Companion Bills in U.S. Congress Would Expand OSHA Coverage for Public Employees
A bill introduced in the U.S. Senate on May 21, 2025, seeks to significantly expand the scope of the Occupational Safety and Health Act of 1970 (OSH Act) by extending its protections to public employees at the federal, state, and local levels. The bill, titled the “Public Service Worker Protection Act” (PSWPA), would amend the OSH Act to include employees of the United States, states, and political subdivisions of states within its definition of “employer,” thereby affording public-sector workers the same occupational safety and health protections currently available to private-sector employees. Companion legislation (H.R. 3139) was introduced in the U.S. House of Representatives earlier in May.
Quick Hits
The legislation would amend Section 3(5) of the OSH Act to explicitly include public employees, covering federal, state, and local government workers.
The amendment would take effect ninety days after the PSWPA’s enactment for most public employees.
For federal OSHA workplaces of states or political subdivisions, the amendment would take effect thirty-six months after the PSWPA’s enactment.
The legislation clarifies that it does not alter the application of Section 18 of the OSH Act, which governs state plans.
Currently, the OSH Act generally excludes public-sector employees from its coverage, unless they are employed in states with plans approved by the Occupational Safety and Health Administration (OSHA) that extend protections to public workers. This exclusion explains why, particularly in federal OSHA states, state and local government workers are often observed not wearing personal protective equipment (PPE) required by OSHA or engaging in what would be prohibited conduct if they were covered by OSHA. The proposed amendment would strike the existing exclusionary language in Section 3(5) and replace it with language that includes the United States, states, and political subdivisions as employers under the OSH Act.
The PSWPA provides for a phased implementation. For most public employees, the expanded coverage would become effective ninety days after the date of enactment. However, for workplaces in states or political subdivisions that are in federal OSHA states, the effective date is extended to thirty-six months post-enactment, allowing additional time for compliance and potential development of state plans.
The legislation includes a rule of construction stating that nothing in the PSWPA should be interpreted to affect the application of Section 18 of the OSH Act. Section 18 allows states to operate their own occupational safety and health programs, provided they are at least as effective as the federal program and are approved by OSHA.
If enacted, the PSWPA would represent a significant expansion of federal workplace safety protections, bringing millions of public-sector employees under the OSH Act’s regulatory framework. Public employers, particularly those in federal OSHA states, may want to monitor the progress of this legislation and begin assessing potential compliance obligations.
Is An LLC’s Membership List A Trade Secret?
Yesterday’s post considered one of several matters raised on appeal in Perry v. Stuart, 2025 WL 1501935. The case involves a former member’s demand for inspection of records of a California limited liability company. Another issue raised in the appeal was whether the trial court erred in its finding that the LLC’s member list must be redacted prior to production because it is a trade secret.
The California Revised Uniform Limited Liability Company Act requires an LLC to keep, among other things, a current list of the full name and last known business or residence address of each member and of each transferee set forth in alphabetical order, together with the contribution and the share in profits and losses of each member and transferee. Cal. Corp. Code § 17701.13(d)(1). The RULLCA further provides that each member, manager, and transferee has the right, upon reasonable request, for purposes reasonably related to the interest of that person as a member, manager, or transferee, to inspect and copy during normal business hours any of the records required to be maintained pursuant to Section 17701.13. Cal. Corp. Code § 17704.10(b)(1).
The courts found that the membership list was a protectible trade secret, as defined under Section 3426.1 of the California Civil Code. Thus, the question was which code prevailed. The Court of Appeal concluded that the Civil Code took precedence as the more specific statute and thus the trial court had not erred in ordering the redaction of the membership list. The Court did not articulate why the Civil Code statute was more specific other than to note that trade secrets are a subset of business information. However, it is certainly arguable that membership list is an even smaller subset of business information and that the RULLCA provision is even more specific (i.e., detailing the exact information to be maintained) than the general Civil Code definition.
Supply Chain Transparency: Updates on UK and EU Provisions on Forced Labour and Modern Slavery
Forced labour and modern slavery have been the subject of renewed focus across the UK and EU in recent months. Below we touch upon key issues relating to the UK Home Office’s update to its statutory guidance on the Modern Slavery Act; the EU ban on products made with forced labour due to come into force in 2027; and the conclusion of the Italian Competition Authority’s recent investigation into fashion brands for misstatements about forced labour.
Update to the UK Home Office’s Statutory Guidance on Supply Chain Transparency
In the UK, companies are subject to the reporting obligations set out in section 54 of the Modern Slavery Act 2015 (the MSA). The largest commercial organisations (those with a turnover of £36 million or more) must produce and publish an annual modern slavery and human trafficking statement (MSS). These statements should set out the steps taken in the last financial year by an organisation to ensure that slavery and human trafficking are not taking place in its business or supply chain.
In the 10 years since the MSA received Royal Assent, the world’s concept of supply chain transparency reporting has been transformed, leading to criticism that the UK’s reporting regime had not kept pace. In particular, there had been poor monitoring and enforcement of compliance with these requirements, resulting in inconsistency in the quality and effectiveness of such statements. In response to recommendations made by the House of Lords Select Committee on Modern Slavery in October 2024, the UK government published new guidance “Transparency in supply chains: a practical guide” (Guidance) at the end of March 2025. The Guidance offers practical advice to businesses and sets higher expectations on organisations for the contents of their MSS.
The new legislation has not changed the fundamental reporting requirements under section 54 MSA. However, the October 2024 report also recommended that the UK government enact “legislation requiring companies meeting the threshold to undertake modern slavery due diligence in their supply chains and to take reasonable steps to address problems”, so more onerous requirement may be on their way. Some other jurisdictions (e.g. Australia and Canada) already have more significant compulsory reporting requirements and others, e.g. the EU through the EU Corporate Sustainability Due Diligence Directive (CSDDD), are in the process of implementing them. Complying with the expectations in the new Guidance is a good basis for existing and incoming global benchmarks.
Key Points in the New Guidance
Section four provides more detail on what should be included in an MSS under each of the six areas of disclosure recommended (but not required) under section 54 MSA: (i) organisation structure, business and supply chains; (ii) organisational policies; (iii) assessing and managing risk; (iv) due diligence; (v) training; and (vi) monitoring and evaluation.
It breaks the level of detail down into two levels. Level 1 reflects the more limited content expected from an organisation reporting for the first time. Level 2 builds upon level 1 and reflects the more detailed disclosure expected from organisations reporting on an ongoing basis.
It provides examples of how it expects the reporting information to reflect a business’s current status in terms of supply chain transparency, to acknowledge areas where development or improvement is needed, and to articulate short- or long-term plans for that development. It emphasises the importance of continuous improvement, meaning that organisations need to consider how their modern slavery statements evidence progress year on year.
It expects organisations to summarise their remediation policies and processes.
It encourages businesses to describe incidents of modern slavery identified in their supply chain and remediation taken.
The new guidance introduces the concept of modern slavery “disclosures”, a term that does not feature in the MSA. This emulates other reporting regimes, such as the EU Corporate Sustainability Reporting Directive.
Organisations are encouraged to enter their MSS in the UK’s modern slavery registry (although it is voluntary).
There are signposts to the relevant parts of internationally recognised benchmarks for supply chain due diligence, namely the Organisation for Economic Co-operation and Development Due Diligence process and the United Nations Guiding Principles on Business and Human Rights.
How Should We Respond to the New Guidance?
Organisations that produce MSSs should:
Undertake a gap analysis exercise of their current MSS against the new guidance
Consider if any other documentation (for example existing modern slavery risk assessments, supplier due diligence questionnaires and policies) should be updated to align with the spirit of the new guidance
Assemble a team of internal stakeholders to assist with the preparation of the next statement and ensure sufficient time is allocated to deliver this
Consider briefing the Board (and any director signatory) in advance of seeking their approval of the statement if it is more detailed than the previous year
Many organisations that fall outside the scope of the current section 54 MSA requirement still opt to produce an annual MSS because they recognise the importance of corporate transparency (to the public, suppliers, shareholders or others). Any organisation publishing a statement on this basis should have regard to the new guidance.
EU Ban On Products Made With Forced Labour
EU Regulation 2024/3015 (the Forced Labour Regulation or FLR) entered into force on 13 December 2024 and will apply to EU member states from 14 December 2027. It prohibits individuals and businesses from importing into, making available in or exporting from the EU any product made with forced labour. “Making available” includes distance or online selling targeted at consumers in the EU. The FLR applies not just to products themselves, but to raw material and component parts, irrespective of where they originate. It is not limited to certain sectors or industries and covers the entire lifecycle of the product, as well as every person involved in its production, distribution and sale.
While the FLR does not impose specific due diligence obligations beyond those already provided for at EU level or in individual EU member states, it will operate in conjunction with the CSDDD when it comes into force. The FLR will be enforced by local authorities – customs and other national competent authorities – whose remit will be to prevent products made with forced labour from being imported into, exported from or made available on the EU market. The FLR provides for a Union Against Network Against Forced Labour Projects to streamline regulation and ensure information sharing and consistency. By mid-June 2026, the EU Commission is required under the FLR to publish guidance on due diligence, and on best practices for mitigating forced labour and will establish a database of products, as well as regions that pose a high risk of forced labour. The database will enable the public to submit information on breaches of the FLR. Where there is a “substantiated concern” of forced labour, the EU or national competent authority can investigate.
Decisions by the competent authorities on whether a violation of FLR has occurred (i.e., a decision on whether a product made with forced labour has been placed on the market or made available in the EU or exported from the EU) should be adopted within nine months. If there has been a violation, the competent authority has various powers, including:
Prohibiting the product from being placed on the market, or made available in the EU and from being exported
Ordering the person subject to the investigation to withdraw products already placed on the market or made available, or to remove online marketing for such products
Ordering the disposal destroy the relevant product or replace relevant component parts
The FLR provides a process for reviewing decisions of competent authorities. Businesses likely to be affected by the FLR should ensure that they have effective policies and procedures to identify and address issues of forced labour in their supply chain, to remediate issues if they arise, and a comprehensive training and audit programme. We also recommend that UK businesses ensure that these are reflected in their MSS and that careful records of supply chain due diligence are maintained so that companies can respond quickly to any investigations.
Italian Competition Authority Landmark Forced Labour Case
A recent investigation by the Italian Competition Authority highlights the breadth of ways that issues relating to modern slavery can be subject to investigation and enforcement action. In July 2024, the Italian Competition Authority (the AGCM) launched an investigation into several high-end fashion companies. According to press coverage, prosecutors in Milan identified workshops with underpaid workers, some of whom were illegal immigrants, producing leather bags that were then sold to the company and others below their retail price. The investigation was conducted under the Italian Consumer Code and considered whether the company had misled consumers in its statements about its suppliers’ working conditions.
In May 2025, the AGCM announced the closure of the investigation, without finding that a violation had occurred. As part of a settlement, the company committed to amending its ethics and social responsibility statements; introducing new supply chain due diligence and monitoring procedures; additional training internally on consumer protection laws and for suppliers on forced labour law and the ethical principles set out in the company’s Supplier Code of Conduct. It also committed to paying €2 million over 5 years to fund initiatives aimed at helping victims of labour exploitation. Other brands in the leather consumer goods industry have also been implicated in enforcement action, with reports of another fashion brand being placed under judicial administration for a year after worker abuse was discovered in its supply chain.
Companies in the UK can face similar action. In March 2024, the Competition and Markets Authority (CMA) published an open letter to businesses in the fashion retail industry, highlighting the need to consider their obligations under consumer protection law. While this primarily concerned environmental claims in the sector, the publication highlights the growing regulatory scrutiny faced by this industry. The UK authorities have a wide range of powers to investigate and prosecute individuals and businesses for misrepresentations about compliance with business human rights. Businesses could also be liable for misrepresentations by their associated persons once the UK’s new failure to prevent fraud offence comes into force on 1 September 2025.
Conclusion
In light of increased focus on forced labour issues in the UK and EU, businesses should revisit and revamp their existing risk assessments, policies and procedures relating to supply chain due diligence, transparency and monitoring. Our experts advise companies on a wide range of supply chain compliance and regulatory matters across the UK, EU and globally.
New Jersey Legislature Again Considers Banning Noncompetes
As has become an almost annual tradition, New Jersey legislators have proposed bills that would severely limit noncompete agreements. With the Federal Trade Commission (FTC) no longer seeking to ban noncompetes, the battle has returned to states, and New Jersey is on the front line—and this could be the year a New Jersey noncompete bill passes.
Quick Hits
New Jersey legislators have introduced Senate Bill No. 4385 (S4385) (introduced in the Assembly as Assembly Bill No. 5708), which would prohibit most noncompete agreements and void current ones, except for senior executives under specific conditions.
S4385 requires employers to notify employees within thirty days of its passage that their noncompete agreements are no longer enforceable.
Another proposed bill, Senate Bill No. 4386 (S4386), aims to ban noncompetes that restrict employees from engaging in any lawful profession post-employment and prohibit employers from requiring repayment of training or immigration costs.
S4385 would prohibit noncompete agreements except under limited circumstances. Notably, S4385 is retroactive and would void the enforcement of current noncompete agreements. There is a limited carve-out that the bill would not ban retroactive enforcement against “Senior Executives.” If the bill goes into effect, employers would have to notify employees within thirty days of its passage that their noncompete agreements are no longer enforceable. No poach agreements would also be outlawed.
The definition of a noncompete would be: “any agreement arising out of an existing or anticipated employment relationship between an employer and a worker, including an agreement regarding severance pay, to establish a term or condition of employment that prohibits the worker from, penalizes a worker for, or functions to prevent or hinder in any way, the worker from seeking or accepting work with a different employer after the employment relationship ends, or operating a business after the employment relationship ends.” The question, of course, becomes, would a nonsolicit or even a nondisclosure agreement still be enforceable, since either type of agreement may arguably hinder an employee from accepting employment with a different employer or starting his or her own business.
“Senior executive” is defined as “a worker who is in a policy-making position with an employer and is paid total compensation of not less than $151,164 during the year immediately preceding the end of employment, or not less than $151,164 when annualized if the worker was employed during only part of the preceding year.” Here the issue will be that many job categories that employers have traditionally had legitimate needs for noncompetes, such as salespeople, may not be considered in a “policy-making position.”
Noncompetes entered into before the effective date of S4385 would only be viable for senior executives if the following criteria are met:
The employer must provide a written disclosure within thirty days after the effective date of S4385, setting forth the requirements of the law and any revisions to the noncompete agreement that have been made to comply with the bill and any revision must be signed by the employee.
The noncompete must not be broader than necessary to protect the legitimate interests of employers. A noncompete can be presumed necessary if a nondisclosure agreement, nonsolicitation of customers, and/or a nonsolicitation of employees are not sufficient to protect an employer’s interests. Note that this will be a very difficult test for employers to pass.
The noncompete can be no longer than twelve months.
The geographic reach of the noncompete must be limited to the territory where the employee provided services or had a material presence or influence in the two years prior to the termination of employment, and it cannot prohibit the employee from seeking employment outside of New Jersey.
The noncompete shall be limited to the activities and services provided by the employee during the last two years of his or her employment.
The noncompete clause cannot penalize the employee for challenging the validity of the noncompete. This is very important because one of the most effective tools an employer has with a noncompete is an attorneys’ fee provision, but now if the employee challenges the validity of the noncompete—which happens in nearly all noncompete litigation—then that will likely be enough to prevent a court from enforcing the attorneys’ fee provision even if the employer prevails.
No non-New Jersey choice-of-law provision is permitted to attempt to avoid the requirements of S4385.
The noncompete clause shall not restrict an employee from providing service to a customer or client if the employee is not the one who initiates or solicits the customer or client. This would be a huge carve-out and allow employees to claim they did not solicit, but the customer or client simply reached out to them.
The noncompete would be void unless the employer gives the employee notice within ten days of the termination of employment of the employer’s intention to enforce the noncompete. This provision does not apply if the employee was discharged for misconduct.
The employer must pay the employee “garden leave,” including both salary continuation and benefits for the period of the noncompete.
Notably, S4385 does not apply to noncompetes entered into in the sale of a business. Nor does the bill apply to causes of action that accrue prior to the enactment of the bill, meaning any current noncompete litigations are still viable.
The bill also creates a civil cause of action for aggrieved employees, and their potential damages include liquidated damages, compensatory damages, and attorneys’ fees.
Another Senate bill, S4386, would ban noncompetes that prohibit an employee from “engaging in a lawful profession, trade, or business of any kind after the conclusion of the employee’s employment with the employer.” This provision, like the provisions under S4385, would be retroactive. S4386, like S4385, was introduced by Senator Joseph P. Cryan. It is unclear whether S4386 is being viewed as an alternative if S4385 does not pass or is meant to act in tandem with S4385. Notably, S4386 would ban employers from requiring an employee to repay training costs or immigration/visa costs if the employee leaves employment.
With a gubernatorial election in New Jersey this year, there may be a push to pass the legislation before a new governor takes over. Because a number of large New Jersey companies are incorporated in Delaware, switching to a Delaware choice of law provision in noncompete agreements might have been viable, but Delaware has also become less friendly to noncompetes. For now, other than waiting and seeing what happens in the legislature, and potential lobbying efforts, the main thing New Jersey employers may want to consider is whether to bring lawsuits now for violations of noncompetes to preserve the enforcement of existing noncompete agreements, even if S4385 does pass.
City of Los Angeles Passes Olympic Wage Increases and Other Entitlements for Hotel and Airport Workers
On May 27, the City of Los Angeles passed amendments to the Living Wage Ordinance (LWO) and the Hotel Worker Minimum Wage Ordinance (HWMO). The development of these amendments began in December 2024, and since then have been the subject of debate and public comment.
Here is what hotel and airport employers need to know about the amendments.
Hotel Worker Amendments
The amendments include increases to the minimum wage, an hourly health benefit payment, and training for covered hotel workers. These amendments apply to workers in hotels with at least 60 guest rooms. The provisions of the ordinance may be waived pursuant to a bona fide collective bargaining agreement but only if the waiver is expressly set forth.
The minimum wage rates will increase as follows:
Effective Date
Minimum Wage
July 1, 2025
$22.50
July 1, 2026
$25.00
July 1, 2027
$27.50
July 1, 2028
$30.00
July 1, 2029, and annually
Adjusted based on Consumer Price Index
Furthermore, effective July 1, 2026, if a hotel employer does not provide a worker with health benefits, the worker must be paid the wage rate indicated above plus an additional hourly wage rate equal to the health benefit payment in effect for an employer servicing LAX.
In addition to the above entitlements, hotel workers must be provided at least 6 hours of live and interactive instruction covering the following topics:
Hotel worker rights and hotel employer responsibilities.
Best practices for identifying and responding to suspected instances of human trafficking, domestic violence, or violent or threatening conduct.
Effective cleaning techniques to prevent the spread of disease.
Identifying and avoiding insect or vermin infestations.
Identifying and responding to other potential criminal activities
The training requirements take effect December 1, 2025.
Airport Employee Amendments
The amendments also increase airport employee minimum wage and health benefit payments as follows:
Date
Minimum Wage
July 1, 2025
$22.50
July 1, 2026
$25.00
July 1, 2027
$27.50
July 1, 2028
$30.00
July 1, 2029, and annually
Adjusted based on Consumer Price Index
Beginning on July 1, 2025, the hourly health benefit payment provided to an airport employee must be at least $7.65 an hour. On July 1, 2026, the hourly health benefit payment will be adjusted by a percentage equal to the percentage increase in the California Department of Managed Healthcare’s Large Group Aggregate Rates.
Maryland Clarifies Overlapping Leave Obligations for Employers
Maryland has amended its parental leave law to clarify that, effective October 1, 2025, employers covered by the federal Family and Medical Leave Act (“FMLA”) are exempt from the Maryland Parental Leave Act (“MPLA”).
The MPLA, codified as Section 3-12 of Maryland’s Labor and Employment Code, requires covered employers to provide eligible employees with up to six weeks of unpaid parental leave for the birth, adoption, or foster placement of a child. The statute applies to Maryland employers with at least 15 but fewer than 50 employees for each “working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” The FMLA, conversely, applies to employers with 50 or more employees and allows qualified employees up to 12 weeks of unpaid leave for qualifying events, which also include birth, adoption or foster placement of a child, among others. Similar to the MPLA, the FMLA measures how many employees a company employs by looking at how many were employed in 20 or more workweeks in the preceding or current year.
The MLPA was intended to apply to smaller employers not covered by the FMLA in order to provide parental leave to employees of such smaller companies. However, there have been occasions of overlap, where both laws apply to companies that change in size. For example, currently, if a Maryland employer has 47 employees for part of the year (or the preceding year) but later expands and exceeds the 50-employee threshold in the same or following year, it may fall under both the MPLA and FMLA. This can create confusion in complying with both laws. To address this overlap, Governor Wes Moore signed SB 785, which amends the definition of “employer” under the MPLA to exclude those covered by the FMLA in the current year, effectively exempting FMLA-covered employers from Maryland’s parental leave requirements.
The amendment serves to help employers avoid potential confusion regarding dual leave coverage for their employees if an employer is subject to the FMLA.
Actions for Employers
In light of the recent clarification to Maryland’s parental leave law, employers in the state should confirm their total employee headcount and review their current leave policies in order to ensure compliance with the amended statute.
Department of Justice Announces New Initiative to Combat Civil Rights Fraud Using the False Claims Act
From time to time, the Department of Justice (“DOJ”) has established initiatives, task forces, or strike teams to advance its enforcement priorities. In recent years, DOJ has announced a Procurement Collusion Strike Force, a COVID-19 Fraud Enforcement Task Force, and a Civil Cyber-Fraud Initiative, in each instance explicitly invoking a plan to use the False Claims Act (“FCA”) for civil enforcement.
DOJ announced the latest version of this enforcement approach on May 19, 2025, when Deputy Attorney General (“DAG”) Todd Blanche issued a memorandum announcing a new Civil Rights Fraud Initiative (“the Initiative”), described as a coordinated and “vigorous” effort to leverage the specter of FCA liability against recipients of federal funding alleged to be violating civil rights laws. The types of alleged civil rights violations targeted by this Initiative relate to diversity, equity, and inclusion (“DEI”) programs, antisemitism, and transgender policy, all of which dovetail with a number of Executive Orders (“EOs”) expressing President Trump’s approach to these issues.
Relevant Executive Orders
Some of the EOs relevant to the Civil Rights Fraud Initiative include:
EO No. 14151: Ending Radical and Wasteful Government DEI Programs and Preferencing (January 20, 2025). This EO directs federal government agencies to end DEI and diversity, equity, inclusion, and accessibility (“DEIA”) programs, to eliminate positions such as “Chief Diversity Officer,” and to terminate grants and contracts related to DEI and DEIA. It also orders a review of federal employment practices to ensure they focus on individual merit rather than DEI factors.
EO No. 14168: Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025). This EO declares, as United States’ policy, that there are two immutable sexes (male and female), based on biological reality. It requires changes to government-issued identification documents and prohibits federal funding for so-called “gender ideology.”
EO No. 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity (January 21, 2025). This EO requires that all federal contracts and grants include a certification that recipients do not operate any DEI programs that violate applicable antidiscrimination laws and affirms that compliance with federal anti-discrimination laws is material to government payment decisions. Additionally, the EO directs DOJ to identify key sectors and entities for DEI-related enforcement, and to recommend strategies to end “illegal DEI discrimination” in the private sector.
EO No. 14188: Additional Measures To Combat Anti-Semitism (January 29, 2025). This EO reaffirms EO 13899 from December 11, 2019, which aimed to combat antisemitism, particularly in educational institutions. It directs various federal agencies to identify actions to curb antisemitism and recommends monitoring foreign students and staff for antisemitic actions.
EO No. 14201: Keeping Men Out of Women’s Sports (February 5, 2025). This EO aims to exclude transgender individuals from competing in women’s sports. It directs the Secretary of Education to rescind funding from educational institutions that do not comply.
Structure of the Civil Rights Fraud Initiative
Against the backdrop of these EO policy statements, DOJ’s Civil Rights Fraud Initiative presents a concrete risk of investigation—and potentially FCA liability—for companies, organizations, and institutions that receive federal funding.
The Initiative will be led by the Civil Division’s Fraud Section and the Civil Rights Division, who are directed to coordinate and share information about potential violations.[1] Those units are instructed to work with the Criminal Division of DOJ and other agencies that “enforce civil rights requirements for federal funding recipients,” including the Departments of Education, Health and Human Services (“HHS”), Housing and Urban Development (“HUD”), and Labor. Additionally, each of the United States Attorney’s Offices must designate an Assistant United States Attorney to support the Initiative’s efforts, and DOJ also anticipates involving state Attorneys General.
Scope of Intended FCA Enforcement
The Blanche memorandum casts a broad net describing the scope of the Initiative’s work. It invokes civil rights laws, “including but not limited to Title IV, Title VI, and Title IX, of the Civil Rights Act of 1964.” These statutory provisions generally prohibit discrimination on the basis of race or sex in educational settings and other programs that are supported by federal funding. DOJ’s Civil Rights Division is responsible for investigating and enforcing violations of these provisions, and the Division traditionally seeks relief in the form of litigation, consent decrees with mandatory reporting, and required remediation measures designed to cure the unlawful practices, as well as coordinated audit efforts with the Equal Employment Opportunity Commission.
The Blanche memorandum identifies other areas of focus for the Initiative without reference to particular statutes, regulations, or standard contract provisions, including:
Antisemitism: “… a university that accepts federal funds could violate the False Claims Act when it encourages antisemitism, [or] refuses to protect Jewish students.”
Transgender participation: a university that “allows men to intrude into women’s bathrooms or requires women to compete against men in athletic competitions.”[2]
DEI programs: The memorandum states that the Initiative will use the FCA to stop the “fraud, waste, and abuse” that allegedly occurs when recipients of federal funding “certify compliance with civil rights laws while knowingly engaging in racist preferences, mandates, policies, programs, and activities.” The memorandum further states that “many corporations and schools continue to adhere to racist policies and preferences—albeit camouflaged with cosmetic changes that disguise their discriminatory nature.”
A Clarion Call to Whistleblowers
The Blanche memorandum states that DOJ “alone cannot identify every instance of civil rights fraud,” and the DOJ therefore “strongly encourages” potential whistleblowers to participate in the Initiative by filing lawsuits under the FCA’s qui tam provisions. These provisions allow a private party to file (under seal) a lawsuit on behalf of the United States alleging the FCA violations, and to continue pursuing that lawsuit even if DOJ declines, usually after lengthy investigation, to intervene in the case. The FCA rewards these “qui tam relators” with a share—up to 30 percent—of any amounts recovered in the case. Successful qui tam relators are also entitled to recover their reasonable attorney’s fees and costs from the defendant.[3]
Given these considerable financial incentives, the Initiative likely will result in qui tam lawsuits related to DEI, antisemitism, or transgender policies in women’s sports or in women’s bathrooms.[4] Aside from the option to file suit, the Blanche memorandum asks “anyone with knowledge of discrimination by federal-funding recipients to report that information” so that DOJ can take action.
Applying the FCA to Civil Rights
Courts historically have interpreted the FCA’s basic elements of “knowingly” submitting (or causing the submission of) “false claims” to the government broadly, to reach all manner of alleged schemes—from billing for healthcare services that were not provided to impliedly certifying compliance with complex cybersecurity standards; from alleged misuse of federal grant funds to avoiding customs duties.
In these more conventional applications, DOJ (or a qui tam relator) alleges noncompliance with an underlying contract term, statute, or regulatory requirement under an express or implied “false certification” theory of FCA liability. In those cases, the FCA’s materiality element serves as an important check. Only if the underlying violation or compliance issue is “material” to the government’s decision to pay does FCA liability attach.[5]
Because DOJ has other mechanisms at its disposal to investigate and correct non-compliance with civil rights laws, using the FCA to address discrimination has been relatively uncommon. Application of the FCA to civil rights matters is not entirely without precedent, however. For example, in 1995, the government pursued FCA claims against a locality for ignoring conditional spending requirements attached to housing grants.[6] A decade later, DOJ announced a significant settlement against Westchester County, New York, to resolve a qui tam lawsuit alleging that the county falsely certified its compliance with fair housing obligations in order to receive federal funds through a block grant.[7] In 2024, DOJ resolved qui tam allegations that the City of Los Angeles knowingly failed to meet accessibility requirements for the disabled in seeking federal grant funds to build affordable housing.[8] Each of these cases was premised on a “false certification” theory, meaning the government relied upon the defendants’ allegedly false certifications that they would comply with federal fair housing or accessibility laws when funding the grants or contracts at issue. DOJ claimed that those recipients of federal funds violated clearly stated contractual, statutory, or regulatory requirements.
Challenges to Proving FCA Liability
The civil rights violations that the Blanche memorandum discusses most extensively relate to DEI programs. But, as we discussed in an earlier client alert, the government will face a number of challenges to establishing FCA liability based on an entity’s DEI program, even when a DEI certification requirement (such as those mandated by EO 14173) is at issue. The DEI certifications that have been promulgated to date do not use standardized language across the government, incorporate undefined terms, and are not part of any overarching statutory or regulatory framework with which federal funding recipients (or even judges) are familiar. In these circumstances, the government (or a qui tam relator) will have difficulty establishing the FCA elements of falsity and scienter (“knowledge”).
The FCA’s materiality element will also be challenging for the government to prove, since the broad DEI certifications currently being imposed on contractors from EO 14173 rarely bear any connection to the purpose of the government contract or grant agreement. In the cases mentioned above, the alleged false certification tied directly to the reason for funding, e.g., an agreement to abide by fair housing requirements to receive federal funds to build housing. By contrast, it seems unlikely that even a known DEI compliance issue would cause the government to withhold payment of invoices for work or goods that fulfilled the contract.
Nonetheless, DOJ’s announcement of the Initiative presents a number of unanswered questions as to when an entity might face investigation, whether or not liability can be proven. For instance, it is not clear whether a company that is found liable for—or even settles—an employment discrimination claim could be subject to inquiry on the basis that the company “knows” it has violated Title VII.
Similarly, the Blanche memorandum’s suggestion that an FCA investigation could be triggered for universities (and perhaps companies) that allow transgender access to women’s bathrooms raises further questions. There is no express certification in government contracts or grants on this issue; nor is there a federal law specifically governing access to women’s bathrooms, making it difficult to imagine how the falsity, scienter, or materiality elements of the FCA could be proven. In the aggressive enforcement environment that the Blanche memorandum heralds, however, this may be precisely the kind of test case that a qui tam relator may decide to pursue.
Somewhat ironically, the Blanche memorandum’s threat of FCA liability based on EO policy statements (in contrast to the specific statutory regimes it mentions), contradicts the first Trump administration’s declaration that enforcement should not be based on “sub-regulatory guidance.” The January 25, 2018 memorandum by then-Associate Attorney General Rachel Brand sought to curtail prosecutions of alleged violations of policy. Even though the Brand memo was rescinded during the Biden administration, its approach aligned with the FCA principle that, for a claim to the government to be actionable, there must be some demonstrable noncompliance with a material contract-term, statute, or regulatory provision. The Blanche memorandum deviates from this approach by suggesting that DOJ will investigate and pursue as FCA matters conduct that the administration deems objectionable.
Conclusion
With the new Initiative, DOJ is signaling its intent to aggressively pursue civil FCA enforcement actions for conduct that violates existing civil rights laws as well as the administration’s policy views. Time will tell whether this Initiative broadens the scope of FCA liability, but it certainly increases the risk that companies and organizations will need to deal with whistleblowers, lengthy investigations and potentially costly litigation, and the attendant reputational harm that can arise from being the target of allegations of fraud against the government.
[1] According to recent reports, DOJ’s Civil Rights Division will lose more than half of its attorney staff by the end of May 2025. See 70% of the DOJ’s Civil Rights Division lawyers are leaving because of Trump’s reshaping : NPR (“Some 250 attorneys — or around 70% of the division’s lawyers — have left or will have left the department in the time between President Trump’s inauguration and the end of May, according to current and former officials.”),
[2] The reference to “men” appears to refer to transgender women, in keeping with EO 14168 establishing as the “policy” of the United States “to recognize two sexes, male and female.”
[3] See 31 U.S.C. § 3730(b)-(d) (actions by private persons; rights of the parties to qui tam actions; award to qui tam plaintiff).
[4] Over the past forty years, qui tam relators have brought cases yielding recoveries to the United States of more than $55 billion. Relators collectively have received about $9.5 billion in recoveries, exclusive of claims for attorney’s fees and costs. See Civil Division, Department of Justice, “Fraud Statistics Overview: October 1, 1986-September 30, 2024.” (Jan. 15, 2025), available at https://www.justice.gov/archives/opa/media/1384546/dl.
[5] The Supreme Court has described FCA materiality as a rigorous—and often fact-intensive—gatekeeper. To demonstrate that an underlying violation was not material to the government’s payment decision, however, defendants may need to collect extensive evidence during litigation and discovery.
[6] United States v. Incorporated Village of Island Park, 888 F. Supp. 419 (E.D.N.Y. 1995).
[7] United States ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, 668 F. Supp. 2d 548 (S.D.N.Y. 2009).
[8] United States ex rel. Ling, et al. v. City of Los Angeles, et al., CV11-974-PG (C.D. Cal.); See United States Department of Justice Press Release
China’s Supreme People’s Court Designates Record-Setting Trade Secret Case as a Typical Case
On May 26, 2025, China’s Supreme People’s Court (SPC) released the “Typical cases on the fifth anniversary of the promulgation of the Civil Code” (民法典颁布五周年典型案例) including one intellectual property case – the record-setting 640 million RMB trade secret case of June 2024. While the decision was a hollow victory as the defendant is insolvent and has not paid any damages, designation as a typical case may encourage lower courts to award higher damages in future trade secret cases. While the parties are unnamed, the plaintiff is Geely Holding Group and the defendant is WM Motor.
As explained by the SPC:
III. “Strict protection” and “high compensation” to actively create an environment that encourages innovation – Ji XX Company et al. v. Wei XX Company et al. Case of infringement of technical secrets
1. Basic Facts of the Case
Nearly 40 senior managers and technical personnel of Ji XX Company and its affiliated companies resigned and went to work for Wei XX Company and its affiliated companies, of which 30 joined the company immediately after resigning in 2016. In 2018, Ji Co. discovered that Wei Co. and the two companies used some of the above-mentioned resigned personnel as inventors or co-inventors, and applied for 12 patents using the new energy vehicle chassis application technology and 12 sets of chassis parts drawings and technical information carried by digital models (hereinafter referred to as “the technical secrets involved in the case”) that hey learned from their prior employer. In addition, the Wei EX series electric vehicles launched by Wei Co. were suspected of infringing the technical secrets involved in the case. Ji Co. filed a lawsuit with the first instance court, requesting that Wei Co. be ordered to stop the infringement and compensate for economic losses and reasonable expenses totaling 2.1 billion RMB.
2. Judgment Result
The effective judgment held that this case was an infringement of technical secrets caused by the organized and planned use of improper means to poach technical personnel and technical resources of new energy vehicles on a large scale. Through overall analysis and comprehensive judgment, Wei Co. obtained all the technical secrets involved in the case by improper means, illegally disclosed part of the technical secrets involved in the case by applying for patents, and used all the technical secrets involved in the case. Therefore, the judgment is: unless the consent of Ji Co. is obtained, Wei Co. shall stop disclosing, using, or allowing others to use the technical secrets involved in the case in any way, and shall not implement, permit others to implement, transfer, pledge, or otherwise dispose of the 12 patents involved in the case; all drawings, digital models, and other technical materials containing the technical secrets involved in the case shall be destroyed or handed over to Ji Co.; the judgment and the requirements for stopping infringement shall be notified to Wei Co. and all its employees, affiliated companies, and relevant component suppliers by means of announcements, internal company notices, etc., and the relevant personnel and units shall be required to sign a letter of commitment to maintain secrecy and not infringe, etc.; considering that Wei Co. has obvious intention to infringe, the circumstances of infringement are serious, and the consequences of infringement are serious, double punitive damages shall be applied to Wei Co.’s infringement profits from May 2019 to the first quarter of 2022, and Wei Co. shall compensate Ji Co. for economic losses and reasonable expenses of about 640 million RMB. At the same time, it is made clear that if Wei Co. violates the obligation to stop infringement determined by the judgment, it shall pay the late performance fee on a daily basis or in one lump sum.
3. Typical significance
General Secretary Xi Jinping profoundly pointed out that protecting intellectual property rights is protecting innovation. Strengthening judicial protection of intellectual property rights is an inherent requirement and important guarantee for the development of new quality productivity. In this case, the People’s Court, in accordance with the relevant provisions of the Civil Code, based on the determination of infringement of technical secrets, while applying punitive damages in accordance with the law, also actively explored the specific way to bear civil liability for stopping infringement and the calculation standard of delayed performance of non-monetary payment obligations, which promoted the renewal of intellectual property trial concepts and innovation of judgment rules, fully demonstrated the clear attitude of strictly protecting intellectual property rights and the firm stance of punishing unfair competition, and was conducive to creating a legal business environment of honest operation, fair competition, and innovation incentives.
4. Guidance on the provisions of the Civil Code
Article 179 The main forms of civil liability include:
(1) cessation of the infringement;
(2) removal of the nuisance;
(3) elimination of the danger;
(4) restitution;
(5) restoration;
(6) repair, redoing, or replacement;
(7) continuance of performance;
(8) compensation for losses;
(9) payment of liquidated damages;
(10) elimination of adverse effects and rehabilitation of reputation; and
(11) extension of apologies.
Where punitive damages are available as provided by law, such provisions shall be followed.
The forms of civil liability provided in this Article may be applied separately or concurrently.
Article 1168: Where two or more persons jointly commit an infringement and cause damage to others, they shall bear joint and several liability.
The original text, including four other Civil Code Typical Cases, can be found here (Chinese only).
Better Late Than Never? Not in the 5th Circuit: Delayed Action on Accommodation May Be ADA Violation
Earlier this month, in Strife v. Aldine Independent School District, the Fifth Circuit Court of Appeals held that an employer’s delayed accommodation of an employee’s disability could amount to a failure to accommodate under the Americans with Disabilities Act. This case serves as an important reminder not only to take all requests for disability accommodations seriously but also to respond swiftly and without undue delay.
ADA Basics
Under the ADA, employers cannot discriminate against employees based on their disabilities. In addition, employers must accommodate known disabilities, if requested. The employer does not have to give the exact requested accommodation, but they must engage in the “interactive process,” through which the employer and employee work together to find a reasonable accommodation that will both enable the employee to perform the essential job functions and work for the employer’s business needs. The duty to engage in the interactive process begins when the employer is on notice of the employee’s disability and desire for an accommodation.
The Facts
Alisha Strife requested that her employer, the Aldine Independent School District, allow her service dog to accompany her at work, in connection with her multiple disabilities. The school requested additional information, and Strife submitted a letter from her treating provider. The school, however, deemed the letter insufficient because it was not from a board-certified medical provider and requested further supporting documentation. Strife then submitted a letter from her psychiatrist, after which the school requested that she submit to an independent medical examination.
After the examination, the school and Strife’s lawyer exchanged various communications, and Strife provided three additional letters and underwent another exam confirming her need for the service dog. The school took issue with these items, including stating that they failed to “provide any information regarding potential alternative accommodations.” After roughly six months, the school ultimately granted the request.
Strife filed suit alleging, in part, that the school failed to accommodate her disabilities, and the school moved to dismiss. The court granted the motion to dismiss as to the failure to accommodate claim and a hostile work environment claim and later granted summary judgment on other ADA claims. On appeal, however, the Fifth Circuit reversed the dismissal of the failure to accommodate claim (but affirmed the district court’s treatment of the other claims).
The Holding
The Fifth Circuit held that Strife plausibly stated a claim for failure to accommodate, even though the school ultimately granted her requested accommodation. The court defined the question as “whether th[e] six-month delay, in and of itself, constitutes a failure to accommodate.” While noting that employers are not required to move “with maximum speed,” the court held that a delay can constitute a failure to accommodate because, “otherwise, an employer could circumvent the ADA’s protections by forcing an aggrieved employee to endure an endless interactive process.”
Under these facts, the court held that the delay could constitute a failure to accommodate. Specifically, the court noted that the school’s actions indicated a lack of good faith, as Strife repeatedly provided documents confirming her need for the accommodation, the accommodation was granted only after she initiated legal action, and the delay forced her to work in “suboptimal conditions” for six months.
Takeaways
This case serves as an important reminder to move expeditiously on accommodation requests. While you do not need to rush into a decision or simply grant an employee’s exact request as soon as it comes in, remember to engage in the interactive process in good faith and without undue delay. As always, consult with your employment lawyer with any questions about best practices in the interactive process. As for Ms. Strife’s case, the Fifth Circuit held that she had plausibly alleged a failure to accommodate due to the six-month delay and that her claim should go forward. Time will tell whether she will succeed on this claim.
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US Supreme Court Will Allow Trump Administration to End TPS Program for Venezuelans
On May 19, 2025, the U.S. Supreme Court lifted a district court order that had temporarily postponed the April 7 termination of the 2023 Venezuela Temporary Protected Status (TPS) designation. The ruling allows the Trump administration to end legal protection for roughly 350,000 Venezuelans now living in the United States under a program that had protected them from deportation known as TPS. The U.S. Supreme Court granted the Justice Department’s request to lift a judge’s order that had halted Homeland Security Secretary Kristi Noem’s decision to terminate TPS under the 2023 designation for Venezuela.
The termination of the 2023 designation may open the door for possible deportations soon. The decision appears to state that that the group has effectively lost their status and employment authorization. U.S. Citizenship and Immigration Services may release guidance regarding its implementation of the reinstated termination.
Venezuelans in the United States with TPS are divided into two groups: those who received TPS in 2021 when the Biden administration initially designated Venezuela for TPS, and those who received TPS when the program was extended in 2023. This Supreme Court decision does not affect the approximately 250,000 Venezuelans who were given the protection in 2021.
TPS allows people to live and work in the United States legally if their home countries are deemed unsafe, including wars, natural disasters, or other “extraordinary and temporary” conditions.
Employers should be aware that some workers may lose their work authorization and ability to remain lawfully in the United States with limited notice. Employers should review their workforce for employees relying on Venezuelan TPS. Employers can then review expiration dates and determine if impacted employees have alternative immigration options. At the same time, employers should avoid any premature terminations pending further guidance from the U.S. government. Finally, employers should have a workforce contingency plan.
Employers should refer to the TPS webpage for updates.
OSHA Heat Rule Moving Forward
Despite predictions by many that the Biden-era proposed heat rule would be scrapped, it appears that it is moving forward. While there may be some changes to the proposal, it seems we may have a heat rule sooner rather than later.
The US Occupational Safety and Health Administration (OSHA) has confirmed a public hearing on June 16, signaling significant progress.
The proposed rule establishes key temperature thresholds, requiring employers to implement protective measures when the heat index reaches 80°F, with heightened precautions at 90°F. While proponents argue it is essential for worker safety, the business community has raised concerns over its scope and operational burdens, particularly the 20% acclimatization period.
If your business could be affected by these changes, now is the time to prepare. Reach out to stay informed and ensure compliance with evolving regulations.
“There are political considerations, so it’s conceivable that what they will do is promulgate a rule, but the rule will be watered down,” said Michael Duff, a professor of law at St. Louis University School of Law. “In other words, you’re not hit with a one-size-fits-all rule that would be applied no matter what, you’re allowed to take into account workplace specific conditions.”
news.bloomberglaw.com/…
DOJ Announces Intent to Use False Claims Act To Target Diversity and DEI Initiatives
At a Glance
The Department of Justice (DOJ) will use the False Claims Act (FCA) to investigate and pursue claims against entities that violate federal civil rights laws, including anti-discrimination and equal employment opportunity obligations, which may include diversity, equity, and inclusion (DEI) programs. Unlike many federal civil rights laws, the FCA allows for significant uncapped damages.
To the extent your organization receives an inquiry from the Department of Justice or any agency inquiring about compliance with federal civil rights laws or DEI, contact your counsel. Recipients of federal funds should carefully review any representations regarding federal civil rights laws or DEI associated with federal contracts or grants. Further, recipients of federal funds should proactively review their compliance with federal civil rights laws and initiate such review promptly, prioritizing review of externally facing information, as such information could trigger an investigation.
The DOJ has announced a new “Civil Rights Fraud Initiative” (Initiative) under which it will use the government’s chief anti-fraud statute, the FCA, to pursue claims against institutions for violating civil rights laws including the anti-discrimination and equal employment opportunity obligations under Title VII of the Civil Rights Act of 1964 (Title VII) and specifically illegal diversity and DEI initiatives.
Under the FCA, 31 U.S.C. § 3729, the government may recover treble damages as well as significant penalties from any recipient of federal funds that makes a false claim for such funds. Further, unlike many federal civil rights laws, such as Title VII, the FCA does not have caps on damages. Under this Initiative, DOJ is targeting recipients of federal funds who “falsely certify” compliance with federal civil rights laws. In its announcement, DOJ specifically outlined situations in which it believes institutions–in particular universities–may violate civil rights laws and thus provide a basis for an FCA cause of action, including: “encourage[ing] antisemitism, refus[ing] to protect Jewish students, allow[ing] men to intrude into women’s bathrooms, or require[ing] women to compete against men in athletic competitions.”
The Initiative will be led by the Fraud Section of DOJ’s Civil Division, which typically oversees FCA matters, as well as the Civil Rights Division, which enforces federal laws prohibiting discrimination. The effort will also be supported by the various United States Attorney’s offices as well as DOJ’s Criminal Division. And, further, the announcement directs DOJ to engage with other agencies such as the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development, and the Department of Labor in pursuit of this work—highlighting that recipients of federal funding distributed by these agencies may be the first in line for DOJ scrutiny.
The Administration’s Anti-DEI Efforts
This new Initiative is part of the administrations’ larger effort to combat DEI and other policies, as articulated in President Trump’s Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing;” Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government;” and Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Read Polsinelli’s analysis of recent Executive Orders and other developments here.
Notably, Attorney General Pam Bondi had already issued a memorandum entitled “Ending Illegal DEI and DEIA Discrimination and Preferences” on February 5th, which directed DOJ’s Civil Rights Division to develop recommendations for enforcing civil-rights laws against DEI policies. The Initiative is an early indication of the enforcement steps DOJ will be taking to further the Executive Orders.
Legal Challenges to Anti-DEI Efforts
The administration’s anti-DEI Executive Orders have already been subject to numerous legal challenges.
In National Association of Diversity Officers in Higher Education v. Trump, Case No. 25-1189 (D.M.D.), plaintiffs challenged the executive orders on the basis that they violated the First Amendment’s free speech protections and the Fifth Amendment’s due process clause. Though successful at the district court level, on March 14, 2025, the Fourth Circuit stayed the district court’s preliminary injunction pending appeal.
In Chicago Women in Trades v. Trump, Case No. 25-2005 (N.D. Ill), a similar case, the district court issued a nationwide injunction on April 14, 2025, that restricts the Department of Labor (DOL) from requiring a federal contractor to make certifications relating to their DEI programs. 1
Polsinelli will continue to monitor these cases as they develop. The legal challenges to these Executive Orders—such as violation of the First or Fifth Amendments—will inform whether and how DOJ may pursue FCA claims as laid out by the Initiative.
FCA Potential Theories and Risks
To state a claim under the FCA, DOJ must show a false claim, knowledge of the falsity on the part of the defendant and materiality of the false statement to the government’s decision to pay.
Executive Order 14173 referenced above requires government agencies to ensure that federal contractors and grant recipients make certifications that they do not engage in any DEI or other programs that the administration believes violate anti-discrimination laws. While the DOL is currently enjoined from enforcing the DEI certification requirement, other government agencies are permitted to move forward with the certification requirement. These certifications will almost certainly be used to provide express false certifications for the purposes of FCA claims involving illegal DEI programs.
Further, Executive Order 14173 requires that government agencies include a term in every contract or grant award indicating that “compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions.” This language has started to be rolled out by various government agencies and will be used to try to satisfy the FCA’s materiality requirement.
The FCA also includes a qui tam provision that allows individuals to file lawsuits on behalf of the government and, if successful, receive a portion of the recovered funds. In addition to DOJ enforcement actions, whistleblower complaints related to illegal DEI programs pose a substantial risk to federal contractors and grant recipients.
Even if no DEI certification is made, other representations made or implied by recipients of federal funding in their interactions with the government could also form a basis for an FCA inquiry.
These issues will no doubt be the subject of legal challenges to future FCA enforcement actions brought by both the DOJ and whistleblowers.
Key Takeaways
Recipients of federal funding should proceed cautiously. Further, such recipients should proactively review their diversity and DEI programs and documentation now with the assistance of experienced counsel to allow time for the review and implementation of any recommended changes. Under this new Initiative, DEI and other programs, especially those externally facing, may draw DOJ or whistleblower attention. In addition, representations made as part of contracting or other communications with the government, particularly any direct representations regarding DEI or other programs, should be made carefully.
Recipients of federal funding should continue to monitor the development of legal challenges to the various Executive Orders. As these cases wind through the courts and result in nationwide or more limited injunctions, there will be substantial uncertainty in their enforceability and the validity of any related FCA claims.
To the extent that you receive any inquiry from DOJ, any funding agency or other law enforcement entities regarding DEI or other policies, seek counsel. Such inquiries may indicate an underlying FCA investigation.
[1] Other challenges include Shapiro et al. v. U.S. Department of the Interior et al., Case No. 25-763 (E.D. Pa.), National Urban League v. Trump, Case No. 25-00471 (D.D.C.), and San Francisco AIDS Foundation et al. v. Trump et al., Case No. 25-1824 (D.D.C.).