The AI Workplace: AI Roundup Edition, June 2025 [Podcast]
In this episode of our podcast series, The AI Workplace, Sam Sedaei (associate, Chicago) and Hera Arsen (Director of Content) discuss recent developments in the rapidly evolving world of artificial intelligence (AI) and its application in the workplace. Sam and Hera delve into a proposed federal regulation that aims to prevent states from regulating AI for the next decade. They also discuss a significant collective action, which alleges that an employer’s use of AI-based hiring tools resulted in age, race, and disability-related discrimination. The podcast wraps up with an overview of new regulations in California concerning employers’ use of AI and automated decision-making systems. The regulations, which may take effect as early as July 1, 2025, clarify that using this technology to make employment decisions may violate the state’s anti-discrimination laws and outline the limitations on such use.
July 2025 Visa Bulletin – Fair Winds for Most Categories
The State Department has published the July Visa Bulletin. Last July, we started seeing visa numbers retrogress, as is common at the end of the government’s fiscal year, which runs from October 1 through September 30. However, this July, most categories are enjoying smooth sailing.
Below is a summary that includes Final Action Dates and changes from the previous month, but first – some background if you’re new to these blog posts. If you’re familiar with the Visa Bulletin, feel free to skip the next paragraph.
The Visa Bulletin is released monthly by the U.S. Department of State, in collaboration with U.S. Citizenship and Immigration Services (USCIS). If your priority date (that is, the date you were placed on the waiting list) is earlier than the cutoff date listed in the Bulletin for your nationality and category, that means a visa number is available for you that month. That, in turn, means you can submit your DS-260 immigrant visa application (if you’re applying at a U.S. embassy abroad) or your I-485 adjustment of status application (if you’re applying inside the U.S., with USCIS). If you already submitted that final step and your category then retrogressed, it means the embassy or USCIS can now adjudicate and approve your application because a visa number is again available.
Now for the July Visa Bulletin:
China progresses in all categories:
EB-1 advances 1 week to November 15, 2022
EB-2 advances 2 weeks to December 15, 2020
EB-3 Professionals advances 9 days to December 1, 2020
EB-3 Other Workers advances 1 month to May 1, 2017
India progresses in two categories:
EB-1 stalls at February 15, 2022
EB-2 halts at January 1, 2013
EB-3 Professionals and EB-3 Other Workers advance 1 week to April 22, 2013
All Other Countries also progresses in two categories:
EB-1 remains current
EB-2 holds at October 15, 2023
EB-3 Professionals advances almost 2 months to April 1, 2023 (except Mexico, which freezes at February 8, 2023)
EB-3 Other Workers advances more than 2 weeks to July 8, 2021
NOTE: USCIS will accept I-485 applications in July based on Final Action Dates, not the more favorable Dates for Filing chart.
Carol Schlenker also contributed to this article.
Washington Federal Court Refuses to Dismiss SOX Whistleblower Claim Despite Plaintiff Working Abroad
On March 25, 2025, in Smith v. Coupang,[1] the United States District Court for the Western District of Washington denied Coupang, Inc.’s motion to dismiss its former employee’s SOX and state law whistleblower claims despite the plaintiff working in South Korea for a South Korean subsidiary of a U.S.-based publicly traded company.
Background
Plaintiff is a U.S. citizen who worked in South Korea for a South Korean subsidiary of Coupang, Inc., Coupang Corp. Smith alleged he, among other things, identified, reported and pushed for disclosure of the company’s transactions with Iranian entities to the SEC, and raised the company’s inadequate internal and functional accounting controls to his supervisors. Smith asserted that he raised these concerns to supervisors in South Korea and in the United States, with the goal of preventing securities and shareholder fraud. Smith alleged he was subsequently retaliated against when he was placed on administrative leave and had his laptop taken in late 2021, and ultimately was discharged in January 2022. Smith alleged these decisions were made from Washington and/or California. Smith asserted claims for retaliation in violation of Section 806 of SOX, and under various state law theories.
The company moved to dismiss under Rule 12(b)(6) on various grounds, including that Smith’s SOX claim was barred by the statute of limitations and doctrine of extraterritoriality, and that Smith did not engage in protected activity.
Court’s Reasoning and Decision
The company argued that Smith’s SOX claim was untimely because he brought it more than 180 days after the alleged adverse actions. However, since Smith was not given notice of the termination decision until January 2022, the court held that his SOX claim was timely.
Turning to the issue of extraterritoriality, the court stated that the “locus” of the employment relationship must be in the United States (or one of its territories) for a plaintiff to establish a SOX whistleblower claim. The court identified a number of factors to make this determination, including, among others, the citizenship of the employee, the terms and choice of law provision of the employee’s employment contract, the location of the employee’s supervisors, and the employee’s physical location during his employment. Considering those factors, the court found that the locus of Smith’s employment relationship was in the United States.
Last, the company argued that Smith did not plausibly assert that he engaged in protected activity because he merely alleged that he reported risks related to the six enumerated provisions under 18 U.S.C. § 1514A – not violations of one or more of those provisions. Specifically, the company asserted, and Smith agreed, that Section 806 does not afford protection to an employee who reports the alleged violation of a statute alone, including the statute raised by Smith, which allegedly prohibited the Iranian transactions. Smith, however, asserted that the statute at-issue requires a covered entity to disclose the prohibited transactions in the company’s SEC filings, that a disclosing entity must comply with SEC regulations in making these disclosures, and that SEC regulations dictate that such a disclosing entity must accurately disclose that it maintains reliable internal controls and procedures. Smith therefore argued that he reasonably believed the company’s obligation to make these disclosures as a result of the Iranian transactions, and its failure to maintain adequate internal controls, violated an SEC regulation. With this in mind, the court, stressing that SOX’s anti-retaliation provision protects employees who “reasonably believe” they are reporting a violation of any rule or regulation of the SEC, found that Smith plausibly alleged a “reasonable belief” that he was raising violations of an SEC rule or regulation.
Takeaways
This opinion strays from myriad recent decisions[2] applying the brightline rule declining to permit SOX whistleblower retaliation claims to be brought by employees who live and work outside the United States. From the standpoint of the predictability of SOX’s application to such employees, this is a troubling decision. As noted, it may prove to be an outlier and thus have limited impact. Additionally, the Coupang court appeared to be willing to accept as protected activity (at the pleadings stage) assertions that were somewhat removed from the six enumerated protected activity provisions in SOX, although it was apparently influenced in this regard by the employee’s alleged internal complaints that the company had failed to make necessary disclosures in the company’s SEC filings.
[1] 2025 WL 904460 (W.D. Wash. Mar. 25, 2025).
[2] See Proskauer Whistleblower Defense Blog: DC Circuit: SOX’s Anti-Retaliation Provision Does Not Apply Extraterritorially; CA District Court: SOX and Dodd-Frank’s Whistleblower Provisions Do Not Apply To Individual Employed Abroad; ARB: SOX Whistleblower Provision Does Not Apply Extraterritorially.
Nebraska Attorney General Files Lawsuit Against Temu Alleging Consumer Protection Violations
On June 12, 2025, Nebraska Attorney General Michael T. Hilgers filed a lawsuit against Chinese e-commerce company Temu and its affiliates (PDD Holdings Inc. (formerly Pinduoduo Inc.) and Whaleco Inc.), alleging consumer protection violations ranging from malware concerns to deceptive trade practices.
In a press release, the Attorney General’s office states, “Temu unlawfully harvests data, including from kids, utilizes multiple deceptive practices to encourage purchases, allows infringement and counterfeits to thrive, and engages in deceptive marketing to greenwash its image.” The press release continues: “Once Nebraskans download the Temu app, they lose all control over their personal data, which may ultimately end up in the hands of a hostile foreign power.”
“Temu is putting Nebraskans’ privacy at risk and running a platform rife with deceptive listings, unlawful promotional practices, and products that rip off Nebraska brands and creations,” Hilgers said. “Our office will hold Temu accountable for its exploitation of Nebraska consumers, brands, and creators and fight hard for honesty and safety in the online marketplace.”
Nebraska’s Allegations
1.
Malware & Spyware Installation: The lawsuit alleges that Temu’s app automatically installs software to a user’s phone without consent and, in essence, functions as malware intended to exfiltrate sensitive user information without consent and to spy on user behavior. The lawsuit cites to interventions by the dominant app marketplaces as proof that Temu’s code is intentionally created to prevent third parties from uncovering their bad acts, with code designed to detect and evade forensic tools.
2.
Privacy Violations: The lawsuit alleges that Temu’s app purports to be an e-commerce app but is instead designed to collect users’ personally identifiable information (PII) by misrepresenting, omitting, and deliberately concealing the app’s behavior. The lawsuit alleges that Temu does this to “prevent the user from knowing that said PII is subject to unfettered use by other individuals and an adversarial government,” (i.e., China). That the alleged privacy violations are executed through code, making it difficult or impossible for a layperson to discover, makes it that much more egregious and harmful to Nebraskans.
3.
Intellectual Property Infringement: Temu is accused of hosting numerous products that infringe on copyrights and other intellectual property rights, potentially harming legitimate businesses and creators. According to the lawsuit, Temu frequently sells counterfeit, knock-off products in violation of the law. For example, the lawsuit alleges that Temu was reported for selling knockoffs and continued to do so even after the issue came to light.
4.
Forced Labor: One of the lawsuit’s more serious accusations is that Temu uses forced labor in the production of its goods, which, if true, would be a human rights violation. The lawsuit cites a 2023 Los Angeles Times exposé of Temu, as well as U.S. congressional reports finding that Temu’s products are manufactured in China’s western province of Xinjiang, which is a region with known links to forced labor and detention camps.
5.
Fake Reviews: The lawsuit alleges that Temu compensates users to write reviews, which are then skewed positive. It also alleges that Temu mischaracterizes reviews as “five star” when the language of the review is clearly negative.
6.
Deceptive Representations as to Product Quality: The lawsuit asserts that, according to the Better Business Bureau, hundreds of consumers have complained in the past year alone, earning Temu a 2.1 out of 5 rating. The lawsuit references consumer complaints of Temu’s poor-quality goods and deceptive marketing practices, including the fact that the goods received often do not resemble the photos advertised, where such advertisements appear to be copied directly from other sellers on other consumer retail sites. Attorney General Hilgers also highlights the allegedly deceptive nature of Temu’s product listings, saying, “Product descriptions and pictures are often blatantly wrong. This is exacerbated by artificially skewed positive reviews paid for by Temu and Temu’s made-up ‘market price’ that makes the real price look great by fake comparison.”
7.
False Reference Pricing: The lawsuit alleges that Temu engages in false reference pricing, inflating the full price of a product in order to trick consumers into thinking they are receiving a discount which never actually existed (also known as dark pattern advertising).
8.
Unauthorized Charges: The lawsuit alleges that consumers have complained about receiving and being charged for goods they did not order, with Temu reusing consumer information provided at checkout for legitimate purchases.
Foreign Government Data Misappropriation
The lawsuit asserts that Temu’s data collection practices are subject to Chinese law, requiring that Chinese companies provide user data to the government upon request. These laws include, but are not limited to, the National Security Law, Cybersecurity Law, and National Intelligence Law, which are all part of “an interrelated package of national security, cyberspace, and law enforcement legislation” that “are aimed at strengthening the legal basis for China’s security activities and requiring Chinese and foreign citizens, enterprises, and organizations to cooperate with them.”
The lawsuit further explains that under China’s Data Security law, even “a company holding data belonging to a US citizen stored on a Chinese server may not be able to legally hand over that data to the US government without proper approval.” More specifically, companies “are prohibited from providing any data stored in China, regardless of the data’s sensitivity level and whether or not the data was initially collected in China, to any foreign judicial or law enforcement agency without the prior approval of the relevant [Chinese Government] authorities.”
Finally, the lawsuit alleges that Chinese law enforcement and intelligence services interpret Chinese law as applying to any data, wherever it is stored, if China has a national security interest in that data. Chinese authorities have forced even refugees from China to hand over data stored outside of China to Chinese authorities under such circumstances, citing Chinese law.
Legal Actions and Remedies
The Attorney General is seeking to protect Nebraska consumers and hold Temu accountable for its alleged unlawful practices. The lawsuit requests civil penalties, restitution for affected consumers, and injunctions to prevent further deceptive practices.
Takeaways
This lawsuit underscores the importance of consumer protection and the need for transparency in business practices. As the case unfolds, it will be crucial to monitor its impact on both Temu and the broader e-commerce landscape.
Circuit Court Roundup: DC Cir. Rejects NLRB’s “Irrational” Impasse Ruling, Fourth Circuit Green-Lights Union’s “Sharp-Elbowed” Campaign
While the National Labor Relations Board (“NLRB” or the “Board”) does not have a quorum, a pair of June 13, 2025, decisions by federal courts of appeal highlight key labor law issues under the National Labor Relations Act (“NLRA” or “Act”).
In Grove v. NLRB, the D.C. Circuit vacated the Board’s finding that an employer unlawfully declared impasse after protracted pension bargaining, clarifying the legal standard for impasse determinations.
In Welch v. International Association of Sheet Metal, Air, Rail & Transportation Workers, Local 100, the Fourth Circuit affirmed that a union’s organizing tactics—including public communications and litigation support—remained protected under the NLRA and did not constitute unlawful secondary activity or actionable defamation.
These opinions reinforce that impasse findings must be based on objective evidence and that peaceful union advocacy is generally lawful under federal labor law.
D.C. Circuit Slams NLRB’s “Irrational” Impasse Analysis
In Grove v. NLRB, No. 23-1164 (D.C. Cir. June 13, 2025), the D.C. Circuit addressed whether an employer lawfully declared impasse after years of bargaining over pension contributions. The parties engaged in extensive negotiations, including numerous sessions and a lengthy strike, but remained deadlocked over the pension issue. When both sides confirmed their positions were non-negotiable, the employer declared impasse. The Board found the employer had not bargained in good faith and could not declare impasse; however, the D.C. Circuit rejected the Board’s conclusion, finding that the Board’s analysis lacked substantial evidence and failed to apply the correct legal standard for impasse under labor law.
Objective Evidence Controls Impasse. The D.C. Circuit emphasized that a lengthy history of deadlocked bargaining and strikes is strong evidence of impasse. The Board must consider the full bargaining record when making impasse determinations.
Union Denials Are Not Dispositive. The court clarified that a union’s subjective denial of impasse does not override objective evidence of deadlock. Labor law requires an analysis of bargaining conduct—not just party statements.
Timing of Information Requests. Last-minute information requests by a union—which the court termed an “obvious ploy” because there was no clear link to renewed bargaining movement—did not prevent a finding of impasse.
The court did enforce one narrow part of the Board’s order finding that the employer violated the Act by laying off two union employees that served as election observers.
Fourth Circuit Blesses Union’s Aggressive Organizing Campaign
On the same day, in Welch v. International Associate of Sheet Metal, Air, Rail & Transportation Workers, Local 100, No. 24-2067 (4th Cir. June 13, 2025), the Fourth Circuit addressed the boundaries of lawful union advocacy under federal labor law. The court considered whether union activities—such as distributing leaflets, sending letters to customers, publicizing allegations, and supporting litigation—constituted unlawful secondary activity or defamation under the NLRA and state law. The court held that these actions, absent violence or picketing, were protected forms of peaceful, persuasive advocacy under federal labor law.
Protected Union Advocacy. The court reaffirmed that under Supreme Court precedent in Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988), peaceful union advocacy—including letters, leaflets, and litigation—is not considered “threatening, coercing, or restraining” under Section 8(b)(4) of the NLRA unless accompanied by violence or picketing.
Preemption of Defamation Claims. The court applied Supreme Court precedent in Linn v. United Plant Guard Workers of Am., 383 U.S. 53 (1966), which held that state-law defamation claims arising from labor disputes are preempted unless the plaintiff can show actual malice and falsity, accompanied by damages. The union’s communications accurately described pending accusations and investigations, and the complaint failed to allege actionable falsehoods or malice as required by federal labor law.
Takeaways
These decisions provide guidance on the facts that give rise to a finding of lawful impasse and on the standard applied when a union engages in aggressive tactics that fall short of an unlawful secondary boycott.
As the Board continues to operate without a quorum, these dual decisions should serve as a reminder of the importance of federal courts in hearing and resolving labor disputes. Where appropriate, a federal court of appeals can provide redress if a party believes the Board decided an issue incorrectly. Additionally, in cases involving secondary boycotts, employers can file a complaint in federal court in the first instance, without having to avail itself of the procedures of the Board (although secondary boycott cases receive priority processing at the Board). Though the Supreme Court has yet to revisit the high standard of deference provided to orders of the Board since its ruling in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), any change to that deferential standard may only increase the frequency with which parties end up before a federal court of appeals.
Texas Noncompete Shakeup: New Frontier for Health Care Practitioners
Sweeping changes to noncompete covenants are set to take effect on September 1, 2025, for health care employers in Texas. These changes stem from recent amendments to Texas’ noncompete statute. These changes will:
Expand Texas’ heightened enforceability requirements to nearly all health care practitioners.
Impose strict limits on the duration and geographic area of applicable noncompete covenants.
Cap the buyout option that must be provided to covered health care practitioners.
Who Is Impacted?
The recent amendments to Texas’ noncompete statute were enacted through Texas Senate Bill 1318 (SB 1318) that was signed into law by Governor Abbott on June 20, 2025. It will impact Texas-licensed physicians, dentists, nurses (including advanced practice nurses), physician assistants, and health care entities that execute noncompete covenants with the aforementioned health care practitioners. Downstream, these amendments have the potential to alter various health care business models, and the value assigned to health care entities in mergers and acquisitions.
What Are the Key Changes?
Since 1999, the Texas noncompete statute has imposed heightened requirements for securing enforceable covenants with physicians licensed by the Texas Medical Board. SB 1318 takes these protections a step further by incorporating the following heightened requirements:
Mandatory/Salary-Capped Buyout Options – Similar to physicians, mandatory buyout clauses must now be integrated into noncompete covenants with dentists, nurses and physician assistants. The amendments eliminate the statute’s open-ended “reasonable price” requirement and will now require buyout clauses to not exceed a covered individual’s “total annual salary and wages at the time of termination.” For many agreements, this will result in a significant reduction from previous buyout clauses.
One-Year Duration – Noncompete covenants that are executed with physicians and other health care practitioners will be limited to one (1) year following the termination of the covered individual’s contract or employment.
Five-Mile Radius – The geographic area of noncompete covenants that are executed with physicians and other health care practitioners will now be limited to “a five-mile radius from the location at which the health care practitioner primarily practiced before the contract or employment terminated.”
Termination Without “Good Cause” for Physicians – The circumstances of a physician’s termination will impact the enforceability of their noncompete covenant. Noncompete covenants will be void and unenforceable against a physician if they are involuntarily terminated without “good cause,” which is defined as “a reasonable basis for discharge . . . that is directly related to the physician’s conduct, including the physician’s conduct on the job, job performance and contract or employment record.” Importantly, this distinction is limited to physicians. The enforceability of noncompete covenants that are executed with other health care providers will not be impacted by the circumstances of their termination.
Clear and Conspicuous Language – Noncompete covenants that are executed with physicians and other health care practitioners must now “have terms and conditions clearly and conspicuously stated in writing.” SB 1318 does not expand further on this requirement, but it will result in noncompete covenants being susceptible to attack on this basis.
Managerial/Administrative Carve-Out – Before the enactment of SB 1318, Texas’ heightened enforceability requirements extended to most physician-entered noncompete covenants “related to the practice of medicine” (excluding certain business ownership interests). This created some ambiguity regarding when these heightened requirements were triggered. SB 1318 partially resolves this by emphasizing “the practice of medicine does not include managing or directing medical services in an administrative capacity for a medical practice or other health care provider.” Stated differently, noncompete covenants that are executed with physicians employed solely in a managerial or administrative capacity will not be subject to these heighted requirements.
When Do These Changes Go into Effect?
The changes go into effect on September 1, 2025. Importantly, these changes are prospective in nature and only apply to noncompete covenants that are entered into or renewed on or after this date—meaning that preexisting noncompete covenants will continue to be governed by Texas’ noncompete laws existing before the effective date of SB 1318.
What’s Next?
These amendments are consistent with the nationwide trend towards more restrictions on the permissive use of noncompete covenants. While these amendments are not retroactive, it is conceivable that judges may still take these amendments into consideration when analyzing the enforceability of preexisting covenants in future litigation under Texas’ current “no greater than necessary” standard. In turn, employers will need to weigh whether they make these changes on a rolling basis or preemptively amend existing agreements and consider other avenues for protection.
United States Supreme Court Ruling Significantly Narrows Title I of the Americans with Disabilities Act
On June 20, 2025, the United States Supreme Court issued an important ruling in Stanley v. City of Sanford, Florida, which significantly narrows the scope of the protections under Title I of the Americans with Disabilities Act (“ADA”). The Court held that retirees are not “qualified individuals” under the ADA, and therefore may not sue their former employers for disability-related discrimination stemming from changes in post-employment benefits.
The case involved a former Stanford, Florida firefighter who retired early at the age of 47 after being diagnosed with Parkinson’s Disease. After she retired, the City of Stanford decided to cut health insurance subsidies for disabled retirees with less than 25 years of service to just 24 months. Retirees with 25 or more years of service enjoyed the health insurance benefits until age 65. The Plaintiff who is completely disabled and retired with less than 25 years of service sued the City of Stanford asserting that the City of Stanford’s policy violated the ADA.
The majority of the Supreme Court focused on the plain language of the ADA in finding that the statute defines “qualified individual” as someone who “holds or desires a job and can perform its essential functions. The Court affirmed the trial court’s dismissal of Ms. Stanley’s discrimination suit because she was retired and no longer capable of working. The Court reasoned that Ms. Stanley could not pursue a claim under Title I of the ADA because she did not hold or desire a job and could not perform the job’s essential functions because of her retirement due to her disability.
The Court did, however, leave open a potential narrow path for retirees who could show that they were disabled and qualified when the alleged discriminatory policy was adopted. The Court held that Ms. Stanley could not make that showing because she was already retired and out on disability when the policy was changed.
The decision gives employers more certainty when modifying or discontinuing retiree benefits, so long as changes to those benefits do not violate another federal or state statute like, the Employment Retirement Income Security Act of 1974 (“ERISA”).
This important decision finds that retirees cannot assert ADA claims solely based on post-retirement changes. The decision could be overturned if Congress decides to expand the plain language in Title I of the ADA to bestow rights to retired people. That seems unlikely at this time.
Iowa Requires Equal Treatment for Adoptive Parents by Employers
On May 19, 2025, Iowa Governor Kim Reynolds signed House File 248, which requires employers to treat adoptive parents the same as biological parents under certain circumstances. Specifically, if an employee adopts a child up to six years of age, an employer must treat the employee “in the same manner as an employee who is the biological parent of a newborn child for purposes of employment policies, benefits, and protections for the first year of the adoption.”
The law defines adoption as the “permanent placement in this state of a child by the Department of Health and Human Services, by a licensed agency under chapter 238 [child-placing agencies], by an agency that meets the provisions of the interstate compact in section 232.158, or by a person making an independent placement according to the provisions of chapter 600.”
The law does not require employers to provide disability leave to an employee without a qualifying disability under an employer’s disability policies. However, Iowa employers should review any policies or benefits geared toward new parents to ensure compliance with the law.
The law will take effect on July 1, 2025, as Iowa Code § 91A.5B and it will be enforced by the Iowa Department of Inspections Appeals and Licensing.
Managing the “Infinite Workday”: Employer Responsibilities in a 24/7 Work Culture
Remember when the workday ended at 5:00 pm?
In today’s always-on world, the “infinite workday” has quietly taken over—creeping into dinners, weekends, and even that quaint concept known as a “vacation.” With smartphones in every pocket and teams spread across multiple time zones, work now follows us everywhere. Microsoft’s 2025 Work Trend Index confirms what many leaders already sense: work is no longer confined by time or place—it’s always on.
The data is striking. By 6:00 a.m., 40% of workers are already checking email. During core hours, employees are interrupted every two minutes by meetings, messages, and alerts. And the day doesn’t end at dinner—nearly a third of workers are back in their inboxes by 10:00 p.m. Weekend work is also on the rise with nearly 20% of employees checking email before noon on Saturdays and Sundays. While the flexibility to work anytime, anywhere can be empowering, it also brings legal, operational, and cultural challenges that employers ignore at their peril.
The Rise of the “Right to Disconnect”
The infinite workday isn’t just stretching schedules – it’s stretching people thin. Microsoft’s data shows that one in three employees say the pace of work has made it impossible to keep up. Half of employees and leaders describe their work as chaotic and fragmented.
A major driver of this strain is the overwhelming volume of digital communication. According to the Index, on average, employees receive more than 100 emails and 150 Teams messages every workday. In fact, some exasperated workers have declared “email bankruptcy” – deleting their entire inbox of unanswered emails in an effort to regain control. It’s a clear sign that employees are struggling to keep up with the volume and velocity of communication.
In response, governments around the world are stepping in with “right to disconnect” laws – designed to protect employees from the expectation of 24/7 availability. Countries including Argentina, Australia, Belgium, Chile, France, Slovenia, and Spain have enacted laws limiting after-hours communications. Our neighbors in Ontario, Canada mandate written disconnect-from-work policies for employers with 25+ employees.
While the U.S. has no such law yet, the conversation is gaining traction. As we reported last year, California proposed but ultimately did not enact a right-to-disconnect law in 2024, and New Jersey introduced similar legislation that remains under review.
Legal Risks for Employers
Even in the absence of formal legislation, the risks of an always-on culture are real and growing:
Wage and Hour Violations. Non-exempt (“hourly”) employees working off the clock – even voluntarily—can trigger wage claims, class actions, and penalties under the Fair Labor Standards Act and comparable state laws.
Mental Health and Burnout. Constant connectivity can lead to stress-related claims under the Americans with Disabilities Act, Family Medical Leave Act, and comparable state laws as well as workers’ compensation rules.
Data Privacy and Security. After-hours work on personal or unsecured devices increases the risk of data breaches and non-compliance with laws such as the California Privacy Rights Act and the European Union’s General Data Protection Regulation.
Discrimination and Equity Concerns. An always-on culture may disproportionately impact caregivers, parents, and employees in different time zones—raising potential claims of disparate impact or failure to accommodate.
Best Practices
To stay ahead of legal and cultural shifts, employers should consider the following steps:
Establish Clear Boundaries. Define expectations for work hours and after-hours communication in policies and handbooks, especially for non-exempt employees.
Train Managers. Educate leaders on the legal risks and model healthy behavior around availability and responsiveness.
Audit Timekeeping Systems. Ensure all work—especially by non-exempt employees— is accurately tracked and compensated.
Encourage Disconnecting. Promote a culture that values rest and recovery, and discourage after-hours messages unless truly necessary.
Final Thoughts
The infinite workday is here—but it doesn’t have to mean infinite liability. By understanding the evolving legal landscape and implementing thoughtful, proactive polices, employers can protect both their workforce and their business.
USDA TO THE RESCUE! First, Immigration Policies — Will MAHA be Next?
The U.S. Department of Agriculture (USDA) has been around for more than 150 years, stressing the importance of American agriculture to a bountiful food production system since Abraham Lincoln first signed it into being in 1862. Lincoln himself, in fact, in his 1864 final annual message to Congress, christened USDA “the people’s Department,” just before commending it “to the continued attention and fostering care of Congress.” From industrialization to the mechanization of farming, through the post-industrial era and into the digital age, farmers are among the first to remind the rest of us of that universal truth: “we still gotta eat.”
Ensuring that capability has been among the most important missions of USDA, and recently that role has been tested by the new Administration’s emphasis on “controlling our borders” as a centerpiece issue for President Trump. In recent weeks, there have been mass deportation efforts specifically targeting geographic locations and industries identified as likely to house and employ significant numbers of undocumented immigrants. Among affected industries is farming, where up to 40 percent of those who work in food production occupations — as farmworkers or at food handling and processing facilities — are estimated to be undocumented.
Consequently, as the Administration’s deportation efforts ramped up in recent weeks, farm labor was reported to be impacted, either directly, with laborers being detained or arrested, or via rumors of enforcement sweeps keeping workers away from their jobs out of fear of the same. Then, to the surprise of many, in the last week, President Trump suggested that some undocumented workers have been here in the United States for years, working hard without incident, paying taxes, and breaking no laws — and should thus be allowed to stay, or at least not targeted for deportation as an enforcement priority.
The President specifically cited how the agricultural industry (along with the hospitality industry) was dependent on such labor and would otherwise suffer, with the resulting effects impacting the nation’s food supply. It was reported that U.S. Secretary of Agriculture Brooke Rollins was pivotal in conveying the concern of farmers and agricultural groups and emphasizing the need to have immigration enforcement policies that acknowledge and consider how important the undocumented workforce is to U.S. food production. And yet the suspension of worksite enforcement operations targeting farms, hotels, and restaurants was short-lived, with the Trump Administration apparently reinstating it again mere days later.
Meanwhile, the Administration’s “MAHA Report,” released on May 22, 2025, with Secretary Rollins as one of the Make America Healthy Again (MAHA) Commission members, essentially condemns the U.S. food supply as horrible and dangerous. The word “food” appears 260 times in the 68-page report, with repeated emphasis on the modern food production system resulting in ultra-processed food as it goes from farm to table with a stop in between for corporate players to foist dangerous methods of production, products, and the manipulation of consumer tastes upon it and us.
The MAHA Report frames the United States as a whole as “unhealthy,” with little, or at least too little, regulation by government agencies that have been “captured” and otherwise manipulated by corporate interests intent on defending and continuing a woeful status quo. The food industry generally, with farmers using conventional production methods (various crop inputs such as fertilizers and pesticides, sizable farming operations), is often referred to by critics as “Big Ag” — a reference to what many consider to be the scale and methods of production which characterize modern farming and food production. The MAHA Report, while citing the wonderfulness of farmers in their ability to be so productive, effectively holds the modern food production system, including farmers (or at least current farming methods), responsible for making America unhealthy.
On May 23, 2025, just one day after the MAHA Commission’s sweeping condemnation of modern food production practices, came Executive Order (EO) 14303: “Restoring Gold Standard Science.” Issued by President Trump, the EO declares that all federal agencies (USDA included) must base decisions on “the highest standards of scientific integrity.” That sounds good on paper, but it raised eyebrows in the Ag world. While the EO calls for transparency, peer-reviewed data, and decisions insulated from ideology, farm groups may be left wondering which science the Administration wants to elevate — because the science behind large-scale food production didn’t get much airtime in the MAHA Report.
Farm groups, anticipating what was to come in the MAHA Report, released a “Statement from Farmers of Major U.S. Agriculture Groups on Pending MAHA Report” two days before the Report itself was released:
The Make America Healthy Again Commission is expected to soon release a report that will have significant bearing on America’s farmers, producers and ranchers, and the public’s trust in our food system. In anticipation, the American Soybean Association, National Corn Growers Association, National Association of Wheat Growers, International Fresh Produce Association, and in turn, the farmers these groups represent, are imploring the administration to consider the consequences of this MAHA Commission report before it is finalized.
The statement goes on to add:
Despite the effort of many of our organizations to work with the MAHA Commission to provide factual information about American food production, we have heard disturbing accounts that the commission report may suggest U.S. farmers are harming Americans through their production practices and ‘creating foods that is [sic] destroying our microbiome and bodies—leading directly to our chronic disease crisis.’ Nothing could be further from the truth. Nutrition matters, health matters, and the confidence of consumers in the food supply matters tremendously.
Where is, or was, USDA?
This statement is but one of many alarms sounded by farm groups concerned about possible fallout from the work of the MAHA Commission. And the biggest fallout of all for those with a hand in American farming could be a new effort, endorsed by the Trump Administration, echoing the concerns of critics of Big Ag over the years. With criticism aimed at large acreage farms, large animal feedlots, a reliance on synthetic inputs, and the use of current food processing techniques and the argument being that the result of these things is dangerous (or at least unhealthy) food products being widely distributed in our homes, schools, and on grocery store shelves, there is more than enough fallout to go around.
With over 250 food and agricultural groups signing onto a June 17, 2025, letter to Secretary Rollins, U.S. Secretary of Health and Human Services Robert F. Kennedy Jr., and U.S. Environmental Protection Agency Administrator Lee Zeldin, urging that food and agriculture “have a seat at the table during the development of policy recommendations” related to the MAHA Report, it is now even clearer what farmers, and many agricultural stakeholders, think — that the MAHA Report is not scientifically supported (gold-standard or otherwise) and that it is in need of some serious revision. Putting aside the question of what role USDA played, or didn’t play, in the MAHA Report, will Secretary Rollins and staff be able to persuade the President that another initiative may need modification before its impact on farming could affect his standing in a rural America which up to now has been an anchor of support for his Administration?
With 42 out of 50 states — red and blue alike — directly represented in the letters’ signatories, as well as groups representing commodities as varied as pork and mint, hazelnuts and Christmas trees, and special interest groups as diverse as American Agri-Women and the National Black Growers Association, it seems that it is once again the farmers reminding us: we all still gotta eat.
UK Employment Appeal Tribunal Clarifies Employer Obligations in a Redundancy
The United Kingdom’s Employment Appeal Tribunal (EAT) ruling in Hendy Group Ltd v Mr D Kennedy [2024] EAT 106 acts as a clear reminder to employers of their obligations when handling redundancies. The case emphasises that employers must properly seek and consider alternative employment for employees facing redundancy and highlights the risks of failing to do so. In particular, merely sending an “at risk” employee the company’s job vacancy list (a popular approach taken by companies) may not be enough to fulfil obligations.
Quick Hits
The UK’s Employment Appeal Tribunal ruled that employers must actively seek and consider alternative employment for employees facing redundancy, as highlighted in Hendy Group Ltd v Mr D Kennedy.
The EAT’s decision underscores that simply providing a job vacancy list may be insufficient to meet employers’ obligations during redundancy processes.
Employers should consider taking proactive steps to support employees facing redundancy, beyond just posting job advertisements, to avoid legal and reputational risks, as emphasised by the EAT’s ruling.
Principles of the Case
Kennedy, the claimant, had been employed by Hendy Group Ltd, one of the UK’s largest multi-franchise dealership networks, since 2013 and from 2015 worked as a trainer in the company’s training academy. His role involved providing training for the sales teams across the workforce. However, in 2020, due to the impact of the COVID-19 pandemic, a genuine redundancy situation occurred, leading to Kennedy’s dismissal. Despite recognition that the redundancy itself was fair, Kennedy argued that the process that the company followed was unfair, as they failed to adequately consider alternative employment opportunities within the company. The EAT agreed and ruled in favour of the claimant on the grounds that despite maintaining a vacancy list Kennedy could access, the company had taken “no step whatever to assist Mr Kennedy” in finding an alternative role within the company. The EAT awarded him compensation on the basis that it was likely he would have been able to secure other employment within the company if the employer had properly adhered to its obligations.
Alternative Employment
The case upholds the concept that an employer has a positive legal duty to look for and sufficiently evaluate alternative employment for a worker who faces redundancy. This means seeking a position that offers the employee terms and conditions comparable to the employee’s current role. Other cases have held that even if a position is lower in status and pay, it should be offered to the employee if the employee has the skills to do the work, as it is for the employee to decide whether to accept the pay cut. During Kennedy’s notice period, sales positions became available in the company, including a role that Kennedy had previously held, yet these positions were not offered to him. He was simply told he could apply for advertised positions in the same manner as external applicants. The EAT expressed the view that the posting of job advertisements alone will not be deemed as an adequate assessment of alternative employment to fulfill the employer’s duty.
The decision was possibly influenced by some other ill-judged actions by the company. The EAT also noted that upon unsuccessful application for alternative roles, Kennedy’s motivations for job applications to the company were questioned, and he was informed that any additional applications would be unsuccessful. During this period, Kennedy’s access to company emails, which HR was using to communicate with him, was also revoked, with the consequence that he did not see relevant emails.
Key Takeaways
Under the Employment Rights Act 1996, employers must follow a fair procedure during redundancies. This includes properly consulting with any impacted employees and considering suitable alternative employment opportunities within the company or affiliated entities.
An employer’s obligations cannot usually be satisfied by merely referring an employee to a public job board without proactive support, appropriate internal communication, or significant consideration. Employers are required to go beyond mere formalities and take active steps to support employees facing redundancy. Failure to do so can result in costly legal consequences and reputational damage.
Lorraine Matthews contributed to this article
The Art of Effective Disciplinary Documentation: A Practical Guide for Manufacturing Managers
Manufacturing managers regularly hear complaints about employee behavior that are difficult to address:
“John is rude in meetings.”
“Sarah has a bad attitude.”
“Mark is consistently unmotivated.”
“Alex was late twice in the last two weeks.”
“Taylor’s work clothes are not appropriate.”
“Jordan is lazy and incompetent.”
While these observations might reflect genuine concerns, they are nearly impossible to act upon without more specific information. More importantly, they provide very little foundation for formal discipline if the issues persist.
In this article, we will explore how to transform vague observations into effective documentation that both helps employees improve and better protects your organization from potential legal challenges.
The Challenge of Vague Complaints in Disciplinary Documentation
Subjective statements create several problems:
They do not clearly communicate what the employee did wrong.
They offer no guidance on how to improve.
They are often based on personal judgment rather than objective standards.
They provide minimal protection in case of legal disputes.
Let’s examine how to transform vague complaints into documentation that addresses each of these concerns.
The Transformation Process: From Vague to Specific Disciplinary Documentation
Example 1: Addressing Interpersonal Behavior in HR Records
Vague statement: “John is rude in meetings.”
This statement offers minimal actionable information. What exactly did John do? How did it impact the team? What standard of behavior was violated?
Effective documentation: “During the production planning meeting on March 1, John interrupted a team member three times while they were presenting quality metrics. When asked to allow others to finish their thoughts, John raised his voice and said the presentation was ‘a waste of everyone’s time.’ This behavior violates our team communication standards discussed during onboarding and reinforced during our January staff meeting.”
The improved version:
Specifies the date and context;
Describes observable behaviors rather than making judgments;
Notes the response to initial correction;
References specific standards that were violated; and,
Implies impact (disruption of the meeting).
Example 2: Addressing Attitude Problems on a Personnel Record
Vague statement: “Sarah has a bad attitude.”
This subjective assessment gives the employee nothing concrete to work with and would be virtually indefensible in any legal proceeding.
Effective documentation: “On March 1, Sarah refused to follow a direct instruction from her supervisor to complete the end-of-shift cleaning procedure. Sarah stated that the task was ‘not her problem’ and that ‘someone else should do it for once.’ This resulted in a 30-minute delay for the incoming shift and required a team lead to complete the task. This behavior violates our standard operating procedures requiring all operators to clean their workstations before shift change.”
The improved version:
Focuses on specific actions and statements;
Identifies the impact on operations;
References violated procedures; and,
Avoids making character judgments.
Example 3: Addressing Motivation Issues in the Manufacturing Environment
Vague statement: “Mark is consistently unmotivated.”
This statement makes a judgment about the employee’s internal state rather than documenting observable behaviors.
Effective documentation: “On March 1, Mark failed to contact his supervisor when he discovered that the parts dryer had stopped working. Instead of reporting the issue, Mark went on his scheduled break without notifying anyone. This resulted in 45 minutes of downtime for Line 2 and approximately $2,000 in scrapped material. When asked about the incident, Mark stated he ‘didn’t think it was urgent.’ This behavior violates our equipment issue reporting procedure that requires immediate notification of any equipment malfunction.”
The improved version:
Documents specific behaviors;
Quantifies business impact;
Includes the employee’s explanation; and,
References specific procedures that were violated.
Example 4: Addressing Attendance Issues for a Manufacturer
Vague statement: “Alex was late twice in the last two weeks.”
While this statement includes some specificity, it lacks important context about the specifics and extent of tardiness and its impact.
Effective documentation: “Alex arrived 45 minutes late on March 1 (reason given: flat tire) and 30 minutes late on March 8 (reason given: overslept). Both incidents required team members to cover Alex’s production responsibilities, resulting in slower line speeds. Per our attendance policy, employees must notify supervisors at least 30 minutes before shift start if they will be late. Alex did not provide advance notification for either incident.”
The improved version:
Specifies dates and duration of tardiness;
Notes reasons provided by the employee;
Documents operational impact; and,
References specific policy violations.
Example 5: Addressing Dress Code Issues in an Employee Record
Vague statement: “Taylor’s work clothes are not appropriate.”
This statement provides no information about what specific dress code provisions were violated.
Effective documentation: “On March 1, Taylor reported to work wearing open-toed sandals in the production area, which violates our safety policy requiring closed-toe footwear in all manufacturing spaces. Taylor was sent home to change and returned 45 minutes later with appropriate footwear. This is the second such incident in three weeks, following a similar violation on February 15 when Taylor was verbally reminded of the safety requirement.”
The improved version:
Identifies the specific dress code violation;
Connects it to safety requirements;
Documents the immediate corrective action; and,
Notes previous similar incidents and prior warnings.
Example 6: Addressing Performance Quality in Employment Documentation
Vague statement: “Jordan is lazy and incompetent.”
This highly subjective statement makes character judgments rather than focusing on performance issues.
Effective documentation: “On March 1, Jordan failed to complete the required quality checks on Line 3 as assigned. Of the 25 hourly checks required by our quality control procedure, only 8 were completed and documented. This resulted in a customer rejection of the entire production lot (approximately $15,000 in value) due to inconsistent product specifications. When asked about the missed checks, Jordan stated he was ‘too busy with other things’ but could not specify what other tasks prevented completion of the required checks.”
The improved version:
Focuses on specific job duties not performed;
Quantifies the extent of the performance issue;
Documents business impact;
Includes the employee’s explanation; and,
Avoids personal judgments about character.
Key Elements of Effective Disciplinary Documentation
When preparing disciplinary documentation, include these essential elements:
1. Date and Time of the Incident or MeetingAlways document when the incident occurred and when you addressed it with the employee. This establishes a timeline that can be important for progressive discipline and demonstrates your promptness in addressing issues.
2. Clear Description of the IssueProvide specific details about what happened, where it happened, who was involved, and how it impacted operations. Focus on observable behaviors and measurable outcomes rather than assumptions about intentions or attitudes.
3. Reference to Prior Warnings or EvaluationsIf the current issue is part of a pattern, reference previous conversations, warnings, or performance evaluations. This establishes that the employee has been given opportunities to improve and that the current documentation isn’t an isolated or retaliatory action.
4. Expectations Going Forward and ConsequencesClearly state what the employee needs to do differently and what will happen if improvement doesn’t occur. This transforms the documentation from simply a record of problems to a tool for improvement.
5. Employee AcknowledgmentInclude space for the employee to sign acknowledging receipt of the documentation (not necessarily agreement with its contents). If they refuse to sign, note this refusal in the document with a witness present if possible.
Creating a Culture of Continuous Improvement with Disciplinary Documentation
While disciplinary documentation serves important legal purposes, its primary value lies in improving performance. When done effectively, it:
Provides clarity about expectations;
Creates accountability for meeting standards;
Identifies specific areas for improvement;
Demonstrates your commitment to fair treatment; and,
Creates opportunities for coaching and development.
Used properly, documentation becomes not just a legal protection but a valuable tool for developing a high-performing manufacturing team. The same principles that make documentation legally sound—specificity, objectivity, and clarity—also make it effective for improving performance.
Final Practical Tips for Effective Disciplinary Documentation
As you implement these documentation practices, keep these additional guidelines in mind:
Don’t document when angry. Take time to cool down and focus on facts.
Keep documentation in personnel files where it’s secure but accessible if needed.
Involve HR to address how to handle a situation.
Follow up on improvement plans to demonstrate your commitment to employee development.
Train all supervisors in proper documentation techniques to ensure consistency.
By transforming vague complaints into specific, objective documentation, you will not only protect your organization legally but also create a foundation for performance improvement that benefits everyone—the employee, the team, and the company as a whole.