Hot Topics in Employee Benefits: A Primer for In-House Lawyers
Employee benefits compliance has many traps for the unwary and is ever evolving. Below, we have provided a primer on current issues of importance in the employee benefits area to help in-house attorneys identify potential risks, mitigate them, and know when to call an outside ERISA lawyer.
1. What Is Old Is New: Get Your Health Plan Governance in Order
Employers that sponsor self-funded health plans have a host of complicated obligations. There are greater potential legal, regulatory, and fiduciary risks than in years past with managing health plans because of increased congressional legislation, increased Department of Labor (DOL) focus on group health plan compliance, and increased group health plan litigation, often by the same plaintiffs’ firms that have been suing 401(k) plans in fee litigation the past 20 years or more.
Employers should consider properly establishing a benefits committee, much like how they established committees for their retirement plans, that will serve to govern and oversee their employer-sponsored group health plans, especially those that are self-funded. A formal committee could help employers stay compliant, formalize their prudent decision-making process, and shift certain fiduciary liability to the benefits committee from the Board, thus insulating the Board from the underlying fiduciary decisions.
2. Stay Calm and Carry On: Mental Health Parity Non-Enforcement Policy Pauses Only Certain Requirements
Self-insured health plans must show that the plan does not include more restrictions on access to mental health benefits than on access to medical benefits. The law looks at both financial limits (e.g., coinsurance, copays, and deductibles) and other types of limits (e.g., pre-authorization requirements, provider network design, and prescription drug formulary design).
Beginning in 2021, plans were required to produce a written analysis of the non-financial limits, also known as non-quantitative treatment limitations (NQTLs), and the DOL has been actively auditing those analyses. Such audits have been time- and resource-intensive, given that the DOL has yet to approve an analysis without changes.
Late last year, the agencies released a final rule with details on the DOL’s expectations with respect to the NQTL analysis. They have since been sued for the rule, with the plaintiffs claiming overreach by the DOL. On May 15, 2025, the DOL stated that it would not enforce the final rule but would continue to enforce the statute and prior guidance.
Therefore, self-insured plans should continue to produce and update their NQTL analysis. We expect at least some continued audit activity, as well as the threat of private litigation.
3. To Report or Not to Report, That Is the Question: Florida Data Request to Self-Insured Plans Under Pharmacy Benefits Management Law
Several states have recently enacted laws designed to increase oversight of pharmacy benefit managers (PBMs) and limit certain PBM practices. Many of these laws impose reporting obligations on PBMs and the plans and employers with which they contract. While some of these laws exempt self-funded group health plans from their reach, recognizing that states are generally preempted from regulating such plans under ERISA, others explicitly include self-funded group health plans within their reach. For example, Florida’s Prescription Drug Reform Act includes “self-insured employer health plans” in its definition of “pharmacy benefits plan or program”—the category of plans to which the law applies.
This year, Florida’s Office of Insurance Regulation issued data requests under the PBM law, asking PBMs and group health plans to submit a broad range of prescription drug data, including participants’ names, dates of birth, prescriptions filled, and doctors visited. For sponsors of self-funded health plans, these data requests and similar requests made by other state agencies raise questions regarding both ERISA preemption and Health Insurance Portability and Accountability Act (HIPAA) obligations.
We expect that these questions may soon be answered through litigation, but in the meantime, employers with self-funded plans should work with counsel to evaluate these requests on a case-by-case basis. In some instances, the requested data may be minimal, and the state laws may fall outside of ERISA’s broad preemption protection. In other cases, where states request sweeping, specific data, such requests might be preempted by ERISA, especially where sharing the information would violate HIPAA.
4. If You Didn’t Document It, It Didn’t Happen: Takeaways from Cunningham v. Cornell University
On April 27, 2025, the U.S. Supreme Court ruled in Cunningham v. Cornell University that a plaintiff can allege that a transaction between a plan and a “party in interest,” such as a plan service provider, is a “prohibited transaction” under ERISA even if the plaintiff doesn’t directly allege that the transaction was unreasonable or unnecessary. Why did the Supreme Court conclude a plaintiff doesn’t have to allege something specifically wrong, especially where transactions between plans and plan service providers are common? The Court took a textualist approach and concluded that ERISA’s structure puts the burden on the plan fiduciary to prove the transaction was necessary and reasonable, and because of this, a plaintiff need not plead “unreasonableness” in its complaint. As the Court conceded, the result is that the bar to get past a motion to dismiss is lowered, making it more difficult for plans to avoid costly litigation for weak—if not downright meritless—prohibited transaction claims. Recognizing that this may be problematic for plans, the Supreme Court urged lower courts to use other tools at their disposal to weed out meritless claims sooner rather than later, such as additional pleadings or the threat of shifting plan legal fees to a plaintiff.
So, what can a prudent plan administrator take away from a case about technical ERISA pleading standards? The clearer a fiduciary’s prudent process for selecting and compensating a plan service provider, the better. Clear documentation of the fiduciary’s process, such as in committee meeting minutes (preferably, vetted by experienced counsel), makes it more likely that a court will see the prudence a fiduciary has exercised from the get-go, before individuals have to defend their efforts in depositions.
5. How Well Is Your Wellness Plan?
HIPAA’s wellness program rules provide an exception to its general rule that prohibits an employer from determining premiums or benefits based on a health factor. Employers offering wellness programs should be mindful of ongoing challenges to health-contingent programs. These programs require participants to satisfy a standard related to a health factor to earn a reward. Health contingent programs can be outcomes-based or activity-only programs. While many of the requirements apply to both programs, challenges—and litigation—focus on health-contingent programs that are outcomes-based. These programs require employers to allow a “reasonable alternative standard” for meeting the requirements, regardless of whether it is medically inadvisable for a participant to try to meet the standard, or if meeting the standard is unreasonably difficult due to a medical condition. Cases focus on the availability of, or communication related to, a “reasonable alternative standard.”
Employers offering these plans should review their communications ahead of open enrollment season to make sure reasonable alternative standards are disclosed in all printed and electronic communications. Employers should also ensure that they are, in fact, offering a reasonable alternative standard as well as ensuring payment is made for any retroactive periods while the standard is being met.
6. Don’t You Forget About Me: Cybersecurity Guidance Applies to All Employee Benefit Plans
In April 2021, in the wake of a rash of phishing and hacking incidents that resulted in the theft of retirement funds, the DOL issued cybersecurity guidance for plan sponsors, plan fiduciaries, record keepers, and plan participants. Recognizing the vast assets being held in private-sector pension and defined contribution plans without sufficient vigilance, protections, and accountability, these assets may be at risk from both internal and external cyber threats.
The guidance issued by the DOL includes Tips for Hiring a Service Provider, Cybersecurity Program Best Practices, and Online Security Tips. However, it was heavily focused on ways to protect retirement plan data and the financial assets in retirement accounts, leading many to the misconception that the guidance didn’t extend to the data maintained by the plan sponsors, plan fiduciaries, and the contractors and vendors for health and welfare plans.
As cybercrime evolved and hackers began to use malware and ransomware, health care data became an increasingly attractive target because the services that health care organizations and their IT systems support keep people alive and healthy. Hackers appreciated that there was little tolerance for allowing health care systems to remain offline, making it more likely a ransom will be paid, creating the perfect storm and magnifying the value of health care data to cybercriminals. Breaches by large vendors made it abundantly clear that, in a digital world, the need for strong cyber hygiene transcends all boundaries, prompting the DOL to issue an update in November 2024 to the cybersecurity guidance to confirm that it applies to all ERISA plans.
Workplace Strategies Watercooler 2025: Managing Multiple Generations—Planning for the Future [Podcast]
In this installment of our Workplace Strategies Watercooler 2025 podcast series, Bill Grob (shareholder, Tampa) sits down with Jennifer Colvin (shareholder, Chicago) and Katie Terry (Assistant General Counsel—Vice President Legal, Mphasis) to discuss the impact of social influences on workforce motivations and communication styles across different generations in the workplace. The conversation focuses on how employers can maximize the strengths of their multigenerational workforce by promoting open communication, encouraging collaboration, providing employee training and individual development opportunities, and offering flexibility in work practices.
No More Extra Hurdles: Court Strikes Down Title VII Bias Rule
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against any individual based on race, color, religion, sex, or national origin. But does that protection apply equally to white, male, or heterosexual employees? Or should they have to clear a higher bar to prove discrimination? On June 5, 2025, the United States Supreme Court answered with a unanimous “no” in its decision in Ames v. Ohio Department of Youth Services. Ames eliminates the “background circumstances” rule, which mandated that majority-group plaintiffs in Title VII discrimination cases provide additional evidence suggesting that the employer was the “unusual” type that discriminates against the majority.
The case involved Marlean Ames, a heterosexual employee, who alleged that the Ohio Department of Youth Services discriminated against her. Ames interviewed for a new management position, but the agency instead hired a lesbian candidate. Shortly after, she was removed from her role as program administrator and demoted to a secretarial job, with a pay cut. The agency then hired a gay man to replace her as program administrator. Ames sued under Title VII, claiming she was denied the promotion and demoted because of her sexual orientation.
The Unites States District Court for the Southern District of Ohio granted summary judgment to the agency. And the U.S. Court of Appeals for the Sixth Circuit affirmed, reasoning that as a heterosexual individual, the plaintiff needed to present proof that a member of the relevant minority group (in this case, gay individuals) made the employment decision or statistical data demonstrating a pattern of discrimination against the majority group. Since Ames presented neither type of evidence, the Sixth Circuit upheld the dismissal.
The Supreme Court rejected that approach. “Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs,” Justice Jackson wrote. That law “makes it unlawful ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII is about individual rights, not demographic majorities or minorities: “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.” Citing Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971), the Court reaffirmed that “[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.” The ruling thus resolved a split between federal appellate courts, some of which required majority-group plaintiffs to show “background circumstances”—like a minority-group decisionmaker or statistical evidence of anti-majority discrimination—and circuits that did not.
Key Takeaways
Importance of Continued Compliance. It is prudent for employers to continue monitoring their employment practices (including hiring, promotions, terminations, and other personnel decisions) to ensure compliance with Title VII, as the ruling may heighten scrutiny of decisions affecting “majority-group” employees.
Potential Increase in Litigation Risk: The uniform evidentiary standard may embolden majority-group employees to pursue Title VII claims. Employers face heightened litigation risk if employment decisions lack clear, non-discriminatory justifications. Proactive measures, including regular audits of hiring and promotion practices, may aid in mitigating this risk.
Legitimate, Non-Discriminatory Reason for Adverse Employment Action. Employers retain the ability to defend against discrimination claims by demonstrating that employment actions were based on legitimate, non-discriminatory reasons. And the Court emphasized that the plaintiff always bears the ultimate burden of proving intentional discrimination.
DEI Implications? While Ames is a Title VII case, the Court’s emphasis on neutrality and individualized treatment may also have broader implications. The decision reinforces the principle that employment decisions—regardless of motive—must be free from group-based preferences.
U.S. Supreme Court Reverses ‘Reverse’ Employment Discrimination Pleading Standard
Takeaways
The U.S. Supreme Court invalidated the “background circumstances” rule for Title VII claims, resolving a split in the circuits and holding that courts must evaluate claims brought by majority-group plaintiffs under the same evidentiary framework as minority-group plaintiffs.
Justices Thomas and Gorsuch outlined their criticisms of the McDonnell Douglas framework and encouraged parties to litigate Title VII discrimination claims under the summary judgment standard used in almost all other contexts.
Employers should continue to focus on equal employment for all individuals regardless of their race, color, sex, national origin, religion, age, disability, or other classification and regardless of any perceived “majority” status.
On June 5, 2025, the U.S. Supreme Court invalidated the “background circumstances” rule in “reverse” employment discrimination claims brought under Title VII of the Civil Rights Act in a unanimous decision overturning precedent held by five federal circuit courts of appeals. Ames v. Ohio Department of Youth Services, No. 23-1039.
The background circumstances rule required plaintiffs from historically advantaged groups — typically, white or male employees — to provide additional evidence suggesting that their employer was inclined to discriminate against the majority. Justice Ketanji Brown-Jackson, writing for the Court, explained that under this framework, “plaintiffs who are members of a majority group bear an additional burden … : They must also establish background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” The imposition of this additional burden, Justice Jackson wrote, “cannot be squared with the text of Title VII or our longstanding precedents.”
The Supreme Court’s decision resolves a split in the circuits and now all courts must evaluate claims brought by majority group plaintiffs under the same framework as any other Title VII claim, without the need for plaintiffs to prove “background circumstances.”
Background
Marlean Ames, a straight woman, started working for the Ohio Department of Youth Services (DYS) in 2004. Ames claimed that DYS discriminated against her when it promoted a gay man instead of her.
Holding
The Court held that the “background circumstances” rule is irreconcilable with the plain text of Title VII. Title VII establishes “the same protections for every individual—without regard to that individual’s membership in a minority or majority group,” the Court said, leaving “no room for courts to impose special requirements on majority-group plaintiffs alone.” And Supreme Court precedent has consistently interpreted Title VII faithfully to its plain text.
Citing Bostock v. Clayton County, 590 U.S. 644 (2020), Justice Jackson outlined the basic principle “that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group,” but rather “works to protect individuals … from discrimination.”
Justice Jackson observed that the Court always has said that courts should be flexible when determining whether a plaintiff met her burden of proving her initial case. Justice Jackson wrote, “The ‘background circumstances’ rule disregards this admonition by uniformly subjecting all majority-group plaintiffs to the same, highly specific evidentiary standard in every case.… [T]he rule effectively requires majority-group plaintiffs (and only majority-group plaintiffs) to produce certain types of evidence—such as statistical proof or information about the relevant decisionmaker’s protected traits—that would not otherwise be required to make out a prima facie case.”
Thomas/Gorsuch Concurrence; Fate of McDonnell Douglas Framework
Justice Clarence Thomas and Justice Neil Gorsuch joined the Court’s opinion in full but wrote separately “to highlight the problems that arise when judges create atextual legal rules and frameworks.” In their concurrence, Justices Thomas and Gorsuch criticized the longstanding McDonnell Douglas framework, a legal standard established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and applied when there is no direct evidence of discrimination.
Acknowledging that Ames did not present the question of whether the McDonnell Douglas framework is an “appropriate tool for evaluating Title VII claims at summary judgment,” Justice Thomas promised that if that issue comes before the court, he would “consider whether the framework should be used for that purpose.” Justice Thomas noted that litigants and lower courts were free to apply the standard until that time but encouraged them instead to apply the straightforward summary judgment standard used by district courts “every day—and in almost every context except the Title VII context.”
The issue, in fact, did come before the Court early this year on plaintiff’s petition for certiorari in Hittle v. City of Stockton, 145 S. Ct. 759 (2025). The Court denied review on March 10, 2025. Justices Thomas and Gorsuch wrote a rare dissent to the denial outlining their criticisms of the framework.
Impact on Employers
Ames v. Ohio Youth Services joins two other recent Supreme Court cases with significant impact on employment discrimination law: Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023); and Muldrow v. City of St. Louis, 601 U.S. 346 (2024). Although Justice Thomas’s concurrence questioning the legitimacy of the McDonnell Douglas framework is not controlling, it likely will affect how parties plead and litigate discrimination cases going forward. Employers may see an uptick in discrimination claims from all individuals (including, but not limited to, those historically believed to be in the “majority”).
Employers should continue to focus on equal employment for all individuals regardless of their race, color, sex, national origin, religion, age, disability, or other classification and regardless of any perceived “majority” status.
SCOTUS Declines to Rule on Whether District Court can Certify a Class Containing Uninjured Members
On Thursday, June 5, 2025, the United States Supreme Court issued an 8-1 Opinion in the matter of Laboratory Corp. of Am. Holdings v. Davis in which it declined to take up the issue of whether district courts can certify a class that contains uninjured members.
In the Opinion, the Supreme Court dismissed as improvidently granted the appeal of a Ninth Circuit decision affirming class certification despite the fact that the class, as certified, contained some uninjured class members.
Writing in dissent, Justice Kavanaugh framed the question presented as “whether a federal court may certify a damages class pursuant to Federal Rule of Civil Procedure 23 when the class includes both injured and uninjured class members.” Justice Kavanaugh stated that he would hold that a federal court may not certify such a class under Rule 23.
Notably, Justice Kavanaugh also examined the real-world consequences of improvidently granted motions for class certification on business, explaining: “[c]oerced settlements substantially raise the costs of doing business. And companies in turn pass on those costs to consumers in the form of higher prices; to retirement account holders in the form of lower returns; and to workers in the form of lower salaries and lesser benefits. So overbroad and incorrectly certified classes can ultimately harm consumers, retirees, and workers, among others.”
The Court’s decision to dismiss the appeal defers a potentially significant decision impacting businesses throughout the country. Given this lack of clarity, it is important that businesses facing class action allegations retain knowledgeable and sophisticated counsel to advance their rights.
New DOL/EBSA Opinion Letter Program Offers a Path to Clarity for Plan Sponsors
On June 2, 2025, the U.S. Department of Labor (DOL) announced a significant expansion of its compliance assistance tools by launching an Opinion Letter Program across five key enforcement agencies, including the Employee Benefits Security Administration (EBSA). This initiative aims to provide employers, plan sponsors, and other stakeholders with clear, tailored guidance on complex issues related to employee benefit plans.
Deputy Secretary of Labor Keith Sonderling emphasized the importance of this program, stating,
“Opinion letters are an important tool in ensuring workers and businesses alike have access to clear, practical guidance.”
Understanding the EBSA’s Role
The EBSA is responsible for enforcing the Employee Retirement Income Security Act (ERISA), which governs private-sector retirement and health plans. Under the new program, EBSA will issue two types of opinion letters:
Advisory Opinions: These apply the law to specific factual situations presented by requesters. Note that the EBSA will not issue an advisory opinion with respect to a matter that is the subject of investigation or litigation at the time the request is submitted.
Information Letters: These provide general interpretations of the law without applying it to specific facts.
This dual approach allows EBSA to address both specific inquiries and broader issues affecting multiple stakeholders.
Exercise caution. Opinion letters have certain limitations in their application as outlined in ERISA Procedure 76-1. In the case of advisory opinions, the opinion assumes that all material facts and representations set forth in the request are accurate, and the opinion applies only to the situation described therein. Your particular circumstances may be different enough to warrant a different result. Additionally, only the parties described in the request for opinion may rely on the opinion, and they may rely on the opinion only to the extent that the request fully and accurately contains all the material facts and representations necessary to issuance of the opinion. Information letters, on the other hand, are informational only and not binding on the department. So, again, while opinion letters may be helpful, plan sponsors should consult with counsel or other ERISA experts to assess a particular opinion’s application to the circumstances at issue.
Why This Matters for Plan Sponsors?
Navigating the complexities of ERISA compliance can be challenging. The new Opinion Letter Program offers several benefits:
Clarity, Consistency, and Transparency: Obtain guidance, at least from the agency’s perspective, on complex issues, reducing uncertainty.
Compliance Assistance: Having greater opportunity to seek and access opinion letters will help to ensure that plan administration will align with current interpretations of the law.
Risk Mitigation: The ability to address plan design and compliance issues proactively can potentially avoid costly corrective measures and penalties.
Common Issues Addressed
Plan sponsors often face recurring challenges where guidance has been limited or ambiguous. The Opinion Letter Program potentially can provide clarity on issues such as:
Locating Missing Participants: Strategies for finding former employees to distribute 401(k) benefits.
Cybersecurity Measures: Implementing appropriate safeguards for plan data.
Plan Terminations: Proper procedures for winding down plans and distributing assets.
Fiduciary Responsibilities: Clarifying the extent of fiduciary duties in various scenarios.
Finding and Applying Opinion Letters
EBSA maintains a database of prior opinion letters. The EBSA’s Resource Center for Advisory Opinions, provides a tool for searching available opinion letters by year and regulatory reference.
How to Request an Opinion Letter
Anyone can request an opinion letter, including workers, employers, employment associations, lawyers, human resource professionals, unions and industry leaders. To request an opinion letter, the requesting party or their representatives should submit a detailed inquiry to EBSA, outlining the specific facts and questions for which guidance is sought. The request should be directed to the Office of Regulations and Interpretations. More information, including submission guidelines, is available on the DOL’s website.
The DOL’s expansion of the Opinion Letter Program represents a proactive step toward enhancing compliance assistance for plan sponsors. By providing clear, authoritative guidance on complex issues, the program empowers employers to administer their benefit plans confidently and in accordance with the law.
President Signs EO to Restore Gold Standard for Science, Calls for Reevaluation of Biden Administration’s Scientific Integrity Policies
On May 27, 2025, President Trump signed an Executive Order (EO) on “Restoring Gold Standard Science.” 90 Fed. Reg. 22601. The EO states that the Trump Administration “is committed to restoring a gold standard for science to ensure that federally funded research is transparent, rigorous, and impactful, and that Federal decisions are informed by the most credible, reliable, and impartial scientific evidence available.” The EO restores the scientific integrity policies of the first Trump Administration and “ensures that agencies practice data transparency, acknowledge relevant scientific uncertainties, are transparent about the assumptions and likelihood of scenarios used, approach scientific findings objectively, and communicate scientific data accurately.”
Restoring Gold Standard Science
The EO directs the Director of the White House Office of Science and Technology Policy (OSTP), in consultation with the heads of relevant agencies, to issue guidance within 30 days for agencies on implementing “Gold Standard Science” in the conduct and management of their respective scientific activities. The EO defines Gold Standard Science as science conducted in a manner that is reproducible; transparent; communicative of error and uncertainty; collaborative and interdisciplinary; skeptical of its findings and assumptions; structured for falsifiability of hypotheses; subject to unbiased peer review; accepting of negative results as positive outcomes; and without conflicts of interest. Once OSTP publishes the guidance, the EO directs each agency head to update promptly applicable agency policies governing the production and use of scientific information, including scientific integrity policies, to implement the OSTP Director’s guidance. Within 60 days of the publication of OSTP’s guidance, agency heads must report to the OSTP Director on the actions taken to implement Gold Standard Science at their agency.
Improving the Use, Interpretation, and Communication of Scientific Data
Within 30 days after the date of the EO, agency heads and employees must adhere to the following rules governing the use, interpretation, and communication of scientific data, unless otherwise provided by law:
Employees shall not engage in scientific misconduct nor knowingly rely on information resulting from scientific misconduct;
Except as prohibited by law, and consistent with relevant policies that protect national security or sensitive personal or confidential business information (CBI), agency heads shall in a timely manner and, to the extent practicable and within the agency’s authority;
Make publicly available the following information within the agency’s possession:
The data, analyses, and conclusions associated with scientific and technological information produced or used by the agency that the agency reasonably assesses will have a clear and substantial effect on important public policies or important private sector decisions (influential scientific information), including data cited in peer-reviewed literature; and
The models and analyses (including the source code for such models) the agency used to generate such influential scientific information. The EO states that employees may not invoke exemption 5 to the Freedom of Information Act (FOIA) to prevent disclosure of such models unless authorized in writing to do so by the agency head following prior notice to the OSTP Director;
Risk models used to guide agency enforcement actions or select enforcement targets are not information that must be disclosed under this subsection;
When using scientific information in agency decision-making, employees must transparently acknowledge and document uncertainties, including how uncertainty propagates throughout any models used in the analysis;
Where employees produce or use scientific information to inform policy or legal determinations they must use science that comports with the legal standards applicable to those determinations, including when agencies evaluate the realistic or reasonably foreseeable effects of an action;
Employees must be transparent about the likelihood of the assumptions and scenarios used. The EO states that “[h]ighly unlikely and overly precautionary assumptions and scenarios should only be relied upon in agency decision-making where required by law or otherwise pertinent to the agency’s action”;
When scientific or technological information is used to inform agency evaluations and subsequent decision-making, employees shall apply a “weight of scientific evidence” approach;
Employees’ communication of scientific information must be consistent with the results of the relevant analysis and evaluation and, to the extent that uncertainty is present, the degree of uncertainty should be communicated. The EO notes that “[c]ommunications involving a scientific model or information derived from a scientific model should include reference to any material assumptions that inform the model’s outputs”; and
Once the guidance on Gold Standard Science is established and promulgated, it shall, among other things, form the basis for employees’ evaluation of all scientific and technological information called for in the EO except where otherwise required by law.
Interim Scientific Integrity Policies
Until the issuance of updated agency scientific integrity policies, the EO states that scientific integrity policies in each agency must be governed by the scientific integrity policies that existed within the executive branch on January 19, 2021. The EO directs agency heads to take all necessary actions to reevaluate and, where necessary, revise or rescind scientific integrity policies or procedures, or amendments to such policies or procedures, issued between January 20, 2021, and January 20, 2025. Under the EO, each agency head must promptly revoke any organizational or operational changes, designations, or documents that were issued or enacted pursuant to the Presidential Memorandum of January 27, 2021 (Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking), which was revoked pursuant to EO 14154 and shall conduct applicable agency operations in the manner and revert applicable agency organization to the same form as would have existed in the absence of such changes, designations, or documents.
In updating applicable scientific integrity policies, the EO directs agencies to ensure they:
Encourage the open exchange of ideas;
Provide for consideration of different or dissenting viewpoints; and
Protect employees from efforts to prevent or deter consideration of alternative scientific opinions.
Agencies must review agency actions taken between January 20, 2021, and January 20, 2025, including regulations, guidance documents, policies, and scientific evaluations, and take all appropriate steps, consistent with law, to ensure alignment with the policies and requirements of the EO.
Scope and Applicability
The policies and rules set forth in the EO apply to all employees involved in the generation, use, interpretation, or communication of scientific information, regardless of job classification, and to all agency decision-making. Agency heads and employees must, to the extent practicable and consistent with applicable law, require agency contractors to adhere to these policies and rules as though they were agency employees. The EO’s policies and rules govern the use of science that informs agency decisions, but the EO notes that “they are not applicable to non-scientific aspects of agency decision-making.”
Enforcement and Oversight
The EO requires each agency head to establish internal processes to evaluate alleged violations of the requirements of the EO and other applicable agency policies governing the generation, use, interpretation, and communication of scientific information. Such processes will be the responsibility, and administered under the direction, of a senior appointee designated by the agency head and shall provide for taking appropriate measures to correct scientific information in response to violations, consistent with the requirements and procedures of Section 515 of the Information Quality Act (IQA). According to the EO, the designated senior appointee may also forward potential violations to the relevant human resources officials for discipline to the extent the potential violation also violates applicable agency policies and procedures. The designated senior appointee may consult appropriate officials with scientific expertise when establishing such processes.
Commentary
There is no serious disagreement with the idea of conducting and relying upon quality science. Quality science is non-partisan. The challenge is not with the goal, it is with defining “best available science” as, like so many qualitative terms, it is in the eye of the beholder. Too often, individuals rely on preferred science. It is human nature to be more open to data that confirm your perspective and less receptive to data that refute your view. Scientists must remain open to different views and different interpretations of data. Doing otherwise fundamentally undermines science.
The objection to “secret science” must also be carefully explored. It can be used to diminish the value of quality studies even though there are legitimate reasons for information in those studies to be maintained as confidential. Most would agree that individual identities in an epidemiological study, for example, are legitimately confidential based on individual privacy concerns. In a different case, the name of the sponsor that funded a study conducted according to Good Laboratory Practice (GLP) standards is not needed to evaluate the quality of the study. GLP protocols were established to minimize a study sponsor’s influence on the outcome or interpretation of a study. GLP protocols are arguably more protective of the best available science than peer review. One can reasonably assume that the sponsor of a GLP study has a financial interest in that study, so knowing the specific identity of the sponsor neither adds nor detracts from another’s interpretation of the study. If data are only valid if they align with your views, you are not relying on the best available science. We hope that the EO will be heeded by agencies and departments, and that decisions will be based on the best available science.
We, like many others, struggle with understanding a commitment to science with the Administration’s dramatic reduction in the executive branch’s scientific expertise. These are two realities difficult to rationalize. Can the goal be achieved when the means are undermined? Federal science agencies have been a bastion of outstanding science and scientists. Even if there are some examples of science generated by federal efforts (in-house or through contracts and grants) not perfectly meeting the standard of “best available science,” the solution can only be realized through better science.
President Trump Announces New Travel Ban
On June 4, 2025, President Trump announced a new travel ban through a proclamation titled “Restricting the Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and Other National Security and Public Safety Threats.” The ban, which echoes his 2017 efforts to restrict entry to the United States for nationals of certain countries deemed to be national security risks, expands the number of affected countries and divides them into two categories: Full Suspension of Entry and Partial Suspension of Entry. It will go into effect on June 9, 2025 with no announced end date.
Key provisions include:
Full Entry Bans: Nationals from the following 12 countries are barred from entering the United States: Afghanistan, Burma (Myanmar), Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen.
Partial Entry Ban: Seven additional countries—Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela—face the following partial entry restrictions: halting issuance of new visitor (B1/B2), student (F, M), and exchange (J) visas and reduction in validity for nearly all other nonimmigrant visa categories, including all employment visa categories (subject to the exceptions listed below).
Justification: The proclamation cites the following national security concerns as the basis for the new ban, with varied reasons listed for each suspended country: sponsorship of terrorism, lack of sufficient government to issue passports and civil documents, lack of appropriate vetting and screening measures, high overstay rates for past visa recipients, and refusal to accept back nationals being removed from the United States, among others.
Applicability: The travel ban only applies to nationals of the designated countries who, on June 9, 2025: (1) are outside the U.S. and (2) do not hold a valid, issued U.S. visa.
Exceptions and Waivers:
Categorical Exceptions: The ban does not apply to the following:
U.S. Lawful Permanent Residents (LPR or green card holder).
Dual nationals of the restricted countries traveling on the passport of an unrestricted country (e.g., Haitian/French dual national entering the U.S. on their French passport).
Individuals traveling on most diplomatic visas.
Athletes and related personnel and families entering to participate in the World Cup, Olympics, or other “major sporting event.”
Immediate family members seeking to enter on immigrant visas (i.e., applying for LPR status from outside the US).
Most applicants for adoption.
Certain Special Immigrant Visas (Afghan and US Government employees).
Immigrant visas for certain ethnic and religious minorities form Iran.
Those granted asylum or protections under the Convention Against Torture (CAT), and those admitted to the US as a refugee.
Case-by-case Waivers: The Attorney General and Secretary of State may designate individual exceptions for those entering in the national interest of the US. Mechanisms for these waivers have not been announced and will likely be implemented through U.S. embassies and consulates as during President Trumps first term.
The new travel ban is expected to face legal challenges, likely even before it’s effective date five days after its issuance. It is drafted to narrow the scope and reasons for the restrictions, so it remains to be seen whether the courts will allow it to go into full or partial effect on June 9, 2025.
Top Five Labor Law Developments for May 2025
The U.S. Supreme Court granted the Trump Administration’s application to stay former National Labor Relations Board Member Gwynne Wilcox’s reinstatement. Trump, et al. v. Wilcox, et al., No. 24A966 (May 22, 2025). The U.S. Court of Appeals for the D.C. Circuit had previously enjoined President Donald Trump’s removal of Wilcox, citing the Supreme Court’s 1935 decision in Humphrey’s Executor that upheld the constitutionality of for-cause removal protections for federal agency leaders. The Trump Administration then filed an emergency application to the Court for a stay of the D.C. Circuit’s order, arguing subsequent case law narrowed Humphrey’s Executor to apply only to multi-member agencies that do not wield substantial executive power, making the case inapplicable to the Board. In granting the stay, the Supreme Court found the Trump Administration is likely to show that Board members exercise considerable executive power, but the Court did not decide whether the Board falls within recognized exceptions for removal protections. The 6-3 order aims to avoid the disruptive effect of Wilcox’s repeated removal and reinstatement while the D.C. Circuit decides the merits of the case.
A coalition of unions, nonprofit groups, and local governments requested that a California federal court issue a nationwide injunction to stop an executive order (EO) requiring federal agencies to downsize or reorganize. American Federation of Government Employees, AFL-CIO, et al. v. Trump, et al., No. 3:25-cv-03698 (N.D. Cal. May 14, 2025); National Nurses United, et al. v. Kennedy, Jr., No. 1:25-cv-01538 (D.D.C. May 14, 2025). The lawsuit stems from EO 14210 aiming to reduce the size of the federal government’s workforce and directing each agency head to work with the Department of Government Efficiency on hiring plans. The coalition, which includes national unions and municipalities, argues the EO violates the U.S. Constitution’s separation of powers and the Administrative Procedure Act. Although the court previously granted a temporary restraining order, the coalition argues a nationwide injunction against the federal agencies is appropriate to avoid “piecemeal” litigation. Similarly, in a separate lawsuit, a coalition of unions, including National Nurses United, is seeking an injunction to stop the Department of Health and Human Services from implementing staff cuts at the National Institute for Occupational Safety and Health.
A Kentucky federal judge ruled the U.S. Department of Treasury lacks standing to rescind its collective bargaining agreement with employees, while the U.S. Department of Defense (DoD) is seeking to confirm its right to terminate them. U.S. Department of Treasury v. National Treasury Employees Union, Chapter 73, No. 2:25-049 (E.D. Ky. May 20, 2025); U.S. Department of Defense, et al. v. American Federation of Government Employees AFL-CIO District 10, et al., No. 6:25-cv-00119 (W.D. Tex. May 5, 2025). The lawsuits stem from EO 14251, which exempts certain agencies from the Federal Service Labor-Management Relations Statute that provides organizing and collective bargaining protections for federal employees. The federal court dismissed the action based on the Treasury’s lack of standing, as it had not enforced the EO against the local union at the time of filing. The court emphasized that the Treasury’s claimed injuries were speculative and, therefore, did not address the merits of the case. In a separate lawsuit in a Texas federal court, the DoD and other federal agencies are seeking declaratory relief against several union affiliates to confirm their rights under the EO. The unions have also moved to dismiss the case based on standing, among other claims.
The Nevada legislature passed a bill banning mandatory captive audience meetings; Washington will now provide unemployment benefits for striking workers. If signed by the governor, the Nevada legislation will prohibit employers from taking any adverse employment action against employees who decline to attend or participate in a meeting “sponsored by the employer” or listen to an employer communication if its purpose is to communicate the employer’s opinion on religious or political matters. Many states have similar legislation, and the Biden Board issued a decision holding such meetings violative of the National Labor Relations Act. Under the bill, “political matters” includes the decision to join or support any labor organization. Meanwhile, Washington’s governor signed a bill that provides unemployment benefits for striking workers under certain circumstances. The Washington law will take effect Jan. 1, 2026.
Acting General Counsel William Cowen issued a memorandum emphasizing the need for efficiency in resolving unfair labor practice (ULP) cases. Memorandum GC 25-06. The memorandum’s key points include granting discretion to exclude default language in settlements, permitting non-admission clauses, authorizing unilateral settlements, and approving settlements for less than full remedies. The memo also addresses the Board’s 2022 Thryv, Inc. decision, which expanded the scope of remedies for ULPs, noting regional directors should “focus on addressing foreseeable harms that are clearly caused by the unfair labor practice.” The memo represents a shift in policy from former General Counsel Jennifer Abruzzo and provides updated guidance on settlement efforts following Cowen’s previous memo rescinding several of Abruzzo’s memos and enforcement priorities.
Florida’s Employer-Friendly “CHOICE” Act Establishes New Protections for Garden Leave and Noncompete Agreements (US)
On April 24, 2025, Florida lawmakers passed business-friendly legislation that impacts Florida’s regulation of noncompete and garden leave agreements and expands employer enforcement power for such agreements. The bill creates the Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (“CHOICE”) Act, which governs two types of agreements: (1) covered garden leave agreements and (2) covered noncompete agreements. Both types of agreements protect the confidentiality of employer information and client relationships, but differ as to when the protection applies; covered garden leave agreements apply while an employee remains employed with the employer, whereas covered noncompete agreements apply after an employee has left employment. Under the CHOICE Act, there is a presumption that covered noncompete and garden leave agreements with a duration of up to four years are enforceable so long as certain technical requirements are followed. The bill, awaiting Governor Ron DeSantis’s signature, is set to take effect on July 1, 2025.
Who is covered under the CHOICE Act?
The new legislation applies to certain high-earning employees and their employers, specifically, “covered employees” and “covered employers.” A “covered employer” is any employer who employs or engages with a covered employee. A “covered employee” is an employee or individual contractor who earns or is reasonably expected to earn a salary greater than twice the annual mean wage of the Florida county where the employer maintains its principal place of business, or the Florida county where the employee resides, if the employer’s principal place of business is not located in Florida. (Note that healthcare practitioners are explicitly excluded from this definition.)
Covered garden leave agreements
“Garden leave” refers to a period defined by contract when an employee typically completes little to no work but remains employed and receives normal salary and benefits. During this period, an employee on garden leave cannot work for a competitor because the employee is still bound by the contractual terms of their employment, including applicable confidentiality obligations, a duty of loyalty, or other similar restrictions. Thus, garden leave precludes an employee from using their employer’s proprietary information to gain a competitive advantage in another venture, which protects the employer’s business interests.
Under the CHOICE Act, a “covered garden leave agreement” is a written agreement or a provision within a contract between an employee and employer where the employer is required to retain the employee on payroll for a period of up to four years but is not permitted to assign work. The agreement is fully enforceable if:
the covered employee was advised in writing of the right to seek legal counsel before execution of the agreement and was provided at least seven days to review the agreement;
the covered employee acknowledges, in writing, receipt of confidential information or customer relationships; and
the covered garden leave agreement provides that:
after the first 90 days of the notice period (the date from the employer or employee’s written notice of intent to terminate the employee’s employment through the date of termination designated in the garden leave agreement), the covered employee does not have to provide services to the employer;
the employee may engage in nonwork activities, like travel or a hobby, at any time during the remainder of the notice period;
the covered employee may, with the permission of the covered employer, work for another employer while still employed by the covered employer during the remainder of the notice period; and
the garden leave agreement notice period may be reduced during the notice period if the covered employer provides at least 30 days advance notice in writing to the covered employee.
Covered noncompete agreements
A noncompete agreement refers to an agreement between an employer and an employee that restricts the employee’s post-employment work activities. Employers use noncompete agreements to provide greater assurances that their confidential and proprietary business information and valuable customer relationships will not be accessible to competitors for a defined period of time.
The CHOICE Act permits covered noncompete agreements that restrict a covered employee from working for another employer for up to four years if the covered employee would provide similar services in the new role or it is reasonably likely the covered employee would use the covered employer’s confidential information or customer relationships in their new role.
Under the CHOICE Act, a “covered noncompete agreement” is fully enforceable if:
the employee was advised, in writing, of the right to seek legal counsel before execution of the agreement and was provided at least seven days to review the agreement;
the employee acknowledges, in writing, that in the course of employment the employee will receive confidential information or customer relationships; and
the agreement provides that the noncompete period is reduced day-for-day by any nonworking portion of a concurrent covered garden leave agreement, if applicable.
Enforcing covered agreements under the CHOICE Act
Notably, the CHOICE Act creates a presumption that covered noncompete and garden leave agreements that are reasonable in geographic scope are enforceable and do not violate public policy, placing the burden on the employee to show that the agreement should not be enforced. The CHOICE Act also empowers employers to enjoin alleged violations by any employee subject to a covered agreement, including both former employees bound by a noncompete and current employees on garden leave.
Specifically, upon a covered employer’s application seeking enforcement of a covered agreement, a court must preliminarily restrain a covered employee from providing services to another employer during the notice period. The court may then modify or dissolve the injunction only if the covered employee establishes by clear and convincing evidence that:
the covered employee will not use confidential information or customer relationships of the covered employer or provide services similar to that provided to the covered employer;
the covered employer failed to pay the salary or grant the benefits provided for in a covered agreement; or
the new employer is not engaged or preparing to engage in similar business activity within the geographic area.
Key Steps for Employers
While this new legislation is good news for Florida employers, it is important to remember that noncompete enforceability varies by state, with some states like California, Massachusetts, and New York strongly disfavoring (and in some cases outright prohibiting) such agreements. Thus, employers should always consult legal counsel when drafting such agreements – particularly when hiring remote or employees working in more than one state – rather than using form noncompete agreements that may be unenforceable in some jurisdictions. With several states, like Florida, reversing the general trend of limiting similar types of restrictive covenants, employers must navigate an increasingly complex legal environment, and employers and employees alike should be cognizant of the impending changes as they look to adhere to and capitalize on the new legal landscape. Florida employers wanting to take advantage of these expanded protections should review their current noncompete and garden leave practices to ensure compliance with this new legislation.
The Latest Changes to the Ontario Employment Standards Act, 2000
Several 2024 amendments to the Ontario Employment Standards Act, 2000 (ESA) will be implemented in summer 2025, and more new requirements will take effect starting in 2026. Below is a detailed overview of these changes, organized by their effective dates. Employers in Ontario may want to note these deadlines and update their processes and policies accordingly.
Quick Hits
Starting June 19, 2025, employees in Ontario with at least thirteen consecutive weeks of employment will be entitled to an unpaid leave of absence for up to twenty-seven weeks in a fifty-two-week period for serious medical conditions certified by a qualified health practitioner.
Effective July 1, 2025, Ontario employers would be required under the amended law to provide new employees with specific employment information in writing before their first day of work, including the employer’s legal name, the employer’s contact information, the employee’s work location, the employee’s starting wage rate, the company’s pay period, and the anticipated hours of work.
Beginning January 1, 2026, employers in Ontario with more than twenty-five employees are required under the amended law to disclose the range of expected compensation, disclose the use of AI in hiring, confirm if a job posting is for an existing vacancy, and are prohibited from requiring “Canadian experience.”
Changes Effective June 19, 2025
Long-Term Illness Leave
Under the amended law, employees with at least thirteen consecutive weeks of employment will be entitled to an unpaid leave of absence for up to twenty-seven weeks in a fifty-two-week period if they have a serious medical condition certified by a qualified health practitioner.
The law does not require that the weeks of leave be taken consecutively. Employees may extend the leave within the same fifty-two-week period by submitting another medical certificate if the condition extends beyond the initial duration noted in the original certification and the twenty-seven-week period has not yet been exhausted.
This new leave does not amend existing obligations under the Ontario Human Rights Code and any contractual leave entitlements or disability benefits plans and policies.
This new leave is in addition to the regular three-day sick leave, for which employees are not required to provide a medical note.
The newly amended law requires employers to retain related records for three years after the leave expires.
Changes Effective July 1, 2025
New Rules About Employment Information
Employers will now be required to provide new employees with the following information in writing, prior to the employee’s first day of work or as soon as reasonably possible thereafter:
the employer’s legal name (and operating or business name, if different);
the employer’s contact information (including address, telephone number, and one or more contact names);
the location from which the employee will be performing work;
the employee’s starting wage rate or commission, as applicable;
the applicable pay period/pay day; and
a general description of the employee’s anticipated hours of work.
This requirement does not apply to employers with fewer than twenty-five employees or to assignment employees.
Changes Effective January 1, 2026
Effective January 1, 2026, employers with more than twenty-five employees that are posting jobs are required to disclose the range of expected compensation and use of artificial intelligence (AI) in the hiring process and confirm whether the job posting is for an existing vacancy. The amended law prohibits employers from requiring applicants to have “Canadian experience.”
The amendments require employers that interview applicants for publicly advertised jobs to provide information about the status of the hiring process within forty-five days of interviews or, if the employer interviews applicants more than once, within forty-five days of the last interview.
Employers may want to ensure these changes are implemented by the relevant deadlines, and that the relevant policies are updated accordingly.
Burn Grooming Policy, Burn? Third Circuit Reignites Bearded Firefighter’s Religious Accommodation and Free Exercise Claims
If you have a grooming policy based on safety factors (like no beards for firefighters), does that trump an employee’s request for a religious accommodation? Maybe not. A recent Third Circuit decision, Smith v. City of Atlantic City, et al., addressed this issue and partially reversed a district court’s grant of summary judgment in favor of Atlantic City. The court revived a firefighter’s claims under the Free Exercise Clause and Title VII. The decision offers important guidance on how courts evaluate workplace grooming policies and employers’ obligations to accommodate religious beliefs.
Burning Through the Facts
Alexander Smith, a long-serving firefighter, served as the city’s only assigned air mask technician — a role that required him to maintain SCBA (self-contained breathing apparatus) units but not to enter hazardous environments. As a Christian, Smith requested that the city allow him to grow a beard as an accommodation to his sincerely held beliefs.
The city’s grooming policy mandates that firefighters be clean shaven while on duty, citing safety concerns related to SCBA seal integrity. However, the policy contains exceptions: (1) captains may allow deviations at their discretion, assuming responsibility for any unfavorable outcome, and (2) administrative personnel, like Smith, were not required to undergo annual SCBA fit testing — despite being subject to the same policy.
Although Smith did not insist his demand was an all-or-nothing accommodation, the city denied his request without discussing whether certain alternatives might satisfy his religious beliefs. Subsequently, he was informed he would be suspended if he refused to shave.
Smith filed a lawsuit claiming that the city’s denial of his requested accommodation was religious discrimination in violation of Title VII, as well as a violation of his right to freely exercise his religion guaranteed by the First Amendment. The district court granted the city’s motion for summary judgment, and Smith appealed.
The Third Circuit Turns Up the Heat
The Third Circuit vacated summary judgment on Smith’s Free Exercise Clause and Title VII accommodation claims, finding that:
The city’s grooming policy was not generally applicable because it allowed formal and informal exceptions that undermined the city’s stated safety interest. This triggered strict scrutiny under the Free Exercise Clause. (The strict scrutiny standard required the city to prove that it had a compelling state interest and that its actions were narrowly tailored or the least restrictive means to achieve that interest.)
The city’s actions were not narrowly tailored to achieve its compelling interest. While safety is a compelling interest, the city did not explore less restrictive alternatives such as fit testing Smith with a beard or continuing to exclude him from suppression duties, as it had done for years.
The city did not demonstrate that granting the accommodation would pose an undue hardship under Title VII. Applying the Supreme Court’s standard from Groff v. DeJoy, the appeals court held that speculative risks do not qualify. The record showed no evidence that Smith’s beard posed an actual operational risk, especially given his role and the infrequency of emergency calls that might require him to wear an SCBA.
Lessons from the Ashes: Takeaways for Employers
Considering this decision, employers should understand:
Religious accommodations must be taken seriously. A blanket policy — even one rooted in safety — may not be sufficient if it allows discretion or contains exemptions.
Interactive process matters. Employers should engage with employees to assess alternative accommodations before denying requests.
The Groff standard is here to stay. “Undue hardship” under Title VII requires a showing of substantial, excessive, or unjustifiable burden — not mere inconvenience or administrative hassle.
If your workplace grooming policies contain any exceptions — or if you receive an accommodation request related to those policies — consult your employment counsel early. Proactive legal guidance is critical to ensure compliance and mitigate risk.
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