As Retail Worker Safety Act Becomes Effective, NYSDOL Issues Guidance and Materials for Employers
The New York Retail Worker Safety Act (the “Act”) went into effect earlier this week, on June 2, 2025.
As we outlined in our recent blog post, the law requires covered retailers to provide certain safety measures for retail store workers, including implementing a written workplace prevention policy and conducting training on the policy. The New York State Department of Labor (NYSDOL) has now provided guidance and materials on its website.
New Materials
The NYSDOL guidance includes model materials that employers can use or reference when creating materials required under the Act. The model materials include a model workplace violence prevention policy, an interactive video training program, a text version of the training program, and frequently asked questions (FAQs).
Employers electing to use these materials should consider tailoring the model documents to their specific worksites, including addressing the worksite’s specific emergency exits and safety meet-up locations, providing instructions on emergency and security devices, and adding any additional information or history on site-specific security concerns.
New Requirements Still to Come
The NYSDOL notes that additional provisions of the law will go into effect in 2027. Starting January 1, 2027, all retail employers with 500 or more employees in New York State are required to provide a silent response button that must request immediate assistance from a security officer, manager, or supervisor in case of emergency. Employers will be required to provide employees with training on the use of the silent button.
We recommend that employers plan ahead to ensure timely compliance, especially given the technical and logistical requirements of this provision.
Understanding OSHA’s Updated Site-Specific Targeting (SST) Inspection Plan
What You Need to Know:
OSHA’s Updated SST Plan Targets High-Risk Workplaces Using New Data: The revised Site-Specific Targeting (SST) Inspection Plan now relies on injury data from OSHA’s Injury Tracking Application (ITA), focusing on high-hazard, non-construction establishments with 20+ employees.
Key Changes Include More Inspections and Industry Focus: The plan expands the number of inspections and emphasizes industries with high injury rates, while dropping “record-only” inspections for sites mistakenly flagged.
Proactive Compliance Strategies Are Essential: Companies should prioritize accurate record-keeping, comprehensive safety training, internal audits and building a strong safety culture to ensure compliance and readiness for surprise inspections.
The Occupational Safety and Health Administration (OSHA) has recently updated its Site-Specific Targeting (SST) Inspection Plan, a critical development for companies across various industries. This blog will cover the SST Plan, its recent changes, and practical steps to ensure compliance and readiness for inspections.
Site-Specific Targeting Inspection Plan Explained
The SST Inspection Plan is OSHA’s primary method for targeting high-hazard, non-construction workplaces with 20 or more employees. The Plan uses data from the OSHA Data Initiative (ODI) to identify establishments with high rates of injuries and illnesses. By focusing on these sites, OSHA aims to reduce workplace hazards and improve safety standards.
Key Changes in the Updated SST Plan
There are three important changes that the updated SST Plan introduces:
Data Utilization: The new plan places greater emphasis on data from the OSHA Injury Tracking Application (ITA) to identify establishments for inspection. This shift underscores the importance of maintaining accurate and timely injury and illness records. The SST Plan will select establishments for OSHA inspection based on data from Form 300A for the period 2021 to 2023.
Increased Inspections: The updated plan expands the scope of inspections, potentially increasing the number of establishments subject to review. This change highlights the need for companies to be prepared for inspections at any time. But there is some good news: now, if an establishment is targeted in error, OSHA won’t continue on with a “record-only” inspection. Rather, it will just leave the premises.
Focus on High-Risk Industries: The SST Plan now prioritizes non-construction industries with historically high rates of workplace injuries and illnesses. HR professionals and those involved with safety initiatives in these sectors should be particularly vigilant in ensuring compliance with OSHA standards.
Advice for Companies
To navigate the updated SST Plan effectively, companies should consider the following strategies:
1. Maintain Accurate Records
Accurate record-keeping is as crucial as ever under the new SST Plan. Companies should ensure that all injury and illness records are up-to-date and accurately reflect workplace incidents. This includes regular audits of OSHA 300 logs and ensuring that all required documentation is readily available for inspection.
2. Enhance Safety Training
Investing in comprehensive safety training programs is essential. HR professionals should work with safety officers to develop training sessions that address specific workplace hazards and promote safe practices. Regular training not only helps prevent accidents but also demonstrates a company’s commitment to safety, which can be beneficial during an OSHA inspection.
3. Conduct Internal Audits
Regular internal audits can help identify potential safety issues before they become problems. HR professionals should collaborate with safety teams to conduct thorough inspections of the workplace, ensuring compliance with OSHA standards. These audits can also serve as a valuable tool for preparing for potential OSHA inspections.
4. Foster a Safety Culture
Creating a culture of safety within the organization is perhaps the most effective way to ensure compliance with OSHA standards. Companies should encourage open communication about safety concerns and involve employees in safety planning and decision-making. Recognizing and rewarding safe practices can also motivate employees to prioritize safety in their daily activities.
The Importance of Compliance
Compliance with OSHA’s SST Plan is not just about avoiding fines and penalties; it is about ensuring the safety and well-being of employees. By understanding the updated SST Plan and implementing the strategies outlined above, companies can play a pivotal role in creating a safer workplace.
What the New SST Inspection Plan Means for Employers
The updated SST Inspection Plan represents a significant shift in OSHA’s approach to workplace safety. For companies, this means taking proactive steps to ensure compliance and readiness for inspections. By maintaining accurate records, enhancing safety training, conducting internal audits, and fostering a safety culture, companies can not only meet OSHA’s requirements but also create a safer, more productive work environment.
Employment Law This Week: Abortion Protections Struck Down, LGBTQ Harassment Guidance Vacated, EEO-1 Reporting Opens [Video, Podcast]
This week, we cover the striking down of abortion protections for workers and LGBTQ harassment guidance, as well as the beginning of a brief EEO-1 reporting season (concluding on June 24).
Abortion Protections for Workers Struck Down
A Louisiana federal judge vacated portions of a rule implementing the Pregnant Workers Fairness Act that defined abortion as a medical condition and required accommodations.
Federal Court Vacates LGBTQ Harassment Guidance
The U.S. District Court for the Northern District of Texas has moved to strike portions of the Equal Employment Opportunity Commission’s (EEOC’s) guidance on workplace harassment against LGBTQ employees. The court ruled that the Biden-era EEOC guidance expanded “the scope of sex beyond the biological binary.”
EEO-1 Reporting Opens with a Tight Deadline
The EEO-1 reporting period is now open. All private employers in the United States with 100 or more employees are required to file, as are federal contractors with 50 or more employees that meet certain criteria. The deadline to file is just weeks away—June 24—so employers are moving quickly.
Department of Labor Announces Expansion of Interpretation Letters Initiative
On June 2, 2025, Deputy Secretary of Labor Keith Sonderling announced a renewed and expanded commitment by the U.S. Department of Labor (DOL) to the issuance of interpretation letters—commonly referred to as opinion letters or standard interpretations—intended to provide clear, timely, and authoritative guidance on federal labor laws. This initiative is designed to enhance transparency, legal certainty, and support for innovation across all DOL agencies.
Quick Hits
On June 2, 2025, Deputy Secretary of Labor Keith Sonderling announced the DOL’s renewed commitment to issuing opinion letters to provide clear and authoritative guidance on federal labor laws.
The DOL aims to enhance transparency and legal certainty by prioritizing the issuance of opinion letters, which had seen a decline in recent years, to help employers and employees navigate complex labor law requirements.
The initiative also focuses on improving the accessibility and transparency of the process for requesting opinion letters, supporting innovation and proactive compliance in areas like the gig economy and artificial intelligence in employment.
Key Developments
Restoration and Expansion of Opinion Letters
Deputy Secretary Sonderling emphasized the DOL’s intention to prioritize the issuance of opinion letters, reversing a marked decline in their use during this and the previous administration. For example, as of the writing of this article, the Occupational Safety and Health Administration (OSHA) has only issued two opinion letters or standard interpretations this year. Opinion letters serve as official written responses to specific inquiries regarding the application of statutes, regulations, and case law to real-world workplace scenarios. The renewed focus aims to deliver clarity and predictability for both employers and employees navigating complex labor law requirements.
Timely Guidance and Legal Clarity
Deputy Secretary Sonderling highlighted the critical role of opinion letters as compliance tools, providing authoritative interpretations upon which employers may rely in good faith, particularly under statutes such as the Fair Labor Standards Act (FLSA), Occupational Safety and Health (OSH) Act, Mine Safety and Health Act (Mine Act), and others. The DOL’s expanded use of opinion letters is intended to address emerging issues in the labor market, including those related to new technologies, independent contractor status, and wage and hour compliance.
Accessibility and Transparency
The announcement included a commitment to improving the accessibility and transparency of the process for requesting and receiving opinion letters. Drawing on prior experience at both the DOL and the U.S. Equal Employment Opportunity Commission (EEOC), Deputy Secretary Sonderling referenced efforts to streamline procedures and encourage public engagement in the process.
Support for Innovation and Proactive Compliance
Deputy Secretary Sonderling reiterated that opinion letters not only clarify legal obligations but also foster an environment conducive to innovation and proactive compliance. He cited the importance of clear guidance in areas such as the gig economy, artificial intelligence in employment, and employer self-audit programs, all of which benefit from timely and detailed agency interpretations.
Conclusion
Deputy Secretary Sonderling’s announcement marks a significant shift toward greater transparency, responsiveness, and legal certainty at the DOL. By restoring and expanding the use of interpretation letters, the department seeks to better support employers and workers in understanding and complying with federal labor laws amid a rapidly evolving workplace environment.
Washington Public Records Act Now Protects Identities in Workplace Investigations
Investigation records have typically been considered public records under Washington State’s public disclosure law, absent a specific exemption or an established legal privilege. On May 15, 2025, Washington Governor Bob Ferguson signed into law House Bill (HB) 1934, a measure that received overwhelming support in the legislature and require broad redaction of the names and identifying information of complaining parties and witnesses who provide statements, interviews, and/or information in certain public employer workplace investigations.
Quick Hits
Washington’s Public Records Act has been amended to expand the list of items that must be redacted from public workplace investigative records.
The amended provision, effective July 27, 2025, also requires that voices in audio recordings be altered to protect the identities of witnesses involved in investigations of harassment, discrimination, and other workplace issues.
Despite these new privacy protections, the names of elected government officials accused of misconduct will still be publicly accessible.
Washington’s newly amended Public Records Act requires that the voices in audio-recorded statements be altered so as not to be recognizable, while preserving tone and inflection. Applicable investigations include those that evaluate allegations of sexual and other workplace harassment, discrimination, hostile work environment, retaliation, and policy violations. This means that neither names nor titles may be divulged to the public. The names of those public officials accused of misconduct are still typically a matter of public record.
This is a change from existing law that limits disclosure of investigation documents for public employees who report harassment, discrimination, or retaliation under the Washington Law Against Discrimination (Chapter 49.60 RCW) while such an investigation is pending; absent consent, once an investigation is concluded, documents that include job titles and other identifying information can be produced, but names must be redacted in all produced records. All interviewed witnesses must also have their names redacted.
As amended, the law goes further, requiring the broad redaction of specific identifying information, including job titles, images, email addresses, phone numbers, and identifiable voices. According to the bill summary, “the name and title of a complainant may not be redacted if the complainant is an elected government official.” The amended law takes effect on July 27, 2025.
NJ Bill Broadly Banning Non-Competes + No-Poach Agreements Would Impact Employers Immediately
Takeaways
S4385/A5708 would ban non-compete agreements, no poach agreements, and any clause that restrains anyone from engaging in a lawful profession or trade entered into before and after its effective date.
This bill would not apply to non-compete clauses between employers and senior executives if the employer pays the senior executive’s full salary and the restricted period is no longer than 12 months.
The bill would not apply to causes of action related to non-compete clauses that accrued before its effective date or non-compete clauses entered into by an employer pursuant to a bona fide sale of a business.
The New Jersey Legislature is considering a bill (S4385/A5708) banning non-compete clauses, with limited exceptions, and prohibiting no-poach agreements between employers and workers.
Appearing to take a page from the now set-aside Federal Trade Commission final rule, S4385/A5708 would broadly prohibit employers from requiring, enforcing, or attempting to enforce a non-compete clause against any worker who is not a senior executive. The bill defines a “senior executive” as a worker in a “policy-making position” with an annual salary not less than $151,164.
The bill as currently drafted would apply to all non-compete agreements entered before and after its effective date. It would require employers to notify workers subject to existing non-competes within 30 days of its effective date that any such agreements are no longer legally enforceable.
The bill also declares no-poach agreements contrary to public policy and void.
Requirements for Senior Executives
The bill bans non-compete clauses between employers and senior executives unless they meet the following criteria, including but not limited to:
The employer provides disclosure of the terms of the non-compete clause within 30 business days of the effective date, including the requirements of this bill and any revisions required for compliance with this bill.
The non-compete clause is no broader than necessary to protect the employer’s legitimate business interests.
The non-compete clause does not limit the senior executive for a period exceeding 12 months following termination.
The non-compete clause is limited to the geographical areas where the senior executive provided services or had a material presence.
The non-compete clause is limited to services provided during the last two years of employment.
The bill does not apply to non-compete clauses entered into by an employer pursuant to a bona fide sale of a business or if a cause of action related to a non-compete clause accrued before the bill’s effective date.
Penalties
Any worker subject to a non-compete clause or no-poach agreement in violation of the law may bring a civil action against the employer, and the court has jurisdiction to void the agreement and order appropriate relief, including but not limited to liquidated damages and reasonable attorney’s fees.
Finally, the Department of Labor and Workforce Development could impose penalties up to $1,000 on employers for failing to provide the required notice.
Next Steps
The bill will take immediate effect once passed and signed into law. Employers in New Jersey that require employees to sign non-compete and non-poach agreements should keep an eye on developments as significant changes to employers’ practices will be required if this bill becomes law. Jackson Lewis attorneys can assist with any aspect of compliance and answer questions regarding the legislation’s provisions or applicability.
NYSDOL’s Model Guidance for Workplace Safety + Violence Prevention Gives Retailers a Starting Point
Takeaways
New York’s Retail Worker Safety Act is now in effect; employers with at least 10 retail employees in New York State must adopt a retail workplace violence prevention policy and provide interactive retail workplace violence prevention training to all employees upon hire.
Retail employers can customize NYSDOL’s Model Policy and Training to include their own store-specific information to meet these requirements.
The NYSDOL guidance recommends that retail employers provide a workplace violence incident reporting mechanism for employees and maintain records of incidents to evaluate and identify any trends.
Related links
Retail Worker Safety (NYSDOL)
Implementing NY’s Retail Worker Safety Act: A New Amendment Means Changes for Employers of All Sizes
What Responsibilities Do Employers Have Under New York State’s Retail Worker Safety Act?
Article
The New York State Department of Labor (NYSDOL) has launched the much anticipated guidance website on the New York Retail Worker Safety Act (RWSA). The guidance answers retail employers’ questions regarding implementation of the RWSA effective June 2, 2025.
The guidance also provides a Model Policy and Training employers can use as a starting point to create their own policy. Retail employers who use this Model Policy and Training are to include their own store-specific information, such as worksite emergency exits, meeting locations in an emergency, and instructions regarding emergency and security-related devices utilized in the workplace. The guidance also dictates that training take place during paid work time.
The RWSA applies to all New York State employers with at least 10 employees working at their retail store(s). Retail stores include any store that sells goods directly to the public at retail. They do not include businesses that primarily sell food to be eaten at the location, such as restaurants.
For employees who do not speak English as their primary language, employers must distribute the policy and training in English and in an employee’s primary language. If an employee’s primary language is not one for which the NYSDOL has provided a translation, employers can distribute the English version of the policy.
Workplace Violence Prevention Policy
The NYSDOL allows employers to develop their own workplace violence prevention policy or adopt the Model Policy after customizing it for their workplace.
Employers wishing to develop their own workplace violence prevention policy must include:
Workplace violence risk factors;
Prevention methods;
Relevant state and local laws; and
An anti-retaliation statement.
Employers revising the Model Policy to suit their needs will likely want the advice of counsel.
Employers that choose to use an entirely customized policy must include a list of situations that might place employees at risk, including but not limited to:
Working during late night or early morning hours;
Exchanging money with the public;
Working alone or in small numbers; and
Operating in locations with uncontrolled public access.
The policy must also contain information on methods the employer may use to prevent incidents of workplace violence, such as establishing and implementing systems for employees to report such incidents. Information about federal and state laws concerning violence against retail workers, remedies available to victims of workplace violence, and a statement that there may be local laws that apply concerning violence against retail workers must be part of the policy. Finally, an anti-retaliation statement must be included. The guidance provides several methods for employees to report retaliation if they are punished, disciplined, or terminated for exercising their rights under the RWSA. While the NYSDOL states that having an internal reporting system for workplace violence incidents and maintaining records of reports is not required, these best practices are valuable in demonstrating compliance.
Workplace Violence Prevention Training
The NYSDOL states that retail employers must provide interactive workplace violence prevention training. An optional written template for that training is available and, as of the date of this article, a training video is pending.
In addition to these Model Training resources, employers can provide their own training as long as it aligns with the law’s requirements. Seeking the support of outside counsel in customizing training could benefit employers in their compliance efforts. Employers must provide employees with a written version of the interactive training at the time of the training, and training must take place during paid work time.
Any training provided to employees on workplace violence prevention must include:
An overview of the RWSA’s requirements;
Tactics for protecting against and de-escalating workplace violence;
Workplace security features and procedures like exits, meeting places, or security alarms;
The roles of supervisors and managers in the reporting and response to incidents of workplace violence; and
Active shooter procedures.
Employers interested in using custom-crafted training should contact an attorney for support or refer to Labor Law Section 27-e for the minimum requirements.
Implications for Employers
The guidance calls for retail employers to distribute their workplace violence prevention policy when employees are first hired, then once a year thereafter.
For workplace violence prevention training, all covered retail employers must train their employees upon hire. Thereafter, employers with at least 50 employees must conduct training annually, and those with 10 to 49 employees must provide training every two years.
Silent response buttons and training on their use will be required for retail employers with at least 500 retail employees statewide by Jan. 1, 2027.
The One Big Beautiful Bill Act (Tax Reform): Employee Benefits and Executive Compensation Breakdown
On May 22, 2025, the House of Representatives passed legislation titled “The One Big Beautiful Bill Act” (the “House Bill”) (available here), which includes several tax reform provisions. The House Bill is now being considered by the Senate.
If passed by the Senate and signed by the President, the House Bill would extend and/or modify a number of provisions from the 2017 Tax Cuts and Jobs Act (“TCJA”), and it would enact a number of new provisions. The following are key provisions from the House Bill related to employee benefits and executive compensation:
Employee Benefits Provisions
Deductions for Tips. Taxpayers earning $160,000 or less in 2025 (adjusted for inflation through 2028) would be allowed to deduct cash tips earned from an occupation that “traditionally and customarily received tips before January 1, 2025,” subject to certain limits. This deduction would be allowed only for tax years 2025 through 2028. To support the deduction, employers would have to report tip income on employees’ Forms W-2 using a special code in Box 12 (in addition to continuing to include this income in Boxes 1, 3, and 5).
Deductions for Overtime Compensation. Taxpayers earning overtime compensation would be allowed to deduct their overtime compensation for tax years 2025 through 2028. To support the deduction, employers would have to report overtime compensation on employees’ Forms W-2 using a special code in Box 12 (in addition to continuing to include this income in Boxes 1, 3, and 5).
Health Savings Accounts (“HSAs”). The House Bill includes several provisions that would expand eligibility to contribute to HSAs and make HSAs more flexible, effective for taxable years beginning after December 31, 2025:
Would allow individuals who are eligible for Medicare Part A to make or receive contributions to HSAs if they are also enrolled in a high-deductible health plan (“HDHP”).
An individual’s spouse being covered by a flexible spending account (“FSA”) would no longer disqualify the individual from eligibility to make or receive HSA contributions (subject to limitations).
Eligibility to receive the following items and services at an employer’s clinic (for both the employee and their spouse) would be disregarded for purposes of eligibility to contribute to an HSA: physical exams, immunizations, certain drugs (but not prescribed drugs), treatment for injuries incurred during the course of employment, and preventive care. This means employers would be allowed to offer these items and services with no deductible, but other items and services at an on-site clinic would continue to be subject HSA minimum deductible requirements.
Would treat certain sports and fitness expenses, such as membership fees and costs associated with physical exercise or activity, as qualified medical expenses that may be reimbursed through an HSA, up to $500 per year for single taxpayers and $1,000 per year for joint or head of household taxpayers (pro-rated on a monthly basis and subject to cost-of-living adjustments beginning in 2027).
An employee who enrolls in an HDHP and becomes eligible to contribute to an HSA would be allowed to transfer unused FSA and health reimbursement arrangement balances to their HSA (subject to a cap based on the FSA contribution limit).
An employee who enrolls in an HDHP that is HSA-eligible could use their HSA for expenses incurred any time after joining the HDHP, if they establish their HSA within 60 days after joining the HDHP.
An individual age 55 or older who is eligible to make their HSA catch-up contributions (up to $1,000) could make their catch-up contributions to their spouse’s HSA.
Would increase (in many cases double) the HSA contribution cap for individuals and families with taxable income less than a certain threshold ($75,000 for single taxpayers and $150,000 for joint filer taxpayers, with phase-outs ending at $100,000 and $200,000, respectively). The threshold would be indexed for inflation.
Health Reimbursement Arrangements (“HRAs”). The House Bill includes the following changes to HRA rules to make HRAs more flexible, effective for taxable years beginning after December 31, 2025:
Would codify the IRS’s final rules permitting employers to offer individual coverage HRAs (which would be renamed Custom Health Option and Individual Care Expense, or “CHOICE” arrangements). This would permit employees enrolled in a CHOICE arrangement through a cafeteria plan to purchase health insurance coverage on the individual healthcare exchange marketplaces with pre-tax dollars.
A credit would generally be available to employers with less than 50 full‑time employees and that have employees enrolled in a CHOICE arrangement. For the first year of the credit period, the credit would be $100 (adjusted for inflation beginning in 2027) per month per employee that is enrolled in a CHOICE arrangement, and, for the second year of the credit period, the credit would be one‑half of the amount determined for the first year.
Tuition and Student Loan Reimbursements. The House Bill would make permanent the ability to reimburse student loan payments under a Section 127 education assistance program (rather than letting that feature of Section 127 programs expire on December 31, 2025). In addition, the House Bill would provide inflation adjustments beginning in 2027 to the $5,250 limit on pre-tax reimbursements for qualifying education expenses (including student loans).
UBTI for Qualified Transportation Fringe Benefits. Tax-exempt organizations would have to recognize UBTI for amounts incurred for qualified transportation fringe benefits or any parking facility that is not directly connected to the organization’s unrelated trade or business. The change is economically comparable to a for-profit entity not being allowed to deduct these expenses (which is the rule under Section 274(a)(4)) and would apply for taxable years beginning after December 31, 2025.
Employer-Provided Child Care Credit. The maximum tax credit employers would be allowed for providing qualified child care would be increased from $150,000 to $500,000 ($600,000 for eligible small businesses), adjusted for inflation beginning in 2027. The change would apply for taxable years beginning after December 31, 2025.
Paid Family and Medical Leave Credit. The House Bill would make permanent the employer tax credit for a percentage of wages paid to qualifying employees while they are on paid family and medical leave (rather than letting it expire on December 31, 2025). In addition, the value of the credit would be expanded to include a percentage of premiums paid for certain insurance policies. The change would apply for taxable years beginning after December 31, 2025.
Reimbursements for Moving Expenses Would Continue to be Taxable. Before the enactment of the TCJA, qualified moving expense reimbursements were excluded from employees’ income and the paying employer could deduct the expenses. The TCJA eliminated that treatment (resulting in employees having to pay tax on moving expense reimbursements), except in the case of active duty members of the armed forces. The House Bill would make the TCJA’s changes permanent (rather than letting them expire at the end of 2025).
Bicycle Commuting Reimbursements Would Continue to be Taxable. Reimbursements of bicycle commuting expenses would continue to be taxable. Before the enactment of the TCJA, certain reimbursements were not taxable.
Executive Compensation Provisions
Deduction for Excessive Employee Compensation. The aggregation rule under Section 162(m), which currently applies for (a) identifying a corporation’s covered employees and (b) determining compensation that is subject to Section 162(m), would be expanded to pick up all members of a covered corporation’s controlled group and affiliated service group under Section 414(b), (c), (m) and (o) (a broader group than under the existing aggregation rule). The amount of deductible compensation would be allocated to each member of the controlled group or affiliated service group based on the pro-rata portion of the total compensation paid by that member. The change would apply for taxable years beginning after December 31, 2025.
Tax-Exempt Organization Excessive Employee Compensation Excise Tax. The excise tax that tax-exempt organizations must pay on compensation in excess of $1 million paid to employees would be expanded to apply with respect to all current and former employees of the tax-exempt organization, even if they were never among the top 5 highest paid. The change would apply for taxable years beginning after December 31, 2025.
Alternative Minimum Tax Exemption. The House Bill would extend indefinitely the increased alternative minimum tax (“AMT”) exemptions that were added by the TCJA and set to expire after December 31, 2025. This is relevant for employees who exercise incentive stock options, which are not recognized for income and FICA tax purposes but are recognized for AMT purposes.
As noted above, the House Bill is currently being considered by the Senate, which is expected to make changes. If the Senate passes a modified version of the House Bill, the legislation would then have to go back to the House for another vote because both chambers must pass the exact same legislation. We are continuing to monitor developments in the legislative process.
New York State Releases Guidance on Retail Worker Safety Act
The New York Retail Worker Safety Act is now in effect as of June 2, 2025. Following months of anticipation and planning, covered employers in New York State will now have to comply with the act’s workplace violence prevention policy, training program, and notice requirements. Just in time for the compliance date, the New York State Department of Labor (NYSDOL) released guidance on some key issues under the law as well a model policy and training program. The NYSDOL also provided an online complaint form where employees can report alleged violations of the act.
Quick Hits
The New York Retail Worker Safety Act took effect June 2, 2025, and requires compliance with workplace violence prevention policies and training.
The New York State Department of Labor (NYSDOL) released guidance and model templates to help employers comply with the Retail Worker Safety Act.
Employees can report violations of the Retail Worker Safety Act through an online complaint form provided by the NYSDOL.
NYSDOL Guidance
The NYSDOL’s guidance clarifies some questions about covered employers under the act as well as translation and training requirements. One key point is that the act applies to employers with employees who work in the retail setting, even if they are not employed by a retail store and are not involved in selling retail goods. For example, a cleaning business with employees who clean retail stores is covered under the act, even though those employees are not employed by the store itself and do not participate in selling retail goods.
The guidance also discusses the act’s requirements for employees who identify a language other than English as their primary language. Covered employers must provide all retail employees with a copy of the workplace violence prevention policy and a workplace violence training template in English. Employees who identify a language other than English as their primary language must be provided with a translated copy only if the NYSDOL has provided a translation. If an employee’s primary language is not one of the languages for which the NYSDOL has provided a translation, an employer can provide an English version. Notably, employers are only required to provide a written template outlining the content of their workplace violence prevention training in the employee’s primary language, not a translated version of the interactive training itself.
Speaking of interactive, the guidance has clarified this requirement. For training to be considered “interactive” it requires an employee to provide input during the training and receive a response to the input the employee provides. “Digital training can be considered interactive,” the NYSDOL guidance states. In-person training is not required.
While this new guidance does provide additional insight on which employers are covered under the act, it does not include any information on how the law defines “retail” and what constitutes a “retail store.”
Model Programs
As promised, the NYSDOL has provided a model workplace violence prevention policy and training templates. The templates are currently only available in English, although it is anticipated that the NYSDOL will provide translated versions at a future date.
The template workplace violence prevention policy outlines the requirements of the act and provides optional sections for an incident reporting system and additional methods to prevent workplace violence. The template policy also provides general information on potential criminal penalties against anyone who assaults a retail worker and employers’ responsibilities under the federal Occupational Safety and Health Act.
The model training program template consists of four units that cover the requirements of the Retail Worker Safety Act, de-escalation tactics, emergency preparation, and active shooter events. To supplement the written template, the NYSDOL has also created four training videos that address these topics. The videos include multiple choice questions to confirm an employee’s understanding of the information presented.
Employee Resources
In addition to providing guidance on the act’s requirements and model templates, the NYSDOL has also provided avenues for employees to file complaints related to workplace violence. Employees who have either been the victim of workplace violence or alleged retaliation related to workplace violence may report this to the NYSDOL by email, phone, or an online complaint form. The form also provides an option for an employee to lodge a complaint against a covered employer if there is no workplace violence prevention policy or training program, or if they have not received the policy or training.
Next Steps
Now that the compliance date for the New York Retail Worker Safety Act has arrived, covered employers will be expected to meet the statutory requirements. The complaint system is active, and it should be anticipated that the New York Department of Labor will begin enforcement.
California Appeals Court Approves Prospective Meal Period Waivers
In a case of first impression, Bradsbery v. Vicar Operating, Inc., the California Court of Appeal held that a prospective, written waiver of meal periods for work shifts between five and six hours is enforceable. In other words, forward-looking “blanket” written waivers are valid in the absence of any evidence of coercion or unconscionability. This recent decision holds significant implications for employers, especially as to how employers can use meal break waivers in their businesses.
Case Background
The plaintiffs, La Kimba Bradsbery and Cheri Brakensiek, former employees of Vicar Operating, Inc. (“Vicar”), a veterinary hospital operator, filed a class action lawsuit alleging violations of the California Labor Code and Industrial Welfare Commission (“IWC”) Wage Orders. Vicar operates a network of veterinary hospitals, where Bradsbery worked as a veterinary technician and Brakensiek as a veterinary assistant and technician. In April 2009, each plaintiff signed a written waiver of their meal periods for shifts of six hours or less that was revocable at any time by giving a “written revocation” to a manager. Vicar considered this waiver valid under Labor Code section 512, which states a meal period may be waived by “mutual consent of both the employer and employee” if the employee’s shift is no more than six hours.
The plaintiffs argued that Vicar’s conduct violated the statutory requirement for meal periods because, in their view, prospective waivers permit employers to circumvent the statutory meal break requirements and deny employees a meaningful opportunity to exercise their right to meal breaks. Vicar defended its practice, stating that the waivers were valid as the Labor Code did not specify the form they must take. The trial court sided with Vicar, granting its motion for summary adjudication on the issue.
Appeals Court Decision
On appeal, the issue addressed by the court, which had been previously unsettled, was whether revocable, prospective written waivers of meal periods for shifts between five and six hours were enforceable. The court ruled in favor of Vicar, affirming the validity of these waivers provided they are not unconscionable or coercive.
The court based its decision in the historical and legislative context of Section 512, which aims to balance operational flexibility with employee rights. Indeed, the court found that the administrative history of the Wage Orders reflected the IWC had not viewed prospective written waivers as negatively as the plaintiffs suggested. According to the IWC, the option to waive a meal period promoted “freedom” for employees by giving them the choice of taking a meal period or ending their shift early.
Implications for Employers
These key takeaways from the Bradsbery decision offer clarity and guidance for employers regarding meal period waivers.
Prospective Waivers: The Bradsbery Court held that employers can have employees sign prospective waivers for meal periods, provided these are revocable and not coerced. Such waivers can help manage operational needs without infringing on employees’ rights.
Documentation and Mutual Consent: The Bradsbery decision applies to written waivers that explicitly state they can be withdrawn by the employee by providing a written revocation. Written waivers support that the waiver was knowing and voluntary, and that the employee was informed how to rescind the waiver.
Avoiding Unconscionable Waivers: Employers should carefully assess the conditions under which waivers are obtained to avoid any claims of coercion or unconscionability, which could invalidate the waiver.
Conclusion
In addition to confirming that prospective meal break waivers are lawful, the Bradsbery decision offers employers helpful guidelines for how to successfully implement such waivers.
For further guidance, employers should consult legal professionals to tailor their meal period policies to meet both legal standards and workplace needs.
Key Takeaways From the SEC Enforcement Forum West
At the 2025 Securities Enforcement Forum West, senior SEC officials, enforcement counsel, private practitioners, and industry experts gathered to share insights on the current direction of securities enforcement. A major focus of this year’s discussion: insider trading. Below are key takeaways from the insider trading panel’s discussion on where enforcement priorities are headed under the Atkins Commission.
1. Insider Trading Enforcement Will Ramp Up, But Narrow Down
Recent statements of SEC Commissioners and Enforcement officials have made it quite clear: insider trading enforcement is not going anywhere under the Chairman Paul Atkins administration, to be led by a soon-to-be appointed Enforcement Director. In fact, one can expect that the number of insider trading cases will stay steady or increase, though the focus of the investigations will shift and narrow. This was a unanimous sentiment from the insider trading panel.
2. Fencing In “Creative” Insider Trading Theories
Following acting Enforcement Director Sam Waldon’s suggestion that “creative” enforcement actions will be reined in under the Atkins SEC (“Creativity is probably not where we want to be”), novel insider trading theories, such as “shadow trading” claims — trading in another company’s shares on the basis of material nonpublic information (MNPI) learned about one’s own company —as represented by a recent biotech case, will likely be on the chopping block. To be sure, shadow trading is an aggressive theory, and one that the new Commission likely will not champion, if for no other reason than the line-drawing question: where should the SEC or the courts draw the line on the vast potential liability of shadow traders, and how far removed does an unrelated company have to be from a trader’s employer to allow him to trade freely in that same industry? Expect that the Atkins-led SEC will fence in that new frontier of insider trading.
3. Reemphasis on Traditional Insider Trading Claims
On the other hand, in its return to retail, “bread and butter” enforcement touted by SEC officials, and following up on the DOJ’s Galeotti Memo’s emphasis on foreign conduct affecting U.S. victims, we can expect a heightened focus on insider trading rings, especially those located overseas. For example, the SEC senior counsel presenter on the panel discussed a recently filed case in the District of Massachusetts, in coordination with the DOJ. In that case the SEC charged a German national and a Singaporean national for participating in an international insider trading ring that involved coded and disappearing messages, cash drops, and other traditional forms of deception and fraud to gain nearly $18 million in illegal profits. The SEC counsel also pointed to a traditional insider trading case involving a biotech executive’s trading in front of negative FDA news. These traditional types of insider trading cases likely will increase. In fact, the economist on the panel stated that thus far in the new year, after the January 22, 2025, inauguration, the SEC has filed twelve insider trading actions. If extrapolated to the full year, this will be the largest insider trading count in 12 years.
4. To Be Determined: Hybrid Claims Involving Rule 10b5-1 Trading Plans
Corporate SEC enforcement practitioners will be closely tracking insider trading claims involving Rule 10b5-1 plans, which allow corporate insiders to trade securities under a forward-looking written plan when they are not aware of material nonpublic information.1 10b5-1 plans have gained widespread popularity among corporate insiders. For example, in 2021, the SEC reported that approximately 5,800 officers and directors at 1,600 companies traded under Rule 10b5-1 plans. Under the Gensler-led SEC, likely due to their growing popularity, the SEC and DOJ signaled that they were concerned that executives were abusing Rule 10b5-1 plans and using them as tools to engage in insider trading under the veil of statutory protections. In December 2022, the SEC adopted several amendments and new disclosure requirements, including strict blackout periods, intended to address what it perceived may be abuses in Rule 10b5-1 area.2 On the Enforcement side, in June 2024 a jury convicted the former CEO of a company for allegedly engaging in an insider trading scheme in which he fraudulent used Rule 10b5-1 trading plans to trade company stock while holding MNPI. The 10b5-1 criminal insider trading case, which was filed in parallel with the SEC, was the first of its kind for DOJ.
These Rule 10b5-1 claims represent a hybrid type of insider trading action, that combines some novel, expansive, “creative” elements, but also “bread and butter” fraud elements involving abuse of corporate inside information. All in all, given the dual tensions, one can expect that 10b5-1 cases will continue, though they likely will be limited to particularly egregious cases with smoking-gun admissions from corporate insiders or fact patterns in which an insider suddenly entered into a 10b5-1 plan in front of bet-the-company corporate news. But one can also expect that harder to prove, more removed, Rule10b5-1 cases will not flourish under the Atkins SEC. It is a far more difficult task for SEC or DOJ trial counsel to prove to a jury that an executive intentionally set up or abused a 10b5-1 plan to take advantage of MNPI, than that the executive simply tipped or traded on MNPI himself or herself. There is a whole second level of intent and factual manipulation to be proven under the required standards of proof.
Regardless, given the complexity, risks, and recent attention to this issue, corporate compliance professionals would be wise to check with experienced legal counsel when creating or revising their 10b5-1 plans and internal corporate trading programs.
Conclusion
As SEC enforcement priorities shift and refocus under the Atkins Commission, insider trading investigations and litigation will remain front and center, though the scope and type of such claims will narrow. For corporate employers, retaining experienced counsel to assist in drafting and revising Rule 10b5-1 plans, and also to run internal investigations to assist companies in rooting out and self-reporting suspected fraudulent actors, is not only prudent, but essential.
See former SEC Commissioner Allison Herren Lee, Stock Trading Plans Should Prevent – Not Enable – Insider Trading: Statement on Proposed Amendments to Rule 10b5-1 (Dec. 15, 2021).
See SEC Adopts Amendments to Modernize Rule 10b5-1 Insider Trading Plans and Related Disclosures (Dec. 14, 2022).
Stripping Down a Statute of Limitations – SCOTUS Today
The U.S. Supreme Court did not issue any merits opinions yesterday, but it did issue two orders denying cert.
One of them, Nicholson v. W.L. York, Inc., is potentially significant for litigants of discrimination claims under Section 1981 of the Civil Rights Act of 1866, 42 U. S. C. §1981 (“Section 1981”). The result of a second, in Snope v. Brown, a firearms case, might surprise some observers of the Court.
Chanel Nicholson, a strip club dancer, sued several Houston area nightclubs, claiming that they violated Section 1981 by denying her shifts on numerous occasions between 2013 and 2021 because they didn’t want “too many Black girls” working at the same time. She claimed that most of the recent acts against her occurred within the statute of limitations period, that the statute of limitations clock restarts every time there is a “discrete” act of discrimination, and that it did so each time she was sent home from a shift for discriminatory reasons. However, the U.S. Court of Appeals for the Fifth Circuit concluded that the more recent acts were just the “continued effects” of prior instances of race-based exclusion and thus were not independently actionable.
As is typical, the Supreme Court doesn’t write opinions explaining the denial of cert., but Justice Jackson, who dissented along with Justice Sotomayor, did, and her analysis might seem on point for those who have dealt with some cases alleging continuing violations of law. According to Justice Jackson:
The clubs’ policy of excluding Black dancers, if proven true, is discriminatory—but so, too, is each decision to bar a dancer from the premises because of her race. . . . If the discrete act that is the subject of the plaintiff’s discrimination complaint is itself discriminatory, and if it allegedly occurred within the statute of limitations period, then that discrimination claim is timely—full stop.
With a certain logic that many employment lawyers who follow this blog have faced, Justice Jackson concludes that “[i]f sustained discriminatory motivation is all that is required to transform recent, racially discriminatory acts into the ‘continued effects’ of earlier discriminatory conduct, then past discrimination could inexplicably prevent recovery for later, similarly unlawful conduct.”
Setting aside competing views on what is logically commanded, it is interesting to note that Justice Kagan was not a dissenter. This suggests a strong view among a significant majority of the Justices that, at least in civil rights cases, statutes of limitations should be applied literally and rigorously. In short, the decision in Nicholson provides what should be a useful tool for defense lawyers, notwithstanding that the Court did not issue a decision on the merits.
Snope v. Brown concerns the State of Maryland’s prohibition of ownership of AR-15s, the most popular civilian rifle in America. The petition addresses “the question whether this ban is consistent with the Second Amendment.” The Fourth Circuit held that AR-15s are not so protected.
Again, there is no majority opinion denying cert. However, the lineup of the Justices is interesting: Justices Thomas, Alito, and Gorsuch would have granted the petition, but that makes three, and it takes four to grant cert. However, the Chief Justice and Justice Barrett voted with the three liberals to deny the petition, and Justice Kavanaugh wrote an opinion that is not unsympathetic to the three dissenters but reaches no definitive conclusion because he believes that other cert.-worthy cases will arise that will allow the ultimate resolution of the AR-15 coverage issue.
For future reference, I note that the Kavanaugh statement proceeds from his view that millions of Americans own AR-15s and that most states allow their possession, supporting the conclusion that AR-15s are in “common use” by law-abiding citizens and therefore are protected by the Second Amendment. The ultimate resolution of the matter, assuming it occurs, will depend upon whether a majority of the Court concludes that the AR-15 is distinguishable from the M-16 automatic rifle used by the military. But that is for another day.
Yesterday was a day for dissenting opinions that may presage future cases but are not determinations on the merits. At least with respect to Section 1981 cases, a good deal of guidance can be gleaned from the Nicholson case.