As we previously reported, on Sept. 5, 2024, Governor Kathy Hochul signed into law protections for retail employees statewide, mandating that New York retailers adopt safety measures to address and prevent workplace violence (“Retail Worker Safety Act”). Most provisions of the Retail Worker Safety Act (“RWSA”), making up section 27-e of the New York Labor Law, recently took effect on June 2, 2025, with additional provisions for larger retailers scheduled to go into effect on Jan. 1, 2027. 

The RWSA applies to “any person, entity, business, corporation, partnership, limited liability company or an association employing at least ten retail employees.” The “retail employees” must work in a “retail store,” which is defined as “a store that sells commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises.” The term “commodity” is not defined.

The Act requires all applicable New York retailers to develop and implement a workplace violence prevention policy, conduct workplace violence prevention training and provide retail employees with access to silent response buttons. On May 29, 2025, the New York State Department of Labor (“DOL”) released a model workplace violence prevention policy, model workplace violence prevention training and guidance on implementing the new law through answers to common frequently asked questions (“FAQs”).

The Model Retail Workplace Violence Prevention Policy

Labor Law §27-e(2) was enacted to require New York retailers to either adopt the state’s model policy or establish their own policy that meets or exceeds the minimum standards in the model policy. The beginning of the model policy makes clear that covered retail employers are encouraged to tailor the model policy to their own “workplace needs and company voice.” Some of the notable sections of the model policy include the following:

• Risk Factors for Workplace Violence. The model policy outlines a non-exhaustive list of workplace conditions that may constitute risk factors for workplace violence.  The list includes some general work situations and others that are specific to certain workplaces. The policy instructs employers to include additional factors that may increase the risk of workplace violence at their own worksite if not already listed.
• Preventing Workplace Violence. This section highlights the training component of the Act as the required means by which New York retailers are to reduce the risk of workplace violence. The model policy also gives covered retail employers the option to establish and implement an incident reporting system for workplace violence incidents in addition to the workplace violence prevention training, as well as to adopt additional methods to prevent workplace violence that are best suited for their specific worksite.
• Retail Workers, Workplace Violence, and the Law. Under this section, the model policy summarizes the applicable federal laws and state statutory provisions concerning violence against retail workers, such as the RWSA, New York State Penal Law and the federal Occupational Safety and Health Act (“OSHA”). The section also includes a statement that there may be applicable local laws that apply to retail workers in the city, county, town or village in which an employer is located. Further, this section notes the required implementation of a silent response button for all retail employers with 500 or more employees across worksites in New York State by Jan. 1, 2027.
• Retaliation. The model policy contains specific language prohibiting retaliation against retail employees who engage in any of the law’s protected activities, including but not limited to complaining about or reporting incidents of workplace violence, complaining about or reporting factors or situations that may put workers at risk of workplace violence and testifying or assisting in any legal proceedings or investigations concerning workplace violence. The retaliation section of the model policy also lists examples of adverse actions an employer is prohibited from taking against a retail employee which range from termination to more minor acts, such as “changing an individual’s work assignment to a less desirable location.”

The Model Retail Workplace Violence Prevention Training

The written model retail workplace violence prevention training, which is fourteen pages long, generally aims to “increase employee awareness in the workplace and their ability to respond should a workplace violence incident occur.” Notably, the model training does not include store-​​specific information.​​ As a result, employers who utilize the state’s written model training must add site specific or company specific information to their training, such as:

• A worksite​ specific list of emergency exits or a floor map with emergency exits clearly marked;
• The location where staff should meet in the event of an emergency;
• Instruction on the emergency devices (e.g., fire alarms) that are utilized in the workplace, if any, and how they operate;
• Instructions on the security related devices utilized in the workplace, (e.g. personal response systems or panic alarms), and how they operate;
• Additional store specific or company specific emergency procedures; and
• Any history of security problems at their store location and how they should be addressed.

The Model Training Video

The DOL has also released an interactive model retail workers violence prevention training video that is available for retail employers to use at no cost. Use of the interactive training video is not required by the Act. Employers may choose to develop and use their own interactive training for their employees; however, it must meet all the minimum requirements outlined in the Act.

RWSA Guidance

In addition to the model materials, the DOL published answers to common FAQs providing guidance on the implementation of the RWSA in retail workplaces. As for the Act’s training requirement, the DOL explains that a covered retail employer’s workplace violence prevention training must require an employee to provide input during the training and produce a response to the input they provide to ​​​be considered “interactive” under the Act. This can be accomplished in a digital format.

Importantly, the DOL notes that retail employers who have developed their own retail workplace violence prevention policy or training must translate their policy and training template and provide the translations in their employees’ primary language​s​, if the DOL has provided a translation of their model policy and template in that language. 

Employers should note that employees who primarily work on-site at a retail store are also covered by the Act even if they are not employed by the retail store directly and not involved in selling goods at retail (e.g., professional cleaners at retail stores). Moreover, all employees across a retail employer’s locations throughout New York State are covered by the RWSA.

Bond attorneys are available to guide covered employers through the implementation of the RWSA. If you have any questions about the information presented in this memo, please contact James E. McGrath, III, Camisha Parkins, any attorney in Bond’s labor and employment practice, or the attorney at Bond with whom you are regularly in contact.

The U.S. Equal Employment Opportunity Commission (EEOC) opened its EEO-1 filing platform on May 20, 2025. The deadline for employers to file their EEO-1 reports will be Tuesday, June 24, 2025.

Changes for the 2024 Data Reporting Process

The EEOC and the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) regulations require all private sector employers with 100 or more employees and certain federal contractors who are prime contractors or first tier subcontractors with 50 or more employees to file EEO-1 reports annually through the EEOC’s dedicated website for EEO-1 component 1 data collection. While Executive Order 11246 was rescinded, the EEOC still requires federal contractors with 50 or more employees to file EEO-1 reports on their 2024 data. Additionally, a private employer with fewer than 100 employees must file an EEO-1 Component 1 report if the employer owns, is owned by and/or is affiliated or associated with another employer or there is a centralized or common ownership, control or management so that the group of employers constitutes a single enterprise and/or integrated enterprise and the entire enterprise has 100 or more employees during an employer selected pay period in the fourth quarter (i.e., Oct. 1 through Dec. 31) of the reporting year. The EEO-1 report requires the submission of demographic workforce data to the EEOC, including data by job category and sex and race or ethnicity.

Notably, the EEOC has shortened the 2024 EEO-1 Component 1 filing cycle. Unlike past years, employers will face a hard deadline for all filings of 11:00 p.m. (EDT) on June 24, 2025, with no extensions. Another change in this year’s filing process is that the EEOC is no longer sending notifications via postal mail. All official communications related to EEO-1 reporting will now be sent electronically.

Consistent with President’s Trump’s Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, the EEOC will only accept employee data categorized by male or female during this EEO-1 filing. The new instruction booklet for reporting for the 2024 cycle removes the option to report employees as nonbinary. In the past, employers were allowed to report such employees in the “comments” section of the survey. If an employee chooses not to voluntarily self-identify their gender or self-identifies as nonbinary, the federal government requires the company to determine this information by visual survey and/or other available information.

Employers must file their EEO-1 reports through the web-based filing system, which is accessible at www.eeocdata.org/eeo1. The EEOC has published a webpage with resources for employers, including frequently asked questions (FAQs), a user guide, and other resources. The 2024 EEO-1 Component 1 Data Collection Instruction Booklet can be found at the following link: https://www.eeocdata.org/EEO1/home/instructionbooklet

Notably, federal contractors who have federal contracts or subcontracts totaling $150,000 or more must file the annual VETS-4212 report to the Department of Labor by Sept. 30, 2025. Data reported through form VETS-4212 is used by OFCCP in Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) compliance evaluations.

For more information regarding these filing deadlines or compliance with the OFCCP’s affirmative action requirements, please contact Christa Cook or any of the attorneys in Bond’s labor and employment practice.

The McDonnell Douglas standard, established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is a burden shifting framework used to evaluate claims of employment discrimination. This standard applies to claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL) and other related statutes.

Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination by demonstrating: (1) they are a member of a protected class; (2) they were qualified for their position; (3) they suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. The burden to establish a prima facie case is generally described as minimal or "de minimis."

Once the plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the employer provides such a reason, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to demonstrate that the employer's stated reason is a pretext for discrimination. The ultimate burden of proving intentional discrimination remains with the plaintiff throughout the process.

In Ames v. Dept of Youth Services, the plaintiff, a heterosexual woman, was denied a promotion and demoted. She alleged sexual orientation discrimination under Title VII claiming that the promotion was awarded to a lesbian, and the position from which she was demoted was reassigned to a gay man.

The trial court and the Sixth Circuit Court of Appeals rejected her claims. They applied a heightened standard of proof to her prima facie case under the McDonnell Douglas rubric. Specifically, they applied a rule, the background circumstances rule, which requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework.

The "background circumstances" rule in the context of the McDonnell Douglas standard for employment discrimination claims refers to an additional requirement applied in certain "reverse discrimination" cases. Specifically, when a plaintiff alleging reverse discrimination (discrimination against a majority group) seeks to establish a prima facie case under the McDonnell Douglas framework, courts may require the plaintiff to demonstrate "background circumstances" that support the suspicion that the employer is one of the unusual entities that discriminates against the majority. Such evidence may include, for example, that a member of the minority group made the employment decision or statistical evidence of a pattern of discrimination against members of the majority group.

In Ames, a unanimous Supreme Court rejected the principle that there is a higher standard of proof in reverse discrimination cases. Ames holds that as a textual matter, Title VII’s disparate treatment provision draws no distinctions between majority group plaintiffs and minority group plaintiffs. Rather, the provision makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual… The court highlighting the term individual as opposed to protected class or group.

By establishing the same protections for every “individual”—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.

Note there is a subtle difference in how the Ames Court describes the McDonnell Douglas prima facie case, and the standard description of that framework. In her opinion, Justice Jackson describes the McDonnell Douglas prima facie case as: "that she applied for an available position for which she was qualified but was rejected under circumstances which give rise to an inference of unlawful discrimination.”  The first element of the prima facie case (member of a minority group) is absent.

Also of note, Justice Thomas (with Justice Gorsuch joining) wrote a concurrence that criticized both the background circumstances rule and the McDonnell Douglas framework as “judge made” rules that are not based in the text of the statute. Justice Thomas was particularly critical of the application of the McDonnell Douglas framework in the summary judgment context, because in his view it does not align with the applicable requirements of FRCP Rule 56 which governs summary judgment.

The courts in New York, including the federal courts, had not applied the background circumstances rule. So, Ames does not change the law in New York. However, given that this was a unanimous Supreme Court decision supporting a “reverse discrimination” claim in an environment that has turned critical of diversity actions, it is likely to lead potential plaintiffs and plaintiffs’ attorneys to pursue such claims across the spectrum. Trained decision-makers applying policies that support legitimate business objectives are critical to employers’ defense of any discrimination claims. In light of the Ames decision, that fundamental principle remains more important than ever.

For more information, please contact Thomas Eron or any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

On June 4, 2025, President Donald J. Trump signed a presidential proclamation restricting the entry of foreign nationals from 19 countries into the United States, citing national security, public safety and immigration enforcement concerns. This order was issued pursuant to section 212(f) of the Immigration and Nationality Act, which authorizes the president to suspend the entry of any class of foreign nationals whose presence in the United States would be detrimental to the national interest. The new rules take effect on June 9, 2025, and impose two types of travel restrictions: full entry suspensions and partial entry suspensions.

Full Suspension on Entry

A full suspension applies to both immigrant and nonimmigrant visa categories and prohibits virtually all nationals from the affected countries from entering the United States. This includes visitors, students, workers and individuals seeking permanent residence through an immigrant visa:

Twelve countries are subject to full entry suspensions:

• Afghanistan
• Burma (Myanmar)
• Chad
• Republic of the Congo
• Equatorial Guinea
• Eritrea
• Haiti
• Iran
• Libya
• Somalia
• Sudan
• Yemen

The administration cited a range of concerns for these countries, including terrorism, lack of reliable identity documentation, absence of cooperation in repatriating deportees and high visa overstay rates. For example, Equatorial Guinea had a student and exchange visa overstay rate exceeding 70%, while Chad had a combined overstay rate above 50%, according to the order. In other cases, such as Iran and Afghanistan, the cited reasons included state-sponsored terrorism and the lack of a functioning government capable of ensuring security vetting.

Partial Suspension on Entry

In contrast to the full suspension, a partial suspension blocks specific visa categories, most notably immigrant visas, tourist and business visitor visas (B-1/B-2), and student and exchange visitor visas (F, M and J), while leaving open the possibility of entry through other nonimmigrant visa types, such as certain employment-based or diplomatic categories. However, even in cases of partial suspension, consular officers are instructed to limit the validity period of any visas that are still issued.

Seven countries are subject to partial entry suspensions:

• Burundi
• Cuba
• Laos
• Sierra Leone
• Togo
• Turkmenistan
• Venezuela

The Proclamation Does Not Make Anyone Currently in the United States Deportable

Importantly, the entry restrictions apply only to foreign nationals from the listed countries who are outside the United States as of June 9, 2025, and do not already have valid visas. Foreign nationals lawfully present in the United States on valid visas or valid status (such as F-1 students, H-1B employees or green card holders) are not affected in terms of deportability solely because of this proclamation. They may continue living and working in the United States in accordance with the terms of their existing status.

Individuals with Valid Visas Should Avoid International Travel

Even though the proclamation states that it applies only to individuals who are outside the United States and do not have a valid visa as of June 9, 2025, individuals from the listed countries should avoid international travel. Reentry to the U.S. is not guaranteed, even with a previously valid visa, because the use of that visa after June 9 may trigger a new entry determination under INA § 212(f). Customs and Border Protection (CBP) officers may interpret the proclamation as grounds to deny admission based on visa category or national security concerns. Consular officers may also restrict or cancel visa validity in light of the proclamation. Individuals risk being denied boarding, refused entry at the port of entry or having to qualify for an exception or waiver to return. Employers, students and other affected individuals should consult immigration counsel before departing the United States.

Change and Adjustment of Status

Additionally, the proclamation does not bar the United States Citizenship and Immigration Services (USCIS) from processing change of status or adjustment of status applications for individuals who are already lawfully present in the United States. Because the proclamation is issued under INA § 212(f), which governs admission into the United States from abroad, it does not directly apply to internal immigration benefits adjudicated by USCIS. A change of status (e.g., from F-1 to H-1B) or an adjustment of status to permanent residence (green card) does not involve a new entry and is therefore outside the scope of the proclamation’s restrictions. While USCIS retains general discretion in adjudicating such requests, it cannot deny an application solely on the basis of the proclamation or the applicant’s nationality. However, individuals who change status within the United States may face barriers to reentry if they travel abroad, as the proclamation would then apply at the visa issuance or inspection stage.

Exceptions

While the proclamation imposes sweeping restrictions, it also includes limited exceptions. These include lawful permanent residents (green card holders), dual nationals traveling on passports from non-restricted countries, diplomats, certain family-based immigrant visa applicants with strong documentation, adoptions, U.S. government employees and their families under special visa programs, Afghan special immigrant visas and individuals seeking entry for national interest or humanitarian reasons. Notably, the proclamation does not apply to refugees already admitted to the United States or to those granted asylum, nor does it preclude new asylum or humanitarian claims filed in accordance with U.S. and international law.

Exception for Athletes and Sports-Related Entrants

The proclamation also allows for case-by-case exceptions for professional athletes and essential personnel traveling to the United States to participate in major sporting events, as determined by the Secretary of State. This exception may include players, coaches, medical staff, other critical team members – and their immediate relatives – who are competing under the auspices of recognized leagues, tournaments or international governing bodies. Applicants must demonstrate the significance of the event and the necessity of their presence, and any exception is subject to consular or CBP discretion. Affected individuals should coordinate closely with sponsoring organizations and immigration counsel to ensure timely and well-documented requests.

Future Developments

The proclamation directs an initial review period of 90 days during which the Secretary of State, in coordination with the Attorney General, Secretary of Homeland Security and Director of National Intelligence, must identify measurable steps that each listed country can take to improve its information-sharing practices and security protocols. This 90-day window is intended to allow the listed governments to engage with the United States and potentially qualify for waivers or modifications of the restrictions based on their response.

Following the initial review, the proclamation mandates a formal reassessment of the list every 180 days. Countries may be removed if they demonstrate meaningful progress in areas such as identity verification, cooperation in repatriation, sharing of criminal or terrorist information and reliability of travel documents. Conversely, other countries may be added to the list if they are found to have deficient vetting practices or pose similar security concerns. The Secretary of State is also instructed to maintain ongoing diplomatic engagement with listed countries to provide guidance and support for compliance with U.S. vetting standards.

Conclusion

This proclamation demonstrates a renewed emphasis on country-specific entry restrictions and enhanced pre-screening procedures in U.S. immigration policy. Foreign nationals from the listed countries, along with U.S. petitioners and sponsors, should seek immediate legal counsel to determine whether existing petitions or visa applications will be affected and whether any exemptions or waiver processes may apply.

If you have questions about how this proclamation may impact your case or your organization, please contact our immigration practice for individualized guidance.

In April, the United States Supreme Court denied certiorari in Antonyuk v. James, a case challenging many of the restrictions imposed by New York’s Concealed Carry Improvement Act (CCIA). As a result, the Second Circuit’s Oct. 2024 decision which vacated all but two of the lower court’s injunctions, remains in effect.

The CCIA was passed in July of 2022 following the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which struck down New York’s more than a century old concealed carry law. In essence, the CCIA modified the requirements for obtaining a concealed carry permit and prohibited the possession of firearms in areas deemed “sensitive” or “restricted.”

The passage of the new law prompted numerous constitutional challenges, resulting in many of its provisions being enjoined by district courts. The injunctions were then appealed to the Second Circuit which, in Dec. of 2023, released its decision in Antonyuk v. Chiumento [1].

Although the Second Circuit’s Chiumento decision was nearly identical to its later decision in James, the Supreme Court vacated the decision in July of 2024 and remanded the case back to the Second Circuit for further consideration consistent with its decision in United States v. Rahimi.

On remand, the Second Circuit released its decision in Antonyuk v. James, prompting another appeal to the Supreme Court. This time, the Supreme Court declined to hear the case, leaving the Second Circuit’s decision in effect.

In short, the Second Circuit vacated all of the injunctions except as applied to two aspects of the CCIA: (1) the provision requiring firearm license applicants to disclose the names of their current and former social media accounts; and (2) the “restricted locations” provision, to the extent that it made it presumptively unlawful to carry a firearm on private Property open to the general public  unless permission was granted by “clear and conspicuous signage” or express verbal consent. 

The case will now be remanded back to the district court for further proceedings consistent with the Second Circuit’s opinion. For now, all provisions of the CCIA will remain in effect except for the two provisions that remain enjoined.

It is important to note that the Second Circuit’s review merely assessed the lower court’s injunctions, conducting a narrow analysis of whether the challenged provisions were facially unconstitutional. Therefore, future challenges to the CCIA are inevitable.

We will continue to provide updates regarding this issue. If you have any questions regarding the effects of this legislation, please contact Nicholas Jacobson, Colin Smith, any attorney in Bond’s Labor and Employment practice or the attorney at the firm with whom you are regularly in contact.

[1] Antonyuk v. Chiumento consolidated four district court cases (Antonyuk v. Hochul from the Northern District of New York; Christian v. Nigrelli, Spencer v. Nigrelli, and Hardaway v. Nigrelli from the Western District of New York). Only the Antonyuk parties appealed to the Supreme Court, so the Chiumento decision as applied to Christian, Spencer, and Hardaway was unaffected by the Supreme Court’s subsequent vacatur.  As a result, the primary difference between the Second Circuit’s decisions in Chiumento and James is that James did not address the injunctions issued in Christian, Spencer, and Hardaway.

It is common practice across the country for employees to be paid every other week or twice per month, because that imposes much less time and manpower on an employer than running payroll weekly. But such a practice can subject certain employers in New York to liability. Section 191 of the New York Labor Law (NYLL) requires employers to pay employees who fall under the broad definition of “manual worker” to pay such employees weekly. For a long time, there was little to no private litigation against an employer who paid such workers biweekly or semimonthly; such employers would simply pay a penalty if cited by the NY Department of Labor.

That changed in 2019 when New York’s Appellate Division, First Department held that a manual worker could bring a suit in court seeking damages for not being paid on a weekly basis. This resulted in a wave of “frequency of pay” litigation claims. The reason is that Section 198 of the New York Labor Law allows individuals to recover liquidated damages up to 100% of the total amount of any unpaid wages. So, for example, a manual worker paid $2,000 biweekly, instead of $1,000 weekly, would seek liquidated damages in the amount of $1,000 for each week not paid weekly—even though the employee received their full pay every other week. Because of New York’s long, six-year statute of limitations for such claims, this created a large amount of liability for any employer that did not pay manual workers weekly.  An employer with a 200 employee workforce could find themselves subject to a $30 million, bankrupt-the-company lawsuit.

Employers were initially hopeful early last year when the Appellate Division, Second Department came to the exact opposite decision of the First Department, finding that a manual worker could not bring a suit in court for a frequency of pay violation. However, this only created a split among the courts that has not been resolved, and the issue has not yet reached the Court of Appeals. Likewise, talks of a legislative fix last year ultimately fizzled out.

However, both the Governor’s office and Legislature took up the issue this year. As we previously reported here, Governor Hochul included legislation amending the damages available under Section 198 of NYLL for frequency of pay violations in her proposed budget for the 2026 fiscal year. On May 7, the Education, Labor and Family Assistance (ELFA) budget bill was published, and while it revised some provisions from the Governor’s initial proposal, it still limits the damages of frequency of pay actions.

The bill amends Section 198 of NYLL to clarify that liquidated damages shall not be applicable to violations of the weekly payment requirement for manual workers set forth in Section 191 of NYLL where the employer paid the employee wages on a regular payday, no less frequently than semimonthly. Instead, the bill sets forth that such violations are limited to “lost interest found to be due for the delayed payments of wages calculated at the daily interest rate for each day payment is late based on the annual rate of interest then in effect.” The interest rate is set by the Department Financial Services under Section 14-a of the Bank Law and is currently sixteen percent per annum.

Further, for conduct occurring after the effective date of the amendment, liquidated damages may be sought in an amount equal to one hundred percent of the “total amount of wages found to be due” in a Section 191 frequency of pay violation for employers who had been the subject of one or more findings and orders of a frequency of pay violation.

Finally, the bill states that it “shall take effect immediately and shall apply to causes of action pending or commenced on or after such date”—and it was just signed into law on May 9, and is therefore already in effect.

What does this mean? Immediately, for any pending cases, so long as employees were paid their full pay biweekly or semimonthly, the potential liability will drop drastically. For the hypothetical 200 employee employer described above, the potential liability would drop from about $30 million in liquidated damages to less than $100,000 in interest.  Of course, were an employer to be found liable for a frequency of pay violation in the future and not fix their weekly pay issue, the next time an employer would face on hundred percent liquidated damages of “the total amount of wages found to be due.”

Given the immediate impact this will have on pending cases, it is possible that the law’s provision that it will apply to pending causes of action may be challenged.

Bond continues to follow these developments closely and will continue to provide updates as they occur. Please contact a Bond attorney in the labor and employment practice or the Bond attorney with whom you normally work, for questions, concerns and tailored consultation.

On April 23, 2025, President Trump issued an Executive Order titled “Restoring Equality of Opportunity and Meritocracy” (the Order). Through this Executive Order, and accompanying Fact Sheet, the Trump Administration characterizes disparate impact liability as unlawful and states that it “not only undermines our national values but also runs contrary to equal protection under the law and, therefore, violates our Constitution.”  The Order bars federal agencies from relying on the disparate impact theory in their enforcement of anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 (addressing employment discrimination) and Title VI (addressing discrimination in education), and seeks to eliminate its use “in all contexts to the maximum degree possible.”

Under Title VII and other civil rights laws, discrimination claims may be made under two main theories: disparate treatment (which involves intentional discrimination) and disparate impact (which addresses unintentional discrimination). Under the disparate-impact theory, policies or practices that appear to be facially neutral may still be found to be discriminatory if they disproportionately and adversely affect members of a protected class. The theory was first articulated by the U.S. Supreme Court in Griggs v. Duke Power Co., which held that Title VII “proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation.” When faced with a disparate impact claim in the employment context, employers must show that the challenged policy or practice is job-related and consistent with business necessity.

The disparate impact theory was codified into the statutory provisions of Title VII in 1991. (42 U.S.C. 200e-2(k)). While the disparate impact theory is not explicitly addressed in the statutory provisions of Title VI, disparate impact is recognized in its implementing regulations. Over the past several decades, disparate-impact liability has become engrained in civil rights laws that touch a wide variety of fields, including employment, access to credit, government contracting, housing and education.

The Order states that “disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill” and “imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.”

The Order reflects a fundamental shift in the enforcement of civil rights law by focusing exclusively on intentional discrimination and outlines the following directives to federal agencies:

• Deprioritize the enforcement of all statutes and regulations to the extent that they include disparate-impact liability;
• Identify and repeal regulations or guidance that utilize the disparate impact framework (this appears to apply not just to Title VI, but also to Title VII, the Fair Housing Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Credit Opportunity Act);
• Roll back the implementation of Title VI for all agencies with respect to disparate impact liability, which shall include revocation of the Presidential approval of Department of Justice Title VI regulations that address disparate-impact liability;
• Review pending investigations, civil suits, injunctions and consent decrees in which the government has relied upon disparate impact theory and “take appropriate action with respect to such matters” consistent with the policy of the Order;
• Examine whether state laws using the disparate impact theory may be preempted by federal authority or whether such “laws, regulations, policies or practices have constitutional infirmities that warrant Federal action.”

The Order may be of particular interest to employers because of the potential impact on employment practices, and its effect on currently pending cases, audits and investigations  that the government has brought based on a disparate-impact liability theory. However, due to the extensive case law that has explicitly recognized the disparate-impact theory, private individuals will likely still be allowed to pursue disparate impact claims, provided courts continue to recognize them as legally cognizable.

In the Fact Sheet accompanying the Order, President Trump is described as “a champion of individual merit and fairness” and the shift away from disparate impact is suggested to be part of a broader philosophy that aligns with President Trump’s other recent executive orders aimed at eliminating affirmative action and diversity, equity and inclusion (DEI) programs. Many of those previous orders have faced legal challenges and, in some cases, have been enjoined. It is possible that this Order may face similar legal challenges. 

Bond continues to follow these and related developments closely. Please contact Christa Cook, Gavin Gretsky or the Bond attorney with whom you normally work, with any questions.

On April 9, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued guidance stating that it will begin considering individuals’ antisemitic activity on social media and the physical harassment of Jewish individuals as grounds for denying immigration benefit requests.  According to the news release, “[t]his will immediately affect aliens applying for lawful permanent resident status, foreign students and aliens affiliated with educational institutions linked to antisemitic activity.”

Under this guidance, USCIS will consider social media content that indicates that a non-citizen endorses, espouses, promotes or supports antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefits. This guidance took effect immediately on April 9.

This guidance stems from President Trump’s executive orders on Combatting Anti-Semitism (issued in 2019), Additional Measures to Combat Anti-Semitism and Protecting the United States from Foreign Terrorist and Other National Security and Public Safety Threats (both issued in 2025).  To effectuate the directives of these executive orders, the U.S. Department of Homeland Security (DHS) has stated that it will enforce the existing “relevant immigration laws to the maximum degree, to protect the homeland from extremists and terrorist aliens, including those who support antisemitic terrorism, violent antisemitic ideologies and antisemitic terrorist organizations such as Hamas, Palestinian Islamic Jihad, Hezbollah and Ansar Allah aka: ‘the Houthis.’”  Hamas and Hezbollah were designated as terrorist organizations by the U.S. Department of State (DOS) in 1997, Palestinian Islamic Jihad in 2014 and the Houthis in March 2025.

Under U.S. immigration law, both the USCIS and DOS have the authority to deny immigration benefits, including the issuance of a visa, entry into the United States, and permanent resident status, if a foreign national applicant has engaged in, among other things, various types of unlawful conduct or crimes or is a member of, or has assisted, any terrorist or other armed organization or is otherwise suspected of intending to do, or, having done, those things.  For decades, any foreign national who has completed a visa application or a permanent residence application is asked many questions concerning their past, present and future activities, including whether they are terrorists and/or are members of, or have provided or intend to aid terrorist organizations.  For example, the Form DS-160, the nonimmigrant visa application form used by foreign nationals to apply for a visa to enter the United States, includes the following questions:

• Do you seek to engage in terrorist activities in the United States or have you ever engaged in terrorist activities?
• Have you ever or do you intend to provide financial assistance or other support to terrorists or terrorist organizations?
• Have you ever committed, ordered, incited, assisted or otherwise participated in extrajudicial killings, political killings or other acts of violence? 

Although affirmative answers (without sufficient ameliorating explanation(s)) will likely result in denial of the immigration benefit being sought or requested, lying about such activities will also result in denial or revocation of the benefit.

For the past decade, starting with a 2015 pilot program, USCIS has monitored and screened applicants’ social media accounts in connection with their applications for immigration benefits.  In 2016, President Obama established the Social Media Division within the Fraud Detection and National Security Directorate of USCIS, which is responsible for identifying, reviewing, vetting and adjudicating cases involving national security concerns.  The Social Media Division conducts social media screenings of applicants for immigration benefits to identify security risks and to detect fraud.  Presumably, the Social Media Division will also be tasked with monitoring the activities described in this April 9th guidance issued by the USCIS.

Takeaways

Scrutiny of social media accounts for national security purposes, including the identification of terrorists and support for terrorist activity, has been a part of the visa application and immigration benefits vetting process since the Obama Administration.  The issuance of this guidance is a reminder that such monitoring occurs and that negative determinations on immigration applications may occur if social media accounts and posts reveal support for antisemitic terrorism, violent antisemitic ideologies or antisemitic terrorist organizations.

Please contact your Bond immigration attorney if you have any questions related to this information memo.

On April 11, 2025, a new rule went into effect in which the United States government will start to strictly enforce the requirement that foreign nationals register their presence with U.S. Citizenship and Immigration Services (USCIS) and be fingerprinted if they remain in the United States for 30 days or longer.

Since the 1940s, U.S. immigration law has required all aliens 14 years of age or older (with certain limited exceptions) who remain in the United States for 30 days or longer to register their presence in the United States and to be fingerprinted, if they were not already fingerprinted when applying for a U.S. visa.[1]  Most foreign nationals who visit the United States have complied with this requirement through the visa application process, the permanent residence application process, or the Electronic System for Travel Authorization (ESTA) entry process. USCIS will now start enforcing this requirement for those individuals who have not gone through these registration processes. The two main groups who have not gone through these registration processes and are primarily affected by the new rule are:  (1) Canadians who enter through land ports-of-entry and are not required to obtain visas to enter the United States; and (2) foreign nationals who entered the United States before they turned 14 and who have remained in the United States after turning 14.

On March 12, 2025, pursuant to President Trump’s January 20, 2025 Protecting the American People Against Invasion executive order directing the U.S. Department of Homeland Security (DHS) to ensure compliance with the alien registration requirement, DHS issued an Interim Final Rule (IFR)[2] that (1) requires all aliens 14 or over in the U.S. for 30 days or longer to register their physical presence in the U.S. and provide their fingerprints (if they have not already done so), (2) creates a new online registration system and (3) establishes significant penalties for failure to register. These new requirements and systems went into effect on April 11, 2025. 

This article discusses who is and who is not affected by this IFR, how to comply with the IFR, and the consequences of failing to do so.

Who Does Not Need to Register?

Most nonimmigrant and immigrant visa holders are not required to undertake this physical presence registration process and be fingerprinted under the IFR because they have already complied with these requirements through the visa application and ESTA travel authorization process. The groups of individuals who are not required to register include the following:

• Foreign nationals staying in the United States fewer than 30 days;
• Lawful permanent residents;
• Nonimmigrants who were admitted to the United States and were issued a Form I-94 (electronic or paper) or Form I-94W;
• Any non-citizen who has been issued an employment authorization document;
• Any non-citizen who has applied for U.S. permanent residence and has attended a biometrics appointment;
• A and G visa holders;
• American Indians born in Canada who possess at least 50% blood of the American Indian race and who are present in the U.S. under the authority of 8 United States Code Section 1359[RPA4] [GD5];
• Visitors admitted under ESTA; and
• Any non-citizen issued a border crossing card.

Who Must Register?

Those who must register under the IFR include all foreign nationals who remain in the U.S. for more than 30 days who have not gone through a registration and fingerprinting process in connection with an application for a nonimmigrant visa, employment authorization, permanent residence or admission into the U.S. through ESTA. These groups include the following:

• Foreign nationals remaining in the U.S. 30 days or more who enter the United States without a visa or who don’t receive a Form I-94 record (paper or electronic);
• Foreign nationals who enter the U.S. without inspection and who have not been fingerprinted in connection with any immigration application;
• Non-US citizen children under the age of 14 who have not previously registered and will remain in the U.S. for 30 days or more. Minor children will be issued proof of registration but are not required to be fingerprinted until they turn 14; and
• All non-U.S. citizen children, regardless of previous registration, who turn 14 years old in the U.S., must update their registration and be fingerprinted within 30 days after their 14th birthday, including:
  • Permanent residents who obtained their green cards when below age 14 are required to register and complete fingerprinting by submitting a Form I-90 once they reach 14 years old.
  • Non immigrant children who turn 14 while they are in the United States. Once the child turns 14, they will need to comply with the new requirement within 30 days of their birthday, even if they have previously received a Form I-94 admission record.

Registration Procedure

Those who need to register must use the Form G-325R, which must be submitted online through an individual USCIS account. The procedure is as follows:

1. Create a USCIS account in the “myUSCIS” online platform by going to the following website: https://www.uscis.gov/file-online/how-to-create-a-uscis-online-account.
2. Select “File a Form Online” and then choose “Form G-325R” from the dropdown menu.
3. Follow the instructions to complete the Form G-325R, upload any supporting evidence. and submit the completed form once ready.
4. USCIS will issue a receipt notice once the Form G-325R has been submitted, which should be retained as proof of registration
5. Completing the Form G-325R registration will initiate the scheduling of a biometrics appointment.
6. Attend the biometrics appointment, bringing the appointment notice and a photo identification to the appointment.
7. Upon completion of the biometrics, retain the biometrics appointment notice which has been endorsed by USCIS as proof of having completed the fingerprinting.

Evidence of Registration and Penalties

The new rules require that all non-U.S. citizens over the age of 18 carry proof their registration.  For those who register under the process described above, the G-325R receipt notice and the endorsed biometrics appointment notice would constitute such evidence. For others who are not required to register under that process it might be their Form I-94, a permanent resident card or other documentation that the individual has received from USCIS.

Failure to register and/or to present valid proof may result in civil penalties of up to $5,000, imprisonment of up to 6 months, or both. Parents and/or guardians who fail to register minor children may also be held liable and subject to these same penalties.

Takeaways

Canadian citizens who enter the United States by land and who remain in the United States for more than 30 days should be cognizant of these registration requirements and make sure that they are in compliance. Similarly, parents of non-citizen children who will turn 14 should make sure to timely register their minor children’s presence in the United States in accordance with the procedures discussed above using the USCIS online account system.

Finally, as a reminder, it is important to understand that undergoing and/or completing this registration process does not confer lawful immigration status or the right to remain in the United States, nor do the documents issued as part of this registration process provide the right to remain in the United States, employment authorization to work in the United States, or any other right or benefit under the U.S. immigration laws. These documents are only proof that the individual has complied with the physical registration requirements.

Please contact your Bond, Schoeneck King, PLLC Immigration attorney if you have any questions regarding registration requirements and the registration process.

[1] The current law, Section 262 of the Immigration and Nationality Act (INA) (8 U.S.C. 1302), was enacted in 1952.

[2]https://www.federalregister.gov/documents/2025/03/12/2025-03944/alien-registration-form-and-evidence-of-registration#:~:text=DATES%3A-,Effective%20date%3A%20This%20IFR%20is%20effective%20April%2011%2C%202025.,received%20by%20April%2011%2C%202025

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released two technical assistance documents focused on educating the public about unlawful discrimination related to diversity, equity and inclusion (DEI) in the workplace: a one-page technical assistance document, “What To Do If You Experience Discrimination Related to DEI at Work,” and a question-and-answer technical assistance document, “What You should Know About DEI-Related Discrimination at Work.” EEOC Acting Chair Andrea Lucas emphasized that these technical assistance documents will help employees know their rights and help employers take action to avoid unlawful DEI-related discrimination.

In the technical assistance documents, the EEOC emphasized that DEI is a broad term not defined in Title VII and noted that under Title VII, DEI initiatives, policies, programs or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s sex, race or another protected characteristic. The EEOC further noted that Title VII protects employees, potential and actual applicants, interns and training and apprenticeship program participants.

The documents provide some examples of employer actions that might create DEI-related claims, including:

• Limiting, Segregating and Classifying. Separating employees into groups based on race, sex or another protected characteristic when administering DEI or other trainings or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources. Limiting membership in workplace groups like Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups (including by making available company time, facilities or premises, and other forms of official or unofficial encouragement or participation).
• Disparate Treatment. Discriminating against applicants or employees in the terms, conditions or privileges of employment, including hiring, selection for interviews (including placement or exclusion from a candidate “slate” or pool), access to or exclusion from training (including training characterized as leadership development programs), internships (including those labeled as “fellowships” or “summer associate” programs”), mentoring/sponsorship programs, access to workplace networking/networks, etc.
• Retaliation. Retaliating against employees who oppose DEI programs or trainings. Reasonable opposition to a DEI training may constitute a protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.
• Harassment. Harassment during DEI training which, depending on the facts, may lead to a colorable hostile work environment claim.

Additional key takeaways from the documents:

• Reverse discrimination. The EEOC’s position is that there is no such thing as reverse discrimination, noting that there is only discrimination. The EEOC does not require a higher showing of proof for so-called reverse discrimination claims. It applies the same standard of proof to all race discrimination claims, regardless of the race of the victim.
• No business necessity exception for DEI programs. The EEOC noted that Title VII allows employers to raise a bona fide occupational qualification (BFOQ) as an affirmative defense in very limited circumstances to excuse hiring or classifying any individual based on religion, sex or national origin. However, the EEOC emphasized that Title VII does not provide any diversity interest exception to these rules, noting that no general business interest in diversity and equity (including perceived operational benefits or customer/client preference) has ever been found by the Supreme Court to be sufficient to allow race-motivated employment actions.
• No excuse for DEI-related considerations of race, sex or other protected characteristic. For there to be unlawful discrimination, race or sex (or any other protected characteristic under Title VII) does not have to be the sole reason for an employer’s employment action or the but-for (deciding) factor for the action. Under Title VII, an employment action is still unlawful even if race, sex or another protected characteristic was only one factor among many contributing to the employer’s decision or action.
• Covered entities under Title VII. Title VII applies to employers with 15 or more employees, employment agencies (including staffing agencies), entities that operate training programs (including on-the-job training programs) and labor organizations (like unions). Additionally, employers can be liable for the actions of their agents, such as staffing agencies and recruiters.

Bond continues to follow these and related developments closely. Please contact Adam P. Mastroleo, Anthony A. Levitskiy or the Bond attorney with whom you normally work, for questions, concerns and tailored consultation. 

On Feb. 21, 2025, the federal district court for the District of Maryland issued a preliminary injunction partially enjoining two of President Trump’s executive orders: Ending Radical and Wasteful Government DEI Programs and Preferencing (Jan. 20, 2025)(J20 Order) and Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025)(J21 Order).

The Court’s ruling focused on three provisions of the executive orders:

• The “Termination Provision” of the J20 Order directing federal agencies to terminate “equity-related” grants and contracts;
• The “Certification Provision” of the J21 Order directing federal agencies to require federal contractors and grantees to certify under penalty of the False Claims Act that they do not operate programs promoting DEI that violate discrimination laws; and
• The “Enforcement Threat Provision” of the J21 Order directing the Attorney General to take actions to “deter DEI programs or principles . . . that constitute illegal discrimination or preferences,” including drafting a report recommending actions and identifying corporations, higher education institutions or certain other entities for “civil compliance investigations.”

The plaintiffs in the case are the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore. The Court ruled that the plaintiffs had demonstrated a likelihood of prevailing on their claims that the J20 and J21 executive orders suffered from an unconstitutional vagueness and that they abridge freedom of speech, among other infirmities. The Court also found that the plaintiffs had demonstrated that the plaintiffs would be irreparably harmed if the executive orders were to be implemented while further judicial proceedings are held to ultimately determine the legality of the executive orders. The Court went on to find that a nationwide injunction was appropriate.

Therefore, the Court issued a preliminary injunction preventing federal agencies from:

• Freezing, terminating or changing the terms of any existing grants or contracts, on the basis of the Termination Provision in the J20 Order;
• Requiring any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; and
• Bringing any “False Claims Act enforcement action, or other enforcement action,” pursuant to the Enforcement Threat Provision.

Notably, the scope of the injunction issued by the Court was not as all-encompassing as the plaintiffs had requested. The Court expressly declined to enjoin the Attorney General from preparing a report of recommendations on strategic steps to “encourage the private sector to end illegal discrimination and preferences, including DEI” or from engaging in investigations of potential violations federal anti-discrimination laws pursuant to the Enforcement Threat Provision.

As a result of the Court’s ruling, there is less immediate concern that federal grants or contracts will be interrupted on the basis that they fund “equity-related” activities or that a grantee or contractor will be subject to the threat of the False Claims Act for engaging in DEI programs or policies. On its face, the scope of the Court’s ruling is quite broad, as it prevents not only False Claims Act actions but also “any other enforcement action.”

The ruling is not a final ruling and could be reversed on appeal or altered by the court itself, in whole or in part, as the matter proceeds. Thus, issues raised by the J20 and J21 executive orders are worth reviewing, although some of the immediacy is removed at this time.

In addition, one should not assume that the Court’s injunction addresses all legal concerns with respect to DEI programs and policies currently in place. As a general matter, an entity engages in unlawful discrimination when it makes decisions based on an individual’s race, color, ethnicity, sex or various other protected characteristics. Despite the Court’s preliminary injunction, there remains the risk of liability based on illegal discrimination, even if the illegal discrimination resulted from well-intentioned efforts to increase diversity. Stated another way, some programs and policies may have had compliance issues before the J20 and J21 executive orders and those issues are not affected by the preliminary injunction and should be assessed and addressed if warranted.

As before this latest development, DEI programs, policies and initiatives should be reviewed to ensure their compliance with existing anti-discrimination law. Close attention should also be paid to the rapidly occurring developments against the backdrop of enforcement actions by both federal and state officials, funding and reimbursement implications of the programs and the possibility of private litigation.

Bond continues to follow these and related developments closely. Please contact a Bond attorney in the labor and employment practice or the Bond attorney with whom you normally work, for questions, concerns and tailored consultation. 

Under New York Labor Law Section 191, individuals who fall under the broad definition of “manual worker” must receive their wages weekly. There is currently a split among the courts as to whether manual workers have a private right of action to recover liquidated damages for untimely payments. In Vega v. CM & Associates Construction Management, LLC, the First Department held that manual workers who were paid late had a private right of action under Section 198 of New York Labor Law to recover liquidated damages for up to six years of their wages. Conversely, in Grant v. Global Aircraft Dispatch Inc., the Second Department held that Section 198 does not create a private right of action for late payment when the employee is still paid in full.

Despite the lack of clarity in the law as to whether manual workers have a private right of action, there has been a surge in individual and class-action lawsuits that could expose employers to substantial liability, requiring them to pay employees who were already paid in full, albeit not on a weekly basis. Governor Hochul has included legislation in her proposed budget for the 2026 fiscal year to address this issue.

Governor Hochul’s proposed legislation would clarify the damages available to manual workers for untimely payments. First-time violations allow for the recovery of 100% of interest lost due to delayed payments. Second-time violations would allow for the recovery of 300% of the lost interest due to delayed payment. Finally, for all subsequent violations, recovery includes liquidated damages equal to 100% of the total amount of wages due to the employee. This legislation would limit plaintiffs’ recovery of liquidated damages and prevent financial harm to employers who have paid employees the correct amount on a biweekly schedule. If enacted, Section U would take effect 60 days after approval. Similar legislation on how to remedy the frequency of pay controversy was proposed in the 2025 fiscal year budget, but did not pass.

The 2026 budget must be approved by April 1, 2025, and we will continue to provide updates regarding this issue. If you have any questions regarding the effects of this legislation, please contact Nicholas Jacobson, any attorney in Bond’s labor and employment practice or the attorney at the firm with whom you are regularly in contact.