Quick Hits

• Starting July 1, 2025, the Biometric Data Privacy Amendment to the Colorado Privacy Act will impose new obligations on entities collecting biometric data from individuals in Colorado, including employees and job applicants.
• The amendment introduces a consent paradigm limiting when employers can require biometric data, allowing mandatory consent only for specific purposes like secure access and workplace safety.
• Employers must comply with a strict data-deletion schedule and maintain a written incident-response protocol for biometric data, with enforcement by the Colorado attorney general and district attorneys.

Although the underlying Colorado Privacy Act expressly excludes employees and job applicants from the definition of “consumer,” the amendment overrides that exclusion in part by imposing employer-facing duties any time an employer collects or uses employees’ or applicants’ biometric identifiers. As a result, companies that have historically viewed Colorado’s privacy law as a purely business-to-consumer (B2C) concern must now evaluate, document, and potentially redesign workplace practices that rely on fingerprints, facial geometry, iris scans, voiceprints, or any other unique biological characteristic used to identify a specific individual.

The centerpiece of the amendment is a new consent paradigm that sharply limits the circumstances in which an employer may condition employment—or continued employment—on an employee’s agreement to provide a biometric identifier. Mandatory consent is permissible only when the biometric identifier is collected and used for one of four narrowly defined workplace purposes: (1) granting access to secure physical areas or secure electronic hardware, software, or systems; (2) recording the start and end of the workday, including meal and rest breaks that exceed thirty minutes; (3) improving or monitoring workplace safety or security, or protecting the safety or security of employees; and (4) improving or monitoring public safety or security during an emergency or crisis.

If an employer’s use case falls outside these four categories—for example, tracking an employee’s physical location throughout the day, measuring productivity through keystroke dynamics, or gauging time spent inside a specific software application—the employer must offer a genuine choice. The employee may not be denied employment, disciplined, or otherwise retaliated against for withholding consent.

Two statutory carve-outs eliminate the consent requirement altogether, yet they present substantial compliance risk because they overlap and arguably conflict with other state and federal laws. The amendment waives consent when the employee “reasonably should expect” biometric collection based on the employee’s job description—for example, a security guard whose duties inherently involve biometric gate controls. It waives consent for job applicants when collection is “based on reasonable background check, application, or identification requirements,” such as fingerprints for a criminal background screen.

Employers may want to approach both exceptions with caution. In the applicant context, the federal Fair Credit Reporting Act (FCRA) already mandates written authorization before initiating any background check, including fingerprint-based checks, so reliance on the amendment’s consent waiver would invite a direct conflict with FCRA disclosure and authorization requirements. Similarly, other state biometric or privacy statutes—including the Illinois Biometric Information Privacy Act (BIPA), the California Privacy Rights Act (CPRA) as applied to employee data, the Texas Capture or Use of Biometric Identifier law (CUBI), and Washington’s biometric statute—either provide no comparable waiver or impose more stringent notice and consent mandates.

(The CPRA is an amendment to the California Consumer Protection Act (CCPA). While structured more like the European Union’s General Data Protection Regulation than BIPA, the CPRA does require employers to provide notice and obtain the consent (or “opt-in”) of employees before collecting or using their biometric templates, if they intend to sell that information. The CPRA also requires employers to provide employees notice of their rights to “opt out” of their collection practices and give employees two means of opting out: generally, by email, cell phone, or website contact.)

Accordingly, Colorado employers with multistate operations may not want to treat the amendment’s two consent waivers as safe harbors. Instead, employers may want to adopt a uniform, nationwide approach that honors the highest common denominator across jurisdictions.

Beyond consent, the amendment imposes a strict data-deletion schedule that requires covered entities to permanently destroy biometric data at the earliest of three possible trigger points: (a) once the original purpose for collection has been fulfilled; (b) twenty-four months after the employee’s or applicant’s last interaction with the employer; or (c) within forty-five days after the employer determines that continued retention is no longer necessary, adequate, or relevant to the collection purpose. Although subsections (a) and (c) appear to overlap—both hinge on satisfaction of the collection purpose—employers may want to treat each prong as an independent obligation and document retention decisions accordingly.

The amendment also requires covered entities to maintain and implement a written incident-response protocol tailored to biometric data. At a minimum, the protocol should incorporate Colorado’s existing breach-notification statute—which, unlike many states, already applies to biometric data. Prompt notification to affected individuals and, when thresholds are met, to the Colorado attorney general, must occur in accordance with statutory timelines whenever there is “reasonable belief” that a security incident has compromised biometric identifiers. See C.R.S. § 6-1-716.

Finally, while the amendment does not provide a private right of action, exclusive enforcement by the Colorado attorney general and district attorneys should not lull employers into complacency. Key operational steps between now and July 1, 2025, include:

• inventorying systems and devices that capture biometric identifiers of Colorado employees or applicants;
• verifying that each use fits within the four categories that allow mandatory consent and providing for voluntary consent for all other uses;
• drafting or revising a biometric privacy policy and consent form that describes collection purposes, retention schedules, destruction methods, notice provisions, and incident-response obligations;
• evaluating whether vendor agreements that require downstream compliance with the amendment’s retention, deletion, and incident-response obligations are needed; and
• training human resources, security, and IT personnel on the new statutory framework.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group will continue to monitor developments and will publish updates on the Colorado, Cybersecurity and Privacy, and Multistate Compliance blogs as additional information becomes available.

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Quick Hits

• Colorado’s HB25-1001 significantly increases penalties for employers that misclassify workers as independent contractors, with fines up to $50,000 for repeated violations.
• The new law provides a safe harbor for employers, allowing them to avoid automatic penalties if they pay owed wages within fourteen days of a formal complaint filed with the Colorado Department of Labor and Employment (CDLE).
• HB25-1001 expands the CDLE’s jurisdiction to investigate wage claims up to $13,000 and mandates public disclosure of certain wage violations, enhancing transparency and enforcement.

Steeper Penalties for Worker Misclassification

Employers that misclassify employees as independent contractors will now face increased liability. Specifically, beginning January 1, 2028, an employer that misclassifies a worker in a way that impacts the employer’s obligation to pay wages or reporting obligations at the federal, state, and local levels may face the following penalties:

• $5,000 fine for a willful violation
• $10,000 fine if the violation is not corrected within sixty days of a determination by the CDLE
• $25,000 fine for a second or subsequent willful violation within five years
• $50,000 if a second or subsequent willful violation is not corrected within sixty days

These penalties are available in addition to, and not in lieu of, potential liability and fines that often arise from the misclassification of workers, such as unpaid wages and overtime, rest breaks, and sick leave violations. The director of the CDLE will adjust these fines on January 1, 2028, and every other year thereafter.

Safe Harbor: A Lifeline for Employers

Under the Wage Act, an employer is liable for automatic penalties if it fails to pay all wages owed within fourteen days of receipt of a written demand for unpaid wages. For nonwillful violations, the penalty is the greater of twice the unpaid amount or $1,000. For willful violations, the penalty increases to the greater of three times the amount owed or $3,000.

Prior to the amendments, automatic penalties applied no matter how the employee tendered a wage payment demand, even if tendered via an informal method such as an email or text message. However, under the amendments, the DLSS may waive the automatic penalties if an employer remits payment for the full amount of wages owed within fourteen days of receipt of a formal wage complaint filed with the DLSS. This safe harbor applies even if the employee had previously tendered informal, internal written wage payment demands. This provision promotes swift resolution of wage disputes after formal filing without penalizing employers that promptly rectify the issue.

Limited Availability of Attorneys’ Fees for Employers; Expanded Remedies for Employees

Prior to the amendments, an employer could recover attorneys’ fees and costs associated with defending a claim for unpaid wages if the employee recovered less than the amount the employer tendered. Now, under the amendments, an employer may only recover attorneys’ fees and costs if the court finds that the employee’s claim(s) for wages lacks substantial justification.

While the amendments raise the standard for recovery of attorneys’ fees and costs for employers, it expands the remedies available to aggrieved employees. An employee bringing a claim under Colorado’s wage and hour statutes and regulations may now pursue equitable relief, including back pay, reinstatement of employment or front pay, injunctive relief, compensatory damages, and a penalty of $50 per day for each employee and each day of violation, to deter future violations and prevent unjust enrichment.

Expanded Agency Jurisdiction

The amendments expand the CDLE’s jurisdiction to investigate and adjudicate complaints of unpaid wages. Previously, the CDLE’s jurisdiction was limited to claims for unpaid wages of $7,500 or less. Beginning July 1, 2026, this amount is increased to claims for unpaid wages of up to $13,000. Beginning January 1, 2028, the director of the CDLE will increase the CDLE’s authority annually by at least $1,000.

In addition, HB25-1001 now requires the DLSS to publicize citations, rulings, and written findings related to Wage Act violations on the CDLE’s website. The publications must identify the name of the employer and specify whether the violation was willful. Furthermore, the DLSS must report employers incurring a willful violation that is not remedied within sixty days to a government licensing authority with authority to limit or impose conditions on an employer’s license, registration, or permit, which may lead to suspension, restriction, or revocation of the same. Likewise, the DLSS may, but is not required to, report any employer that is found to have violated a wage and hour law to a government body with the power to deny, revoke, or restrict an employer’s license.

Expanded Definition of ‘Employer’

The amendments expand the definition of “employer” under the Wage Act to include individuals with at least 25 percent ownership or control of a business unless the individual has delegated all authority to manage day-to-day operations.

Enhanced Retaliation Protections

Under the Wage Act, an employer may not retaliate against an employee or worker for engaging in protected activity, which includes filing a wage complaint or testifying or providing evidence in a proceeding relating to a violation of the Wage Act. The amendments expand protected activity to include good faith complaints about compliance with wage and hour laws and providing information regarding rights and remedies under wage and hour laws.

In addition, the amendments expand potential remedies for an individual who has been retaliated against under the Wage Act. In addition to back pay, the wages withheld, interest, penalties, liquidated damages, and attorneys’ fees and costs, an aggrieved individual may now also recover compensatory damages for economic and noneconomic losses stemming from the retaliation.

Finally, the amendments require a fact finder consider the temporal proximity between the protected activity and the adverse action in determining whether retaliation occurred. A period of ninety days or less may be sufficient to establish retaliation.

Ultimately, employers may want to closely monitor compliance with Colorado’s strict wage and hour laws to avoid facing steep penalties and exposure to wage and retaliation complaints. However, the new provisions allowing for penalty waiver if payment is made within fourteen days of formal DLSS wage complaints come as welcome relief for employers struggling with how to handle internal, informal wage demands.

Ogletree Deakins’ Denver office will continue to monitor developments and will provide updates on the Colorado and Wage and Hour blogs as additional information becomes available.

Michael H. Bell is the office managing shareholder of the Denver office of Ogletree Deakins.

Rebecca M. Lindell is an associate in the Denver office of Ogletree Deakins.

Lauren J. Cox, a law student currently participating in the summer associate program in the Denver office of Ogletree Deakins, contributed to this article.

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Quick Hits

• Remote work and hybrid work remain a growing trend.
• Some employers, including federal agencies, have implemented return-to-work policies during the last two years.
• Employers with a return-to-work policy may want to measure its ongoing impact on employee retention, recruitment, and productivity.

In many industries, remote and hybrid work increased dramatically during the coronavirus pandemic in 2020 and 2021. After the pandemic subsided, some employers announced new policies requiring all workers to return to the office four or five days per week. On January 20, 2025, President Donald Trump issued an executive order requiring federal agencies to end remote work and order federal employees to be present in the office five days per week.

Some employers and managers hoped a return to the office would increase productivity, strengthen the corporate culture, and promote collaboration and innovation. Did the return-to-work policy bring the intended results, or did it have unintended consequences for employers and employees?

A 2023 survey from Unispace found that 42 percent of employers that mandated a return to the office experienced higher than normal turnover, and 29 percent had a harder time recruiting employees. Productivity increased at workplaces where the use of remote work increased, even before the pandemic, according to a 2024 study from the U.S. Bureau of Labor Statistics. About 31 percent of U.S. employees were engaged at work in 2024, up from 26 percent in 2000, according to a Gallup survey.

Many employees like remote work because it eliminates their commuting time and costs, like gas and parking. The time that would have been spent commuting can be spent on work-related tasks. Remote work also gives employees greater flexibility and time to handle personal and family matters, like medical appointments and school meetings.

For employers, remote work may increase employee retention and widen the talent pool for hiring. It also may lower spending on office space, utilities, commuter benefits, and office supplies. Likewise, it may lower payroll costs because some workers will accept a lower salary for a remote position that offers better work-life balance.

Common Legal Issues With Remote and Return-to-Office Work

Americans with Disabilities Act (ADA) Accommodation Challenges: Employers face potential disability discrimination claims when mandating office returns for employees with qualifying disabilities who request remote work as a reasonable accommodation. Failure to engage in the interactive process before applying return-to-work policies to employees with disabilities can create legal liability.

Discrimination Concerns: As with most other employment decisions, selectively applied return-to-office mandates might create a perception of favoritism or unfairness, potentially creating discrimination claims based on race, gender, age, disability, and other protected characteristics.

Compensation Equity Issues: Different pay structures for remote versus in-office employees, or employees working in diverse geographic regions, may create pay equity complications or discrimination claims.

Pay Transparency Compliance Issues: An increasingly complex web of state and local pay transparency laws mandate disclosure of salary ranges in job postings or by request from current employees. Some laws require disclosure in the jurisdiction if the job could be filled by a remote worker or if the worker will perform work at a location in the jurisdiction. Complying with these laws in the context of hybrid or remote work requires careful planning.

Productivity Measurement Liability: Methods used to monitor remote versus in-office productivity could create privacy or discrimination issues if not applied consistently.

Travel Time and Expense Reimbursement: A hybrid work arrangement can give rise to complexities regarding travel time for nonexempt employees, particularly where there may be ambiguity regarding whether travel counts as commuting time or on-the-clock travel time. Moreover, in some states where expense reimbursement is required for use of personal devices, internet service, and the like, ambiguities may arise with hybrid schedules allowing employees to work remotely on a flexible schedule.

Next Steps

Employers may wish to measure the impact of return-to-work policies on productivity, recruiting, retention, payroll, and other overhead costs. This can be accomplished with employee engagement surveys, accounting software, and gathering data on cost per hire, time to hire, and turnover rates in various corporate departments and locations.

Among other compliance steps, employers may want to consider:

• Developing and consistently following written standards regarding remote, hybrid, or in-office work location obligations.
• Implementing a consistent, documented interactive process for employees requesting remote work accommodations.
• Reviewing compensation practices and conducting pay equity audits.
• Mapping out pay transparency laws and complying with state and local mandates.
• Developing clear metrics to measure productivity, regardless of work location.
• Reviewing policies to ensure they don’t create unintended discriminatory impacts.
• Creating clear guidelines about reimbursable remote work expenses.

Ogletree Deakins will continue to monitor developments and will provide updates on the Return to Work blog as new information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

Christopher W. Olmsted is a shareholder in Ogletree Deakins’ San Diego office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quicks Hits

• In Dailey v. University of Portland, the Court of Appeals of the State of Oregon addressed the enforceability of handbook provisions as a “contract.”
• Generally, Oregon law recognizes that handbook provisions can form a contract unless effectively disclaimed.
• The court emphasized that employers must ensure disclaimers are clear, prominently placed.

Background

Stephen Dailey was a student in the University of Portland’s doctoral nursing program. He began the nursing program in 2015. However, in 2017, due to personal circumstances, he reduced his course load. The following year, in 2018, he took a leave of absence and did not return until three years later, at which point he reenrolled in the program. To earn his degree, Dailey was required to complete a specific sequence of academic and clinical courses within a six-year period.

According to the university’s intranet bulletin, nursing students’ clinical courses must have a supervisor with a minimum of 2,080 hours of licensed experience. For two semesters, Dailey’s clinical supervisors did not meet this requirement, as neither had the necessary licensed experience.

Dailey was ultimately unable to complete the program within the permitted six-year timeframe and withdrew. Dailey brought a breach of contracts claim against the university, arguing that disclaimers in its general student handbook, nursing school handbook, and online bulletin were ambiguous and gave rise to contractual obligations for the university to find clinical opportunities for Dailey.

The Court’s Decision

The appeals court agreed with the university that clear and conspicuous disclaimers can prevent handbook provisions from forming a contract. The court, however, found that while the general student and nursing school handbook’s disclaimers were clear and conspicuous, the university’s disclaimer on its bulletin was “tucked away in a mousehole.” To access the bulletin’s disclaimer, a reader had to click through two separate webpages without any clear indication that a disclaimer would be found there. The court noted that the university’s disclaimer was therefore effectively hidden. The court held that, as a matter of law, the disclaimer was not conspicuous enough to defeat the plaintiff’s contract claim and reversed the trial court’s grant of summary judgment.

Key Takeaways for Employers

• Although the case involved a student rather than an employee, the law applies equally in the employment context.
• Employers may consider placing clear and conspicuous disclaimers in their employee handbooks, personnel policies, and intranet-based policies to ensure that such documents do not inadvertently become enforceable employment contracts.

Ogletree Deakins’ Portland (OR) office will continue to monitor developments and will post updates on the Oregon blog as additional information becomes available.

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Quick Hits

• New Mexico’s Vaccine Purchasing Act requires employers that sponsor plans and health insurers to report the total number of children covered during the past year.
• The purpose of the reporting is to help the state determine the quantity of vaccines to purchase.
• The deadline to report the information is July 1, 2025.

Employers and health insurers must report to the New Mexico Office of the Superintendent of Insurance the total number of children in New Mexico who were enrolled in the plan during any part of the previous year and were under the age of nineteen as of the previous December 31. Not included are any children who are not residents of New Mexico, children who are members of a Native American tribe, and children who are enrolled in Medicaid or another medical assistance program administered by the state.

Each year, the state will estimate the amount of money needed to purchase, store, and distribute vaccines to all insured children in the state, including a reserve of 10 percent of the amount estimated.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Benefits and Executive Compensation, Healthcare, and New Mexico blogs as new information becomes available.

Timothy J. Stanton is a shareholder in Ogletree Deakins’ Chicago office.

Stephanie A. Smithey is a shareholder in Ogletree Deakins’ Indianapolis office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• On May 27, 2025, Philadelphia Mayor Cherelle L. Parker signed the “Protect Our Workers, Enforce Rights (POWER) Act” into law, which strengthens worker protections and enforcement mechanisms in the city.
• The POWER Act empowers the Philadelphia Department of Labor’s Office of Worker Protections to conduct independent investigations, maintain a “Bad Actors Database,” and revoke business licenses for noncompliant employers.
• The POWER Act includes provisions for retaliation protections, immigrant worker support, increased sick pay for tipped employees, extended recordkeeping requirements, and allows workers to file civil actions for violations without exhausting administrative remedies.

Significant measures in the POWER Act include:

• Strengthening Philadelphia’s Department of Labor. The act provides the Philadelphia Department of Labor’s Office of Worker Protections (OWP) with the ability for more thorough workplace investigations and to hold employers accountable under already existing local labor laws, including the wage theft ordinance, paid sick leave ordinance, and Domestic Worker Bill of Rights. This includes the authority to initiate investigations independently (without any formal complaints), broaden the scope of investigations unilaterally, and subpoena records and testimony.

The OWP will also maintain a publicly accessible “Bad Actors Database,” consisting of employers with three or more infractions from separate incidents or circumstances who have failed to comply with ordered remedies in a timely manner. Of note, the Act further empowers the OWP to revoke business licenses and city procurement contracts from employers listed on the “Bad Actors Database.”

• Retaliation Protections. The act reaffirms that employers are strictly prohibited from retaliating against employees for exercising their rights under its provisions—such as filing complaints, taking sick leave, or participating in investigations. Critically, the act presumes unlawful retaliation whenever an employee faces an adverse employment action within ninety days of filing a complaint with the OWP, informs any person about an employer’s alleged violation of the act, cooperates with an investigation or prosecution of an alleged violation, or opposes any policy, practice, or act made unlawful by the act. The burden, therefore, lies with the employer to prove that retaliation did not occur. Employers must demonstrate nonretaliatory intent by clear and convincing evidence, a higher legal burden.
• Immigrant Worker Protections. The act creates clear guidelines for the OWP to certify and submit statements of interest on behalf of immigrant workers who may be eligible for a U Visa or T Visa under the Victims of Trafficking and Violence Protection Act (2000), or for the Deferred Action Program under 6 U.S.C. § 202(5) and 8 U.S.C. § 1103.
• Sick Pay for Tipped Employees. The act raises the hourly rate for paid sick leave for tipped workers under the Philadelphia paid sick leave ordinance. The hourly rate for paid sick time is calculated by taking the numerical average of the hourly wage for “Bartenders,” “Waiters & Waitresses,” and “Dining Room & Cafeteria Attendants & Bartenders Helpers,” as defined under the Standard Occupational Classification, published by the Pennsylvania Department of Labor.
• Notice to Employees. The act requires employers to notify all employees of their rights. To provide slight relief for employers, however, the act removes the requirement that notices of rights be included in handbooks distributed to employees.
• Recordkeeping. The act extends the duration that employers must keep required records from two years to three years. Employers must maintain records of (a) hours worked by an employee, including dates; and (b) hours of sick time taken by an employee and payments made to an employee for the sick time.
• Private Right of Action. A worker who believes he or she has been harmed by a violation of the act may file a civil action in court without first exhausting administrative remedies. The person who allegedly violated the act, however, must be given written notice of the alleged violation and afforded fifteen days to cure the harm. The statute of limitations for bringing such an action is three years from the date the employee knew or should have known of the alleged violation, subject to the exceptions under Section 9-6602(6) and Section 9-6607(5).

Key Takeaways

The POWER Act introduces enhanced mechanisms to enforce compliance with Philadelphia’s existing employment and labor protection laws. Employers may want to:

• monitor the Philadelphia Department of Labor webpage and familiarize themselves with the POWER Act’s requirements;
•  provide employees with a notice of their rights under the act, though this notice does not need to be included as a formal amendment to the employee handbook; and
• review their recordkeeping protocols and practices and update their systems to ensure all required records are retained for at least three years.

In addition, employers may wish to educate supervisors and managers about the impact of disciplinary actions issued after complaints or protected activities.

Ogletree Deakins’ Philadelphia office will continue to monitor developments and provide updates on the Leaves of Absence, Pennsylvania, and Wage and Hour blogs as additional information becomes available.

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Quick Hits

• In 2018, the Massachusetts Noncompetition Agreement Act (MNAA), effective prospectively only for agreements entered into on or after October 1, 2018, was enacted.
• The Massachusetts Supreme Judicial Court affirmatively held that nonsolicitation agreements are not subject to the MNAA.
• The parties’ dispute centered on whether a nonsolicitation agreement, although expressly excluded from the statutory definition of a “noncompetition agreement,” may nevertheless constitute a “forfeiture for competition agreement” within the meaning of the MNAA when the violation of the nonsolicitation agreement triggers a forfeiture clause.
• The SJC held that just because a nonsolicitation agreement is coupled with a forfeiture provision does not change the fact that nonsolicitation provisions are excluded from the MNAA.

Factual Summary

In 2017, Foundation Medicine, Inc. (FMI) hired Susan Miele. Miele signed a restrictive covenant agreement as a condition of her employment, which included a noncompetition, nonsolicitation, and confidentiality and assignment provisions. The nonsolicitation provision barred Miele, both during her employment and for one year after the end of her employment, from directly or indirectly soliciting any employees or consultants of FMI to leave FMI or facilitate their hire by her subsequent employer.

In 2020, Miele and FMI executed a transition agreement in connection with her separation from the company, and that transition agreement expressly incorporated the restrictive covenant provisions that Miele had signed upon her hire by FMI. The transition agreement included a forfeiture provision that provided that if Miele committed a breach of any agreement with FMI, Miele would forfeit any unpaid benefits under the transition agreement and would have to immediately repay any previously paid benefits. FMI ultimately paid Miele over $1 million in transition benefits.

In 2021, after Miele left her employment with FMI, she joined Gingko Bioworks. FMI alleges that during the one-year period after she left FMI, Miele recruited several FMI employees to work at Gingko. FMI then notified Miele that she had breached her transition agreement, and that pursuant to the forfeiture clause in that agreement, FMI ceased further payments to Miele and demanded that she repay all benefits already disbursed. Miele did not comply with that demand.

Procedural History and the Parties’ Arguments

Miele sued FMI in late 2021, alleging that FMI breached the transition agreement by withholding her transition benefits. FMI counter-claimed for breach of contract, stating that Miele violated both her transition agreement and her restrictive covenant agreement, and asked the court for judgment declaring it did not need to pay Miele any additional benefits under the transition agreement.

Miele moved for judgment on the pleadings, arguing that while the MNAA did not expressly apply to nonsolicitation agreements, it should apply here because the inclusion of the forfeiture clause made the non-solicitation agreement subject to the Massachussetts noncompetition agreement. FMI argued in response that the MNAA did not apply here, noting that it only governs “noncompetition agreements” and expressly excludes non-solicitation agreements.

The lower court granted Miele’s motion in part, arguing that FMI could not enforce the forfeiture provision of the transition agreement, but also holding that FMI could still assert Miele’s breach of the restrictive covenant agreement as a defense to her breach of contract claim or from seeking damages for that alleged breach. In its holding, the lower court rejected FMI’s position that all non-solicitation agreements fall outside of the noncompetition act, and instead held that nonsolicitation agreements are only excluded if they do not impose a forfeiture provision for breach of the agreement.

FMI moved for an interlocutory ruling to the appeals court, and the SJC then allowed FMI’s application for direct appellate review.

The SJC’s Holding

The SJC framed the parties’ dispute as follows: whether a nonsolicitation agreement, although expressly excluded from the statutory definition of a “noncompetition agreement,” may nevertheless constitute a “forfeiture for competition agreement” within the meaning of the Massachusetts Noncompetition Agreement Act when the violation of the nonsolicitation agreement triggers a forfeiture clause.

In reaching its holding, the SJC looked to legislative history and the plain language of the Massachusetts Noncompetition Agreement Act, noting that noncompetition agreements do not include nonsolicitation agreements, and forfeiture for competition agreements are a subset of noncompetition agreements. The court found that it then necessarily followed that forfeiture for competition agreements also exclude nonsolicitation agreements, and that to conclude otherwise would contradict the statute’s express exclusion of nonsolicitation agreements from the broader category of noncompetition agreements.

The SJC found that the inclusion of a forfeiture clause in Miele’s transition agreement did not alter this analysis, reasoning that there was no justification for treating a nonsolicitation agreement differently simply because it includes a forfeiture provision. In support of its decision, the SJC pointed out that the critical flaw in Miele’s position was that her reading of the statute would expand the scope of forfeiture for competition agreements to include nonsolicitation provisions even though the statute clearly excluded them from the definition of noncompetition agreements. The SJC further explained that “solicitation cannot be reintroduced through a back door without rendering the statute internally contradictory.”

The SJC remanded the matter to the lower court with instructions to reverse the order partially granting Miele’s motion for judgment on the pleadings.

Key Takeaways

This decision clarifies the scope of the MNAA and provides further guidance to employers regarding remedies they can pursue or enforce for potential breaches of nonsolicitation agreements. Employers may want to review their current agreements to consider the implications of the Miele decision for their existing or future agreements.

Ogletree Deakins’ Boston office and Unfair Competition and Trade Secrets Practice Group will continue to monitor developments and will provide updates on the Massachusetts and Unfair Competition and Trade Secrets blogs as additional information becomes available.

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Quick Hits

• The U.S. State Department has lifted the temporary pause on scheduling new student visa interviews for F, M, and J visas and is now requiring consular officers to screen applicants’ social media and online presences.
• Enhanced vetting procedures for student visa applicants, including detailed social media scrutiny, are expected to increase processing delays and refusals, impacting international students’ plans to study or train in the United States.

Analysis and Impact

The screening process involves checking for any signs of hostility “towards the citizens, culture, government, institutions, or founding principles of the United States.” Additionally, officers will vet for support of terrorism, antisemitic harassment, violence, or militant groups. This scrutiny is part of the Trump administration’s broader efforts to address stated security concerns with universities that enroll foreign national students.

Consular officers are instructed to flag applicants with a history of political activism and to consider the likelihood of such activities continuing in the United States. Consulates will take detailed case notes and screenshots of online content. The screening applies to both new and returning student visa applicants and includes a broad definition of “online presence,” encompassing social media and online databases.

While the factors identified do not automatically disqualify applicants, they trigger further review to ensure compliance with U.S. immigration admissibility laws. The cable also directs embassies to prioritize interviewing physicians applying for a J-1 visa for medical residency and educational exchange, and students enrolled at universities where international students constitute 15 percent or fewer of the total student population.

University and Employer Impacts

Although the recent State Department cable lifts the Trump administration’s pause on visa interviews for F, M, and J visa applicants, the heightened vetting procedures, particularly enhanced scrutiny of applicants’ social media histories, are likely to increase visa processing delays and refusals. International students planning to enter the United States for academic study or work-based training can expect:

• Longer processing times due to expanded vetting and limited appointment availability, especially as demand grows over the summer ahead of the fall academic term.
• Consular backlogs and capacity constraints that may further slow visa issuance.
• Additional documentation requirements, including:
  • usernames for social media platforms;
  • detailed biographic and travel histories; and
  • sensitive personal information covering the last five years.
• Greater risk of delays or denial, as adjudications may hinge on subjective interpretations of social media content and other discretionary factors.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and provide updates on the Immigration blog as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

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Quick Hits

• The Trump administration has sought to end both federal enforcement of antidiscrimination laws based on disparate impact theories and to eliminate employer DEI programs.
• Even with these shifting priorities, it remains critically important for employers to collect and study applicant and employee demographic data to maintain compliance with equal opportunity and antidiscrimination laws, as well as to be prepared for scrutiny under the Trump administration’s shifting policies.
• Employers may want to consider proactive collection and analysis of workforce demographic data, barrier analyses, and enhanced training programs to ensure compliance with equal employment opportunity and antidiscrimination laws.

The administration—largely through the issuance of executive orders (EO)—has prioritized merit-based opportunity, sought to end usage of disparate impact theories of discrimination, rescinded federal contractor obligations to provide affirmative action and discrimination protections for women and minorities, sought to eliminate “illegal” diversity, equity, and inclusion (DEI) initiatives, and focused on stopping anti-American and anti-Christian bias and combating antisemitism. The Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL), and the U.S. Department of Justice (DOJ) have all taken actions to advance the Trump administration’s policy objectives, but questions remain.

In particular, the Trump administration’s focus on discouraging the collection of applicant data related to race, ethnicity, and sex, coupled with its messaging on unlawful race and sex discrimination in DEI programs, has many employers hesitant to collect, maintain, and analyze demographic information from their applicants and employees.

This legal landscape is especially confusing for federal contractors given the wind down of EO 11246 obligations, but the administration’s new focus impacts all employers. As a result, employers face challenges complying with legal obligations and effectively managing risks associated with workplace discrimination and harassment.

However, a close review of the EEOC’s Fiscal Year 2026 Congressional Budget Justification submitted to Congress in May 2025 reveals that EEOC investigations will continue to focus on employer data. According to the budget justification, the EEOC is committed to educating and informing its own staff to “combat systemic harassment, eliminate barriers in hiring and recruitment, recognize potential patterns of discrimination, and examine and analyze these often large or complex investigations effectively.” The agency said that in fiscal year (FY) FY2026, it plans to “conduct mid and advanced level training for field staff and assist with the development of class investigations, data requests, and data analysis for pattern and practice disparate treatment cases.” (emphasis added).

The EEOC’s characterization of budget funds sought for its litigation program is also instructive. As of March 31, 2025, 46 percent of the EEOC’s litigation docket involved systemic discrimination or class lawsuits. Citing efforts to enforce EO 14173, the Commission contemplates involving “expert witnesses” and “the discovery of large-scale selection data to prove the existence and extent of a pattern or practice of discrimination.” The Commission justifies its resource request “to remedy discrimination on prioritized issues,” and argues aggressive enforcement will result in “a strong incentive for voluntary compliance” by employers.

Shifting Enforcement Targets

Employers may see an increase in EEOC charges from charging parties and Commissioner’s as well as other enforcement activities that align with the current administration’s priorities, including enforcement regarding DEI programs, so-called anti-American bias, national origin discrimination, and anti-Semitism. As just one example, the EEOC recently settled a systemic investigation into national origin and anti-American bias for $1.4 million dollars. 

EEOC Acting Chair Andrea Lucas has repeatedly warned employers that EEOC focus will be on intentional disparate treatment cases where there has been a “pattern or practice” of discrimination. Like disparate impact, “pattern or practice” claims are rooted in systemic issues and typically involve the use of statistical evidence related to allegedly aggrieved individuals.

The 2024 Supreme Court decision in Muldrow v. City of St. Louis (rejecting a heightened bar for alleging an employment decision or policy resulted in an adverse impact on terms and conditions of employment) and the 2025 decision in Ames v. Ohio Department of Youth Services (rejecting a higher evidentiary standard for employees from majority groups to prove employment discrimination), have made it easier for plaintiffs to plead and prove employment discrimination claims under Title VII. The decisions seemed to have widened the doorway for more claims from individuals from majority groups (so-called reverse discrimination claims) and potentially made it easier to evade summary judgment and reach a jury trial if litigation ensues.

Moreover, federal contractors, institutions relying on federal contracts or grants, and federal money recipients face additional concerns with False Claims Act (FCA) liability. President Trump’s EO 14173, which seeks to require entities to certify for purposes of the FCA that they do not maintain unlawful discriminatory policies, namely illegal DEI policies. The DOJ has launched an initiative to use the FCA to investigate civil rights violations committed by federal fund recipients, expanding legal exposure to such employers.

Proactive Steps

Given the current legal landscape, employers may want to take proactive steps to ensure compliance with equal employment opportunity and antidiscrimination laws. These steps may include:

1. Collect and Analyze Demographic Data: Collecting and analyzing demographic data can be crucial for identifying and addressing disparities within the workplace and for documenting and demonstrating reasons for employment decisions or policies. While there may be concerns about collecting demographic data, such concerns may be alleviated by keeping data confidential and analyzing it under attorney-client privilege.
2. Barrier Analysis: Barrier analysis involves identifying and addressing obstacles that may prevent equal employment opportunities. This can include reviewing hiring practices, promotion policies, and other employment decisions that cover all aspects of the employment life cycle to ensure they do not disproportionately impact certain groups. By conducting a thorough barrier analysis, employers can proactively address potential issues before they become legal problems and remove barriers.
3. Review and Update Policies: Regular reviews of and updates to employers’ antidiscrimination and harassment policies can help ensure they align with current laws and the administration’s priorities, as well as employers’ values, goals, and objectives. Such reviews may include policies related to DEI, national origin discrimination, and anti-Semitism.
4. Provide Training: Implementing regular training programs for company leaders, managers, and employees on new antidiscrimination enforcement developments can help prevent discriminatory behavior and ensure that all employees understand their rights and responsibilities. Updating modules and examples to reflect changing priorities may help employers remain compliant. Likewise, covering a wide variety of scenarios and examples, including majority characteristics, can be important to review and include.

Next Steps

The shifting landscape of employment law presents both challenges and opportunities for employers. To be prepared, employers can stay informed on the latest actions and consider which proactive steps may be best to avoid potential liability and achieve their goals and objectives.

For an in-depth look at how to conduct workforce analytics to minimize your legal risk, Ogletree Deakins will host a four-part webinar series, “Barrier Analysis.” Part one will offer employers proactive strategies for managing EEO and antidiscrimination compliance and will take place on July 16, 2025 at 2:00 p.m. Eastern with parts two, three, and four on July 30, August 13, and August 27 respectively. Stay tuned to our webinars page for more information. 

Ogletree Deakins’ new Workforce Analytics and Compliance practice group provides employers with a fully customizable workforce, compliance analytics, and remediation strategies.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Reporting, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins New Administration Resource Hub.

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Quick Hits

• On June 24, 2025, OSHA will hold a virtual public meeting to discuss updates to the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and gather stakeholder input.
• The upcoming meeting of the United Nations’ Sub-Committee on the GHS will be a key forum for discussing and adopting revisions to the GHS, which OSHA will later evaluate and incorporate into U.S. regulations.
• OSHA aims to improve chemical hazard communication and facilitate international trade by aligning U.S. regulations with the latest GHS updates, ensuring clarity and consistency for workers and emergency responders.

OSHA’s Hazard Communication Standard is explicitly designed to align with the GHS, which is an internationally agreed-upon system for classifying and labelling chemicals. The GHS is periodically revised and updated by the U.N. Sub-Committee based on new scientific information, stakeholder input, and evolving best practices. The July 7–9, 2025, Geneva, Switzerland, meeting is one of the key forums where such revisions are discussed and adopted by consensus among participating countries, including the United States.

When the Sub-Committee adopts new or revised criteria, label elements, or safety data sheet (SDS) requirements, OSHA reviews these changes to determine how best to incorporate them into U.S. regulations. This process ensures that U.S. chemical safety standards remain harmonized with those of major trading partners and reflect the latest scientific and technical knowledge.

Following the Geneva meeting, OSHA is expected to evaluate the adopted GHS revisions and initiate the rulemaking process to update the HCS as necessary. This may include:

• revising hazard classification criteria for physical, health, or environmental hazards;
• updating required label elements, such as signal words, pictograms, hazard statements, and precautionary statements;
• modifying the format and content requirements for safety data sheets and
• addressing new or emerging hazards identified at the international level.

For example, OSHA’s most recent update to the HCS (finalized in 2024) was based on the seventh revised edition of the GHS, with select elements from the eighth edition. This update was informed by previous UN GHS sub-committee meetings and reflects the ongoing process of international harmonization.

After the Geneva meeting, OSHA is expected to engage with U.S. stakeholders—including industry representatives, labor organizations, and safety professionals—to gather input on how the new GHS provisions should be implemented domestically. OSHA relies on the stakeholders’ input to update regulations that are designed to be practical, effective, and tailored to the needs of U.S. workplaces.

OSHA also provides transition periods for compliance, allowing chemical manufacturers, importers, distributors, and employers time to update their hazard communication programs, labels, and SDSs in accordance with the new requirements.

By incorporating the outcomes of the Geneva meeting into U.S. regulations, OSHA aims to:

• improve the clarity, consistency, and effectiveness of chemical hazard communication for workers and emergency responders;
• reduce confusion and compliance burdens for companies operating in multiple countries; and
• facilitate international trade by ensuring that U.S. chemical products meet global labelling and classification standards.

Employers that work with materials that fall under GHS probably will not see dramatic changes in the regulations they must abide by. Instead, those changes will likely be incremental and will first be seen by those that bear the responsibility for labelling chemicals.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Cross-Border and Workplace Safety and Health blogs as additional information becomes available.

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