Sixth Circuit Holds TPAs Do Not Get a Free Pass from ERISA’s Fiduciary Duties
In a decision about ERISA’s fiduciary duties and transparency, the Sixth Circuit in Tiara Yachts, Inc. v. Blue Cross Blue Shield of Michigan held that Blue Cross Blue Shield of Michigan (BCBSM), a third-party administrator (TPA) for the Tiara Yachts, Inc. (Tiara Yachts) self-insured plan, acted as an ERISA fiduciary when it made decisions about pricing and the payment of claims and therefore must abide by ERISA’s fiduciary standards. The decision may also help to pave the way for employers seeking greater access to pricing and payment information from TPAs for their own self-insured group health plans.
Background:
Tiara Yachts claimed that BCBSM overpaid health claims submitted by out-of-state medical providers and then clawed back the overpayments through a shared savings program (SSP). As compensation for the recovery services provided by the SSP, BCBSM kept 30% of the clawed back amounts. Tiara Yachts claimed that by making the overpayments and then paying itself to administer the SSP, BCBSM acted as an ERISA fiduciary for the Tiara Yachts plan, breached its fiduciary duties and engaged in self-dealing.
The District Court for the Western District of Michigan granted BCBSM’s motion to dismiss, but the United States Court of Appeals for the Sixth Circuit overturned the dismissal finding that Tiara Yachts reasonably alleged BCBSM acted as an ERISA fiduciary by exercising discretion over plan assets and its own compensation.
Implications of the Sixth Circuit’s Holdings:
The Sixth Circuit’s decision in Tiara Yachts highlights that TPAs can be deemed fiduciaries if they exercise control over plan assets and their own compensation, or discretionary authority over plan management, regardless of contractual terms. This ruling has significant implications for employers negotiating TPA agreements.
Employers overseeing the day-to-day management of their plans should also be able to use the ruling to seek disclosure of information about the pricing and payment of claims, which in the past TPAs have been unwilling to share. In their role as an ERISA fiduciaries, TPAs will be obligated to disclose this information when requested by a plan administrator looking to properly administer its plan.
What Should Employers Do:
In response to this decision, employers should review their TPA agreements and ensure they clarify fiduciary roles and responsibilities, particularly concerning plan asset management. Employers should also review agreements for compensation structures that may incentivize self-dealing and request additional information from TPAs about pricing structures and the payments of claims.
July 2025 Visa Bulletin: Limited Advancement for India and China
The July 2025 Visa Bulletin shows several changes in the employment-based immigrant visa categories, with advancements for China and select movement for India and other countries. The Visa Bulletin confirms that U.S. Citizenship and Immigration Services (USCIS) will honor final action dates for I-485 adjustment-of-status applications filed in July 2025.
Quick Hits
EB-1. China advances one week (to November 15, 2022); India holds at February 15, 2022; all other countries remain current.
EB-2. China advances two weeks (to December 15, 2020); India holds at January 1, 2013; no movement for other countries.
EB-3 Most countries advance seven weeks (to April 1, 2023); China and India move one week; the Philippines sees no change.
Employment-based
All ChargeabilityAreas ExceptThose Listed
CHINA-mainlandborn
INDIA
MEXICO
PHILIPPINES
1st
C
15NOV22
15FEB22
C
C
2nd
15OCT23
15DEC20
01JAN13
15OCT23
15OCT23
3rd
01APR23
01DEC20
22APR13
01APR23
08FEB23
Other Workers
08JUL21
01MAY17
22APR13
08JUL21
08JUL21
4th
U
U
U
U
U
Certain Religious Workers
U
U
U
U
U
5th Unreserved(including C5, T5, I5, R5, NU, RU)
C
22JAN14
01MAY19
C
C
5th Set Aside:Rural (20%, including NR, RR)
C
C
C
C
C
5th Set Aside:High Unemployment (10%, including NH, RH)
C
C
C
C
C
5th Set Aside:Infrastructure (2%, including RI)
C
C
C
C
C
Source: U.S. Department of State, July 2025 Visa Bulletin, Final Action Dates Chart
Key Takeaways
India and China see minimal movement. For Indian nationals, there is no movement in the EB-1 and EB-2 green card categories, while EB-3 advances by just one week to April 22, 2013. For Chinese nationals, EB-1 advances one week to November 15, 2022; EB-2 moves two weeks to December 15, 2020; and EB-3 progresses one week to December 1, 2020. These minor shifts may slightly impact green card timelines but are unlikely to change case strategy in a significant way.
EB-3 advances for most countries. The EB-3 Professional and Skilled Worker category sees a seven-week advancement for most countries except India, China, and the Philippines. The new cutoff date for these countries is April 1, 2023, which could enable final green card action for more employees and allow companies to plan for long-term retention and status stabilization.
EB-5 information and filing date updates. The EB-5 Unreserved category remains unchanged for China (January 22, 2014) and India (May 1, 2019), while all other countries are still current. In addition, the Dates for Filing have advanced for EB-3 in all countries except India and China, allowing eligible employees to submit adjustment applications earlier—even if final action is still pending.
Beltway Buzz, June 20, 2025
The Beltway Buzz™ is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
Senate Continues Work on “Big Beautiful Bill.” Republicans in the U.S. Senate continued to move forward this week with their version of the “Big Beautiful Bill.” They face significant—and complicated—procedural and political hurdles if they are to meet their goal of advancing a bill to President Donald Trump’s desk by July 4. Republican leaders are expected to bring the bill to the floor next week and begin the lengthy “vote-a-rama” amendment process. As of now, the Senate bill—just like the version in the U.S. House of Representatives—includes provisions to limit taxes on income earned via tips or while working overtime.
Trump Administration Supports PLAs. On June 12, 2025, Russell T. Vought, director of the White House’s Office of Management and Budget, issued a memorandum of the administration’s policy on project labor agreements (PLAs). Director Vought writes, “For clarity, the Trump Administration supports the use of PLAs when those agreements are practicable and cost effective, and blanket deviations prohibiting the use of PLAs are precluded.” The memorandum further notes that President Joe Biden’s Executive Order 14063, which requires the use of project labor agreements on federal construction projects valued at $35 million or more, remains in effect. However, the memorandum clarifies that an exception to this requirement would apply where there is only one bid on a project or where there are two or more bids “but prices are expected to be higher than the government’s budget by more than 10 percent due to the PLA requirement.” The memo is further evidence of the administration’s willingness to pursue policies favored by organized labor.
EEOC, DOL Nominees on the Move. On June 18, 2025, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing on the nominations of Andrea Lucas to be a member (for a second term) of the U.S. Equal Employment Opportunity Commission (EEOC), Jonathan Berry to be solicitor of labor, and Andrew Rogers to be administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division. Republican senators tended to focus their questions on the role DOL can play in addressing human trafficking, unlawful child labor, and anti-American national origin discrimination cases at the EEOC. Democrats, on the other hand, focused on staffing cuts at DOL and sought pledges from Berry and Rogers to enforce laws such as the Davis-Bacon Act. But most Democrats directed their question to Lucas, probing her for her thoughts on the independent nature of the Commission (she stated that the EEOC is an executive branch agency operating under the direction of the president), questioning her role in EEOC litigation decisions and her vote against the Pregnant Workers Fairness Act’s (PWFA) implementing regulations. Under questioning, Lucas stated the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgiaprotects individuals who are terminated from employment based on their transgender status.
Senator Introduces Bill Reinforcing President Trump’s “Gender Ideology” EO. Perhaps timed to coincide with Acting Chair Lucas’s appearance before the Senate HELP Committee, Senator Jim Banks (a member of the Committee) recently introduced the Restoring Biological Truth to the Workplace Act. The bill would amend Title VII of the Civil Rights Act of 1964 to make it unlawful for an employer to take action against an employee who “engages in covered expression, that describes, asserts, or reinforces the binary or biological nature of sex” or because “an employee requests or uses a single-sex area that is a bathroom, changing area, or other area where physical privacy is desirable.” The bill comes against the backdrop of President Trump’s January 20, 2025, executive order, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
State Department Sets Guidelines for Student Visa Social Media Vetting. Several weeks after U.S. consulates abroad hit the pause button on student visa interviews, the State Department has reportedly followed up with instructions on how officials should be vetting student visa applicants’ online footprints. Specifically, the State Department is ordering consulates to look for “any indications of hostility towards the citizens, culture, government, institutions or founding principles of the United States” and/or “advocacy for, aid or support for foreign terrorists and other threats to U.S. national security.” According to media reports, evidence of these activities is not automatically disqualifying, but would prompt additional scrutiny.
Remembering Alice Robertson. On June 20, 1921, Representative Alice Robertson, a Republican from Oklahoma, became the first woman to preside over the U.S. House of Representatives. Born to Presbyterian missionaries in the Creek Nation Indian Territory (in current Oklahoma) in 1854, Robertson graduated from Elmira College in Elmira, New York, before beginning her career in public service at the Bureau of Indian Affairs in Washington, D.C. After Robertson returned to Oklahoma, President Theodore Roosevelt appointed her postmaster of Muskogee, Oklahoma, where she served from 1905 to 1913. In 1920, Robertson defeated three-term incumbent U.S. Representative William Wirt Hastings to become the second woman to win a seat in Congress. During her one term in Congress (she lost to Hastings in a 1922 rematch), Robertson served on the Committee on Indian Affairs, where she introduced a failed bill that would have reimbursed Cherokee descendants who were forcibly removed to Oklahoma. Robertson’s history-making moment of presiding over a session of the House of Representatives came during a vote to provide funding for a U.S. delegation to Peru.
DOJ Civil Division Sets Enforcement Priorities to Advance Administration’s Policy Objectives
The U.S. Department of Justice (DOJ) Civil Division, through an internal memorandum issued on June 11, 2025, by Assistant Attorney General Brett Shumate, outlined the Civil Division’s priorities for enforcement. The memorandum cites direction by President Donald Trump and Attorney General Pam Bondi to the Civil Division to “prioritize investigations and enforcement actions advancing” the administration’s policy objectives.
Quick Hits
The DOJ’s Civil Division will use the False Claims Act to pursue entities that receive federal funds but knowingly violate civil rights laws, as part of the DOJ’s Civil Rights Fraud Initiative.
The Civil Division will prioritize investigations and enforcement actions against entities that make claims for federal funds but knowingly violate federal civil rights laws by participating in or allowing antisemitism, supported by Executive Order 14188.
The Civil Division will also investigate and take action against entities misleading the public about the long-term side effects of drugs used in gender transitions and pursue False Claims Act violations related to noncovered services for “gender experimentation,” as directed by Executive Orders 14168 and 14187.
The Civil Division is committing “all available resources to pursue affirmative litigation combatting unlawful discriminatory practices in the private sector” to its first priority of “Combatting Discriminatory Practices and Policies.” This is yet another clear indication of the administration’s animus toward diversity, equity, and inclusion programming. It authorizes the use of the False Claims Act for “treble damages and penalties” and the recently announced DOJ Civil Rights Fraud Initiative that will “aggressively investigate” and pursue False Claims Act violations for federal funds recipients that knowingly violate civil rights laws. The Civil Division commits to working with “relators, other whistleblowers, and federal agencies to advance these efforts.”
As its second priority, the Civil Division is committing to “prioritize investigations and enforcement actions against entities that make claims for federal funds but knowingly violate federal civil rights laws by participating in or allowing antisemitism.” The memorandum identifies Executive Order 14188 from February 3, 2025, “Additional Measures to Combat Anti-Semitism,” and the Joint Task Force October 7 as part of the priority of “ending antisemitism.”
The memorandum identifies a third priority of “protecting women and children” and references Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” Executive Order 14187, “Protecting Children from Chemical and Surgical Mutilation,”and a memorandum from Attorney General Bondi from April 22, 2025, titled, “Preventing the Mutilation of American Children.” The Civil Division identified “doctors, hospitals, pharmaceutical companies, and other appropriate entities” for prioritized investigations and will include investigating possible violations of the Food, Drug, and Cosmetic Act and other laws by “pharmaceutical companies” and “online pharmacies” involved in the illegal sale of such drugs.
“Ending Sanctuary Jurisdictions” is the fourth priority of the Civil Division. The memorandum cites various executive orders and Attorney General Bondi’s memorandum, titled, “Sanctuary Jurisdiction Directive,” aimed at ensuring that states and local governments promote the enforcement of U.S. immigration laws. This policy priority commits the Civil Division to identify state and local laws, policies, and practices that appear to facilitate violations of immigration laws and to “prioritize affirmative litigation to invalidate any State or local laws preempted by Federal law.”
The Civil Division’s final priority, “Prioritizing Denaturalization,” describes ten priority categories for the agency to bring cases to revoke the citizenship of a naturalized U.S. citizen who illegally obtained that citizenship through “fraud,” “material misrepresentations,” or concealment of material facts. The agency will focus on individuals who, among others, “pose a potential danger to national security,” are gang members or affiliated with terrorist organizations, committed felonies prior to naturalization, engaged in financial fraud against the United States or private individuals, or engaged in human trafficking or sex offenses. Those ten categories, however, are merely “intended to guide” the Civil Division and do not limit the agency from pursuing any particular case.
Implications for Employers
These policy objectives reflect a shifting approach by the DOJ to enforcing civil rights, combating discrimination, and ensuring legal compliance across various sectors. Employers and other entities may want to note these objectives and take appropriate steps to align their practices with federal laws and regulations.
Supreme Court Rules Retired Disabled Employee Cannot Bring ADA Claims Over Post-Employment Benefits Change
On June 20, 2025, the Supreme Court of the United States held that a former firefighter forced to retire after developing Parkinson’s disease could not bring claims under the Americans with Disabilities Act (ADA) over a change to her post-employment health insurance benefits. The ruling addressed a circuit split over whether disabled former employees can bring ADA claims to challenge employer decisions regarding post-employment benefits, narrowing ADA standing for retired employees.
Quick Hits
The Supreme Court ruled that a retired firefighter with Parkinson’s disease could not bring claims under the ADA regarding changes to her post-employment health benefits.
The Court held that Title I of the ADA requires plaintiffs to have or desire a job for which they can perform the essential functions with or without reasonable accommodation at the time of an employer’s allegedly discriminatory actions.
The decision clarifies a circuit split by concluding that to have standing under the ADA, plaintiffs must hold or desire a job for which they can perform essential functions, thereby narrowing protections for retired employees.
Justice Neil Gorsuch further opined that retired employees may be able to proceed with ADA claims if they allege that they were disabled before retiring and were subject to the alleged discriminatory decision.
In a mixed ruling in Stanley v. City of Sanford, Florida, the Supreme Court affirmed a ruling by the U.S. Court of Appeals for the Eleventh Circuit that a former firefighter who took an early disability retirement was not a “qualified individual” under the ADA since she could not perform essential job functions even with a reasonable accommodation.
The Supreme Court held that to prevail in a claim under Title I of the ADA, 42 U.S.C. §12112(a), plaintiffs “must plead and prove” that they have a job or desire a job for which they can perform the essential functions with or without reasonable accommodation at the time of the alleged act of disability-based discrimination.
The ruling addressed a circuit split where the Sixth, Seventh, and Ninth Circuits agreed with the Eleventh Circuit’s position, while the Second and Third Circuits held that former employees do not lose standing under the ADA simply because they are no longer are employed.
Background
Karyn Stanley, who served as a firefighter for the City of Sanford, Florida, for nearly two decades, was forced to take an early disability retirement in 2018 at the age of forty-seven after she developed Parkinson’s disease. (Later-developed facts indicate that Stanley was diagnosed with Parkinson’s disease in 2016).
When she was hired in 1999, the city offered health insurance until age sixty-five for employees with at least twenty-five years of service or who retired earlier due to disability. However, in 2003, the city changed the policy to only provide health insurance coverage twenty-four months after an early disability retirement.
Stanley sued the city in 2020, alleging that the change unlawfully discriminated against individuals with disabilities in violation of Title I of the ADA. The Eleventh Circuit ruled in favor of the city, finding that she did not have standing to sue under the ADA since she was no longer a “qualified individual.”
Qualified Individual
The Supreme Court found that the former firefighter lacked standing based on the text of Title I. Specifically, Title I of the ADA Section 12112(a) prohibits discrimination against “qualified individual[s],” a term that is defined elsewhere in Title I as individuals “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual[s] hold[] or desire[].”
In the Court’s opinion, Justice Neil Gorsuch stated that the “present-tense verbs” in the law “tend to suggest that the statute does not reach retirees who neither hold nor desire a job at the time of an alleged act of discrimination.” The Court rejected the argument that the former firefighter’s claims should continue since she is suing about discrimination in compensation that affected her in retirement.
Section 12112(a) “does not protect ‘compensation’ as such,” Justice Gorsuch said in the Court’s opinion. “Instead, it bars employers from ‘discriminat[ing] against a qualified individual on the basis of disability in regard to … compensation.’ … In other words, the statute protects people, not benefits, from discrimination.” (Emphasis added in the opinion).
The Court further rejected arguments that it should look beyond the text of Section 12112(a) or analyze it in the context of the broader purposes of the ADA, stating “we cannot say Title I’s textual limitations necessarily clash with the ADA’s broader purposes.”
However, in a dissenting opinion, Justice Ketanji Brown Jackson criticized the Court’s holding as a “counterintuitive conclusion.” She argued that the Court’s opinion “overlooks both the actual facts presented in this case and the clear design of the ADA to render a ruling that plainly counteracts what Congress meant to—and did—accomplish.”
Subject to Discriminatory Compensation Decision
Still, Justice Gorsuch opined in a section with which a majority of justices did not agree, that the firefighter might have been able to proceed with her ADA claims if she had alleged that she suffered from the disability before retiring and worked for some period of time with the disability.
While facts emerged following the filing of her suit, i.e., that she was diagnosed with Parkinson’s in 2016 nearly two years before retiring, that fact was not alleged in her complaint. Since the case before the Court was based on a motion to dismiss, Justice Gorsuch declined to consider such later-developed facts. Still, Justice Gorsuch suggested “future plaintiffs—or perhaps even Ms. Stanley herself in a future proceeding—” could proceed with such claims.
Key Takeaways
The Supreme Court’s holding narrows ADA standing for retired employees, rejecting the approaches by the Second and Third Circuits that former employees do not necessarily lose their right to pursue an ADA claim. Instead, the Court’s holding requires ADA plaintiffs have a job and have a disability at the time of an employer’s alleged disability-based discrimination. However, Justice Gorsuch’s opinion suggests there still could be a window for retired employees to bring suit over past allegedly discriminatory decisions if they allege that they were disabled before retiring and were subject to the alleged discriminatory decision.
Why Dumping Sensitive Data on Network Shares is a Liability
Are you storing sensitive data on a shared network drive? If so, your organization could be at serious risk of a data breach or privacy lawsuit. Shared drives, like the common “S: drive,” are often used to store documents, spreadsheets, customer information, financial records, and even scanned IDs. But here’s the problem: these network shares are rarely encrypted, lack clear data governance policies, and are accessible to dozens—or even hundreds—of employees across different departments. Without proper oversight, unsecured network drives become a data security nightmare.
Don’t let poor information governance put your business at risk; take the time to learn why securing sensitive data on shared drives is critical for avoiding data breaches, maintaining compliance with privacy laws, and safeguarding your company’s reputation.
In today’s environment of rapidly expanding state consumer privacy laws and data breach notification statutes, companies that fail to control where sensitive data lives are sitting on serious legal and reputational risk. Here’s what you need to know—and why unsecured network shares are no longer just an IT headache. It’s a legal liability.
The Rise of State Privacy Laws: More Than Just California
Most people know about California’s Consumer Privacy Act/Consumer Privacy Rights Act, but it’s far from alone. As of 2025, over a dozen states have passed their own consumer privacy laws—including Colorado, Connecticut, Utah, Virginia, Texas, Florida, Oregon, and others. Here’s what these state privacy laws typically grant consumers:
The right to know what personal data companies collect.
The right to access or delete their personal data.
The right to opt-out of data sales or targeted advertising.
The expectation that their data will be securely protected.
“Reasonably protected” sounds vague, but it’s increasingly being interpreted to mean basic security practices—like encryption, access controls, and data governance. Storing Social Security numbers or financial info in an unprotected shared drive with no audit trail? That’s not going to fly.
Data Breach Notification Laws: 50 States, 50 Triggers
Every U.S. state has its own data breach notification law, and many have recently updated them. These laws require businesses to notify affected consumers—and sometimes regulators—when certain types of personal information are accessed or acquired without authorization.
The trigger? Often, it’s exposure of unencrypted data such as:
Social Security numbers
Driver’s license numbers;
Financial account or credit card numbers; and
Health records.
Why Network Shares are High-Risk
If that data lives on an unsecured network share, accessible by anyone on the network—or worse, breached by an outsider—you may have a legal duty to notify, and fast.
Shared network drives are a leftover from a simpler time. They often:
Lack encryption, either at rest or in transit.
Have overly broad access (e.g., “Everyone in Finance” means everyone).
Are unmanaged—no one monitors what’s stored, for how long, or by whom.
Become digital junk drawers: you name it, someone’s dumped it there.
In short, they’re a soft target for internal mishandling or external breaches.
Even if no breach has occurred yet, regulators may still view careless storage as a failure to implement reasonable security measures, something required by many state laws (and by the FTC under its enforcement of Section 5 for unfair practices).
Real World Risk: Enforcement and Lawsuits
Let’s connect the dots:
A former employee downloads a folder full of unencrypted spreadsheets with customer data from a shared drive and walks out the door.
A ransomware attacker gains access to your network and hits a file share containing years’ worth of sensitive HR or payroll data.
A privacy audit reveals that your network share is a free-for-all and your company never implemented access logs or retention policies.
In each case, you’re potentially looking at:
Mandatory breach notifications;
Fines from state attorneys general;
Consumer lawsuits, including class actions; and
Reputational damage, especially if the exposure goes public.
What You Can Do Now
The good news? Much of this risk is preventable. Here are some practical steps:
Encrypt sensitive data at rest and in transit. Don’t assume your internal network is a safe zone.
Limit access based on role or need-to-know. Broad group permissions are a red flag.
Inventory your data. You can’t protect what you don’t know you have.
Establish a governance policy. Set clear rules about what data can be stored, where, and for how long.
Clean up legacy shares. Archive or securely delete outdated files, especially ones with sensitive info.
Train employees. They need to know that dumping sensitive info into a shared folder is no longer acceptable.
State privacy laws are becoming more aggressive, and regulators are increasingly focused on where and how companies store consumer data, not just how they use it. An old network share with no encryption, no oversight, and no purpose may seem like low-hanging fruit from a compliance perspective, but it’s exactly the kind of vulnerability that can turn into a legal firestorm.
If your organization hasn’t taken a hard look at its shared storage practices lately, now is the time. Because in the age of modern data privacy laws, “we didn’t know it was there” is no longer a defense.
Fair Workweeks: Navigating the Patchwork of Predictive Scheduling Laws
Predictive scheduling laws, also known as “Fair Workweek” laws, are gaining traction across the United States to protect hourly workers from erratic and last-minute shift changes. These laws typically require employers to provide employee work schedules at least two weeks in advance and offer predictability pay when changes are made without sufficient notice. The goal is to provide employees—especially those in retail, food service, and hospitality—greater stability and transparency in their work schedules.
Predictive scheduling laws have been enacted in several jurisdictions across the United States, including cities like Berkeley, Chicago, Emeryville, Los Angeles, New York City, Philadelphia, San Francisco, San Jose, and Seattle. Oregon has also enacted them statewide.
On July 1, 2025, the County of Los Angeles is set to join these jurisdictions. The Los Angeles County ordinance applies to retail employers with over 300 employees worldwide, operating in unincorporated areas of Los Angeles County. Like its counterparts, the Los Angeles County predictive scheduling ordinance contains various requirements, including but not limited to:
Advance Scheduling
Employers must provide employee work schedules at least 14 calendar days in advance.
Employees have the right to decline any changes to the original schedule that would add work hours or additional shifts.
Good Faith Estimate
Employers must provide employees with a written estimate of expected work schedules at hiring and/or within 10 calendar days of an employee’s request.
If the employee’s actual hours, days, location, or shifts worked substantially deviate from the good faith estimate, employers must present a documented legitimate business reason unknown at the time of providing the good faith estimate.
Predictability Pay
Employers must pay employees an additional hour of pay at their regular rate for each work schedule change that does not result in a loss of time or results in more than 15 minutes of additional work time.
Employers must pay employees one-half of their regular rate of pay for time not worked due to employer-initiated schedule changes.
Predictability pay is not required if: (1) an employee requests the schedule change; (2) an employee voluntarily accepts a schedule change due to another employee’s absence; (3) an employee accepts extra hours offered prior to the hiring of new employees or workers; (4) an employee’s hours are reduced due to the employee’s violation of law or of the employer’s policies; (5) the employer’s operations are “compromised pursuant to law”; or (6) extra hours worked require the payment of overtime.
Rest Between Shifts
Employers are required to give employees at least 10 hours of rest between shifts unless the employee provides written consent to work two shifts with fewer than 10 hours of rest in between.
If an employee consents, they are entitled to “a premium of time and a half for each shift not separated by at least ten (10) hours.”
Additional Hours Must Be Offered to Current Employees
Employers must offer available work hours to current employees before hiring new staff.
Employers must offer the additional work hours to each current employee either in writing or by posting an offer at the worksite.
Employers must make the offer at least 72 hours prior to hiring any new staff.
Upon receipt of the offer, existing employees have 48 hours to accept the offer of additional hours in writing.
Upon the expiration of the 48 hours, the employer may hire additional staff members to work any additional hours that current employees do not accept.
At any time during the 72-hour period, if the employer receives written confirmation that none of its current employees will accept the additional work hours, the employer may immediately hire new staff members.
Employer Takeaways
While the Los Angeles County ordinance and its counterparts aim to promote fairness and stability for workers, they may also introduce compliance challenges for employers. This is especially true for the Los Angeles ordinance as the County has yet to release FAQs and/or consolidated regulations to help employers comply with the new law. To that end, predictive scheduling laws across the board tend to be highly technical and nuanced, requiring employers to navigate a web of compliance obligations. The complexity increases for companies operating across multiple jurisdictions, many with their own versions of predictive scheduling rules – making a one-size-fits-all policy difficult to apply.
To that end, businesses must balance operational flexibility with legal obligations. Employers may consider implementing reliable scheduling software to help manage jurisdictional changes and track compliance. Although sophisticated scheduling software may be beneficial, it is crucial for companies and their legal teams to continually assess compliance with these evolving predictive scheduling laws. Accordingly, employers should train managers and human resources professionals on the various predictive scheduling legal requirements and establish clear communication channels for shift changes to help ensure that employees are aware of their rights to decline last-minute modifications. It is also crucial for employers to maintain records of schedules, changes, and communications to comply with these laws’ record-keeping requirements.
The expansion of predictive scheduling laws across jurisdictions presents both challenges and opportunities for employers. While the regulatory landscape is intricate, investing in scheduling systems, training management teams, and fostering open communication with employees can help businesses meet legal requirements as well as enhance workplace morale and operational efficiency.
Circuit Court Roundup: DC Cir. Rejects NLRB’s “Irrational” Impasse Ruling, 4th Cir. 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.
Antitrust Labor Markets: $2.8 Billion NCAA Settlement Reshapes College Athletics
A federal judge for the U.S. District Court for the Northern District of California recently approved a groundbreaking, nearly $2.8 billion settlement that promises to reshape college athletics by allowing schools to share revenue directly with college athletes. The settlement stems from antitrust litigation—focused on the labor market of college athletes—that alleged National Collegiate Athletic Association (NCAA) rules restricting or prohibiting athletes from being paid for use of their names, images, and likenesses (NIL) are unlawful restraints on trade that suppressed the labor market for college athletes.
Quick Hits
A federal judge approved a historic $2.8 billion settlement allowing college athletes to receive direct revenue sharing from their schools, fundamentally changing the landscape of college athletics.
The settlement requires the NCAA and Power Five Conferences to pay over $2.5 billion to athletes for prior use of their NIL, while also permitting direct revenue sharing with athletes moving forward.
While the settlement does not constitute a judgment on the competitive impact of the challenged conduct, it represents a significant victory for antitrust enforcement in college sports.
Other labor issues were not addressed or resolved in the settlement agreement.
On June 6, 2025, U.S. District Judge Claudia Wilken granted final approval to the settlement agreement in In Re: College Athlete NIL Litigation, consolidated litigation brought by a class of nearly 400,000 current and former NCAA Division I college athletes against the NCAA and the biggest college athletics conferences, the so-called Power Five Conferences.
The consolidated litigation addressed claims that NCAA rules restricting or prohibiting compensation for using athletes’ NIL, compensation for athletic services, and scholarship limits violated antitrust law. Essentially, the suits alleged that NCAA rules denied athletes the chance to be compensated for endorsements and media appearances.
Under the settlement agreement, the NCAA and Power Five Conferences will pay college athletes more than $2.5 billion for use of their NIL going back to 2016, and the NCAA will allow schools to start sharing $20 million in revenue directly with college athletes beginning in the 2025-26 school year.
The NCAA’s NIL policies have been a contentious issue for years, with numerous lawsuits challenging the restrictions on athletes’ ability to profit from their own likeness. This settlement marks a pivotal moment in the ongoing debate over athletes’ rights and compensation.
However, payments are on hold as the settlement is facing two appeals that the back payment distributions violate Title IX of the Education Amendments, which prohibits sex-based discrimination in education programs. The appeals reportedly will not impact the revenue-sharing portion.
While the settlement does not constitute a judgment on the competitive impact of the challenged conduct, it represents a significant victory for antitrust enforcement in college sports. Here, we delve into the details of the settlement and its far-reaching implications for antitrust restraint of trade claims that focus on labor markets (as distinguished from product markets).
Key Terms of the Settlement
The settlement stems from three lawsuits: the consolidated House v. National Collegiate Athletic Association and Oliver v. National Collegiate Athletic Association lawsuits, which challenged rules that restricted athletes from being compensated for the use of their NIL and prohibited conferences and schools from sharing revenue received from third-parties for commercial use of the athletes’ NIL; Carter v. National Collegiate Athletic Association, which alleged the NCAA’s rules prohibiting pay-for-play violated antitrust law; and Hubbard v. National Collegiate Athletic Association, which raised claims related to athletes receiving allowed academic achievement awards.
Damages
Under the settlement agreement, the NCAA and the Power Five Conferences will contribute $2.576 billion to a settlement fund over the next ten years to pay former college athletes for the past use of their NIL going back to 2016. The NCAA and Power Five Conferences also agreed to pay $200 million into a settlement fund for class members who competed between 2019 and 2022 to settle the Hubbard claims.
The agreement calls for a $1.976 billion settlement fund for NIL-related injuries, including NIL in broadcasts for certain college football and men’s and women’s basketball players. The settlement agreement also calls for establishing a $600 million fund for class members with pay-for-play claims.
Injunctive Relief
In addition, the NCAA agreed to modify existing rules to allow schools to provide direct benefits and compensation to college athletes worth up to 22 percent of the Power Five schools’ average athletic revenues each year, starting at more than $20 million per school in 2025-26 and growing to $32.9 million per school in 2034-35.
The settlement requires eliminating NCAA scholarship limits, potentially resulting in more than 115,000 additional scholarships annually. However, the NCAA will be permitted to adopt roster limits for Division I sports. Class members who may have roster spots taken away due to the implementation of the settlement will be exempted from the limits and not counted toward their schools’ roster limits for the remainder of their college athletics careers.
Under the settlement agreement, the NCAA will modify rules to allow NIL payments from third parties, except that the NCAA will be allowed to restrict NIL payments from certain third parties associated with schools (i.e., “boosters”).
Finally, the settlement agreement requires that disputes arising from the enforcement of third-party NIL restrictions be resolved via neutral arbitration, changing the current system in which the NCAA makes enforcement decisions and resolves disputes concerning third-party NIL pay prohibitions.
Antitrust Claims
The plaintiffs brought claims under Section 1 of the Sherman Act for unreasonable restraint of trade, alleging that the NCAA’s rules constituted a horizontal agreement that caused anticompetitive effects in the labor market for college athletes. Specifically, they alleged that the rules unlawfully deprived college athletes of compensation for the use of their NIL and “artificially limited supply and depressed compensation” paid to college athletes for their NIL and their athletic service.
The settlement marks a significant shift in how college sports are governed and how athletes are compensated. Most significantly, it allows college athletes to share in the revenue generated by college athletics, allows colleges to offer more athletic scholarships, and prohibits restrictions on NIL pay from unaffiliated third parties.
The elimination of scholarship limits is particularly noteworthy. Under the previous rules, the NCAA capped the number of scholarships schools could offer. By removing these caps, the settlement allows schools to provide more scholarships, thereby increasing access to higher education for many athletes. However, the NCAA will still be able to set roster limits for sports, potentially reducing slots for walk-on (nonscholarship) athletes.
In its seventy-six page opinion approving the settlement, the court repeatedly found that approving the class action settlement had a positive benefit when it comes to contributing to securing a more competitive market for the labor of Division I athletes.
Labor Market Impact
The settlement agreement comes after years of upheaval in college sports amid a barrage of antitrust lawsuits challenging the NCAA’s “amateurism” rules, culminating in the 2021 Supreme Court of the United States ruling in Alston v. National Collegiate Athletic Association, in which the Court held that regulations that limited education-related pay and benefits are unlawful under federal antitrust law. Additionally, several lawsuits have challenged NCAA transfer restrictions with differing outcomes.
This latest litigation challenged rules restricting athletes from being paid for using their NIL. The NCAA has already relaxed such rules and has reached a separate settlement in litigation over rules restricting schools from using NIL compensation as a recruiting tool. The change has allowed current college athletes to sign endorsement deals with third parties and sparked the creation of organized groups of boosters affiliated with individual schools, known as collectives, to pool NIL money and distribute it to athletes at the school.
Under the new settlement, much of that money could be replaced with direct revenue sharing from the schools themselves. Further, the new settlement leaves room for the NCAA to seek to limit the influence of boosters by allowing restrictions on payments from associated third parties.
Still, the settlement will have profound implications for labor markets in college sports. By allowing NCAA college athletes to receive compensation for their NIL and eliminating scholarship limits, the settlement effectively recognizes college athletes’ economic contributions to the college sports industry. This recognition could lead to broader questions about college athletes’ employment status.
Labor Issues Not Addressed by the Settlement
While approving the settlement, the court specifically noted it does not address other labor rights of NCAA college athletes. For example, the settlement does not prohibit college athletes from attempting to unionize, from pursuing wage and hour claims under the Fair Labor Standards Act, or any other federal labor laws or analogous state labor laws.
Potential Future Legislation
The settlement may prompt federal lawmakers to consider new legislation that addresses the employment status of NCAA college athletes and provides the NCAA with clearer guidelines on NIL compensation. The outcome of these legislative efforts could further reshape the landscape of college athletics.
The NCAA has also been pushing the U.S. Congress to pass legislation that would prevent college athletes from being deemed to be employees of schools and to provide the NCAA with an antitrust exemption or immunity to allow it to enforce rules related to transfers and other potential compensation guardrails. The likelihood of such legislation passing remains uncertain.
Next Steps
The settlement is a landmark decision that will have lasting effects on antitrust and labor markets in college sports. Still, further legal questions remain, including regarding the influence of boosters, the lawfulness of certain transfer restrictions, and whether college athletes could be considered employees. Additional litigation over these issues is possible, as is federal legislation addressing college athletes and potential antitrust protection for the NCAA.
What is the Status of Affirmative Action Plans and Certification in 2025?
Manufacturers that are covered federal contractors may be wondering when they are required to certify compliance with the affirmative action plan regulations. At this point, the answer is not clear and recent proposals from the Trump administration may explain why.
The Department of Labor’s (DOL) recently proposed budget for the fiscal year 2026 proposes to eliminate the Office of Federal Contract Compliance Programs (OFCCP), the agency tasked with enforcing affirmative action plans and proposes to transfer the OFCCP’s statutory program areas to other agencies. While the Trump administration rolled back many diversity, equity, and inclusion efforts, including revoking Executive Order 11246, which mandated affirmative action plans covering women and minorities, the statutory affirmative action requirements under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act of 1973 remain in effect. Under VEVRAA and Section 503, federal contractors are obligated to engage in affirmative action and maintain affirmative action plans for protected individuals with disabilities and protected veterans.
The DOL’s proposal includes having the Veterans’ Employment and Training Services enforce VEVRAA, and the EEOC enforce Section 503, rather than the OFCCP enforcing these regulations. The justification is that “the realignment of responsibilities will ensure consistent oversight while shrinking the Federal bureaucracy” and that Executive Order 14173: “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” “permanently remov[es] the primary basis for the OFCCP’s enforcement authority and program work.” If approved, the OFCCP would be eliminated next fiscal year, beginning October 1, 2025.
At this juncture, Congress must still approve the proposed budget, and there is a question as to whether the OFCCP can even be required to transfer its authority to other agencies.
What does this mean for federal contractors who must comply with VEVRAA and Section 503 affirmative action requirements? Employers are still statutorily required to engage in affirmative action efforts and maintain affirmative action plans regarding protected veterans and individuals with disabilities. While the future is unclear for the OFCCP, the statutory requirements still remain in effect and remain a legal obligation.
This post was co-authored by Labor + Employment Group lawyer Jessica C. Pinto.
Vermont Expands Family Leave Protections: New Entitlements and Broader Definitions
Vermont Governor Phil Scott has signed legislation extending the protections of the state’s unpaid family leave law. The expansion extends safe leave, bereavement leave, and qualifying exigency leave to employees of employers with ten or more employees. The law also broadens the definition of “family member” found in the law. The amendments will become effective on July 1, 2025.
Vermont’s existing family leave law allowed for covered employees to take up to 12 weeks of leave related to their own serious illness or that of their child, stepchild, ward, foster child, party to a civil union, parent, spouse, or parent of the worker’s spouse. The expansion of the definition of “family member” extends this benefit to qualifying events related to the employee’s spouse or civil union or domestic partner, biological, adopted, or foster child, stepchild or legal ward, a child of the employee’s spouse or domestic partner, a legal guardian of the employee or the employee’s spouse, or a person to whom the employee stands (or stands for the employee) in loco parentis or stood in loco parentis prior to the person turning 18, regardless of legal documentation. The law also covers any individual for whom the employee provides caregiving responsibilities similar to those of a parent-child relationship as well as grandparents, grandchildren, or siblings of the employee or the employee’s spouse.
The amendment introduces to Vermont law a new entitlement to “safe leave.” Safe leave refers to a leave of absence from employment because the employee or employee’s family member is a victim or alleged victim of domestic violence, sexual assault, or stalking and the employee is using the leave to seek or obtain medical care, counseling, or social or legal services, to recover from injuries, to participate in safety planning, to relocate or secure safe housing, to respond to a fatality or near fatality related to domestic violence, sexual assault, or stalking, or to meet with a state’s attorney or law enforcement officer. The law allows covered Vermont employees to utilize their 12 weeks of family leave for any of these events.
Qualifying exigency leave will be available to employees when the employee’s spouse, son, daughter, or parent is on covered active duty or called to covered active-duty status in the U.S. military including the National Guard and Reserves. Qualifying exigency leave allows for employees to access the 12 weeks of leave available under the act.
In addition to safe and qualifying exigency leave, the law introduces a bereavement leave entitlement to the act. While bereavement leave counts against an employee’s overall 12-week entitlement, Vermont employees taking bereavement leave under the act will be limited to taking leave for not more than five workdays taken consecutively within one year of the family member’s death. Bereavement leave will be available due to the death of the individual’s “family member” as defined in the new law and includes leave taken in relation to the administration or settlement of the deceased family member’s estate.
Shining a Light on Pay: Understanding New Jersey’s New Transparency Mandate for Employers
On June 1, 2025, New Jersey’s Pay and Benefit Transparency Act (“the Act”) took effect, ushering in a new era of openness around pay and benefits for job applicants and employees. This law is part of a growing national movement toward pay transparency, but it introduces several unique requirements and has a broad reach. Employers operating in or hiring employees from New Jersey must act quickly to ensure compliance.
Key provisions of the Act include:
Broad Definition of Employer. The Act applies to any employer that has 10 or more employees over 20 or more calendar weeks and: (a) conducts business in New Jersey; (b) employs individuals within New Jersey; or (c) takes applications for employment within New Jersey even if the employer neither conducts business in New Jersey nor employs individuals in the state. On its face, the Act applies even if a company does not have any active employees in the state of New Jersey. The Act covers private businesses, public entities, and non-profits, as well as job placement and referral agencies and other employment agencies.
Transparent Job Postings. All job postings—whether for a new hire, transfer, or promotion—must now include:
The exact hourly wage or salary, or a defined range (with both a starting and ending point)—vague statements such as “up to $35 per hour” or “$70,000 and above” are not allowed; and
A general description of benefits and other compensation programs for which the employee would be eligible (g., medical insurance, vacation, retirement benefits, parental leave, bonuses, stock, or profit-sharing options). Statements such as “great benefits offered” or “health insurance and more” are not sufficient.
Internal Promotional Notifications. Employers must make “reasonable efforts” to notify all current employees in the “affected department(s)” about promotional opportunities before making a promotion decision. This applies whether the opportunity is advertised internally or externally. A promotion is defined as a change in job title and an increase in compensation. However, there are exceptions for: (a) promotions based solely on seniority or performance, which are exempt from the notification requirement; and (b) promotions made on an emergent basis due to an unforeseen event.
Enforcement and Penalties. The New Jersey Department of Labor and Workforce Development (the “NJDOL”) is responsible for enforcement of the Act. There is no private right of action, and penalties for non-compliance include up to $300 for the first violation and up to $600 for each subsequent violation. Each non-compliant job posting or failure to notify about a promotional opportunity is considered a separate violation, regardless of the number of forums used for the posting. The NJDOL will likely publish administrative regulations further interpreting the Act, but no such guidance is available to date. The lack of various terms leaves some uncertainty as to how the Act will be implemented. For example, the Act does not define an “employee” or “affected department.” Blank Rome will continue to monitor for updates.
Anti-Retaliation Protections. Employers are prohibited from retaliating against employees who discuss or inquire about compensation information.
New Jersey’s Pay and Benefit Transparency Act represents a significant shift in employment practices, with a strong focus on fairness and openness. Taking proactive steps now to update your job postings, promotion processes, and compensation disclosures will help your organization avoid penalties and demonstrate a commitment to workplace equity. Engaging with HR professionals and legal counsel will help your organization implement these new requirements effectively and ensure ongoing compliance with New Jersey’s pay transparency law.