Top Tips for Companies to Prepare for an Immigration Visit
Here are our top tips to assist companies and institutions in preparing for visits by immigration officials. The second Trump administration has set robust enforcement of the immigration laws as a top-level priority. On January 20, 2025, President Trump issued an executive order that directed all executive branch departments and agencies to “employ all lawful means” to ensure “total and efficient” enforcement of federal immigration laws. As an initial step, the Department of Homeland Security (DHS) terminated its prior “sensitive location” policy that prevented immigration enforcement activities in or near areas such as schools, medical facilities, places of worship, social service centers, daycare centers, or shelters without agency headquarters approval or exigent circumstances. In commenting on the new policy, the DHS spokesperson stated, “Criminals will no longer be able to hide in America’s schools and churches to avoid arrest. The Trump Administration will not tie the hands of our brave law enforcement, and instead trusts them to use common sense.” While we have not heard any confirmed reports of enforcement in these spaces since the rescinding of the Biden-era guidance, it would be prudent for businesses to be prepared and have a lawful response plan for visits from immigration authorities, including local police authorities, U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and other agencies empowered to enforce the immigration laws.
Review Your Policies. Keep in mind that immigration authorities are specialized law enforcement. Many companies already will have policies in place that instruct employees how to respond generally to inquiries by law enforcement. Therefore, companies should ensure employees are properly trained on company policies concerning how to interact with ICE or other immigration enforcement agents. If your company does not have such a policy and is in a category of spaces no longer protected as “sensitive locations,” now may be the time to study and potentially adopt appropriate policies. Companies should consider appointing “liaisons,” or other point persons at each company location, who are specially trained and authorized to interact with law enforcement. This will ensure consistency of process and help relieve stress of others who may be directly impacted by these immigration encounters.
Identify Public versus Private Areas. Companies should decide whether they want to have policies or procedures indicating a clear delineation between their public and private spaces. Immigration agents generally do not need permission to enter public areas of a business. Public spaces are general areas that are accessible not only to clients, staff, patients, or students but are accessible and available to the general public. These can include parking lots, waiting areas, hallways, lobbies, or entrances. Areas that are not open and accessible to the public are generally considered private areas, where law enforcement is accordingly not permitted without legal authority. To go beyond these public spaces into private areas, enforcement agents may need to show a warrant (more on this below), not only to apprehend a person but also to enter and search any non-public spaces of a business absent permission from the business. Given that the previous guidance prevented enforcement near protected areas without agency headquarters approval or exigent circumstances, enforcement agents likely will take advantage of accessing public spaces before seeking access to private spaces. Businesses should consider whether they wish to specifically designate public and private areas to help manage engagement with law enforcement.
Review the Warrant. If the enforcement agent is seeking access to a private space and the company decides not to consent voluntarily to such access, then an employee will need to ask to see the warrant; if the agent presents a warrant, the best place to start is to read the scope and wording of the warrant. There are several different types of warrants that can be used in immigration enforcement situations, so a lawyer or trained layperson may need to review the warrant to know what type of warrant the enforcement officer is presenting to gain access. (Samples are included at the end of this piece.)
Judicial Warrant: This is a formal written order, issued by a judicial officer, that authorizes law enforcement to make an arrest or conduct a search. This is issued by a court — typically a federal court — so you will see something like “U.S. District Court” at the top of the warrant and a signature from a judge or magistrate judge at the bottom. Pay close attention to whether the warrant allows for (1) just an arrest of a person named in the warrant, (2) a search for items on the identified person’s body, or (3) a search of a location for listed items or persons. An arrest warrant does not give law enforcement permission to enter a particular private space but does permit the agent to arrest someone listed in the warrant. A search warrant, by contrast, permits the specified enforcement agency to search a specified area (including public and private spaces) for papers, data, property, or persons and seize such listed items or identified persons. Companies should be observant during law enforcement activities on their premises, and carefully and thoroughly document law enforcement actions at all times while they are on company premises.
Administrative Warrant: An administrative warrant authorizes a law enforcement officer from a federal agency, such as ICE or CBP, to make an arrest or remove/deport someone from the country, depending on the type of administrative warrant utilized. This type of warrant is issued by a federal agency, such as ICE, not a court, and can therefore be signed by an “immigration judge” or “immigration official.” Importantly, this warrant does not authorize a search of a private area. Practically speaking, an administrative warrant does not allow agents to enter a private area to apprehend a person named in the warrant or to search an area or seize private property or information, even if the agents reasonably believe the person to be located in that area. Absent changes to the law, administrative warrants cannot be used to search premises.
“Blackie’s” Warrant: This judicial warrant, named after the case Blackie’s House of Beef v. Castillo, is a specific type of judicial warrant that does not always name or even describe the person or people sought. A Blackie’s warrant is a civil search warrant issued by a magistrate judge, which authorizes immigration agents to enter private premises for the purpose of enforcing the civil/administration provisions of law relating to exclusion and deportation. While this warrant has fallen out of favor in many jurisdictions, we may begin to see more of its use going forward. Again, this warrant may provide legal authority for enforcement agents to search a private space, without the owner’s consent, for persons unlawfully in the United States.
Consider Privacy Laws. To the extent the company is a covered entity or business associate subject to the Health Insurance Portability and Accountability Act (HIPAA), or a similar entity subject to state laws, the company will need to review a law enforcement request to ensure compliance with applicable privacy laws. Protected health information can be disclosed under HIPAA and state law in limited circumstances. HIPAA permits (but does not require) disclosing protected health information in compliance with, and as limited by the relevant requirements of, a court order or court-ordered warrant, a subpoena, or a summons. HIPAA also permits disclosure pursuant to administrative requests for which response is required by law, including an administrative subpoena or summons, a civil or an authorized investigative demand, or similar process authorized under law provided all of the following are true: (1) the information sought is relevant and material to the law enforcement agency, (2) requested information is specific and limited in scope as reasonably practicable, and (3) de-identified information could not be reasonably used. There also are federal and state privacy protections in place for certain sensitive types of health information. State law can be more restrictive, so make sure your policies on responding to law enforcement take into account any relevant state law(s). The company’s existing policies and procedures should address the production of this type of information in response to law enforcement requests.
Triage. The company should request from law enforcement a reasonable amount of time to review and perform an initial assessment of the warrant, to appropriately escalate to legal counsel or a point person as needed. If it is something new or unfamiliar, seek advice from legal counsel, who should carefully review the warrant to determine the company’s obligations in interacting with law enforcement. Provide training to staff and leadership to ensure they read any paperwork provided and triage the situation. Again, appointing “liaisons” at each worksite who are specially trained and designated with authority to interact with enforcement agencies may be advisable.
Avoid Obstructing Law Enforcement. Importantly, employees should avoid obstructing law enforcement’s activities. Even if such activities appear to go beyond the scope of the warrant, interfering is not helpful and can risk criminal charges. Legal remedies for law enforcement overstepping, including unlawful searches and seizures, can be addressed later in the process. Interfering with law enforcement while they are onsite often will serve only to escalate the situation.
The immigration landscape is quickly changing under the Trump administration, but preparing for potential enforcement in advance and training employees on these issues can help your company know how best to respond to unfamiliar situations. Constitutional law provides companies with important protections from unreasonable searches and seizures by law enforcement, so consultation with legal counsel to understand those rights and obligations is critical to ensuring compliance with the law.
Please contact a member of Foley’s Immigration, Government Enforcement or Labor & Employment teams with questions for help preparing for immigration enforcement action on site or for further information about the federal government’s new immigration-related policies.
Samples of Warrants
Judicial Warrant for a search:
Judicial Warrant for an arrest only:
Administrative Warrant (Warrant of Removal/Deportation)
Administrative Warrant (Warrant for Arrest)
Employment Law This Week- Federal Agencies Begin Compliance Efforts Under Trump Administration [Video} [Podcast]
This week, we’re highlighting notable employment law updates from federal agencies and the courts, including the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the U.S. Court of Appeals for the Fifth Circuit.
EEOC Releases FAQs on the State of the Agency
The EEOC, under the leadership of Acting Chair Andrea Lucas, recently released answers to frequently asked questions (FAQs) following President Trump’s series of executive orders affecting the agency.
DOL Halts OFCCP Activity Under Rescinded Executive Order
Acting Secretary of Labor Vince Micone recently issued an order directing the Office of Federal Contract Compliance Programs (OFCCP) to stop all enforcement activity under rescinded Executive Order 11246.
DOL Independent Contractor Rule Paused
The Fifth Circuit recently granted the DOL’s request to delay oral arguments, and it seems likely that the independent contractor rule will be short-lived.
The Buckeye State To End Employer Noncompetes?: Ohio Introduces Bill That Would Ban Employers From Entering Into Noncompetes
Consistent with our previous reporting that states would continue to address noncompete issues even after the apparent end of the FTC Noncompete Rule, Ohio has joined the growing list of jurisdictions seeking to restrict the use of noncompetes.
On February 5, 2025, Ohio state Senators Louis W. Blessing (R) and William P. DeMora (D) introduced Senate Bill (SB) 11 (the “Bill”), that, if enacted, would prohibit employers from entering into a noncompete agreement with a “worker” or “prospective worker”.
The Bill defines “worker” as “an individual who provides services for an employer[,]” including, among others, employees, independent contractors, externs, interns, and volunteers. The Bill does not define “prospective worker.”
If enacted as introduced, the Bill would prohibit employers from enforcing agreements that prohibit or penalize workers from seeking or accepting work with a person, or operating a business, after the conclusion of the relationship between the employer and worker, including any of the following:
Prohibiting the worker from working for another employer for a specified period of time, in a specified geographic area, or from working for another employer in a capacity similar to his or her work for the employer;
Requiring that the worker pay for lost profits, lost goodwill, or liquidated damages because the worker terminates his or her relationship with the employer;
Imposing a fee or cost on a worker for terminating the work relationship; and
Requiring a worker who terminates his or her employment to reimburse the employer for expenses incurred for training, orientation, evaluation, or other services to improve the workers’ performance.
The Bill does not address confidentiality or non-solicit agreements, so presumably those agreements would remain permissible if the Bill is enacted.
One open issue is whether the Bill will have retroactive effect to noncompete agreements entered before the effective date. Although one could interpret the intent of the Bill as applying to only those noncompete agreements entered after the effective date, the present language of the Bill could apply to existing noncompetes between employers and workers. Section 4119.02(A) of the Bill states that “[b]eginning on the effective date of this section, no employer shall enter into, attempt to enter into, present to a worker or prospective worker as a term of hire, or attempt to enforce an agreement, or part of an agreement that prohibits the worker” from competing with the employer. (emphasis added). Thus, the plain language of the Bill suggests that, if enacted as written, employers would be prohibited from seeking to enforce existing noncompetes with workers, including noncompetes entered into before the effective date.
The Bill also addresses choice-of-law and forum selection provisions and would apply to “any agreement” between an employer and worker that is entered, modified, or extended on or after the effective date of the Bill, not just noncompetes. If a worker primarily resides and does business in Ohio, employers are prohibited from requiring the worker to adjudicate a claim arising in Ohio in a forum other than Ohio. Furthermore, the agreement cannot seek to enforce a choice-of-law provision that attempts to circumvent the protections under Ohio law. The Bill provides an exception if the worker is individually represented by independent legal counsel in negotiating the terms of the agreement and the worker chooses a choice-of-law and/or forum outside of Ohio.
The Bill would allow a worker or prospective worker to bring a civil action against an employer for a violation of the Bill’s restrictions. If the worker prevails in such a civil action, the worker will be entitled to an award of attorney’s fees, and may also be awarded actual damages, punitive damages, or injunctive relief.
As we previously reported, several other state legislatures, including New York, Maine, and Rhode Island, have been unsuccessful in their attempts to pass legislation barring noncompetes between employers and employees. If enacted, Ohio, which has long recognized the enforceability of noncompetes and has generally been regarded as an employer-friendly state, would completely reverse course by enacting a complete ban to noncompetes. It would become only the fifth state (joining California, Minnesota, Oklahoma, and North Dakota) to ban noncompetes between employers and workers.
The fact that Ohio’s Bill is co-sponsored by one Republican and one Democrat state senator may be an attempt by those lawmakers to signal bipartisan support for the Bill. It remains questionable as to whether the Bill will gain support in the legislature or whether Ohio Governor Mike DeWine would support a complete ban on noncompetes in the State of Ohio.
H-1B Lottery Insights Part 2: Filing Options and Key Strategies for FY2026 [Podcast]
In the second part of our two-part podcast series on H-1B visa applications, Kara Lancaster (shareholder, Raleigh) and Meagan Dziura (of counsel, Raleigh) begin with a deep dive into the process of how individuals selected in the H-1B lottery file petitions (including related travel restrictions) the filing options for those selected (including change of status and consular notification), and the timeline for when individuals can enter the United States. Kara and Meagan touch on special provisions for F-1 students, the importance of considering L-1 visa holders, and other visa categories that may also benefit from entering the lottery. The speakers also cover recent updates from U.S. Citizenship and Immigration Services (USCIS), the impact of increased fees, and strategies for managing various employee visa situations.
Listen to part one here.
Blast from the Past: The Potential Ripple Effect of the ‘Return to In-Person Work’ Executive Order on the Private Sector and Key Considerations for Employers
President Donald Trump’s “Return to In-Person Work” executive order (EO) mandates that federal employees return to full-time office work. This EO effectively ended the widespread hybrid and remote work arrangements that had become common in the government sector. Federal agencies must now “take all necessary steps” to enforce in-person attendance. While the EO does not apply to the private sector, it may encourage private employers to implement similar policies. Although employers generally have the right to require in-person work, they must ensure that such requirements comply with the law.
Reasonable Accommodations & Remote Work
One of the most pressing legal issues tied to return-to-office mandates is the question of reasonable accommodation under federal and state disability laws. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations for employees with disabilities. In recent years, many employees with disabilities requested remote work as an accommodation. Pre-COVID-19, many employers were skeptical of remote work. In the wake of the pandemic shutdown that necessitated remote work, many employers had to revisit this issue and determine whether remote work might be a reasonable accommodation.
Key Considerations for Employers When Providing Reasonable Accommodations
The duty to accommodate under the ADA arises once the employer is aware of an employee’s disability. While the employee generally bears the responsibility to request accommodation, some courts require employers to provide accommodations if they knew or should have known about the disability and need for accommodation. You have to engage in the interactive process in making your determination. In doing so, employers should consider the following:
Essential Job Functions
The key factor in evaluating whether remote work is a reasonable accommodation of an employee’s disability is whether the employee can perform the essential job functions remotely. You should review job descriptions to determine if in-office presence is necessary. If you think it is, you may request medical documentation to confirm the disability and why remote work is medically necessary (and for how long). Remember that you do not have to remove any essential job functions. You should also make sure that other employees are not currently performing this job remotely (and have not done so in the past).
Undue Hardship
Employers must determine if remote work would cause an undue hardship by considering:
The nature and cost of the accommodation
The facility’s financial resources, workforce size, and expenses
The employer’s overall resources, size, and locations
The impact on operations and workforce structure
The effect on facility operations
Frankly, proving an undue hardship, particularly in connection with a remote work request, is an uphill battle.
The Choice is Yours
As organizations implement return-to-office policies, it’s crucial to balance business needs with compliance under the ADA. Employers should enforce in-person attendance but should not automatically reject an employee’s request for remote work as an accommodation. Have a good process in place to ensure all requests are evaluated in accordance with the law.
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OSH Law Primer, Part XI: Understanding and Contesting OSHA Citations: An Overview
This is the eleventh installment in a series of articles intended to provide the reader with a very high-level overview of the Occupational Safety and Health (OSH) Act of 1970 and the Occupational Safety and Health Administration (OSHA) and how both influence workplaces in the United States.
By the time this series is complete, the reader should be conversant in the subjects covered and have developed a deeper understanding of how the OSH Act and OSHA work. The series is not—not can it be, of course—a comprehensive study of the OSH Act or OSHA capable of equipping the reader to address every issue that might arise.
The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues; the eighth article covered the intersection of employment law and safety issues; the ninth article discussed OSHA’s Hazard Communication Standard (HCS); and the tenth article examined voluntary safety and health self-audits. In this eleventh article in the series, we focus on OSHA’s citation process.
Quick Hits
The OSH Act requires that OSHA detail violations with specific reference to the standards breached and descriptions of the noncompliant conditions or conduct found.
OSHA classifies a citation as one of four categories—“willful,” “repeat,” “serious,” and “other”—each with a degree of severity and associated penalties, adjusted annually for inflation.
An employer receiving an OSHA citation must first post the citation in a prominent place, at or near the worksite referenced in the citation.
The employer may contest the citation within fifteen working days (during which OSHA typically schedules an informal conference) and settle the case with OSHA at any time via a signed, written agreement that addresses all material terms and resolves all contested issues. The parties must file the notice of settlement with an administrative law judge of the Occupational Safety and Health Review Commission (OSHRC).
No employer wants to be inspected; if inspected, every employer hopes to escape citation. However, the Occupational Safety and Health Administration (OSHA) frequently issues citations at the conclusion of inspections. What does a citation mean for an employer, and what can an employer do with it once received?
Understanding the Alleged Violation and Potential Consequences
The Occupational Safety and Health (OSH) Act requires the agency to “describe with particularity” the violation(s), which consists of a reference to the standard(s) believed to have been violated and usually a one- or two-paragraph description—called the “alleged violation description” (AVD)—of the noncompliant condition or conduct found.
Along with the violation and AVD, OSHA classifies citations into one of four categories: (1) “Willful”; (2) “Repeat”; (3) “Serious”; and (4) “Other.” Willful violations are the most severe classification of violation. A violation is “willful” if it is “an act done voluntarily with either an intentional disregard of, or plain indifference to, the OSH Act’s requirements.”While the OSH Act does not define the term “Repeat Violation,” courts typically require proof that the respondent violated the same standard on an earlier occasion in a substantially similar fashion. The OSH Act does not limit how far back OSHA may look for a Repeat violation, but the agency currently confines itself to a five-year lookback with regard to an employer’s citation history nationwide. Serious violations are the most commonly cited violations. OSHA classifies a violation as “Serious” when the hazard created by the violated standard has a substantial probability of causing death or serious physical harm to an employee. “Other” violations, sometimes also referred to as “Other Than Serious” violations, are cited when an employer violates a standard, but the hazard is not capable of causing death or serious physical harm. OSHA typically reserves “Other” violations for paperwork violations, such as failures to keep proper OSHA 300 logs.
A citation will also contain a proposed penalty. The amount can vary depending on the gravity and severity of the violation, including the likelihood of severe injury and the number of employees exposed to the hazard. Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015, OSHA increases the penalty amounts every year based on the annual inflation rates. As of January 15, 2025, the maximum penalties increased to $165,514 for Willful and Repeat violations, and $16,550 for Serious and Other Than Serious violations.
To reward and incentivize good-faith efforts to implement an effective safety and health management system in the workplace, the agency may reduce a penalty. In considering good faith, OSHA reviews the employer’s overall safety and health program. If the agency determines the employer has an effective written safety and health program, covering all relevant OSHA standards, OSHA may reduce the proposed penalty by up to 25 percent.However, OSHA will not reduce penalties for willful and repeat violations.
Typically, OSHA proposes one penalty for each OSHA regulation (or “standard”) violated, even though multiple employees may have been exposed to the violation and even though an employer may have multiple instances of the same violation. For example, an employer’s failure to install safety guards on ten identical machines is ordinarily cited and penalized as one violation, not ten. Furthermore, OSHA normally would propose one penalty for a machine guarding violation, regardless of the number of employees using the machine. However, under a policy OSHA developed for “egregious” violations, the agency may treat each instance of a violation as a separate violation, thus multiplying the potential penalty amount.
Abatement Requirements
The OSH Act requires employers to abate, or correct, violative conditions. The citation will provide a deadline for the employer to abate the citation. It will not include any directive or recommendation for abatement, unless the citation is for a violation of the General Duty Clause, also known as Section 5(a)(1) of the OSH Act. Employers must provide proof of abatement to OSHA by the deadline, although an employer can receive an extension if it can persuade OSHA or OSHRC to grant one. OSHA commonly accepts photographs of corrective action, but sometimes a statement from the employer detailing the abatement methods can suffice. When in doubt, a telephone call to the compliance officer or area director can often clarify the ambiguity and provide guidance on required actions needed to satisfy abatement.
Addressing an OSHA Citation
Any employer receiving a citation must first post the citation in a prominent place, at or near the worksite referenced in the citation. Typically, posting on the employee bulletin board containing the mandatory U.S. Department of Labor (DOL) postings relating to minimum wage, etc., will suffice. OSHA permits an employer to redact the penalty amounts.
Companies not familiar with OSHA are often unsure of their rights to contest a citation. An invoice is attached to the citation; many assume they cannot appeal the matter and simply pay the penalty. While accepting the citation is one possible resolution, the employer has the right to challenge (called “contest”) any citation it receives.
If the employer decides the citation is valid, or at least not worth litigating, the employer need do nothing but abate the hazard within the time specified on the citation and remit the penalty amount to OSHA.
If the employer requests one, OSHA will conduct an informal conference. These conferences are typically scheduled during the fifteen–working-day contest period and allow the employer and the agency to discuss the citations in an informal setting, usually with an area director or assistant area director. The agency will usually make a settlement offer, generally consisting of lower penalty amounts; sometimes the agency withdraws one or more violations, but the agency has the authority to change classifications and AVD language, too.
Importantly, the informal conference does not suspend or delay the fifteen-working-day deadline for an employer to contest a citation.
If the employer sends OSHA a notice of contest, it may still settle the case at any time, very similar to the manner done at informal settlement. The only prerequisite required is that OSHA and the employer reach an agreement on all material terms and reduce their understanding to a signed, written document. Once the parties reach a full settlement agreement—resolving all issues contested—they file a notice of settlement with the administrative law judge (i.e., an OSHRC judge), which terminates the case.
Ramadan Starts Soon: Considerations for Employers
Ramadan is coming up soon, so now is a good time to consider religious accommodations and legal protections for Muslim employees.
Quick Hits
Employers may need to provide religious accommodations to Muslim workers during the month of Ramadan.
Ramadan will begin on the evening of February 28, 2025, or March 1, 2025, depending on the moon.
Ramadan will end on the evening of March 29, 2025, or March 30, 2025, with the Eid al-Fitr holiday to begin the following day.
Ramadan is expected to begin on the evening of February 28, 2025, and end on the evening of March 30, 2025. Because the Islamic calendar is a lunar calendar, the exact start and end dates of Ramadan depend on sightings of the crescent moon. Each year, Ramadan lasts twenty-nine or thirty days. Eid al-Fitr is the religious holiday celebrated the day after Ramadan.
Muslims observing Ramadan abstain from eating and drinking from dawn—approximately an hour and a half before sunrise—until dusk every day during Ramadan. Many Muslims may be exempt from fasting for all or part of Ramadan, including those who are ill, pregnant, breastfeeding, or traveling. It is a common practice to eat a meal and pray right before dawn and right after sunset during Ramadan. In addition to the five daily prayers, additional nighttime and early morning prayers are recommended during the month, which are performed communally in Masjids.
Employers can consider flexible work hours and/or telework to accommodate Muslim employees’ religious needs. Some employees may need to request time off to celebrate Eid al-Fitr, which is marked by special prayers and services.
Employees who work during the end of a daily fast may request the opportunity to break their fasts with food and drink, as well as with time and space to pray. Employees also may need certain accommodations, such as rest breaks, while they are fasting, depending on their medical conditions, age, or other factors.
Importantly, employers may want to remember that Muslim employees do not all have the same accommodation needs or preferences. Practicing a religious faith often involves personal and varying nuances and beliefs that differ among individuals. Having a conversation with each employee is helpful in understanding their specific situations or requests (if any), and such discussions meet the legal requirement for employers to engage in an “interactive process” regarding any religious accommodation requests.
Legal Obligations
Under Title VII of the Civil Rights Act of 1964, employers may not discriminate against or harass workers based on their religion. Title VII requires an employer to reasonably accommodate an employee whose religious belief conflicts with a work requirement or when the requested assistance better allows the employee to perform his or her job functions—unless the accommodation would impose an undue burden on the employer. In 2023, the Supreme Court of the United States held that a substantial burden must be shown to rely on the undue hardship defense.
In addition to the federal law, many states have laws that similarly prohibit religious discrimination in the workplace and require reasonable accommodation.
Next Steps
Employers can consider ways to recognize Ramadan and provide education about it in their internal newsletters or social events.
To avoid violations of state and federal laws, employers may wish to review their written policies, practices, and employee training to prevent harassment and discrimination based on religion.
Employers must accommodate employees’ religious beliefs and practices unless a proposed accommodation would cause a substantial burden to business operations. Also, employers may want to keep in mind that not all Muslims observe Ramadan the same way.
Keeping Cool: Understanding Nevada OSHA’s Heat Illness Prevention Guidance
As temperatures rise, the risk of heat-related illnesses in the workplace becomes a significant concern. To address this, the Nevada Occupational Safety and Health Administration (Nevada OSHA) has implemented a new regulation to protect employees from heat illness. Recently, Nevada OSHA released guidance for its heat illness prevention regulation. Nevada OSHA will begin enforcement of its heat illness prevention regulation on April 29, 2025.
Quick Hits
Nevada OSHA has introduced a new regulation to protect employees from heat illness, with enforcement starting on April 29, 2025.
The heat illness regulation requires Nevada employers with more than ten employees to create a written safety program and conduct a job hazard analysis (JHA).
Employers are required to provide training on heat illness prevention, provide rest breaks, ensure access to potable water, and designate a person to monitor working conditions and emergency responses.
Scope and Coverage
The heat illness regulation applies to all employers in Nevada with more than ten employees, requiring them to establish written safety programs, and to employers that engage in the manufacture of explosives, regardless of the number of employees. Although employers that do not meet these criteria are exempt from the specific requirements of the heat illness regulation, employers must still protect their employees from recognized hazards, including heat illness, under the General Duty Clause.
Key Requirements
Job Hazard Analysis (JHA)
Employers must conduct a one-time, written JHA before a task is undertaken for the first time. There is no specific form or template employers must fill out. Instead, Nevada OSHA requires the following specific information be contained in the JHA:
a list of all job classifications in which the majority of employees in those classifications have occupational exposure to heat illness for more than thirty minutes of any sixty-minute period, not including breaks;
a list of all tasks and procedures, or groups of closely related tasks and procedures, performed by employees in which occupational exposure to heat illness may occur and which are performed by employees in the job classifications above;
identification of working conditions that may cause occupational exposure to heat illness; and
identification of measures to mitigate or eliminate the heat illness hazard if identified.
The JHA must be reviewed and revised if a task materially changes or following an accident. Nevada OSHA recommends involving employees in the JHA that perform the work due to their unique understanding of the job they perform. If an employer conducts a JHA and determines that employees are not exposed to hazardous working conditions that may cause occupational exposure to heat illness, then the employer should document its analysis in writing.
(Note: Nevada OSHA will request a JHA and issue citation(s) for noncompliance.)
Written Safety Program
The program must include provisions for potable water, rest breaks, cooling measures, emergency medical response procedures, identification and mitigation of any work process that may generate additional heat or humidity, and training.
Employers must designate a person responsible for monitoring working conditions and ensuring compliance with the safety program.
Monitoring and Emergency Response by the Designated Employee
The designated employee must monitor working conditions that could create occupational exposure to heat illness and have a plan for emergency medical response if an employee shows signs of heat illness.
Nevada OSHA recommends the designated employee be part of the crew or work unit performing the work. Nevada OSHA also recommends designating a backup designee.
For remote workers, the guidance recommends that employers should establish a monitoring plan that includes the frequency of monitoring, contingencies when responses are not provided, and emergency response procedures.
Training
Employers are required to train employees to recognize the hazards of heat illness and the procedures to minimize these risks.
The guidance recommends that employers provide training before employees begin their work duties, and refresh the training annually.
Nevada OSHA’s Best Practices to Mitigate or Eliminate Heat Illness
Engineering controls: Use air conditioning, increase ventilation, provide cooling fans, and use reflective shields to block radiant heat.
Administrative controls: Schedule hot jobs for cooler parts of the day, provide adequate drinking water, and use work/rest schedules.
Personal protective equipment: Provide hats for outdoor work, cooling vests, and appropriate clothing to prevent heat stress.
Acclimatization: Allow new workers to gradually acclimate to hot environments over seven to fourteen days and inform employees of health risk factors that may increase their susceptibility to heat illness.
Indoor Workplaces
For indoor workers in climate-controlled environments, including those who work in motor vehicles, the regulation does not require the employer to conduct a JHA, designate a person to perform certain functions, create a plan in the written safety program, or provide training. However, if the climate control system fails, employers must implement measures to address potential heat hazards until the system is restored.
Nevada OSHA’s Enforcement Guidance
In addition to programmed and unprogrammed inspections, Nevada OSHA will conduct inspections on “heat priority days,” which is any day where the temperature reaches or exceeds ninety degrees Fahrenheit. During inspections, Nevada OSHA compliance safety health officers will request the documents, including but not limited to the following:
The current Nevada state business license
Workers’ compensation coverage
Injury and illness records (i.e., OSHA 300 Logs)
Documents of rights and responsibilities
The written safety program
Employee training records
Documentation of workplace inspections
Documentation of employee disciplinary records
Manufacturer’s information related to equipment related to the violation/inspection
The JHA
Cafeteria Plan, Meet 401(k) Plan
Viewpoints
The IRS’s recent ruling offers increased flexibility for employers in structuring 401(k) contributions within cafeteria plans, benefiting both employers and employees.
More Employee Benefit Choices: Employers can now make discretionary contributions more ways, including combining some 401(k) and welfare benefit choices.
Opportunities for Competitive Benefits: The ruling enables employers to design more tailored, competitive benefits packages, enhancing employee satisfaction and retention.
The IRS has surprised employers with a new interpretation of how 401(k) contributions can be made in connection with a cafeteria plan. Many employers offer cafeteria plans, allowing employees to choose from various health and welfare benefits or taxable compensation. Historically, the IRS’s “contingent benefit rule” has prevented employers from offering a similar choice to employees regarding 401(k) plan contributions, because the rule prohibited other benefits from being contingent on 401(k) plan benefit elections. However, the IRS’s new ruling now allows an employer to make a discretionary contribution that employees may allocate to different plans, including a 401(k) plan, without the contribution being included in the employee’s taxable income.
What Did the Proposed Plan Look Like?
An employer asked the IRS for its ruling on several proposed plan amendments, which would change the discretionary contributions to the 401(k) plan without changing the safe harbor non-elective contribution. Specifically:
The proposed amendment to the 401(k) plan allowed eligible employees to choose where to receive an annual, irrevocable employer contribution — in the employer’s 401(k) plan, the employer’s Health Reimbursement Account (HRA), the employer’s Educational Assistance Program (EAP) or the employee’s Health Savings Account (HSA). If no employee election was made during open enrollment, the contribution would be made to the 401(k) plan. Employees could not receive the contribution as cash or a taxable benefit.
An amendment to the EAP proposed allowing student loan payments to be made directly from the EAP to the lender if the employee allocated the employer contribution to the EAP.
The proposed amendment also allowed employees to allocate the employer contribution to the EAP or as an employee’s HSA contribution but prohibited receiving other benefits from the EAP or making pre-tax payroll contributions to the HSA, until after March 15 of the following year. This timing would prevent contributions greater than the limits set under the Code.
How Did the IRS Respond?
The IRS provided several helpful rulings on the changes proposed by the employer. Specifically, the IRS ruled that:
The proposed 401(k) plan amendment would not cause the plan to violate the contingent benefit rule (described above).
The employer’s contribution would not be considered an employee pre-tax contribution, which would be subject to the lower elective deferral limit, rather than the much larger annual additions limit.
The allocation of the employer contribution to the HSA would be excludable from the employees’ taxable income.
The EAP amendment would not affect the treatment of tuition or loan payments made under the EAP as excludable from the employee’s taxable income.
The employee’s ability to allocate the contribution between different programs would not prevent the EAP from qualifying as an EAP under section 127 of the federal tax code.
IRS “private letter rulings,” like this one, are technically directed only at the requesting employer and cannot officially be followed as precedent. However, because they often guide practitioners on the IRS’s perspective on issues, this ruling increases flexibility for employers designing competitive benefits packages.
H-1B Lottery Insights Part 1: From Basics to Registration [Podcast]
In part one of this two-part podcast series on H-1B visa applications, Kara Lancaster (shareholder, Raleigh) and Meagan Dziura (of counsel, Raleigh) discuss recent updates from U.S. Citizenship and Immigration Services (USCIS) and provide valuable insights on how to prepare for the fiscal year 2026 H-1B lottery. Meagan and Kara cover the basics of the H-1B visa, its benefits, and why it is a popular choice among employers. They share practical tips on what steps you can take now to prepare for the registration window, which typically opens in early March, including updates from USCIS and the importance of early planning. The conversation also covers the benefits of the H-1B visa, recent changes to the registration process, and the impact of increased fees on employers.
Executive Order 14173: How Public Companies’ DEI Initiatives May Be Targeted and Key Actions to Take Now
On January 21, 2025, President Trump signed Executive Order 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”), which, among other actions,[1] directs all executive departments and agencies “to combat illegal private-sector [diversity, equity, and inclusion (DEI)] preferences, mandates, policies, programs and activities.”
The Order requires the heads of all agencies, assisted by the U.S. Attorney General (USAG), to “take all appropriate action with respect to the operations of their agencies, to advance in the private sector the policy of individual initiative, excellence and hard work.” The Order also directs the USAG, in consultation with the heads of relevant agencies and in coordination with the Director of the Office of Management and Budget, to submit a report within 120 days of the Order, including a proposed strategic enforcement plan identifying “(i) key sectors of concern” within the jurisdiction of each agency, (ii) the “most egregious and discriminatory DEI practitioners” in each sector, (iii) a plan to deter DEI programs or principles that “constitute illegal discrimination or preferences,” (iv) strategies to encourage the private sector to end such discrimination or preferences, (v) potential litigation, and (vi) potential regulatory action and guidance.
Of particular importance to public companies is the directive that, as part of the deterrence plan (described in clause (iii) above), and so as to “further inform and advise [the President] so that [his] Administration may formulate appropriate and effective civil-rights policy,” each agency “shall identify to up to nine potential civil compliance investigations of publicly traded corporations,” as well as large nonprofit organizations and foundations, state and local bar and medical associations, and higher-education institutions with endowments in excess of $1 billion.
As of the date of this publication, the Order remains in effect but is subject to a lawsuit brought by the City of Baltimore and other plaintiffs seeking a declaratory judgment that the Order is unlawful and unconstitutional and a preliminary and permanent injunction against its enforcement.[2]
Aligned with the Order: The New USAG Memorandum on DEI
In a February 5, 2025, memorandum issued to all employees of the Department of Justice (DOJ) (the “Memorandum”), the USAG warned that public companies could face criminal investigations relating to DEI programs or policies. The Memorandum, consistent with the Order, directs the Civil Rights Division and the Office of Legal Policy to jointly submit a report by March 1, 2025, to the Associate Attorney General with recommendations for enforcing federal civil rights laws and taking other “appropriate measures to encourage the private sector to end illegal discrimination and preferences,” including policies relating to DEI and diversity, equity, inclusion, and accessibility (DEIA). The Memorandum states that the report should identify:
“key sectors of concern” within DOJ’s jurisdiction;
the most “egregious and discriminatory” DEI and DEIA practitioners in each such sector;
a plan with specific steps or measures to “deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences, including proposals for criminal investigations and for up to nine potential civil compliance investigations” of the entities meeting the criteria enumerated in section 4(b)((iii) of the Order (which includes publicly traded corporations);
additional potential litigation activities, regulatory actions, and sub-regulatory guidance; and
“other strategies to end illegal DEI and DEIA discrimination and preferences and to comply with all federal civil-rights laws.”
The Potential Impact of the Order
While the Order may be enjoined temporarily or permanently, it has—in the three weeks since its signing—had a significant impact on the DEI initiatives and programs of well-known public companies. Meta Platforms, Inc. (Facebook’s parent) and Alphabet Inc.’s Google have reportedly ended their goals of hiring employees from historically underrepresented groups, and Target Corporation has stated that it would end its DEI initiatives this year.[3] Bloomberg reported that a number of other public companies, including Sirius XM Holdings Inc. and Paypal, have revised or removed references to DEI initiatives in their annual reports filed with the Securities and Exchange Commission since the Order was signed.[4]
Even if the Order is enjoined or struck down, public companies may nevertheless continue to be targets of a wide array of investigations, enforcement actions, and litigation relating to their DEI initiatives or programs, such as:
civil compliance investigations regarding alleged violations of existing anti-discrimination laws launched by DOJ or other federal agencies, which may include issuing Civil Investigative Demands that require the production of documents and responses to written interrogatories and/or oral testimony;
investigations and lawsuits instituted by state attorneys general alleging violations of state anti-discrimination laws;
shareholder litigation, including class actions, alleging violations of securities laws, including alleged false or misleading statements in public companies’ annual and quarterly reports or proxy statements relating to risks associated with DEI initiatives;
EEOC Commissioner Charges for alleged violations of Title VII of the Civil Rights Act of 1964 (“Title VII”); and
individual lawsuits, class actions, and whistleblower complaints filed by current or former employees for alleged violations of federal or state laws prohibiting unlawful discrimination and retaliation.
Challenges to Public Companies’ DEI Initiatives
Two recent examples show that public companies may continue to be targeted for their DEI initiatives even if the Order is struck down. On January 27, 2025, a group of 19 state attorneys general, led by Kansas Attorney General Kris Kobach and Iowa Attorney General Brenna Bird, issued a letter to Costco Wholesale Corporation urging it to “end all unlawful discrimination imposed by the company” through its DEI policies and giving Costco 30 days to respond. Although these state attorneys general mention the Order in their letter, they cite recent U.S. Supreme Court decisions as authority for their efforts to stop unlawful discriminatory practices.[5] Only a few days later, on January 31, 2025, a proposed shareholder class action was filed against Target Corporation and its directors, alleging that the company violated securities laws, including by failing to disclose material risks of consumer boycotts in response to the company’s environmental, social, and governance (ESG) and DEI mandates and its 2023 Pride Campaign.[6]
On the same day that the complaint against Target was brought, U.S. Steel Corporation filed its 2024 annual report on Form 10-K with an expanded ESG risk factor referring to the Order and acknowledging the current negative perception of, and increased focus on, DEI initiatives:
In addition, in recent years, “anti-ESG” sentiment has gained momentum across the U.S., with several states and Congress having proposed or enacted “anti-ESG” policies, legislation, or initiatives or issued related legal opinions, and the President having recently issued an executive order opposing diversity equity and inclusion (“DEI”) initiatives in the private sector. Such anti-ESG and anti-DEI-related policies, legislation, initiatives, litigation, legal opinions, and scrutiny could result in U.S. Steel facing additional compliance obligations, becoming the subject of investigations and enforcement actions, or sustaining reputational harm.
What Public Companies Should Do Now
Public Disclosures
With the beginning of the 2025 proxy season, public companies should:
carefully review disclosures in their annual reports on Form 10-K that address, directly or indirectly, DEI initiatives, programs, policies, or objectives and:
refine required disclosures regarding human capital management, which may refer to employee recruitment, engagement, retention, training, and turnover, and
consider adding a new (or updating an existing) risk factor addressing DEI, including the risk of potential enforcement or litigation resulting from the Order and the Memorandum;
review and refine disclosures in their proxy statements that may touch upon DEI, including:
ESG initiatives and objectives;
diversity of directors and director nominees, including reference to any policy of the Board or the nominating committee with regard to the consideration of diversity in identifying director nominees;
executive compensation with performance metrics linked to DEI or ESG metrics; and
shareholder proposals relating to DEI or ESG matters;
monitor proxy voting guidelines from proxy advisory firms and mutual fund managers for changes with respect to guidance addressing the diversity of board members and other relevant topics;[7]
review other disclosures regarding DEI on their websites, in social media, and in communications with employees and candidates; and
monitor developments in the litigation to set the Order aside, as well as enforcement actions and litigation targeting DEI initiatives, and revise risk factors relating to DEI to reflect “material changes” in upcoming quarterly reports on Form 10-Q.
Compliance Review and Risk Assessment
Like other private-sector employers, public companies should undertake a thorough review and risk assessment of their DEI plans, programs, policies, and initiatives. During this process, public companies should:
promptly review any DEI plans, programs, and policies to determine whether they contain any aspect that could be deemed unlawful under Title VII[8] or any other federal, state, or local civil rights laws, and consider whether to take any action to modify such plans, programs, or policies, including the names of such plans, programs, or policies, in consultation with employment counsel;
extend such review to include:
programs for employee inclusion;
programs for talent management and leadership training, including initiatives to increase representation of particular groups in management;
hiring and recruitment practices that include DEI considerations;
compensation programs and policies utilizing metrics based on DEI factors;
codes of business conduct;
supplier diversity policies; and
federal contracting affirmative action programs (for further guidance on reviewing and winding down affirmative action programs for federal government contractors, please refer to our prior Insight titled “DEI and Affirmative Action Programs Blitzed, While Executive Order 11246 Is Revoked”);
evaluate the risks and impact of changes in DEI-related initiatives and activities going forward on various stakeholders (including employees and customers), as well as business and financial objectives and strategies;
consider the Board’s role in overseeing the compliance review and risk assessment of DEI plans, programs, policies, and initiatives and whether the Board (or a committee of the Board) should receive a report on the status of the review and risk assessment at the next meeting;
ensure that Human Resources (HR) and Compliance teams are familiar with procedures for handling and investigating whistleblower complaints and closely monitor hotlines and emails for DEI-related complaints or reports; and
ensure that Legal, HR, Compliance, and Investor Relations teams are prepared to handle inquiries, complaints, and potential investigations involving DEI-related matters.
As noted above, developments relating to the Order and reactions to it are evolving quickly, and the guidance in this Insight is provided with the caveat that events may occur soon after publication that may impact it. We will update you as related litigation moves forward and further developments unfold.
ENDNOTES
[1] For information regarding other actions under the Order, see the Epstein Becker Green Insight titled “DEI and Affirmative Action Programs Blitzed, While Executive Order 11246 Is Revoked” (Jan. 28, 2025).
[2] See National Association of Diversity Officers in Higher Education v. Donald J. Trump, Civil Action No. Case1:25-cv-00333-ABA (D. Md. filed Feb. 3, 2025).
[3] See Miles Kruppa, Google Kills Diversity Hiring Targets, Wall Street Journal (Feb. 5, 2025, 3:48 p.m. ET), https://www.wsj.com/tech/google-kills-diversity-hiring-targets-04433d7c; Jonathan Stempel and Marguerita Choy, Target is sued for defrauding shareholders about DEI, Reuters Legal (Feb. 3, 2025).
[4] See Clara Hudson, David Hood and Andrew Ramonas, Netflix, McCormick Uphold DEI to Investors After Trump Directive, Bloomberg Law (Jan. 30, 2025, 1:39 p.m. EST); Clara Hudson, Paypal Cuts Diversity Language in New Report to Shareholders, Bloomberg Law (Feb. 5, 2025, 3:18 p.m. EST).
[5] See Letter from B. Bird, Att’y General of Iowa, and K. Kobach, Att’y General of Kansas, et al. to R. Vachris, President and Chief Executive Officer of Costco Wholesale Corporation.
[6] See City of Riviera Beach Police Pension Fund v. Target Corporation, Civil Action No. 2:25-cv-00085 (M.D. Fla. filed Jan. 31, 2025).
[7] See, e.g., The Vanguard Group, Inc.’s Proxy voting policy for U.S. portfolio companies effective February 2024, which has revised some of its prior guidance for U.S. companies relating to women and minority directors.
[8] Title VII remains the law of the land. Under Title VII, all employment decisions should continue to be made without consideration of race, color, religion, sex, or national origin, as well as other factors protected by federal, state, and local law. (42 U.S.C. § 2000e).
Seventh Circuit Decision Highlights Distinction Between Traditional Non-Compete and Forfeiture-for-Competition
A recent decision by the U.S. Court of Appeals for the Seventh Circuit allowed an employer to enforce a “forfeiture-for-competition” against a former plant manager. The Court explained that, under Delaware law, forfeiture-for competition is not subject to the same reasonableness standard as a traditional non-compete clause. The case is LKQ Corporation v. Robert Rutledge, No. 23-2330 (7th Cir. Jan. 22, 2025).
Background
A former plant manager received restricted stock unit (RSU) awards as part of his compensation over several years. Each RSU award was governed by Delaware law and stated that the employee would forfeit his RSUs if he went to work for a competitor within 9 months after leaving the company. The company sought to enforce the forfeiture after the employee resigned and joined a competitor.
In June 2023, a federal District Court in Illinois held that the forfeiture provision was unenforceable because it failed a standard reasonableness test based on geographic and temporal scope, protecting a legitimate business interest, and a balancing of the equities. On appeal, the Seventh Circuit noted that the Delaware Supreme Court had distinguished between forfeiture-for-competition and a traditional non-compete, holding that a forfeiture-for-competition provision was not subject to the reasonableness test; but the forfeiture provision in that case was contained in a limited partnership agreement that had been negotiated by sophisticated parties. The Delaware Supreme Court had not addressed whether reasonableness would be required for a forfeiture clause in an agreement between employer and employee that had been subject to little or no negotiation.
The Seventh Circuit certified the open question to the Delaware Supreme Court and the Delaware Supreme Court responded that its prior decision was not limited to the limited partnership context. The Delaware Supreme Court explained that, unlike a traditional non-compete clause, a forfeiture-for competition provision “does not restrict competition or a former employee’s ability to work.” The Delaware Supreme Court cautioned, however, that there could be circumstances where the forfeiture is “so extreme in duration and financial hardship that it precludes employee choice by an unsophisticated party and should be reviewed for reasonableness.”
Applying the Delaware Supreme Court’s explanation, the Seventh Circuit held that the circumstances of the case were not so “extreme in duration and financial hardship” as to require a reasonableness review. Although the plant manager’s annual salary was only $109,000, he was not unsophisticated and had voluntarily accepted RSU awards that were available only to “key persons”—a designation reserved for less than 2% of the company’s workforce. The Seventh Circuit also determined that, though substantial, forfeiting RSUs valued between $130,000 and $340,000 did not reach the level of “extraordinary hardship” that might require a reasonableness review. Accordingly, the Seventh Circuit reversed the District Court and remanded for further proceedings.
Implications
Although non-compete provisions are almost always subject to some version of a reasonableness test (and prohibited altogether in some states), many states apply a looser standard to forfeiture-for competition provisions. The principle is that, while it might be unreasonable to restrict competition or to prevent someone from taking another job, it is fair to condition incentive compensation on honoring a non-compete. Employers should remain mindful, however, that there is some limit on the cost that can be imposed for breaching a non-compete. The details will vary by jurisdiction and the court’s assessment of the equities.