitgeber weder hinsichtlich bereits beschäftigter Arbeitnehmer noch hinsichtlich neu hinzukommender Arbeitnehmer dazu verpflichtet seien, dienstliche E-Mail-Adressen zum Zwecke der Mitgliederwerbung an die jeweils tarifzuständige Gewerkschaft herauszugeben. Zwar gewährleiste die in Art. 9 Abs. 3 GG normierte Koalitionsfreiheit die grundsätzliche Befugnis von Gewerkschaften, betriebliche E-Mail-Adressen der Arbeitnehmer zu Werbezwecken und für deren Information zu nutzen, allerdings resultiere daraus keine Verpflichtung von Arbeitgebern, die Mitgliederwerbung durch Übermittlung der E-Mail-Adressen selbst aktiv zu unterstützen. Neben den insofern betroffenen konkurrierenden Grundrechten des Arbeitgebers aus Art. 14 GG sowie Art. 12 Abs. 1 GG und der verfassungsrechtlich garantierten wirtschaftlichen Betätigungsfreiheit seien die ebenfalls berührten Grundrechte der betroffenen Arbeitnehmer aus Art. 2 Abs. 1 i.V.m. Art. 1 Abs. 1 GG bzw. Art. 8 der Charta der Grundrechte der Europäischen Union zu berücksichtigen und mit der Koalitionsfreiheit abzuwägen. Die von der Gewerkschaft erhobene Forderung bringe die betroffenen Rechte dabei nicht in einen angemessenen Ausgleich.
Auch mit ihren Anträgen auf Zugang zum konzerninternen sozialen Netzwerk und eine Verlinkung der Gewerkschafts-Homepage auf der Startseite des firmeneigenen Intranets scheiterte die Gewerkschaft. Die damit einhergehenden Beeinträchtigungen des Arbeitgebers übersteigen dem Bundesarbeitsgericht zufolge das durch Art. 9 Abs. 3 GG geschützte Interesse der Gewerkschaft an der Durchführung solcher Werbemaßnahmen. Insbesondere die Forderung nach Verlinkung im firmeneigenen Intranet finde aktuell keine Grundlage im Gesetz und könne mangels planwidriger Regelungslücke im Betriebsverfassungsgesetz auch nicht auf § 9 Abs. 3 S. 2 BPersVG gestützt werden.
Ob der Gesetzgeber vor dem Hintergrund dieser Entscheidung tätig wird und mit der ausdrücklichen Normierung eines elektronischen Zugangsrechts auf den Wandel der Arbeitswelt reagiert, bleibt abzuwarten. Bis dahin bleibt den Gewerkschaften lediglich, auf klassischem Wege um Nachwuchs zu werben oder – wie das Bundesarbeitsgericht betont – potenzielle Mitglieder vor Ort im Betrieb nach ihrer dienstlichen E-Mail-Adresse zu fragen. Betroffene Unternehmen können bei vergleichbaren Gewerkschaftsanfragen hingegen – jedenfalls vorerst – getrost auf die Rechtsprechung aus Erfurt verweisen.
Seventh Circuit Clarifies Plaintiffs’ Evidentiary Burden in FLSA Cases
In Osborn v. JAB Management Services, Inc., No. 24-1573 (January 22, 2025), the U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s entry of summary judgment in favor of an employer on a former employee’s overtime claims under the Fair Labor Standards Act (FLSA), finding her testimony regarding the hours she worked insufficient to raise an issue of material fact.
The Seventh Circuit’s decision clarifies the evidence nonexempt employees must present to create a jury question as to whether they worked uncompensated overtime.
Quick Hits
The FLSA requires employers to pay nonexempt employees—including those paid on a salary basis—overtime for all hours worked beyond forty in any workweek.
The district court, applying a “just and reasonable inference” standard, found that an employee who had not tracked her time worked over forty hours and relied on her testimony of the duties performed to support her overtime claims had not presented evidence sufficient to overcome an order of summary judgment for the employer.
On appeal, the Seventh Circuit affirmed summary judgment for the employer, stating that Federal Rule of Civil Procedure 56 governs summary judgment, and the more lenient “just and reasonable inference” standard for calculating damages applies after a plaintiff meets the initial burden of establishing liability.
Background
Tara Osborn was a longtime employee of JAB Management Services, which contracts with other entities to provide prison healthcare. At the time of her termination of employment, Osborn was a technical support specialist providing on-call support regarding inmate medical records. The technical support specialist is a fully remote, salaried nonexempt position. Osborn was free to design her own schedule, although typical business hours ran from 8:00 a.m. to 5:00 p.m.
Osborn admitted she did not track any time she worked over forty hours. JAB Management did not track her overtime either. Still, Osborn claimed to have worked an average of ten hours per day and fifteen hours of overtime per week. When asked to describe her work, Osborn stated she “had to work outside of normal business hours to take support calls, respond to emails, drive to client sites, and ‘patch servers,’” including irregular weekend work.
The Seventh Circuit noted that toward the end of her employment with JAB Management, Osborn’s supervisors stated she “failed to explain what she was working on throughout the day, yet she complained about having too much to do.” As a result, some of her tasks were reassigned to her coworkers, while Osborn’s supervisors coached her to correct her performance. When Osborn’s performance did not improve, JAB Management terminated her employment.
Osborn then sued JAB Management, alleging the company had failed to pay her overtime compensation as required by the FLSA. JAB Management moved for summary judgment. The district court, applying a “just and reasonable inference” standard, granted JAB Management’s motion, holding that Osborn had failed to “prove by a just and reasonable inference the amount and extent of work she performed.” Osborn appealed to the Seventh Circuit.
The Seventh Circuit’s Analysis
The Seventh Circuit first clarified that the burden of proof at summary judgment (governed by Federal Rule of Civil Procedure 56) differs from the “just and reasonable difference” standard, stating, “The just and reasonable inference standard ‘applies to damages questions only after an employee has met the initial burden to establish liability.’”
To establish liability, an employee who claims that he or she was not compensated for overtime in violation of the FLSA must present evidence of the hours worked, which can be established through the employee’s testimony. To survive summary judgment, the employee’s evidence must place the employee’s version of events beyond the level of mere speculation or conjecture. As the Seventh Circuit noted, “While employees need not describe their schedules ‘with perfect accuracy,’ they should be able to offer ‘testimony coherently describ[ing]’ their typical workweeks.”
When pressed for details on what she did for ten hours per day, Osborn responded vaguely that she worked on “[c]ustomer issues, the database, the reports, it is very labor intensive.” While Osborn claimed to have coworkers who could testify regarding her workload, she failed to offer their sworn testimony. The court found her claim of consistently working fifteen hours of overtime per week to be inconsistent with her reports of call volume declining over time and significant changes to her duties.
Citing Sixth and Eighth Circuit decisions in support, the Seventh Circuit held, “[T]he evidence [Osborn] has produced fails to provide us with even a general sense of her typical workweek.”
“If this claim survived summary judgment,” the court continued, “then any FLSA claim in which the employee vaguely describes her schedule as having exceeded forty hours per week would reach a jury.”
Key Takeaways
JAB Management clarifies the evidentiary burden employees must meet at the summary judgment stage of proceedings when alleging failures to pay overtime compensation under the FLSA. Like other circuits, the Seventh Circuit has held that conclusory estimates about an employee’s average workweek, without more, do not permit a trier of fact to conclude an employee worked overtime. Under the court’s holding, nonexempt employees claiming unpaid overtime have a burden of producing at least some admissible evidence of their specific overtime hours worked and the duties they allegedly performed during those hours.
DEI (Diversity, Equity, and Inclusion) v. Affirmative Action: They Are Not the Same
Recently, the terms DEI (Diversity, Equity, and Inclusion) and Affirmative Action have been thrown around as if they mean the same thing, but in reality, they are not. They represent distinct concepts with unique goals and approaches.
Affirmative Action is a legal policy created to address historical injustices and discrimination by providing opportunities to underrepresented groups. It involves initiative-taking measures to ensure that individuals from these groups have equal access to education, employment, and other areas where they have been historically marginalized. The primary focus is on creating opportunities and leveling the playing field for those who have faced systemic barriers. However, it should be understood that under this theory a lesser qualified person should not be chosen over a more qualified person. If implemented as intended, it would give an otherwise unavailable opportunity to a qualified person.
On the other hand, DEI encompasses a broader framework aimed at fostering an inclusive environment where diversity is valued, equity is ensured, and everyone feels a sense of belonging. Diversity refers to the presence of differences within a given setting, including race, gender, age, and more. Equity involves fair treatment, access, and opportunities for all, while Inclusion is about creating a culture where everyone feels respected and valued.
While Affirmative Action is often seen as a legal and policy-driven approach, DEI is more about cultural transformation and ongoing efforts to create a supportive and inclusive workplace. Both are crucial for building a fair and equitable society, but they operate on different levels and address different aspects of inequality. DEI initiatives, though can impact hiring, focus on the workplace and people in it. The intent is to embrace the collective, minimize bias and treat others in a respectful and understanding manner.
In further contrast, affirmative action relates to giving a preference to one over the other, even if the other is qualified. DEI is meant to impact a broader range of people and cultures by appreciating differences and encouraging deeper engagement.
Though affirmative action and similar preference policies have been banned or in certain cases unconstitutional, DEI programs are still very legal. It should be noted that despite the recent January 2025, executive order titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” which aims to terminate DEI programs, it is only relevant to practices within the federal government. DEI programs in private companies, educational institutions, and other non-federal entities are still legal.
DEI Dead at the EEOC: What’s Next for EEOC Enforcement Priorities After Trump Administration Actions
President Donald Trump has made several significant and sudden changes at the Equal Employment Opportunity Commission (“EEOC” or “the Commission”), the agency responsible for enforcing Title VII of the Civil Rights Act of 1964.
First, he appointed current Commissioner Republican Andrea Lucas as new Acting Chair and then removed Karla Gilbride (a nominee of former President Biden) from her role as EEOC General Counsel. Both of these decisions were routine and unsurprising for the start of a new presidential administration. President Trump then removed Commissioners Jocelyn Samuels and Charlotte Burrows, two of the three Democratic commissioners. This move was far from routine and is likely to be challenged in court.
These sweeping changes initiated by President Trump at the EEOC should be seen as a critical element of an ever-expanding goal of government-wide elimination, not just of DEI, but of all forms of affirmative action. This remaking of the EEOC should be viewed in parallel with Trump’s firing of two Democratic Members and the General Counsel at the National Labor Relations Board, revocation of Executive Order 11246, which contractually required covered federal government contractors and subcontractors to meet certain affirmative action obligations, and the possible elimination of the Office of Federal Contract Compliance Programs (“OFCCP”).
The shakeup at the EEOC – particularly, the removal of Samuels and Burrows – is intended to clear the road of challenges that might have inhibited Acting Chair Lucas’s pursuit of her (and President Trump’s) enforcement priorities, including what she described as “rooting out unlawful DEI-motivated race and sex discrimination,” a goal that aligns with Trump’s Executive Orders targeting Diversity, Equity, and Inclusion (DEI).
Prior to Samuel’s and Burrow’s removal, the EEOC had a Democratic majority, which would have limited Acting Chair Lucas’s authority to press her (and President Trump’s) priorities until at least mid-2026. The EEOC has a statutorily bipartisan structure, headed by five members appointed by the President and confirmed by the Senate. The President can appoint up to three members of his own party as staggered vacancies arise. The designated Chair is elevated over other Commissioners, each of whom is independent. With President Trump’s actions, there is currently no quorum and only an Acting General Counsel. This will halt issuance of new guidance and impact EEOC litigations on behalf of private sector employees. Even without a majority, Acting Chair Lucas can press her enforcement goals by bringing Commissioner Charges independent of her fellow Commissioners. Indeed, Acting Chair Lucas is quite familiar with this tool, having filed the most Commissioner Charges of any of her colleagues in the 2022 (12 charges), 2023 (15 charges), and 2024 (11 charges) fiscal years. She has already taken other actions as well, including removing the X gender marker during the intake process for filing a charge of discrimination, deleting gender ideology materials from the Commission’s internal and external websites and other platforms, and removing a feature that allows Commission employees to opt to identify pronouns next to their names within e-mails and internal messages.
Lucas’s Priorities and President Trump’s Related Executive Orders
Lucas has outlined several key priorities for her tenure, including, in her words:
“rooting out unlawful DEI motivated race and sex discrimination;
protecting American workers from anti-American national origin discrimination;
defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work
protecting workers from religious bias and harassment, including antisemitism; and
remedying other areas of recent under-enforcement.”
Notably, Samuels, Burrows, and Kalpana Kotagal (remaining Democratic Commissioner) issued a joint statement on X defending DEI practices after Acting Chair Lucas’s appointment.
In particular, Lucas’s statements regarding DEI programs align with President Trump’s Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “DEI EO”), that targets DEI programs by eliminating them in the federal government and encouraging the private sector to drop them, too. (Read our Insight for more about the DEI EO.)
Additionally, Lucas’s priority to defend “the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work” is consistent with President Trump’s Executive Order entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the “Biological Sex EO”). This EO states that “[i]t is the policy of the United States to recognize two sexes, male and female” and, among other directives, instructs federal agencies to adopt and apply these definitions and to “remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages.”
The Biological Sex EO instructs agency heads with enforcement power (including Lucas and the EEOC General Counsel) to prioritize investigations and litigation to enforce the “rights and freedoms” it identifies. Additionally, the EO also calls for the prompt rescission of the EEOC’s Enforcement Guidance on Harassment in the Workplace (the “Enforcement Guidance”). In what was perhaps a foreshadowing of the looming dispute over the extent of the President’s authority over the EEOC, on January 28, 2025, the EEOC added the following message to the Enforcement Guidance web page: “This document was approved by the Commission on April 29, 2024, by a 3-2 vote. Any modification must be approved by a majority vote of the Commission.”
Other language in the Biological Sex EO aimed at the Attorney General could further impact the EEOC’s guidance and enforcement actions against private employers. Specifically, the Biological Sex EO instructs the Attorney General to issue guidance to:
“…correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020),” wherein the U.S. Supreme Court held that discrimination on the basis of a person’s gender or sexual orientation is a violation under Title VII of the Civil Rights Act (“Title VII”). The EO states that the Biden Administration interpreted Bostock as requiring “gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act” and that “this position is legally untenable and has harmed women.” The Biological Sex EO further instructs the Attorney General to “issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.”
“ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.”
While Acting Chair Lucas did not specifically mention the Pregnant Workers Fairness Act (PWFA) when announcing her enforcement priorities, she has in the past criticized the EEOC’s final regulations on the enforcement of the PWFA, which we discussed here. At the time, she took issue with the EEOC’s definition of “related medical conditions” covered by the law’s provisions that includes abortion, along with pregnancy and childbirth.
What’s Next for the EEOC?
President Trump is expected soon to nominate a new EEOC General Counsel, who is likely to be a staunch foe of DEI and affirmative action plans and who could litigate claims based on charges alleging harm from such policies, programs, or plans. Along with Acting Chair Lucas, there is one remaining Democrat – Kotagal, whose term expires in July 2027. There are now three open seats (those vacated by Samuels and Burrows, and one left open by Keith Sonderling, who President Trump recently named Deputy Labor Secretary). President Trump will likely seek to fill the empty seats with candidates who will press his and Acting Chair Lucas’s enforcement priorities.
In the meantime, however, Samuels and Burrows are expected to challenge their removal in court. Burrows has already retained counsel. There is no provision in Title VII giving the President authority to remove an EEOC Commissioner. Samuels and Burrows will undoubtedly rely upon Humphrey’s Executor v. Federal Trade Commission, a 1935 opinion in which the Supreme Court of the United States (SCOTUS) analyzed the propriety of President Hoover’s removal of a Commissioner from the Federal Trade Commission (FTC). SCOTUS held that the FTC Act only allowed the President to remove an FTC Commissioner prior to the end of their term on specific grounds, which did not apply, and that a President cannot remove, or oust, a confirmed appointee of an independent commission or board without specific authority. SCOTUS wrote:
We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.
SCOTUS had a chance to revisit Humphrey’s Executor precedent last term in Consumers’ Research v. Consumer Product Safety Commission; however, it denied certiorari. SCOTUS will likely have another bite at this issue in the near future, given the anticipated legal challenge to Burrows’ and Samuel’s removal, as well as that of President Trump’s similar recent removal of Members of the National Labor Relations Board, as we wrote about here. Justices Thomas and Gorsuch have expressed the view that Humphrey’s Executor should be overruled. Further, Samuels and Burrows potential reliance on Humphrey’s Executor as it stands, may be vulnerable in light of President Trump’s view regarding the effect of Seila Law v. Consumer Financial Protection Bureau; in particular, that the case gave him the authority to remove Gwynne Wilcox and Jennifer Abruzzo from the NLRB.
For now, there have been no changes to the EEOC’s guidance, and existing litigations and investigations will continue and new charges can be processed. Employers should stay informed about potential shifts in EEOC policy and work with counsel to ensure they remain compliant with federal guidelines.
Epstein Becker Green Staff Attorney Elizabeth A. Ledkovsky contributed to the preparation of this article.
This Winter and Spring, Prepare To See a Lot of ICE
Given the current administration’s focus on cracking down on illegal immigrants, employers can expect that Immigration and Customs Enforcement (ICE) will be either showing up on their property or conducting audits to examine whether any employees are not authorized to work. The time to plan is before this happens; ensure now that employees and managers know what to expect and what their rights are.
Many employers and employees do not know how to respond when ICE agents show up unannounced. The agents will be seeking to search your property, retrieve documents, and/or speak to your employees. Here are some dos and don’ts for how to handle the situation when ICE agents arrive unexpectedly.
DO:
Have a plan. Who is going to speak to ICE on the employer’s behalf? Ensure that the person designated is properly trained and is knowledgeable about the employer’s rights and those of impacted employees.
Think about ensuring you have immigration counsel ahead of time — someone who can respond quickly to any ICE raid or at the very least be available to handle questions that may arise during a raid.
Let your employees know that they do NOT have to allow ICE agents to enter. Rather, they can say that they are not authorized to grant permission to enter and that the agents should speak with the manager or managers the employer has designated. Or if you have a lawyer who can come to your business immediately, the designated person should request that the ICE agents wait for counsel to arrive before proceeding.
Advise your employees they do not have to speak with ICE agents. They can choose to (1) stay silent, (2) direct any questions to the designated managers, and/or (3) ask for a lawyer. The same advice goes for your designated manager or representative.
Advise your employees that they do not have to hand over any identification or documents to ICE.
Consider clearly marking what areas within your business are “private.” The public and visitors (which would include ICE agents) cannot enter private areas without permission or proper legal authority.
Stay calm during any ICE raids and train your employees to do so. If employees attempt to run, ICE agents may say that they are likely violating immigration laws and arrest them.
Watch the ICE agents to see whether they are complying with the terms of any warrant they present. If state law allows it, video what the ICE agents are doing. Make sure to read the warrant and make a copy if you can.
If ICE arrests any of your employees, ask the ICE agents where the employees are being taken. That information will help the employees’ families and/or attorneys locate them.
Make notes after ICE leaves: How many agents were there? What are their names and badge numbers? Did the agents make you or your employees believe you could not move or leave? Did they mistreat anyone? Make note of everything you saw or heard and of any items that were seized. You can also ask the officers for a list of items taken. If your business has a union, notify the employees’ union.
Practice your plan so you can identify any gaps in training or knowledge.
Ensure that you’ve done an I-9 audit recently so you can (1) determine whether there could be any issues with your employees and (2) have these handy if ICE seeks to audit your documents.
DON’T:
Let ICE agents into a private area without a judicial warrant. The designated manager needs to review the warrant to ensure it grants agents the ability to go into private places. ICE agents have the right to be in any public areas of your business without permission or a warrant. Those public areas would include a dining area in a restaurant, a lobby, and a parking lot.
Let ICE into private areas with an administrative warrant. A judicial warrant is signed by a judge and would say “US District Court” or “State Court” at the top of the warrant. The warrant would also have information concerning the time frame for the search, the premises to be searched, and a list of items to be searched and seized. Those items will likely include payroll and time records, I-9 forms, and employee identification documentation. On the other hand, an administrative warrant is not from a court. It would say “Department of Homeland Security” at the top. So if an ICE agent tries to enter a private area and does not have a judicial warrant, you can tell the agent you are not permitting them to enter without a judicial warrant. You can say something along the lines of “This is a private area. Do you have a judicial warrant? If not, you cannot enter.” (Click here for an example of both judicial warrants and administrative warrants.)
Tell the ICE agent whether a particular employee named in an administrative warrant is working that day or not. You do not have to do so.
Physically interfere with a search that goes beyond the scope of the warrant. You can inform the agents that you object to the search but do not attempt to stop them or intervene.
Lie or provide false information or try to destroy or hide any documents or items. Similarly, do not help employees hide.
Forget to research what local services exist to help immigrants and to pay attention to community organizations that may be able to assist both you and your employees.
Venezuelan TPS Update: What Employers Should Know About 2023 Designation Not Extended
Announced in a Federal Register notice published Feb. 5, 2025, Secretary Kristi Noem decided not to extend the 2023 Venezuela TPS designation. That designation will expire April 7, 2025.
DHS Secretary Noem announced on Jan. 29, 2025, that she is vacating former DHS Secretary Alejandro Mayorkas’ Jan. 17, 2025, redesignation of Temporary Protected Status (TPS) for Venezuela for an additional 18 months. This announcement affects approximately 600,000 Venezuelans currently in the United States with TPS.
Secretary Noem has until July 12, 2025, to decide whether to extend the 2021 Venezuela TPS designation. If not extended, the 2021 designation will terminate Sept. 10, 2025.
Employees with Venezuela TPS may be work-authorized pursuant to facially valid work authorization documents or auto-extensions. They also may be eligible to change to other non-immigrant status, including visitor status and employment-based visa statuses. Work authorizations and eligibility for change of status should be evaluated on a case-by-case basis. Jackson Lewis’ attorneys are available to assist with these evaluations.
During the first Trump Administration, decisions not to extend TPS for several designated countries faced legal challenges and were blocked from taking effect. We will continue to monitor and provide updates regarding any legal challenges to the decision not to extend the Venezuela 2023 TPS designation.
New Antitrust Guidance Provides Ground Rules for Labor Markets—Or Does It?
On January 16, 2025, the Federal Trade Commission (FTC) and the U.S. Department of Justice, Antitrust Division (collectively, the Agencies) released the updated Antitrust Guidelines for Business Activities Affecting Workers (the Revised Guidelines). The Revised Guidelines, which passed the FTC in a 3-2 vote with dissents from current FTC Chairman Andrew N. Ferguson and fellow Republican Commissioner Melissa Holyoak, replaced the 2016 Antitrust Guidance for Human Resource Professionals.
The Revised Guidelines reflect the Agencies’ focus on fair competition in labor markets during the Biden administration. (For more information, see our client alert) However, given Chair Ferguson’s dissent and the Trump administration’s efforts to reshape the federal government, it is not clear that the Revised Guidelines will remain intact. Despite—or because of—this uncertainty, it is critical that businesses take an inventory of their employment policies and educate employees about how well-settled principles of antitrust law apply to the workforce.
Key Changes and Clarifications
The Revised Guidelines set forth the following non-binding guidance:
Focus on Worker Competition: Antitrust law protects workers from anticompetitive misconduct just as much as they protect consumers of goods and services. Practices that harm this competition in the labor market, such as suppressing wages or limiting job opportunities, may be investigated and prosecuted by the Agencies.
Specific Prohibited Practices: Certain business practices may violate antitrust laws, including:
Wage-fixing: Agreements between companies to set or coordinate wages.
No-poach and similar agreements: Agreements between companies not to hire each other’s employees.
Exchange of sensitive information: Exchanging competitively sensitive information, such as compensation details, among competing employers.
Non-compete clauses: Agreements that restrict workers from leaving their jobs or starting competing businesses.
Other restrictive, exclusionary, or predatory employment conditions: Overly broad non-disclosure agreements (NDAs), training repayment agreement provisions, non-solicitation agreements, and exit fee or liquidated damages provisions.
False earnings claims: Making misleading statements about potential earnings to attract workers.
Criminal and Civil Liability: Certain agreements are per se illegal and trigger criminal liability, including agreements between companies to fix wages or not to recruit, solicit, or hire workers.
Scope of the HR Guidelines: The Revised Guidelines apply to employees, independent contractors, and franchisees.
Reporting Violations: The Revised Guidelines provide clear steps on how to report potential violations to the FTC and DOJ and the information to include in a complaint.
The FTC Dissent
Now-Chairman Ferguson, joined by Commissioner Holyoak, issued a strongly worded dissent that focused on the timing and future implications of the Revised Guidelines. Although Chairman Ferguson concurred that antitrust law applies to unlawful restraints in labor markets—and that the Agencies should “promote[] important transparency and predictability”—he denounced the Revised Guidelines as a “senseless waste of Commission resources” by “the lame-duck Biden-Harris FTC.”[1] In a separate statement, Commissioner Holyoak agreed that it was “wholly improper for this lame-duck Commission to expedite law enforcement matters, issue notices and advance notices of proposed rulemakings, [and] release new enforcement policy statements and guidance” rather than facilitate “an orderly transition to the Trump-Vance administration.”[2]
What Does this Revised Guidance Mean for Businesses?Despite the objections to timing, most of the Revised Guidelines are consistent with well-established antitrust principles. Employers should review the Revised Guidelines carefully and then take practical measures to safeguard proprietary information and business interests.
Take an Inventory of HR policies: Review all agreements and practices affecting worker compensation, recruitment, and mobility for potential antitrust violations.
Protect competitively sensitive information: Determine whether restrictive covenants such as NDAs are sufficient to protect legitimate business interests such as intellectual property rights. Restrictive covenants should also be narrowly tailored and proportionate to the risk of disclosure to be enforceable and comply with antitrust law.
Train executives and employees: Invest in training for human resources executives and employees, who may not understand how certain business practices may violate antitrust law—or the ensuing severe penalties.
Seek legal counsel: Consult with counsel to analyze specific situations and ensure compliance with antitrust law.
[1] Dissenting Statement of Commissioner Andrew N. Ferguson Joined by Commissioner Melissa Holyoak Regarding the Antitrust Guidelines for Business at https://www.ftc.gov/system/files/ftc_gov/pdf/at-guidelines-for-business-activities-affecting-workers-ferguson-holyoak-dissent.pdf.
[2] Dissenting Statement of Commissioner Melissa Holyoak Regarding Closed Commission Meeting Held on January 16, 2025 at https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/dissenting-statement-commissioner-melissa-holyoak-regarding-closed-commission-meeting-held-january.
This post was co-authored by Managed Care + ERISA Litigation lawyer Stephanie J. Oppenheim