Does the saying “when the cat is away, the mice will play” apply to labor law? Some states, including New York, seem to think so. With the National Labor Relations Board (“NLRB” or the “Board”) currently lacking a quorum, New York and other pro-labor states are exploring ways to fill the regulatory gap left by a temporarily dormant federal agency. Some states view the lack of quorum as a threat to workers’ rights. Legislatures in those states have passed laws to allow state labor boards to fill in for the NLRB when it lacks a quorum or otherwise declines to exert jurisdiction.

Why the NLRB Is Inactive

The NLRB normally consists of five members and requires at least three to form a quorum—the minimum needed to issue decisions, make rules or take other major actions.  In Jan. 2025, shortly after the new administration came into office, President Trump removed NLRB Member Gwynne Wilcox, leaving the Board with only two members. Wilcox challenged the removal but the Supreme Court reversed a lower federal court ruling temporarily reinstating her to the Board. 

Absent a quorum, NLRB functions are significantly curtailed. Principally, the Board cannot issue decisions, certify elections, promulgate regulations or act in a manner that would otherwise require Board approval. While the National Labor Relations Act (“NLRA”) allows remaining members and NLRB staff to handle limited matters such as processing unfair labor practice charges through regional offices, the Board itself cannot issue decisions or change regulations without at least three members.

The NLRA Generally Preempts State Laws Aimed at Regulating Labor Disputes

Under the Supreme Court’s longstanding precedent in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the NLRA generally preempts state and local laws that attempt to regulate private sector labor relations. That means where there is even the potential for conflict between the NLRA and state or local law, then such state/local law is preempted.

Section 14(c)(2) of the NLRA does permit limited state involvement when the NLRB has expressly declined jurisdiction by rule or decision. However, the NLRA does not address state authority when the NLRB is unable to act due to a lack of quorum. As a result, states are largely left without authority over private sector labor disputes, aside from specific exceptions like agriculture or public employment.

New York's Proposed Law: Senate Bill S8034A

Against this backdrop, the New York State Legislature passed Senate Bill S8034A (the “Bill”), legislation that would allow the state to step in where the NLRB cannot act and represents an attempt to take control over labor relations in the event of a quorum-less Board.

The legislation amends Section 715 of the New York Labor Law to provide coverage for private employees that are normally covered by the NLRA. The Bill, if signed by the Governor, would give authority to New York’s Public Employment Relations Board (“PERB”) to oversee labor disputes in the private sector in the event that the NLRB cannot “successfully assert jurisdiction” – in cases such as where the Board lacks a quorum. This would enable the PERB to certify elections and to exercise authority over any previously negotiated collective bargaining agreements.

PERB already has the authority to assert control over certain private sector employers such as small employers that do not meet federal commerce thresholds and thus fall outside of the jurisdiction of the NLRA. But this Bill would significantly expand PERB’s role, allowing it to fill the void left by a nonfunctioning NLRB across a much broader swath of the private sector.

New York’s Moves to Support Labor

This Bill is not a new attempt by New York to regulate in the labor space as the state recently and aggressively sought to expand state power over labor relations. For example, in 2019, New York passed a law known as the Farm Laborers Fair Labor Practices Act (FLFLPA), which covers all farm laborers across the state. The FLFLPA extended coverage of New York’s State Employment Relations Act to agricultural laborers and added certain unique provisions. Specifically, the FLFLPA permits farm workers to organize via a “card check” agreement as an alternative to elections and gives mediators power to impose contracts on unions and employers when they do not reach agreement quickly.

Industry groups and workers have recently challenged those actions as unconstitutional and some of those challenges remain pending.[1]

Conclusion

While Governor Hochul has yet to sign or consider the Bill, New York employers should be aware of increased statewide activity in spaces normally reserved for federal agencies during a period of decreased federal oversight. With respect to the NLRB specifically, New York’s Bill may also be a dead letter upon arrival as President Trump recently nominated two new members to the Board, Scott Mayer (chief labor counsel at Boeing Co.) and James Murphy (former NLRB attorney).  If approved by the Senate, they would increase the Board membership to four (4) and establish the quorum necessary for it to act.

With respect to the NLRB specifically, employers should also be aware that even though the Board currently lacks a quorum, its operations remain as active as possible. To that end, regional offices are still processing and investigating unfair labor practice allegations, issuing complaints to the maximum extent permitted by law and conducting administrative law judge hearings on complaints. Moreover, the Board’s precedents and regulations – including many union friendly rulings issued by the Board under the Biden Administration – remain in effect, meaning employers are still subject to those standards and precedents. Employers who run afoul of established federal labor law could face liability down the road if charges commenced against them now – when the Board lacks a quorum – nevertheless reach the Board in the future when it has reestablished a quorum. Employers should continue to maintain compliance with current Board law.

If you have any questions or would like additional information, please contact Samuel Dobre, Samuel Wiles, Jason Kaufman or the Bond attorney with whom you are regularly in contact.

^[1] https://www.nrtw.org/news/ca-ny-farmworkers-ufw-05272025/

On July 4, 2025, President Donald J. Trump signed the “One Big Beautiful Bill Act” into law. The Act contains hundreds of provisions, including new tax deductions for individuals who earn tips and overtime pay.

“No Tax on Tips” 

The Act creates a temporary deduction for tipped workers (employees and self-employed individuals) for “qualified tips.”

Starting this year through 2028, tipped workers may be able to deduct up to $25,000 in reported qualified tips. The deduction phases out for taxpayers with a modified adjusted gross income over $150,000 ($300,000 for joint filers).

“Qualified tips” subject to the deduction are:

• voluntary cash or charged tips received from a customer or through tip sharing – mandatory service charges automatically assessed to customers do not count; and
• those tips earned in “traditionally and customarily tipped industries” – the IRS is slated to publish a list of occupations that “customarily and regularly” receive tips by October 2, 2025.

Employers will need to report, on Form W-2s and Form 1099s, the qualified tip amounts earned during the year and the occupation of the tip recipient.

“No Tax on Overtime” 

The Act also creates a temporary deduction for employees who receive “qualified overtime compensation.”

Starting this year through 2028, employees may be able to deduct up to $12,500 ($25,000 for joint filers) in reported qualified overtime compensation. The deduction phases out for taxpayers with modified adjusted gross income over $150,000 ($300,000 for joint filers).

“Qualified overtime compensation” subject to the deduction is the pay which exceeds an employee’s regular rate of pay required by the federal Fair Labor Standards Act (FLSA). If a nonexempt employee’s hourly rate is $15, for example, and they work one hour of overtime at an overtime hourly rate of $22.50, the employee can seek to deduct the $7.50 received in excess of their regular rate for that hour of overtime. Qualified overtime compensation does not include compensation paid as a result of heightened state law requirements or negotiated collective bargaining agreements.

Employers will need to report, on Form W-2s, qualified overtime compensation received during the year.

In addition to the Form W-2 recordkeeping requirements, employers may wish to review their overtime policies and practices. While clients have shared that certain employees prefer to be classified as exempt (salaried), the Act’s highly publicized overtime deduction provides employees with a new incentive to be classified as nonexempt and work overtime. Accordingly, employers should ensure they have in place a policy and practice of overtime being approved in advance and, most notably, review and confirm which employees are eligible for overtime under federal and state law.

While employees may ask about their classification status due to the deduction, misclassifying and/or changing an employee’s exemption can have significant consequences. Employers should work closely with counsel to review current classifications and before making any changes to minimize such consequences.

If you have questions related to the topics in this information memo or about the “One Big Beautiful Bill Act” please reach out to Erin M. Callahan, Hilda (Hildy) Marinello Curtin or the attorney at the firm with whom you are regularly in contact.

One of the challenging aspects of managing FMLA leaves, particularly intermittent leaves, is determining whether a certain absence is appropriately treated as a covered FMLA leave. In many such circumstances, if the absence is not within the protection of the FMLA, it may be unauthorized and subject the employee to discipline, or even discharge, under the employer’s attendance policy or otherwise. In these situations, employers properly consider the FMLA Certification from the employee’s health care provider which, in the case of intermittent leaves, should include the following information:

Due to the [employee’s medical] condition, it (was/is/will be) medically necessary for the employee to be absent from work on an intermittent basis (periodically), including for any episodes of incapacity i.e., episodic flare-ups. Provide your best estimate of how often (frequency) and how long (duration) the episodes of incapacity will likely last.

Over the next 6 months, episodes of incapacity are estimated to occur ____ times per (day/week/month) and are likely to last approximately ____ (hours/days) per episode.

So, for example, a health care provider may report that the employee will experience flare-ups from his medical condition 4 times in 6 months with each flare-up lasting 2 days per episode. A recent appeals court ruling cautions employers that such a specific certification is not necessarily controlling in the determination of whether a particular absence (e.g., the fifth or sixth episode within 6 months) is a covered FMLA absence.

Davis v. Illinois Department of Human Resources involved a pregnant employee who, in 2017, provided an FMLA medical certification advising her employer that her pregnancy was “high-risk” and authorized intermittent leave for frequent medical appointments, but stated that her condition would not cause episodic flare-ups requiring leave. The employee was subsequently terminated under the employer’s attendance policy with the final unexcused absence being due to morning sickness related to her pregnancy, which the employer concluded was not authorized FMLA leave based on the medical certification she had presented. The district court granted the employer summary judgment dismissing the FMLA claim.

On appeal, the Seventh Circuit reversed and sent the case back for a jury trial. We need to look beyond the pregnancy aspects of this case to understand the significance of the holding.^[1] The employer and the district court focused on the medical certification and the fact that the absence at issue was not covered by that certification. However, the appeals court held that “an employee’s entitlement to FMLA leave is not strictly bound by the precise parameters laid out in the medical certification.” Instead, the employer is charged, under the FMLA, with making a reasonable determination based on all of the information available to it. In Davis, for example, the court relied on the fact that the employer first provided the FMLA paperwork to the employee following an absence due to morning sickness as evidence that a jury might reasonably conclude that such absences were entitled to FMLA protection.

In making the determination of whether an absence is covered by the FMLA, employers must recognize that the medical certification only represents the health care provider’s “best estimate” of the frequency and duration of the flare-ups that could cause future intermittent absences. Employers should consider whether the absence in question was “not so far in excess” of the frequency or duration stated in the certification so as to retain FMLA protection.

The Davis court also highlighted the employers’ obligation, under the FMLA regulations, to notify the employee in writing if his/her medical certification is incomplete or insufficient and what additional information is required. In Davis, given the employer’s knowledge of the employee’s morning sickness, a jury could find that this obligation was triggered when the certification failed to mention the need for intermittent leave on this basis.

Managing intermittent FMLA leaves is a complex and often difficult responsibility for employers. This function requires a holistic, reasoned and reasonable assessment process to minimize potential legal risks, including lengthy (8 years(!) and counting in Davis) and costly litigation.

If you have any questions, please contact Thomas G. Eron, any attorney in the firm’s labor and employment practice or the Bond attorney with whom you have regular contact.

^[1] Not only is morning sickness a recognized symptom of pregnancy, but the FMLA regulations expressly identify morning sickness as a condition associated with pregnancy that does not require treatment from a health care provider to qualify as an FMLA serious health condition. 29 C.F.R. §825.115(f).

On June 27, 2025, the Office of Federal Contract Compliance Programs (OFCCP) announced in a letter to federal contractors that they were invited to share information regarding their compliance efforts in response to Executive Order 14173, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

OFCCP Director Catherine Eschbach states in the letter that EO 14173 is aimed at “eliminating reliance upon unlawful, unfair and unsafe discriminatory practices including those labeled as diversity, equity and inclusion (DEI) and revokes executive orders that implemented or encouraged the adoption of such unlawful practices.” As we previously reported, EO 14173 revoked Executive Order 11246, which was signed into law in 1965 by Lyndon B. Johnson and required covered federal contractors to implement affirmative action programs for females and minorities. The OFCCP Director’s letter stated that the EO 11246 regulations’ requirement “that federal contractors engage in workforce balancing and use placement goals to benefit certain individuals may have led contractors to engage in unlawful disparate treatment based on race and sex in hiring and employment decisions.” While OFCCP noted that the regulations expressly prohibited quotas and disparate treatment, the Director asserts that many federal contractors may have, in practice, engaged in disparate treatment by making employment decisions based on race or sex in an effort to meet those goals. Federal contractors were given a 90-day “safe harbor” until April 21, 2025, after which they were expected to have wound down their affirmative action programs for women and minorities under the now revoked EO 11246.  

In her letter, the OFCCP Director invites federal contractors to share information in narrative form about what specific actions they have taken to comply with EO 14173 and discontinue practices previously required under EO 11246. The letter provides examples of changes in practices that OFCCP suggests federal contractors may choose to describe, including trainings, sponsorship programs, leadership development programs or other privileges of employment available only to employees of a certain race or sex; race or sex-based placement goals, including the use of participation in race or sex-related organizations as a “plus factor” or proxy for race or sex in employment decisions, tying executive compensation to meeting race or sex-based hiring, promotion, retention, representation or other demographically-based goals, trainings focused on racial stereotypes, and encouraging recruitment efforts towards or referrals of candidates based on race or sex.

Federal contractors have 90 days (i.e., until Sept. 25, 2025, which coincides with the close of the federal fiscal year) to voluntarily disclose information about their efforts to phase out previous EO 11246 regulatory compliance mandates. The OFCCP letter states “the content, format and decision to provide any information is completely up to the contractor.” OFCCP emphasizes that disclosure is not mandatory and contractors have full discretion over what information to provide, if any.  If federal contractors wish to make such a submission, it may be submitted through the OFCCP Contractor Portal.

Notably, EO 14173 did not rescind federal contractors’ affirmative action obligations for individuals with disabilities and protected veterans under Section 503 of the Rehabilitation Act or the Vietnam-Era Veterans’ Readjustment Assistance Act of 1974. Those affirmative action obligations are also enforced by OFCCP and, at least for now, also mandate compliance with established hiring benchmark and utilization goals. OFCCP’s invitation to share information does not make any reference to these continuing affirmative action obligations enforced by the OFCCP.

In light of the recent significant reduction in OFCCP staff, the closure of a majority of its offices and the proposed elimination of the OFCCP in the next fiscal year, the OFCCP’s enforcement priorities and efforts have been in question. It is unclear how OFCCP intends to use the information it gathers from federal contractors who choose to respond to this invitation for information regarding their efforts to wind down practices previously required under EO 11246. The OFCCP fails to explain what benefit a contractor would gain by volunteering such information. It is also unclear whether OFCCP intends to share this information with other federal agencies, such as the Department of Justice or the EEOC and/or whether the information submitted by federal contractors would be subject to disclosure in response to a Freedom of Information Act request. Federal contractors are encouraged to consult with counsel about their decision whether to make a submission and if so, the content of such submission. 

If you have any questions, please contact Christa Cook, any attorney in the firm’s labor and employment practice or the Bond attorney with whom you have regular contact.

The New York City Department of Consumer and Worker Protection (“DCWP”) has recently amended the Earned Safe and Sick Time Act (“ESSTA”) to incorporate New York state’s paid prenatal leave, while including its own requirements that go beyond State law. Effective July 2, 2025, employers operating in New York State and New York City must comply with both the New York State paid prenatal leave requirements and the newly amended ESSTA rules.

As a reminder, New York State became the first state to mandate paid prenatal leave on Jan. 1, 2025, requiring private sector employers to provide pregnant employees with 20 hours of prenatal personal leave during any 52 week calendar period. The leave can be used for pregnancy related health care appointments, such as physical examinations, medical procedures, monitoring, testing, discussions with a health care provider to ensure a healthy pregnancy, end of pregnancy care and fertility treatment. To be eligible for paid prenatal leave, employees do not need to work for a specified period of time: all employees, including newly hired employees, are automatically entitled to this benefit. With that said, only pregnant employees may use paid prenatal leave, not their spouse or partner.

The DCWP’s amended rules incorporate most of the state’s paid prenatal leave requirements. Likewise, it mandates employers to provide 20 hours of paid prenatal leave during any 52 week period for pregnant employees, not their spouses or partners, for the same pregnancy related health care appointments described above. However, the amended rules have created new obligations for employers that are either in conflict or absent from the state’s law. The most notable changes include the following:

• Written Record of Use of Leave. When an employee uses paid prenatal leave, an employer must provide the employee with written documentation, such as a pay stub or pay statement, informing them of the amount of paid prenatal leave used during the pay period and the total amount of paid prenatal leave available for use. Employers must maintain records of each employees total balance of paid prenatal leave for each pay period.
• Written Policy. Employers must maintain a written paid prenatal leave policy that meets the requirements of the ESSTA, which must be distributed upon commencement of employment, within 14 days of the effective date of any changes to the policy and upon request by an employee. The minimum requirements that an employer’s policy must meet can be found on pages 30 and 31 of this FAQ.
• Reasonable Documentation. Employers may require reasonable written documentation that the use of paid prenatal leave was for purposes authorized by law if the absence was more than three consecutive days. However, employers are not permitted to request documentation or ask employees about their condition when using such leave under the State’s law.
• Separate Leave. Like the State’s prenatal leave law, employees cannot be forced to use or exhaust other leave in lieu of paid prenatal leave. However, if there is mutual consent between the employer and employee, the amended rules allow an employee’s schedule to be changed instead of using paid prenatal leave.

Bond attorneys are available to guide employers through the implementation of the DCWP’s amended rules. If you have any questions about the information presented in this memo, please contact James E. McGrath, III, Jillian R. Jin, or the attorney at Bond with whom you are regularly in contact.

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.