New Year, New Laws: Significant Employment Law Developments in 2024 and What to Expect in 2025

Hello everyone, and thank you for joining us for today's session of Ramon's Coffee Talk. I'm Christine Wittenaben, Senior Human Capital Business Advisor here at Ramon, and I'm delighted to welcome you to this exciting and informative discussion, New Year, New Laws. As we step into the new year, staying informed about legal updates is critical for leading your organizations. With confidence and ensuring— Today we have the pleasure of hearing from 3 exceptional professionals. And those people joining us today are Tara Hummer and Christopher Kelly, employment law partners with Ramon, along with Barbara DiMatteo, human capital business advisor and associate certified coach. Now, should you have any questions, please use that Q&A portal and we will do our best to address your questions. If we can't get to all your questions today. Please don't worry, we will follow up with an email after the presentation. Now, before I dive into the program, I just want to note that today's discussion does not constitute legal advice and does not create an attorney-client relationship. Also remember that past outcomes do not guarantee future results. Now let's jump right into our program. Tara, we'll start with you.

Thanks, Christine. As Christine said, my name is Tara Homa. I am a partner at Ramone in the Labor and Employment Group. And the first topic that we want to talk about today is wage and hour. The first subtopic that I'll talk about is the federal Department of Labor's rule regarding increases to the exempt salary basis thresholds. So the DOL, the Department of Labor, had issued a rule in earlier, earlier in 2024 that increased the salary basis requirements for individuals who were, who are, or were exempt under the executive, administrative, and professional exemptions as they relate to minimum wage and overtime rules. The rule was effective, like I said, in early 2024, April, I believe, and in July of this year, the threshold under that rule was increased to $844 per week, or $43,000 $800 and some change annually, and it was set to be increased again this month in January of 2025 to $56,656 annually, or $1,128 per week. However, on November— in November of 2024, a federal court blocked the rule nationwide. The ruling was— the ruling came out of the District Court for the Eastern District of Texas. Like I said, it applies nationwide, and essentially it blocks the increases to the salary threshold as well as reversing the increase to the salary threshold that went into effect in July of 2024. As a result of the court's decision, the minimum salary threshold for those exempt positions, executive, administrative, and professional, returned to what it was prior to this rule, which is the $684 per week that everyone, um, had been, you know, familiar with and used to for a while. Uh, the takeaway here is that in 2025, employers should keep an eye on this as it unfolds under the new administration. Uh, should the rule eventually become effective again by way of, you know, um, an appeal of that court decision, employers may need to look at their exempt employees and in some cases may need to either reclassify them as non-exempt, or raise their salary so that it meets the higher thresholds. Um, I will say that it is probably likely that the new administration will not pursue, um, this increase given its views on these types of issues. But again, employers should keep an eye on how this develops into 2025, um, because if the rule does eventually go into effect If an appeal is pursued and the rule goes into effect, those increases are something that employers should keep an eye on.

And even if this doesn't occur immediately, I think given the number of times we've seen the DOL try to raise the salary threshold, it will happen at some point in the future. The question is by how much. These have been pretty significant leaps they've been looking at, and perhaps they'll have to refine that down a lot before they get something to stick.

Now I'd like to talk a little bit about New York. So even though the salary thresholds did not change on a federal level, they do change for New York employers, and specifically for those exempt under the executive and administrative exemptions. On January 1st, the— of 2025, the minimum salary threshold within New York City, Nassau, Suffolk, and Westchester counties increased to $64,350. And on January 1st, 2026, in those same locations, it's going to increase to $66,300 annually. Now, in areas outside of New York City, on January 1st, 2025, the threshold increased to $60,405 and change. And on January 1st, 2026, it's going to increase to $62,353.20. So making sure that jobs are correctly categorized and meet both the duties and the salary tests are really critical. We encourage you to contact any of our team to help you confirm that the exempt designations for your employees are correct. Now, it's also important to be reminded that the minimum wage in New York for non-exempt employees has also increased as of January 1st, 2025. In New York City, Long Island, and Westchester, the minimum wage is $16.50, and in the remainder of New York State, the minimum wage is $15.50. Now, for those who employ tipped service employees and tipped food service employees, there is a change in the cash wage wage and tip credit, and it's different for those who work in New York City, Long Island, Westchester, and the remainder of New York State. The other thing to think about is that a number of other states also have minimum salary thresholds that are higher than those established under the federal Fair Labor Standards Act, and it's good practice to make sure that you are always in compliance.

Tara?

Yeah.

Yes, and one other thing to mention, just following up on Barbara, what you said is that it's, it's, I, it's really important for employers who are operating in multiple states or even one single state that has these increased thresholds to make sure that you're complying with those particular states' wage and hour laws as it relates to those, both the minimum wage and the salary threshold for exempt positions. They vary widely from jurisdiction to jurisdiction. So it's not just— again, it's not just the federal minimum wage and salary basis threshold for the exemptions, but there are state requirements as well. So keeping track of all the state laws as well as the federal law is really important. And with that, I'll talk about our next subtopic, which is the new independent contractor tests under the Fair Labor Standards Act that the Department of Labor issued in 2024. So the rule was issued in January of 2024, and it went into effect in March of 2024. And basically, the new rule uses what is called the economic realities test to determine whether a worker is an independent contractor or an employee under the Fair Labor Standards Act, which as we all know, is the law that requires minimum wage and overtime payments to nonexempt employees. So the rule provides 6 factors to determine the degree of a worker's economic dependence on the employer, the company, I should say, with no single factor being dispositive. The factors are, number 1, the worker's opportunity for profit or loss depending on managerial skill. Number 2, the relative amount of investment made by the worker in comparison to investments made by the potential employer. So for instance, if the individual worker who is, who the company is trying to classify as an independent contractor is buying all the materials and buying all the tools and all of that kind of stuff, that weighs more in favor of an independent contractor relationship as opposed to a situation where the company is providing, you know, all of the tools for the individual to do the job and things like that. The third factor is the permanency of the worker's relationship with the company. And so, in a situation where the individual is a long-term worker for this potential employer, potential company, that's, that weighs in favor of an employee relationship as opposed to a contractor relationship. A contractor relationship would be, for instance, where an individual is hired for a discrete short type of project. That would weigh more in favor of a contractor relationship. The fourth factor is the nature and degree of the potential employer's control. And so what that means is that if you have a situation where the worker is you know, being told when to come in and complete the task, being told what policies and procedures they need to follow, things of that nature, that would weigh more in favor of an employee relationship as opposed to a contractor relationship. The 5th factor is the extent to which the work performed is an integral part of the company's business. So if we are at a widget factory and the person is on the line creating widgets, that weighs more in favor of an employment relationship as opposed to a contractor relationship. And then the 6th factor is whether the worker uses specialized skills indicative of a business-like initiative. So we use a lot of the time a plumber example. For instance, if your company's hiring a plumber to come in and fix the pipes, you know, that is probably a contractor relationship as opposed to an employment relationship. If they are, you know, sitting at a desk doing the business of the employer, potentially that would weigh more in favor of an employment relationship. The rule also refers to additional factors that may be considered, which are outside of the 6 enumerated factors. It's a little bit of a gray area with regard to those additional factors, but there's something that can also be considered in the analysis the overall factual analysis related to whether an individual is a contractor or an employee. This could cause issues for businesses who have workers classified as independent contractors who rely heavily on the company for their livelihood. So as I mentioned previously, you know, if this is a contractor whose sole source of income is the company providing them with this work that would, you know, potentially weigh in favor of an employment relationship as opposed to a contractor relationship. These analyses are very fact-specific. So, you know, you should be evaluating them and reevaluating them depending on, you know, changes in the relationship and things like that. Classification issues like this will continue to cause problems for employers. Especially those with multi-state operations, because there are differing tests under various federal and state laws that must be considered. So, for example, there might be a different test for who is an employee versus an independent contractor under state wage and hour laws and under state workers' compensation laws. Some states use what, what is called the ABC test, which is a more stringent test. For determining whether an individual is an independent contractor versus an employee. And so again, employers really just need to be cognizant of those additional state laws and then additional tests under federal law, other federal laws as well. So the takeaway here is that looking forward into 2025, employers again just need to actually be aware of these tests and especially if you have independent contractors that you work with, that your company works with, you want to really be evaluating those relationships and making sure that they are actually independent contractors versus employees. You know, part of the concern here is that if you misclassify a worker as an independent contractor when they should have been classified as an employee, you as an employer could be on the hook for wage and hour damages. So paying an employee minimum wage, paying, or a worker minimum wage, paying the individual overtime if they were working more than 40 hours in a week, in addition to all of the other damages that those laws provide for. Same thing with regard to, for instance, workers' compensation laws. If you're misclassifying an individual as an employee or as an independent contractor as opposed to an employee, and the individual is hurt and they should have been an employee, you know, your company could potentially be on the hook there as well. This also comes into play with remote workers in different states, which Chris and Barbara will talk about later. But in most cases, the state's laws where the worker sits are going to apply. So if you are a company that has remote workers in all different jurisdictions, you'll want to make sure that you are complying with the laws in that particular state. Even these laws that deal with worker classification. Long gone are the days where employers could simply pay a worker on a 1099 and classify them as an independent contractor just because of that. There are these legal analyses that employers need to consider. So with that, I'll turn it over to Kris to start talking about the next topic.

And just on that topic as well, I would say that the penalties, in addition to the federal penalties, there are states, a lot of states have their own penalties. I lived for many years in California and still practice there. And the rule of thumb that the management side employment attorneys use is that if you pay someone improperly in California, you will owe them roughly 10 times what you would have owed them had you paid them properly in the first place. So those penalties can be severe. Most other states are not that bad, but they also have additional penalties beyond just the federal penalties that you would pay, including New York. And New York has a 6-year statute of limitations now going back on wage and hour claims. So it's even farther than the federal government allows you to go back. So, so it's significant. It's important to look at these things. Our next topic is pay transparency laws. We've seen a lot of development in this area over the last several years. You know, many of you, I'm sure, have seen the different transparency laws that require with external postings that job salary ranges be implemented, be posted so that employees can see what the range is for a particular position before they even apply. We've seen an interesting new development in New Jersey on this. On November, last November, New Jersey's governor signed a bill requiring transparency concerning not just employment listings but also promotional opportunity listings, and that's true whether they're internal or external. And for covered employers, they must post both the salary range, which we've come to expect, but also a listing of benefits and other compensation programs that the employee would be eligible for within the first 12 months of employment. So a significant increase. It will be interesting to see whether other states follow suit on this or whether this is just an anomaly. But for now, if you have employees in New Jersey, you should keep this in mind. And another issue that I've seen coming up with these pay transparency laws is that employees often don't know what a salary range is. For those of us who work in the employment law and human resources field, we know that that is a band range for the entirety of the position and that anyone being hired into that position, absent unusual circumstances, is likely going to be at the very low end of that range. And employees, many employees do not understand that, and they're becoming increasingly upset at employers who post a range And they expect because they're highly qualified for the job that they will get at the top end of the range, even though that is something that's for someone who's been promoted several times within the range and is, you know, has received annual merit increases. Uh, and so I think, you know, it's important to consider that when you're speaking with employees about these jobs, uh, given that you must post these, uh, in many states and local jurisdictions, you are required to post these salary ranges. I think it's important to discuss that with any employees that you interview and give them that expectation upfront. Make sure they understand what a salary range really is and that they should not be expecting to be paid in the 90th percentile of a job salary range when they're first hired. Another development out of New Jersey back in 2023, New Jersey passed the Temporary Workers Bill of Rights, which gave a substantially increased amount of rights to temporary workers, people who are just there for a very short time working on specific projects, that sort of thing. And there was some ambiguities in the law that were causing a lot of confusion among employers. And so the long-awaited regulations to implement this law were finally issued after a notice and comment period on August 21st of this last year, 2024. The law, the regulations clarify, among other things, when the Temporary Workers' Bill of Rights will apply to out-of-state work assignments, how to calculate pay, and pay equity requirements under the law. And it's important to keep on top of this, particularly with regard to the out-of-state work assignments, because, for example, one of the rights that the Temporary Workers' Bill of Rights grants is that temporary workers must be paid weekly. So for those of you who are paying your regular employees biweekly or twice a month, you need to be aware that these particular subset of employees need to be paid weekly, and the out-of-state work assignments regulations will help you to determine whether someone who you might not think is subject to the law might actually be subject to the law. And Tara, with that, I'll turn it back to you.

So one other subtopic that we thought we'd briefly touch on under this broader wage and hour subject is immigration. As most of us know or have heard, a key element of President-elect Trump's campaign was immigration reform and more particularly potential deportation of undocumented persons. So it's worth mentioning that looking forward into 2025 under the new administration, It's possible that a Department of Labor under President Trump could potentially collaborate with other federal agencies with regard to undocumented workers, and this could potentially result in worksite raids and heightened scrutiny with regard to employment eligibility. So it's just something employers should keep an eye on and keep an eye on how this develops under a new Trump administration coming in later this month. I think it'll be, you know, something that could come up. And, you know, President Trump has said that this is something that he will focus on. So important to kind of keep an eye on that.

All right. Our next topic is something that I'm sure many of you have been watching very closely is the developments on non-competes over the last year. This has been a quite exciting year for the non-compete world. As I'm sure most, if not all of you saw, the Federal Trade Commission decided to put into effect a rule that would essentially have banned virtually all non-competes subject to certain limited exceptions. The rule was based on implementation of the Sherman Act, an act that has been in effect for decades. And marked a substantial and dramatic shift from prior interpretations, which had never considered that the Sherman Act would have precluded non-competes. So based on that, you know, many of those of us in the employment law field considered this an uphill battle for the FTC to convince courts as to why they had mistakenly not realized for decades that this statute actually prohibited something that it did. As a result, not surprisingly, there were 3 challenges in federal court across the country to this statute. The one was in the Eastern District of Pennsylvania, and in that case, the court, somewhat surprisingly, at least to me, ruled that the FTC's rule could stand on a preliminary basis. This was at a preliminary ruling at the very outset of the case, and the court would not issue an injunction to bar its enforcement. The second court to address this issue issued an injunction just temporarily, just for the parties in the case. It was a very limited ruling and it was going to be expanded upon. The court reserved judgment on further aspects of the ruling. However, a federal court in Texas beat that court to the punch and issued a nationwide injunction barring enforcement of the rule nationwide as to all employers. That leaves the rule in limbo at this point, that it is being appealed, but the new administration is maybe very likely to drop that appeal. Particularly since President-elect Trump has indicated that he will appoint current FTC Commissioner Andrew Ferguson as the new FTC chair. And Ferguson has been strongly opposed to this rule banning non-competes. As a result, we would expect that he would not be inclined to continue the appeal for this sort of blanket ban on non-competes. However, somewhat surprisingly, Commissioner Ferguson recently has made statements suggesting that he believes that it is wise for the FTC to focus its resources on protecting competition in labor markets because after all, and this is a quote, the antitrust laws protect employees from unlawful restraints of the labor market as much as they protect against any output market. He went on to say that he has no doubt that some non-competes violate the Sherman Act. Based on these statements, we would expect that we're going to see a more nuanced approach to addressing non-competes by the FTC. And that is consistent with the way the federal government has treated non-competes in the past under antitrust laws. This is actually not by the FTC, but by the Department of Justice, where, for example, blanket no-poach agreements between two competitors are per se unlawful. And the Department of Justice has taken action against companies that have tried to enter into agreements with their competitors saying we won't hire each other's employees, saying those are violative of antitrust laws. And so we think based on that, we will see from the FTC, to the extent they engage in any more activity on this, it will be a more nuanced approach like that, looking at what specifically is being done in context rather than just banning, trying to enforce a blanket ban. There was also the National Labor Relations Board General Counsel issued a memo taking a similar position that construed most non-competes as being illegal. Again, the— with the new incoming administration and their positions on these sorts of issues, we expect that, uh, that will likely be reversed by whoever winds up taking over as general counsel under the new administration. Uh, and finally, um, we still have to be aware of state laws, uh, on this issue. Uh, this is an area of constant development New York tried to do a blanket California-style ban, which would have again banned virtually all non-competes except in very limited circumstances. However, that was vetoed by Governor Hochul, and this was in just slightly before last year, in December of 2023, at the end of December. But that is the sort of thing we're seeing, you know, where we're seeing these pushes to try and ban non-competes or limit their applicability. And sometimes they fail and sometimes they don't. So employers need to be aware of this. You need to be thinking of this when you have an employee who moves to another state, when they are working remotely from another state, which state's law will apply? Will your existing non-compete continue to be enforceable? Will other restrictive covenants that you have in the agreement be enforceable? So for example, many employers include confidentiality provisions in their employment agreements or in a standalone confidentiality agreement. And while every state allows you to protect your confidentiality, trade secrets, etc., in some states, for example California, an overbroad confidentiality agreement can be viewed as effectively being a non-compete, and those de facto non-compete agreements can be struck down by courts. So you have to be very careful if you are a you know, New York employer who has an employee who's, you know, living in New York, New Jersey, Connecticut, wherever, and you authorize them to work remotely in California, will you still have the ability to enforce that non-compete? And that's something that you would need to consult closely with counsel and look at on a very detailed level. All of this is very clearly in flux, but I think an important takeaway here is that even in states with near virtual bans like California and Colorado, employers can still generally protect what it is they want to protect— your trade secrets, your confidential information. I mean, in basically no state can you prohibit your employee from going to work as a janitor for another company if that's truly what they're doing. Of course, employers will say, well, he's not really going to work as a janitor, that's a farce. But, you know, if you're careful with the way you draft these agreements, even in states like California, you can come up with agreements that will effectively protect your confidential information and trade secrets without blocking an employee from getting otherwise legitimate employment. And, you know, a lot of it is protecting things that are otherwise protected. Trade secrets are protected by statute. It could be unfair competition to work in for a competitor using confidential information you took from a prior employer. It could be misappropriation. But it's important to put these things in an agreement so the employee is on notice of what they're expected, what is considered the employer's property, how long that information is viable for. So, for example, if, you know, this information is still valuable to an employer for 2 years or 4 years, you might want to have an extended, a longer period of restrictions on the use of that information to the extent it's permissible under applicable law. Whereas if the information isn't valuable for that long, you probably want to shorten that to make sure that you don't appear to be overreaching if you ever have to enforce these agreements. So again, these are very complicated, very fact-specific issues that it would be important to talk through and figure out in advance of getting to litigation, which in these matters can be extraordinarily expensive. And Tara, with that, I'll turn back to you.

So, our next broad topic is worker protections generally, and I specifically want to talk about nondisclosure and confidentiality agreements, which Kris briefly mentioned. These come up in the context of agreements that employers have with their employees that requires the employees to keep employer confidential information, trade secrets confidential, and which also require employees not to disclose that information. Um, specifically with regard to the Federal Securities and Exchange Commission, in 2023 and 2024, um, the SEC made it a point to kind of go after, um, broad nondisclosure agreements and broad confidentiality provisions in employment-related agreements, um, that could be read as basically preventing employees from whistleblowing and reporting violations to the SEC. The SEC in this context has even gone after agreements between private employers and their employees. So we're not just talking about publicly traded companies in this context when we're talking about the SEC. And so basically the SEC has a rule that it has been seeking to enforce over the past year or two related to these agreements that can be seen as prohibiting whistleblowers from disclosing certain confidential information in the context of a report of these violations to the SEC. As I said, they've been challenging these agreements even as they relate to private companies. And there have been a number of cases with companies where they have settled. The companies have settled and agreed to pay you know, 6, 7, and even 8-figure settlement amounts related to these agreements and the challenges to these agreements. In addition, other federal agencies have taken similar positions regarding these broad nondisclosure and confidentiality provisions that don't include exemptions for whistleblowers. So the takeaway here going into 2025 is that we will probably continue to see some enforcement of these types of provisions, whether it be at the federal level or whether it be at the state level, because as some of you may be aware, some states have also enacted legislation prohibiting certain broad nondisclosure provisions, specifically in some cases as it relates to allegations of harassment and discrimination. So, the takeaway here is that if you're drafting an employment agreement, you're drafting a separation agreement, or if you have your employees just generally signing nondisclosure and confidentiality agreements in order to protect your confidential information and trade secrets, you'll want to make sure that those agreements are reviewed and that they include the appropriate exemptions for these types of complaint or whistleblower protections under both certain state and federal laws. I do want to mention also that with regard to some of this, there could also be potential criminal ramifications for some of these things. So, for example, you could be looking at potential charges for obstruction of justice if you're preventing your employees by way of one of these agreements from disclosing certain things to federal agencies, especially if the prevention is willful or deliberate. So, something else— that's something else to keep in mind when you're drafting or having someone take a look at these agreements, just to make sure that there are those exemptions that are required by law for certain whistleblower activities. And with that, I'll turn it back over to Barbara to talk about a few other developments in the worker protection context as it relates to certain New York laws. Terrific.

Thank you, Tara. The first I want to do is I want to talk with those who have a retail workplace in New York. In September of 2024, the governor signed the Retail Workplace Safety Law, which mandates the establishment of a workplace prevention workplace violence prevention policy, a notice and a training program, and the installation of panic buttons in the workplace for certain retail employers. So the written notice policy and training requirements will all take effect on March 4th, 2025. The panic button requirement does not take effect until January 1st, 2027. Now, the policy, the notice, and the training requirements apply to all employers who are employing at least 10 retail employees. The panic button requirement is applicable only to employers with 500 or more retail employees nationwide. So as of today, the New York Department of Labor still has not published further guidance or details, leaving a number of employers in the dark regarding the scope of the coverage. So we're expecting that the New York Department of Labor is going to issue guidance for some of those requirements prior to the March 4th, 2025 effective date. The next one I'd like to chat through is the New York Freelance Isn't Free Act. So effective August 28th, 2024, the New York Freelance Isn't Free Act went into effect. Now, this is very similar to the New York City rule with the same name. It expands protections for freelancers and independent contractors, and it imposes new requirements on hiring parties who work with them in New York State. At the core, the Act requires there be a written contract between the hiring party and the 1099 or freelancer when there are services provided for $800 or more. The written contract has to include, amongst other things, certain basic information such as an itemization of all services that are going to be provided by the worker, the value of the services that would be provided pursuant to the contract, the rate and the method of compensation, the payment date of compensation, and applicable deadlines. The hiring party is also required to keep a copy of that written contract for a period of no less than 6 years. So the bottom line is that it requires contracting entities that hire 1099s and freelancers to do 3 things. One, and enter into written contracts. Number 2, make timely payments to that freelancer or independent contractor within 30 days and refrain from retaliation. You know, this law is designed to protect 1099s and freelancers from non-payment, late payment, and retaliation by hiring parties. And it's important from many perspectives to ensure that individuals are correctly classified as 1099 or freelancers versus employees. And our team can help you with that.

And this is something that I think is going to keep coming up, not just in New York but across the country. There's been a whole lot of tension on this subject. Legislation in both directions, sometimes pushing back and saying, no, the, the, these workers are still independent contractors and you don't have to give them any special protections. And then conversely, things like what we're seeing here in New York where they're, they're trying to make them more like employees even if we use the label independent contractor. And so this is something that's just constantly developing and you need to be very aware of if you're operating in multiple states. What that state says, what specific localities say. As Barbara mentioned, New York City had this law before the state had a law, and so you need to be very specific about where the employees are working, which law would apply, and make sure you're in compliance with all those rules.

And there continues to be as well tons of litigation in this area about classification issues. I actually saw an alert just this morning about a case that is being appealed in the Third Circuit about Uber drivers. So I mean, this is a space where I think we're just going to continue to see both legislation and challenges through litigation as well. So with that, I'll move on to our next broad topic, which is artificial intelligence. I'm sure everyone has heard about this in some context throughout the course of 2024 and maybe a little bit before that as well. I personally think the term ChatGPT became kind of like a household discussion point over, over the last year or so. In the employment context, there has been a ton of chatter, guidance, and talk about employers' use of artificial intelligence for a number of purposes. But the one that we kind of think about a lot and hear about a lot is with regard to applicant screenings and hiring processes of employers. And the federal Department of Labor has issued a ton of guidance in 2024, did issue a ton of guidance in 2024 on this topic of employer use of artificial intelligence. The first guidance was issued, I think, in April or maybe a little bit before that, and it was by way of a Field Assistance Bulletin, which essentially is guidance for the actual Department of Labor field staff on certain issues related to employer use of artificial intelligence. Then in May and October of 2024, the Department of Labor issued further guidance on that basically outlined best practices in both the development and the use of artificial intelligence. And the guidance appeared to be for both AI program developers as well as employers who were going to be using the technology. The guidance set forth 8 general principles that the Department of Labor says helps recognize benefits as well as the risks with employer use of artificial Intelligence, and which are aimed at kind of protecting workers with regard to the employer use of artificial intelligence. So I'll quickly go through the principles and kind of explain, then explain why this matters for you as an employer. The first principle is that developers and employers using AI should meaningfully engage workers at all phases. So at the creation phase of the AI programs, at the use phase, and then at the implementation phase of these AI tools. Ethical. The second principle is ethical development of AI systems, and this basically means doing assessments, impact assessments, and audits of the systems and tools, assessing the risks of algorithmic discrimination by the tools. And then they also suggest monitoring the programs on a regular basis, which I'll talk about a little bit more. When I talk about state legislation in a little bit. The third principle is establishing artificial intelligence governance and human oversight. So making sure that there is human oversight of the use of these tools in order to prevent, you know, decisions, disparate impact, things of that nature. Ensuring transparency in the use of AI. And this basically means disclosing to impacted individuals that you as an employer are using these tools. The 5th principle is using artificial intelligence to enable workers. And basically what this means is that as employers, you should be allowing AI to assist workers with becoming more efficient in their tasks, for instance, as opposed to just kind of using it to reduce staff, for example. Supporting workers impacted by AI, this may come into play where, you know, for instance, a worker's job is replaced by artificial intelligence. And one example in that context of supporting workers would be, you know, uptraining the worker to do a higher-level task as opposed to kind of just getting rid of the worker in that context. And then ensuring the responsible use of— use and disclosure of worker data or sensitive data. And this means that both developers and employers need to make sure that where data security is required by law or where it's a best practice, that these tools are ensuring that that is happening. This is particularly important where a third party is your vendor for the use of an AI program. So employers should really be kind of evaluating these tools that they're using, whether they're developed internally or, you know, you have a vendor and you're using them by way of a third party. There's also been state legislation in this space. So specifically, Colorado and Illinois have both passed laws requiring certain checks and balances on employer use of AI tools and monitoring of AI tools. Some of these laws appear to actually heighten employer liability for things like discrimination as the result of using AI tools. And then some of these laws require, for instance, notification of the use of AI tools. California and New York in 2024 attempted to pass similar laws regarding employer use of AI that failed. But we expect that we'll see a lot of state action in this space going into, into 2025 and beyond. Just given the fact that, you know, AI has become so prevalent over the past year. We've also seen lawsuits regarding the use of AI tools in the employment context. The ACLU has filed claims with the EEOC over certain tools. We saw a California federal court case where, which was a discrimination lawsuit against an AI vendor after more than 100 employers that used the vendor screening tools rejected an applicant that was in a specific protected class. So the takeaway here is that while we may see less focus on regulating AI tools under the new administration, and we may see less guidance coming out from the Department of Labor in this space. Employers do need to kind of be aware of that and make sure that you're looking at it and also considering any of these state laws that are enacted, you know, both have been enacted and will be enacted over the next few years. Employers also need to be aware that, you know, just because you use a tool doesn't mean that you are not liable for the results of the tool. So, you know, I talk about this a lot. This comes into play a lot with regard to kind of disparate impact claims, discrimination claims, whether it's a paper policy that is creating a disparate impact Or whether it's an AI tool that's creating a disparate impact, the employer needs to be cognizant of their duties in that regard and taking the appropriate measures to prevent that type of issue from arising. So just kind of keep an eye on if you are using AI tools. We're happy to talk through some of those requirements and best practices. And if you're planning to implement using AI tools in the future. Again, happy to talk about policies you should have in place, best practices and things like that. With that, I'll turn it over to Chris for our next topic.

So we're going to shift gears now and head into discrimination, harassment, retaliation. Always a big ticket topic. Some interesting developments this year. For example, in April, the Supreme Court addressed the longstanding confusion over what constitutes an adverse action in the context of a transfer. In the early years of this debate, there was a question about whether a transfer could even be an adverse action if it was to a comparable position with the same pay and benefits. We've gotten a little more nuanced on that. With some circuits have taken the position that there had to be material, substantial, or serious harm. And the Supreme Court resolved all of these issues in an employee-favorable decision, but that will nonetheless, I think, be helpful to employers because it provides some much-needed clarity here that as long as the employee can show they suffered some harm, to the terms and conditions of their employment when they were transferred, that is sufficient, and that there's nothing in the text of Title VII that requires any heightened standard for those sorts of claims in the context of a transfer. And so employers now at least have some certainty in knowing when you're making a transfer, when you have to consider whether there'll be any harm to an employee in terms of evaluating any potential discrimination claims. Next, we had the new EEOC guidance regarding harassment and discrimination. We expect this may be rolled back under the new administration, not simply because The prior Trump administration was very hostile to regulations and guidance generally, but even beyond that, in this context, this particular guidance addressed trans employees. So we think that may be an additional reason why it may wind up being rolled back. There was also, importantly, the Pregnant Workers Fairness Act was passed this year. Which addresses solely the issue of accommodations. So it's important to note that while there are other federal statutes that address discrimination against pregnant workers and retaliation against them for being pregnant, this law only addresses accommodations. It says that an employer can't deny an opportunity to an employee because of accommodations they have or that they might need for the position, and it cannot require an employee to take leave because they are pregnant. And it also prohibits an employer from retaliating against an employee for seeking accommodations or because they have accommodations. So, again, important note, just that it's only about accommodations, not that any of those other things aren't otherwise problematic, but not in this statute. New York passed a constitutional amendment which incorporates prohibitions on discrimination under additional protected classes into the state constitution, has elevated them to constitutional status. That is All of these protected categories were previously included and are still included in the state human rights law. So while it will not affect the application of these laws going forward, they were already considered discriminatory to discriminate on the basis of those protected classes. What it does do is make it harder to change the statute because it's been elevated to a constitutional status. As Tara mentioned, there's been a lot of push on confidentiality and separation and settlement agreements in the discrimination context. This arose out of the MeToo movement trying to prohibit the— trying to prohibit employers from requiring confidentiality in settlement agreements with the belief being that that was somehow preventing employees from discussing legitimate claims of discrimination. So New Jersey had passed an act called S.121 that did prohibit that. It prohibited broadly any agreement, any provisions in an agreement that purported to or had the effect of prohibiting, concealing allegations of discrimination. So one of the questions that arose out of that was, would a non-disparagement clause be precluded? Because any truthful allegation of discrimination would still nonetheless be disparaging to the employer. So would the statute prohibit that? When this was first addressed by the Appellate Division, it was held to be that that would not be problematic, that you could have a non-disparagement agreement, but the Supreme Court reversed and determined that non-disparagement agreements were precluded. So there is a very broad prohibition against anything in New Jersey that prohibits an employee from discussing the allegations of discrimination or harassment. And with that, Barbara, I'll turn it to you for a New York-specific area on this? Terrific.

Thank you, Chris. We all know that there have been a number of states who have implemented what we call a ban-the-box rule in the private sector, which seeks to protect applicants and candidates who have been convicted of a crime from automatically being disqualified during the interview in the selection process. Many employers now have to wait until they are extending a job offer and make a conditional offer of employment while they are inquiring about or checking for a criminal history? Well, the New York State Clean Slate Act took effect on November 16th, 2024, and this aims to eliminate the employment barriers for individuals who have criminal convictions. And this act facilitates this by automatically sealing misdemeanor and specific felony criminal records. So misdemeanors are sealed 3 years from the individual's release from prison or from the imposition of sentence if there was no incarceration. Felonies are sealed 8 years after release from prison or from the imposition of sentence if there was no incarceration. But this Clean Slate Act does exempt certain categories of serious offenses and does not seal convictions which are what they call Class A felonies, which include murder, treason, arson, terrorism, and kidnapping. It will not seal convictions which include sexually violent offenses and sex crimes. The Clean Slate Act is going to prohibit employers from making any kind of an inquiry regarding an automatically sealed conviction or making any adverse decision concerning an individual's employment based upon those sealed convictions. Employers are still permitted to access and consider those sealed convictions in making employment decisions when required by either state or federal law to conduct a fingerprint-based background check, or with the— we're authorized to conduct a fingerprint-based background check because the applicant could be working with children, the elderly, or with vulnerable adults. So the Clean Slate Act is limited to criminal records under New York state law. Federal offenses and records of convictions in other states are not sealed. Convictions will not be sealed where the individual has a criminal charge pending, is on probation, or is under parole supervision when the time period for automatic sealing is going to occur. So the takeaway is that employers conducting criminal background checks covering New York convictions of applicants for employment, engagement as independent contractors, or of current employees really have to be diligent to ensure their criminal background check practices comply with the Clean Slate Act. We encourage you to reach out to ourselves, to Christopher or Tara, to help reduce those risks or violations or of violations of the act and take steps immediately to make sure that you're not receiving information regarding New York convictions that are automatically sealed and that you're not making decisions based upon that information. So I'd like to turn this back to Tara, who's going to talk a little bit about another important topic, which is very much in the news nowadays.

Thanks, Barbara. And I did just want to mention on the Clean Slate Act, and just generally speaking, I think the Clean Slate Act requires employers to provide certain additional notices to applicants and employees with regard to the criminal history information. And there are other requirements as well that employers should continue to be aware of under both state and federal law with regard to these criminal background checks, both you know, getting the employee sign-off that they can conduct such checks, as well as under certain federal and state laws, requirements related to providing employees notice when they are thinking about taking an adverse action or not hiring an applicant based on these criminal background checks. So, there is kind of a lot, a lot of law both at the local, state, and federal level related to criminal background checks and what types of analyses employers should be conducting when they conduct those types of checks. So, important for employers to kind of just be aware of that and make sure that their processes are vetted and in compliance with jurisdictions that they are operating in generally. And so, the next topic that Barbara mentioned is diversity, equity, and inclusion programs. This was another hot topic hot topic in 2024, which will likely continue to be a hot topic in 2025. We saw an uptick in litigation and even informal challenges in late 2023 and 2024 regarding companies' diversity, equity, and inclusion programs. This followed the Supreme Court case with regard to affirmative action. Students for Fair Housing Admissions, or for Fair Admissions, against the University of North Carolina and Harvard. Basically, in that case, the Supreme Court held that the admissions process at those schools, which took race into consideration, violated the Constitution and violated the Civil Rights Act. There was a little bit of an uproar after the decision where organizations against affirmative action and DEI programs claimed that an analogous argument could be made with regard to certain employer DEI programs and claimed that those programs were unlawful. So we saw challenges to certain DEI programs both in courts and, like I said, kind of informal attacks on those programs outside of actual litigation. And those challenges resulted in some companies reevaluating, and in some cases revising their internal DEI programs. There's currently a case pending before the Supreme Court called Ames v. Ohio Department of Youth Services, and that case is a reverse discrimination case where the court is considering whether to lower the burden of proof in reverse discrimination cases to bring it in line with the requirements for proving discrimination in other, what I'll call typical discrimination cases. This could also have an impact on these challenges to DEI programs that are brought from a reverse discrimination standpoint. Courts in certain states have also addressed similar issues with regard to diversity programs. For example, the New Jersey Appellate Division ruled in December in a reverse discrimination case that the state bar association could keep its program in place. The court found that the program was protected under the First Amendment. And so the basic facts there were that the Bar Association of New Jersey has 49 trustee seats. 8 of those seats are dedicated for Black, Hispanic, Asian Pacific female and LGBTQ lawyers, as well as lawyers who are disabled or at least 70 years old. And then there are 3 other seats who are reserved, that are reserved for members of other diverse groups as well. And the plaintiff in that case basically said, you know, look, this is a quota system. It's discriminatory because we're setting aside specific seats for these, for people in these specific categories. The trial court actually agreed with the individual who brought the case and said that it was an illegal quota system and that reverse discrimination was obviously identifiable. But the Supreme Court reversed and basically said that the bar association has the right of expressive association and the right to exercise First Amendment freedoms and allowed the bar association to continue with this DEI program that they have with regard to their trustee seats. So, um, this is an issue again that likely will continue to be litigated in 2025. Um, and the takeaway here is that if you do have, um, diversity, equity, inclusion programs, um, you'll just want to make sure that you're evaluating them to ensure that you're comfortable with them based on the current case law in your jurisdiction, based on the federal, uh, case law as it now stands and as it as it progresses in 2025. One other thing to mention with regard to looking forward to 2025 is that an EEOC under the new administration is likely going to take a narrower view of what is and what is not going to be permissible under these DEI initiatives. So it's something again for employers to keep in mind if you have DEI programs you know, you may want to be thinking about them and evaluating kind of the risks associated with them and making sure that you as a business are comfortable with those risks. You know, we have seen many employers who have said, you know, no, we're keeping all of our programs in place because we believe in these initiatives. And that's fine too. But you just need to make sure that you're evaluating, you know, what the risks are and evaluating potential challenges to those programs. Next, I'll give it back to Barbara and Kris to talk about remote workers.

Okay. Thank you, Tara. We all recognize that before, during, and after COVID, remote work is now a reality. One of the challenges with remote work is managing remote employees to meet measurable job performance expectations. Another challenge is ensuring that all time worked is accurately tracked and paid for in accordance with wage and hour laws. Further, it's keeping track of where employees are working, which can make it very tricky to handle tax withholdings and comply with multi-state tax rules. So employers also have to judge different state laws like those covering wages and paid leave and employee classifications to make sure that they're staying compliant. This is based on where an employee works, not where the headquarters of a company are located. And this question comes up very often. Things like unemployment insurance and workers' compensation can get very complicated with remote workers. So, Kris, can you help us through these challenges so employers can limit their potential audits, fines, or even damage to their reputations?

Yes, Barbara, I think this is a very complicated issue and one that employers are unfortunately going to have to delve a little more into the weeds than they want to in order to figure these out. You know, the example we always give is if you're a, you know, New York City employer and you have employees who are from New Jersey and other parts of New York State and Connecticut and they come in, you really don't have to think about these issues. If they're all working in your office in a pre-remote work environment, it really doesn't matter that they live somewhere else. The work is being done there. That's the locus of the employment, and that's the law that will govern. All of that changed when we started allowing remote work on a widespread basis after COVID, because if the employee is spending most or even just a significant amount of time in another state at their home, at their vacation home, or maybe they just relocated permanently to another state, you have to consider the possibility that state's law may apply. And it's, as Barbara noted, there's a whole host of laws that are implicated here. And those laws vary dramatically state to state. Some states have, you know, and for certain purposes will have, particularly tax laws, will have very specific cutoffs. You know, this many days in a state and you are subject to their taxing rules. Not every law is that clear-cut and dry. And even if it is, it's often difficult to find those detailed answers. It takes a lot of time. Importantly, in the discrimination context, choice of law becomes critical because different states have very vastly different requirements for what constitutes discrimination, harassment, or retaliation. They may have different training requirements. All of these things are things you're going to have to figure out. In March of last year, the Second Circuit, which is the federal court of appeals that covers New York State, addressed this issue under the New York State Human Rights Law, applying the— addressing claims by a Virginia-based employee who sometimes worked in New York, and the employee tried to bring claims in New York, presumably because New York law was more favorable to the allegations he was making. The court applied the impact test and concluded that the statute did not apply where the, quote, lion's share of the alleged discriminatory conduct, including retaliatory termination, was directed at the employee in Virginia. Additionally, the New York State Human Rights Law has a textual extraterritoriality provision which applies the law to certain out-of-state claims, and the court determined that that applied to claims by New York residents against New York corporations for conduct occurring outside of New York. So, for example, if they were employed by a New York company and they lived in New York, but their supervisor was in another state and was discriminating against them, they would be protected. Uh, the court determined that it did not apply to New York residents suing non-New York corporations for discrimination conduct that occurred outside of New York, which may superficially seem very straightforward. Of course, why would it apply in that context? But it's not necessarily that straightforward. And I would contrast this with what New Jersey does. New Jersey has a similar test that looks at where, um, the bulk of the activity occurred. Um, and one of the key cases on this point, uh, from back in 2019, I believe, uh, wound up splitting the baby. They had an employee who brought both failure to promote claims and wrongful termination claims. And they wound up determining that the failure to promote claim was to be decided under New Jersey law, even though the employee worked in Illinois, because the supervisor who determined not to promote him was in New Jersey. And the court determined therefore that the decision that the New Jersey law against discrimination was trying to regulate, the conduct that was attempting to be regulated occurred in New Jersey, and New Jersey law should apply. Conversely, the court determined that for the wrongful termination claim, there was not enough evidence in the record to determine where that decision was made, and so they remanded the case back to the trial court to establish a fuller record. Saying that it may very well be that the wrongful termination claim would have to be evaluated under Illinois law, while the failure to promote claim would have to be determined under New Jersey law, creating an incredibly complex and confusing environment for employers. And the court, in recognition of this fact, strongly recommended that employers include choice of law provisions in employment agreements to address this issue so that you would not find yourself in this confusing position going forward. And that may be something that can be addressed in a handbook. I don't know, as a litigator, I wouldn't say this will necessarily get you out of all these scenarios, but it is something to point to and you can say this was the expectation, everyone was trying to comply with this set of laws. And, you know, if you're doing it based on where the employee is located, I think that would be fairly defensible without having to get into where the supervisor was, wherever, where all the witnesses are, all of those sorts of issues. And so, you know, that's again, it just shows, illustrates how complicated these issues are to determine. And you would have to go through these similar analysis for, for all sorts of state, state employment laws for workers' comp, for unemployment, payroll, the state-specific training. Workplace posters is an issue that comes up a lot. What state's posters do you need to provide? And there's also the practical issue of how are you going to require an employee who's working from home to post workplace posters in their kitchen? You know, how does that work on a practical level? You're supposed to post it in a conspicuous place where they can see it and, you know, regularly. Typically, that's a break room, you know, if you're in a physical office location. You know, there are workarounds for that. Do you send, you know, make sure you send them copies regularly every time it's updated? You update them. Do you give them access on a portal? You know, you have to determine whether that's going to comply with the requirements of each state, but those are the sorts of workarounds that you could consider. You know, for unemployment, do you need to open up an account with that state? You know, register for them. You're getting insurance through, you know, a third-party provider, but that doesn't mean that they don't need to be notified. Certain states require you to register with them and tell them when an employee is hired, when they're terminated, all those sorts of things. Do you need to do that? Do you need to register to do business as a foreign entity in this state? Workers' comp, the favorite example I like to give is, If an employee is at home, you know, you have an obligation to make their workplace safe. What does that mean when they're working from home? If you have an employee who trips over their cat going to the printer, are you responsible for that? New Jersey, pretty clearly the answer I think would be yes. Not necessarily so in other states, but what is your obligation to do that? You know, there's limits on what you can do. You obviously can't send someone to their house to do periodic checks and monitor whether their workplace is safe, but you would want to provide notice and, you know, figure out what a plan would be going forward to ensure that they are addressing those workplace safety concerns sufficiently. And the other topic that comes up, which we mentioned a little earlier, is restrictive covenants. When someone moves to another state, how does that impact your ability to enforce a restrictive covenant, whether a non-compete, non-solicit, a confidentiality provision? So all of these things are things to keep in mind, and this is gonna be an ongoing concern. These laws are still being developed. In addition to these kind of pitfalls from existing laws, there are new laws being put into place about remote workers. And it's just something that employers need to keep in mind as they move forward.

And Chris, even—

I'll turn back to— sorry.

No, I was just going to add, like, even things as simple as, you know, what you're required to put on a pay stub, you know, how frequent you have to pay an employee. Does the state that they are in allow you to pay them twice per month, or do you have to pay them every other week? Like things just as simple as that. I think too, from a practical standpoint, when you have remote workers in a bunch of different states, there's just so many things that are very state-specific.

I mean, I think that pay stub example is very important. You know, in many states, a pay stub is not an issue. You know, it's very straightforward, very simple to comply with the rules of what you have to put on there. California is not. There's, you know, 15 or so specific requirements that exactly what needs to be on there, what can't be on there. Having, you know, an employee's Social Security number is not acceptable, and that's something that you could get tripped up on rather easily. I would say I've rarely seen a compliant California pay stub. The question is usually how many violations are how bad is it? And for the most part, the, you know, payroll providers are not going to indemnify the employer even if it's their mistake for not including this information. So it's something you need to be aware of. And as an HR payroll professional, you may not even know what's on a California employee's pay stub. You may not look at that in detail. You're making sure that their hours are properly reflected, that their overtime is properly reflected, and you may be ensuring that they— you may not be ensuring that their pay stub then accurately reflects that information because you're looking at your own pay stub, which is for a different state. So it's just something to consider and not just assume that the payroll provider is going to do that for you.

All right, let me get into something specific, which is the New York Paid Prenatal Leave Law, which is a tongue twister. So New York State passed the first in the nation paid prenatal leave for covered employees effective January 1st, 2025, and I'd like to cover a few details. So the paid prenatal personal leave— I'm going to call it PPPL because it's easy— this entitlement program requires all employers regardless of size to provide at least 20 hours of paid PPPL each, each year in addition to the existing statutory paid sick leave under New York State paid sick leave law. So this means that when combining paid PPPL with mandated sick leave, an individual who is pregnant could be entitled to use up to a total of either 60 or 76 hours, depending upon the employer side, of paid leave for various medical needs. Now, employee— eligible employees may use this PPPL in hourly increments, and this is to receive healthcare services during their pregnancy or related to a pregnancy, including physical exams, medical procedures, monitoring, testings, and discussions with healthcare providers related to pregnancy. Now, PPPL can only be used by the pregnant employee and not by a pregnant individual's spouse, partner, or other support person. The 20-hour entitlement is not accrued, but rather it is front-loaded each year on January 1st or upon the employee's date of hire, whichever is sooner. So there's no waiting period to use this leave, meaning that eligible new hires can use this leave for a covered absence immediately, and in some cases on the first day of employment. Remember, this is a separate benefit from other leave policies and laws, and that the 20 hours of PPPL are in addition to any other available leave options. Next, let's review the New York rule to provide paid break time for female employees to express breast milk in work. This used to be an unpaid lactation break, and it changed on July 19th, 2024. What this now does is that it requires all employers to provide 30 minutes of paid break time and allow employees to use other paid break time or meal time in excess of 30 minutes needed to express their breast milk. Employers have to remember that exempt employees are always paid for any length of time during a day for this purpose. Now, handbooks need to be updated to reflect this rule, and it's important to make sure that it's specific, that individuals are not being retaliated against and that managers and supervisors are aware of how this policy needs to be implemented. Let's move to the next topic, and I'm sorry, but I have to mention the word COVID. I really am sorry. We thought it was over, but it's not. New York was one of the first states to adopt paid sick leave specific for COVID-19 purposes, and this has been in effect since March 18th, 2020. First off, it seems like forever ago, and then it seems like it was yesterday. The New York State COVID-19 Emergency Leave Law still provides employees with paid leave when an individual has tested positive for COVID. So remember, the New York Department of Labor's guidance says that employees can qualify for up to 3 instances of paid leave. Prior to August of 2022, the first event could have been exposure. Exposure is not an issue anymore. Everyone's exposed. Now it's all about whether an individual is tested positive. So to be eligible for COVID paid sick leave benefits, for now, the first, second, and third time, the employee must test positive. In total, the employee can only be paid for a maximum of 3 times under this law from 2020 to present. This does not reset every year. But I have good news. The good news is that this leave entitlement is going to end on July 31st, 2025. And at that point, employees can continue to use other qualifying paid leave such as New York paid sick leave for COVID reasons. Tara, I'm going to turn it over to you.

Sure. So Barbara talked a little bit about New York-specific leave issues. I'm going to talk a little bit more generally about a number of cases that have come out throughout 2024 with regard to leave issues. Um, the general idea here is that employers should continue to keep track of their leave and also their accommodation obligations, as we have seen and will continue to see a ton of lawsuits brought related to these types of issues. Um, the first case that I wanted to briefly mention is a case from, uh, from September of 2024 out of the Second Circuit, which covers New York that basically held an employer can violate the Family Medical Leave Act, the federal Family Medical Leave Act, the FMLA, um, merely by interfering with an employee's benefits under the FMLA, even if the employer did not actually deny the employee's request for benefits. Um, so this comes into play, um, in your employer communications with your employees If you're an employer covered by the FMLA, you just have to be careful about what you're communicating to your employees related to FMLA. You shouldn't be trying to, for instance, convince employees that they should not take FMLA. Under this case law, potentially that could be a violation. So we can continue to see cases coming out about FMLA violations as well as other leave violations. Another case I wanted to briefly mention was a case out of the Third Circuit from September of 2024, which held that FMLA entitlements only apply prospectively rather than retroactively, and that employers are not required to apply FMLA entitlements retroactively. This is an interesting case, obviously, depending on the situation. Employer may want to designate FMLA retroactively. However, it could come into play that you would not want to need to do that in a case where, for instance, an employee has been terminated for use— for unexcused absences, because obviously if they're designated retroactively, they would be FMLA-protected absences. So this is kind of case-specific, but again, just another case that demonstrates that these issues will continue to arise and employers will continue to deal with leave issues going forward. One other case that I wanted to briefly mention is a Third Circuit case from May of 2024 related to military leave and the requirements under the Uniformed Services Employment and Reemployment Rights Act, USERRA it is referred to. Basically, the court held that the question was whether pilots should be paid while they were on short-term military leave under USERRA. And the court held that that was a question for the jury because there was an issue of fact as to whether the military leave, the short-term military leave, was similar to other types of leave that that the company provided to employees such as bereavement leave or jury duty leave. So I don't think a lot of employers are aware of this issue, as I don't— I mean, I don't think a lot of employers— this comes across your desk frequently, but it is something to be aware of that under USERRA, if you provide certain types of leave, if they are comparable to or similar to a short-term, for instance, military leave, or even a longer-term leave if you provide a longer-term military leave, if you provide longer-term other types of leave, an argument can be made that the employer is required to pay an employee on military leave in those contexts. So just something to keep in mind when you're developing your policies and your leave policies that you're thinking about these issues going forward. The takeaway here again is just that we continue to see a ton of litigation related to leave and accommodation issues, and anticipate that this will continue into 2025. Employers obviously need to be aware of their obligations related to both paid and unpaid leave under federal and state law and should seek guidance if you have, you know, a specific issue that is— you have questions about. We can obviously help you with that. The last topic—

And it's important to note that, you know, you may not even realize you're providing comparable leave if it's mandated by state law. If some state law, like the paid prenatal leave in New York, requires you to provide paid leave, that might be sufficient for becoming a comparable leave under certain circumstances for the USERRA leave. So just, again, don't just look at your own internal leaves. It's everything you're providing.

Yep.

And with that, I'll move on to our very last topic, which is the National Labor Relations Board and labor law generally. Many of you are probably aware or have heard that there were a ton of employee-friendly changes throughout the course of 2024 and over the whole course of the Biden administration at the National Labor Relations Board. It was no secret that the administration supported employee organizing and employee protections and provided employees with additional tools in that regard. Too many changes to kind of COVID here in the few minutes that we have left. But going forward into 2025, we just wanna mention that we do expect the pendulum to kind of swing back with the new administration, especially given what we saw with regard to President Trump's last administration and his campaign. Some of these changes may not be immediate given the makeup of the board currently, but at least we can expect and will likely see President Trump get rid of the current general counsel and replace her with— appoint someone who will likely rescind many of the memos that she has issued, employee-friendly memos So stay tuned and, you know, eventually we'll likely see the board kind of shift its makeup as well as we go through the next few, uh, 4 years. So that concludes our topics for today and I'll turn it back over to Christine.

Well, thank you so much, Tara, Chris, and Barbara. Great content. I just want to make sure that, um, you guys have an opportunity to reach out to each of our presenters here today. On my screen I'm showing their email addresses and contact information. I want to thank you all for also attending today. Each of you will receive a link of the presentation by email along with the emails of the presenters today as well. And our next Coffee Talk is in March of 2025. So thank you so much for joining us today and have a wonderful day. Thank you.