Top 10 Labor, Employment, and OSHA Trends for 2025

1. History in the Making: The State of the NLRB Under the New Administration

Like most government agencies, the National Labor Relations Board (NLRB) has not escaped the Trump Administration’s efforts to reshape the federal government and replace officials in positions of power. Since assuming office, President Trump has discharged former NLRB General Counsel Jennifer Abruzzo and removed NLRB panel member Gwynne Wilcox.

While replacement of Abruzzo was expected, the president’s decision to remove Wilcox surprised many and introduced legal challenges, both at the NLRB and in court:

• Removing Wilcox on January 27 left the NLRB with only two of its typical five members and without a quorum to decide the cases pending before it.

• On March 6, a DC District Court ordered Wilcox’s temporary reinstatement based upon a 90-year-old US Supreme Court precedent, Humphrey’s Executor v. US — a case that prohibited then-president Franklin D. Roosevelt from removing members of independent agency panels.

• Upon appeal, on March 28, a three-member panel of the DC Circuit stayed Wilcox’s reinstatement, removing her once more. The concurring judges agreed that the 2020 Supreme Court decision, Seila Law v. CFPB, narrowed the precedent set in Humphrey’s Executor, and empowered the president to fire members of independent, multi-member agency panels that wield “substantial executive power.”

• On April 7, a full en banc panel reversed the DC Circuit decision by a 7-4 margin and ordered Wilcox back to work.

• On April 9, Chief Justice Roberts, as circuit justice for the DC Circuit, reversed the April 7 decision and reinstated Wilcox’s removal pending full resolution of the appeal by the DC Circuit. Oral argument on the merits was scheduled for May 16.

The question at present is not if the Wilcox case will go to the Supreme Court, but when. The presumptive legal protections restricting President Trump’s removal powers are about to be put to the test. When Wilcox’s case makes its way to the Supreme Court, Humphrey’s Executor will be pinned against recent decisions, like Seila Law, which may result in a more expansive view of the president’s power. In the short-term, Chief Justice Roberts has once more neutered the NLRB; in the long term, the order implicates the scope of a president’s ability to control agency leadership as a matter of law.

As to the General Counsel (GC) position, on March 25, President Trump nominated Crystal Carey, a partner at management-side law firm Morgan Lewis & Bockius LLP, to serve as the new NLRB GC. Carey’s nomination follows rescissions by Acting GC William Cowen of more than 25 “guidance” memoranda previously issued by Abruzzo, suggesting an NLRB less likely to issue decisions unfavorable to employers, and more permissibility in the use of non-competition, confidentiality, and non-disparagement provisions in agreements with nonsupervisory employees.

2. Noncompete Landscape

In recent years, noncompetes have been the subject of significant attention at both the state and federal level. Perhaps most notably, in April 2024, the Federal Trade Commission (FTC) voted to adopt a final rule that would have essentially banned noncompete agreements for workers in the United States by prohibiting employers from entering into noncompete agreements with workers and rendering prior noncompetes unenforceable, except for a narrowly defined category of “senior executives.” The final rule was immediately challenged in multiple lawsuits. On August 20, 2024, on the eve of the effective date of the ban, the US District Court for the Northern District of Texas entered an injunction in one such lawsuit, holding that the FTC lacked statutory authority to create the rule and setting it aside on a nationwide basis.

With the new Administration, Andrew Ferguson replaced Lina Khan as FTC chair. Ferguson voted against the noncompete ban in April 2024 and has opted not to pursue the appeal of the Texas injunction. However, while he indicated that a ban was not the correct approach, Ferguson has also stated that the FTC will continue to exercise its enforcement power against employers who attempt to deploy overbroad noncompetes, particularly for low wage workers. To that end, Ferguson recently announced the formation of a Joint Labor Task Force which will “scrutinize non-compete agreements, deceptive job advertisements, wage-fixing schemes, unlawful coordination on DEI employment metrics, and much more.”

As it stands now, noncompetes continue to be governed by a patchwork of state legislation ranging from bans with very limited exceptions (in California, Oklahoma, North Dakota, and most recently, Minnesota), to restrictions on use with low wage workers (in, for example, Massachusetts, New Hampshire, and Illinois), to restrictions on how and when they may be presented to employees (in, for example, Colorado, Maine, Oregon and Washington). This approach presents challenges to employers who are dealing with an increasingly mobile workforce.

Employers should revisit their agreements to ensure maximum enforceability. In many instances, specific forms or addenda will be required to comply with the various state requirements. Employers should also consider either relying on other types of restrictive covenants or, at a minimum, using other restrictive covenants simultaneously with noncompetes, including non-disclosure, non-solicitation, or no hire provisions, as appropriate. Finally, to create a secondary guardrail for the protection of trade secrets and confidential information, employers should create effective trade secret protection protocols and engage in regular monitoring and auditing of their application.

3. AI and Employment Laws: What Employers Should Know

For employers, the AI landscape continues to evolve on both the federal and state level. On inauguration day, President Trump immediately rescinded President Biden’s 2023 Executive Order (EO) No. 14110 on AI, which had directed federal agencies to use regulatory and enforcement tools to address safety, privacy, and discrimination concerns related to AI. After Commissioner Lucas became acting chair of the US Equal Employment Opportunity Commission (EEOC), two AI-related documents were removed from the EEOC’s website: (1) the May 2023 technical assistance document on AI compliance issues under Title VII, which cautioned employers to assess AI tools for potential adverse impacts on any group protected by Title VII and (2) the May 2022 technical assistance document that warned of potential violations of the Americans with Disabilities Act through AI tools that impermissibly consider or screen for disabilities of applicants. Similarly, the US Department of Labor (DOL) noted on its website that its October 2024 Artificial Intelligence Best Practices guidance might be outdated or not reflective of current policies.

Despite these changes, employers may still be held liable for their use of AI tools in hiring or workplace decision-making when such use violates federal anti-discrimination laws. This is true even when a third-party vendor created the AI tool. As such, employers should monitor and audit their use of AI tools and review their agreements with vendors of AI tools to ensure issues of transparency and liability are addressed.

In contrast to the activity at the federal level, the states have begun to regulate AI in the employment context. Colorado, Illinois, and New York City have laws on the books that offer varying levels of protections against AI-related discrimination to applicants and/or employees. As we approach mid-year, at least 25 other states have already introduced legislation that would regulate the use of AI in the employment setting.

In these changing times, employers should remain vigilant and current on their compliance with applicable and emerging state laws regarding the use of AI. AI policies and use of AI tools should be routinely monitored and audited, with particular focus on transparency, privacy, and discrimination concerns. Human resources personnel and leadership should be trained on appropriate use of AI technologies in the workplace to avoid misuse and mitigate risk.

4. Continued Expansion of State Paid Family and Medical Leave Laws

The landscape of paid family and medical leave laws in the United States is rapidly evolving, with states increasingly adopting comprehensive benefits for employees. As these laws expand, they reflect a growing recognition of the importance of supporting workers during critical life events, such as personal medical issues, the birth or adoption of a child, and caring for family members. This shift not only enhances employee well-being but also promotes a more inclusive and supportive work environment. Legislation for paid family and medical leave has been proposed in multiple states, including Arizona, Iowa, Oklahoma, Tennessee, Pennsylvania, West Virginia, and North Carolina.

In alignment with the federal unpaid leave program, most states prioritize personal medical leave, followed by leave for caring for a new child or family member. While the Family and Medical Leave Act offers unpaid leave, many states are now mandating paid options, funded through taxes collected from employees and employers. While several states have already enacted paid family and medical leave legislation, others, such as Arizona, Iowa, Oklahoma, Tennessee, Pennsylvania, West Virginia, and North Carolina, have proposed similar measures.

Recent State Developments

• Alaska, Missouri, and Nebraska: Beginning this year, Missouri (May 1), Alaska (July 1), and Nebraska (October 1) will require paid sick leave accrual of one hour for every 30 hours worked, with annual use caps of 40 hours for small employers and 56 hours for larger employers. All three states permit employers to satisfy obligations through compliant paid time off policies, and each contains industry or size-based nuances that warrant close review and continued monitoring for legislative amendments before the effective dates.

• Georgia: Effective July 1, 2024, Georgia has doubled paid parental leave for educators and state employees to six weeks, extending eligibility to charter school employees.

• New York: Effective January 1, 2025, New York required all private-sector employers to provide their employees 20 hours of paid prenatal leave each year, in addition to existing sick leave requirements.

• Washington: Effective January 1, 2025, Washington expanded the circumstances under which employees can take paid sick leave and broadened the definition of family members for sick leave purposes.

• Minnesota: Minnesota’s paid family and medical leave programs are scheduled to launch on January 1, 2026.

Employers, particularly those operating in multiple states, must stay informed about these evolving laws. It is crucial to review specific state requirements and monitor potential legislative amendments before implementation to ensure compliance.

5. Beat the Heat – An Employer’s Duty to Ensure a Workplace Safe From Heat-Related Hazards

As we approach the summer months, employers with employees who work outside or in higher temperatures should be aware of the Occupational Safety and Health Administration’s (OSHA) increasing focus over the past several years on heat-related injuries and illnesses.

Since 2022, OSHA has had a national emphasis program (NEP) in place as a part of which the agency has prioritized enforcement activities focused on indoor and outdoor heat-related hazards. Although that NEP expires this year, in 2024, OSHA introduced a new proposed rule that would establish a nationwide standard for addressing the hazards of excessive heat in the workplace. Specifically, that rule would require employers to develop a Heat Injury and Illness Prevention Plan to address heat-related hazards. The rule also set an “initial heat trigger” at a heat index of 80ºF, at which threshold employers must provide employees with water and break areas, and a “high heat trigger” at 90ºF, which would require employers to monitor for signs of heat illness and provide mandatory 15-minute breaks every two hours. Although the fate of OSHA’s proposed rule is unclear following the change in Administration, OSHA can continue to issue citations for heat-related hazards under the general duty clause of the Occupational Safety and Health Act.

OSHA state plans have also taken steps to address heat-related hazards. In 2024, California OSHA issued a new final rule addressing both indoor and outdoor workplaces with heat-related hazards that imposes safety requirements if employees are exposed to temperatures at 82ºF or higher, with additional elevated requirements where employees are exposed to temperatures at 87ºF or higher. Similarly, earlier this month, New Mexico OSHA issued a notice of proposed rulemaking for its own heat illness prevention rule.

Employers whose employees may be exposed to high temperatures this summer should take steps to ensure that they have measures in place to address the risks associated with heat.

6. Pay Transparency Momentum Continues

In 2024, the momentum for pay transparency legislation has continued to build across the United States. As more states enact these laws, with additional legislation anticipated this year, multistate employers face the complex challenge of aligning their job postings and promotional practices with a patchwork of state-specific requirements. Washington, DC, and Hawaii passed pay transparency legislation that went into effect in 2024. Additionally, Massachusetts, New Jersey, and Vermont passed legislation in 2024 which is expected to go into effect this year.

Pay transparency laws typically require employers to disclose the wages or wage range for a particular position to prospective and/or current employees. Challenges arise when a multistate employer is forced to comply with varying state pay transparency laws. Differences in each state’s legislation include who is covered, the timing and circumstances in which pay information must be disclosed, and the specific parties to whom this information must be shared. Because the application of these laws can differ greatly, states like Colorado have provided explicit guidance to address these ambiguities. For example, Colorado’s guidance clarifies that postings for remote positions, that can be performed anywhere, are subject to the requirements in Colorado’s pay transparency law, the Equal Pay for Equal Work Act, even if the posting explicitly excludes Colorado applicants.

Additionally, some states’ legislation may include wage reporting obligations for covered employers. For example, California and Massachusetts’ pay transparency laws include reporting requirements for certain employers with over 100 employees. Notably, in Massachusetts, the first round of EEO-1, EEO-3, and EEO-5 reporting was due on February 1.

The extent of liability that an employer may face for non-compliance can vary based on the jurisdiction. While some states like Massachusetts assert incremental fines against liable employers, California provides a private right of action for aggrieved parties. Employers should review both their external and internal facing job postings to ensure that they comply with these varying state and local laws. For additional details, please refer to our recent alert.

7. The Current State of DEI

Diversity, equity, and enclusion (DEI) initiatives are significantly scrutinized under the new Administration. Shortly after taking office, President Trump signed  EO 14173, aimed at ending what the EO describes as “dangerous, demeaning, and immoral race- and sex-based preferences” under the guise of DEI. EO 14173 creates liability for DEI programs in several notable ways:

• It directs the Attorney General to produce a report recommending enforcement strategies to end illegal discrimination and preferences, including DEI, in the private sector, including identifying potential civil investigation targets among publicly traded corporations, nonprofits, and other entities.

• It also sets up federal contractors for potential liability under the False Claims Act by requiring them to certify that they do not “operate any programs promoting DEI” that violate federal anti-discrimination laws. A contractor that falsely certifies compliance can face significant penalties under an action brought by the government or a private individual in a qui tam lawsuit.

While there has been significant litigation challenging the EO, contractors with current, pending, or future contracts should expect to receive anti-DEI certifications in their federal contracts soon.

Beyond the EO, the Administration has made clear its intent to investigate and pursue enforcement against DEI in the private sector. The Attorney General issued a memorandum instructing the US Department of Justice (DOJ) to investigate, eliminate, and penalize illegal DEI programs. The EEOC’s Acting Chair also sent investigation letters to law firms seeking information about their DEI activities.

The Administration has produced some guidance to help employers identify what are considered unlawful DEI practices. The EEOC and DOJ released a joint guidance, and the EEOC released its own technical assistance document, stating that under Title VII, DEI programs may be unlawful if they involve employment actions motivated by a protected characteristic, and that customer preferences or the perceived operational benefits of a diverse workforce are not a defense to race- or sex-motivated decision making. The documents also assert that practices like limiting access to employee clubs or resource groups, or certain workplace programming and trainings, can run afoul of federal anti-discrimination laws.

Employers may be motivated to eliminate DEI-type practices altogether, but many remain lawful and important for ensuring equal employment opportunity. Instead of painting with a broad brush, all employers (and particularly federal contractors) should review their DEI programs and initiatives with counsel for compliance with anti-discrimination laws.

8. Immigration Policy Developments

Consistent with his campaign agenda, President Trump has significantly increased immigration investigation efforts since taking over the White House. Given the president’s explicit focus on immigration compliance and enforcement, employers across all industries should expect increased workplace enforcement actions, including US Immigration and Customs Enforcement (ICE) raids and unannounced immigration workplace investigations, and more frequent governmental I-9 audits. In addition, employers should be aware that the Employment Authorization Document (EAD) cards for foreign nationals here through numerous Temporary Protected Status and parole programs have been shortened or terminated, which means that employers shroud revise the expiration dates on their I-9’s and obtain new work authorization documents in a timely manner in order to continue to employ them. Further by increasing scrutiny on those seeking to enter the United States, President Trump has made international travel by foreign nationals riskier and paved the way to implement travel bans. In addition, he has started revoking visas from nationals from selection countries. Thus, employers should consult their immigration counsel to see if their employees’ EAD cards and/or work or travel authorization is impacted.

Unannounced Workplace Investigations and Raids

Employers should be aware that government officials may appear without notice at a workplace and demand access to personnel and business documents, including conducting private discussions with employees. Employers should prepare for such visits and equip the first point-of-contact at each entry with information about what to do.

Federal Form I-9

In response to President Trump’s heightened focus on immigration investigations, employers should organize their I-9 records by conducting a proactive internal I-9 audit to correct any and all deficiencies, to the extent feasible. Notably, employers who choose to proactively correct their I-9 records may take advantage of the “good faith compliance” defense under the Immigration Reform and Control Act of 1986. Such remedial efforts can be taken into consideration during a governmental audit or inspection, and the employer may receive credit for those corrections, thereby mitigating potential penalties.

9. Independent Contractor/Joint Employer Rules Under the New Administration

On May 1, the DOL announced through a Field Assistance Bulletin that it will no longer enforce and may rescind President Biden’s 2024 independent contractor rule. Instead, the DOL will evaluate whether an individual is an independent contractor or an employee under the Fair Labor Standards Act using the traditional “economic realities” test, with emphasis on the following significant factors:

1. The extent to which the services rendered are an integral part of the principal’s business.

2. The permanency of the relationship.

3. The amount of the alleged contractor’s investment in facilities and equipment.

4. The nature and degree of control by the principal.

5. The alleged contractor’s opportunities for profit and loss.

6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor

The 2024 Rule rescinded the first Trump Administration’s more lenient rules which made it easier for businesses to determine joint employer status and classify workers as independent contractors. For the purpose of private litigation, the Bulletin emphasized that the 2024 Rule remains in effect. However, while the DOL has not yet attempted to return to the first Trump Administration’s rules, it indicated that it is “currently reviewing and developing the appropriate standard.”

There are still a number of lawsuits pending in federal courts challenging the 2024 Rule, but the DOL has sought to put the litigation on hold while it decides whether to reconsider or rescind the regulation.

While it is likely the new Trump Administration’s DOL will not defend the 2024 Rule, and considering Loper Bright Enterprises v. Raimondo (overturning the Chevron doctrine and holding that courts do not have to defer to an agency’s interpretation of the law), employers should remain cautious when analyzing joint employer status and classifying independent contractors, particularly in states which utilize the ABC Test.

10. Discrimination Trends

The discrimination landscape is undergoing significant changes as the Trump Administration issues EOs and guidance, while the Supreme Court continues its 2024-2025 term. Two key areas to watch are the evolving perspectives on gender identity discrimination and reverse discrimination.

Gender Identity

The Supreme Court has long held that discrimination based on sex stereotyping is impermissible under Title VII of the Civil Rights Act of 1964. This was established in the 1989 case of Price Waterhouse v. Hopkins, where the Court ruled that discrimination against an employee due to nonconformity to gender expectations constitutes sex discrimination. In 2020, the Court reaffirmed this stance in Bostock v. Clayton County, clarifying that discrimination against individuals for being homosexual or transgender inherently involves sex discrimination.

However, on January 20, President Trump issued an EO titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This EO redefined sex as strictly biological, excluding gender identity from its definition. This move starkly contrasts with the Supreme Court’s precedents.

Following this EO, EEOC Acting Chair Andrea Lucas announced a shift in the agency’s focus, aiming to protect women from sex-based discrimination by reversing policies related to gender identity. Changes include disabling the agency’s “pronoun app,” removing non-binary gender markers from discrimination charge forms, and eliminating materials promoting gender ideology from EEOC resources. The EEOC has also sought to dismiss cases involving gender identity discrimination claims.

Despite these administrative changes, the precedents set by Price Waterhouse and Bostock remain valid law. The courts will need to navigate the tension between federal guidance and established Supreme Court rulings, which could lead to significant legal challenges and interpretations.

Reverse Discrimination

In five federal circuits, reverse discrimination claims — those brought by members of majority groups — require plaintiffs to meet a heightened pleading standard, under which plaintiffs must establish “background circumstances” demonstrating a pattern of discrimination against the majority group.

The Supreme Court recently heard arguments in Ames v. Ohio Department of Youth Services, a case involving a woman who claimed she was discriminated against for being heterosexual. Marlean Ames alleged she was denied a promotion and demoted in favor of her gay colleagues. The Sixth Circuit applied the heightened standard and ruled against Ames. The Supreme Court is now considering whether plaintiffs must prove such “background circumstances” to establish a prima facie case of discrimination under Title VII. If the Court determines no such proof is required, the legal landscape of reverse discrimination will shift, making it easier for individuals to bring such reverse discrimination claims.

In addition, the EEOC has announced policies to defend and protect members of majority groups. For instance, EEOC Acting Chair Andrea Lucas announced the EEOC will protect “American workers” from anti-American national origin discrimination. Lucas stated the EEOC “is putting employers and other covered entities on notice: … The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.”