Quick Hits

• Governor Mike DeWine signed SB 33 into law on April 21, 2025, allowing employers to post certain labor law notices online instead of in the physical workplace.
• The law, expected to take effect in July 2025, applies only to Ohio’s workplace posting requirements and does not change federal obligations.

Specifically, SB 33 applies to workplace postings required by the following Ohio laws:

• Minor Labor Law (section 4109.08, abstract only)
• Minimum Fair Wage Standards Law
• Anti-Discrimination and Civil Rights Law
• Prevailing Wage Law
• Workers’ Compensation Law (sections 4123.54 and 4123.83)
• Public Employment Risk Reduction Program Law

Newly enacted SB 33 will take effect ninety-one days after the law is filed with the Ohio Secretary of State’s Office (an event that has not yet occurred). We anticipate that the law will take effect sometime in July 2025. SB 33 does not alter or change any existing workplace posting obligations under federal law and applies only to Ohio’s workplace posting requirements.

SB 33 is a welcome change for Ohio employers and represents a shift in the law to coincide with ever-increasing digital, remote, and hybrid working environments. Other states are likely to follow Ohio’s lead.

Ogletree Deakins’ Cleveland and Columbus offices will continue to monitor developments and provide updates on the Ohio blog as additional information becomes available.

In addition, Ogletree Deakins’ Client Portal tracks employer posting requirements in Ohio Workplace Posters for Premium– and Advanced-level subscribers. Clients have access to links to the required posters and information regarding required translations and distribution to remote employees. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Congress Out, Agenda Delayed. The U.S. Congress is currently in the second week of its spring break recess and will return to Washington, D.C., on April 28, 2025. Upon returning, Republican leaders are expected to move forward with their budget reconciliation package that is expected to address military spending, energy production, taxes, and immigration. The Buzz will also be monitoring potential U.S. Senate confirmation hearings for individuals nominated to lead labor and employment–related agencies. President Donald Trump has nominated individuals to lead the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration and Wage and Hour Division, as well as the General Counsel’s office of the National Labor Relations Board, but those nominees have not yet had their Senate confirmation hearings.

Executive Order Seeks to Limit Use of Disparate-Impact Liability. On April 23, 2025, President Trump issued an executive order (EO) titled “Restoring Equality of Opportunity and Meritocracy.” The EO states, “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” Currently, employers may be held liable under a disparate-impact theory of discrimination if an otherwise neutral employment policy or practice results in an adverse impact on a protected class. The EO directs all federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability” and further instructs the attorney general and the chair of the U.S. Equal Employment Opportunity Commission to review all current legal matters that rely on a theory of disparate-impact liability, and to “take appropriate action with respect to such matters consistent with the policy of th[e] order.” T. Scott Kelly, Nonnie L. Shivers, and Zachary V. Zagger have the details.

Disparate-impact liability in employment discrimination cases was first established by the Supreme Court of the United States in 1971 and codified by Congress in the Civil Rights Act of 1991. In February 2025, U.S. Attorney General Pam Bondi issued a memorandum instructing U.S. Department of Justice (DOJ) officials to deemphasize disparate-impact theories of liability.

Senate HELP Committee Chair Outlines Independent Contractor Proposals. Senator Bill Cassidy (R-LA), chairman of the Senate Committee on Health, Education, Labor, and Pensions, has released a white paper advocating for various legislative proposals related to independent contractors. The white paper, titled, “Portable Benefits: Paving the Way Toward a Better Deal for Independent Workers,” builds on Cassidy’s 2024 “request for information seeking feedback from stakeholders on ways to remove federal legal and regulatory barriers to portable benefits for independent workers.” Among the proposals advanced in the paper are a single statutory test for determining employment status, as well as legislation that would allow employers to provide health and retirement benefits to workers without those benefits triggering employment status. (The Buzz recently detailed bills in the U.S. House of Representatives that address these issues.)

Immigration Policy Update. Recent developments in the immigration policy arena include the following:

• The U.S. District Court for the District of Massachusetts issued an order blocking the Trump administration’s rescission of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) humanitarian parole program. Emphasizing the need for a case-by-case review prior to revoking grants of parole, the judge ruled that the “categorical termination of existing grants of parole was arbitrary and capricious.” Amanda M. Mullane and Daniela Medrano Sullivan have the details.
• Secretary of State Marco Rubio announced sweeping changes to the operational structure of the U.S. Department of State. While the Bureau of Consular Affairs—the subagency within the State Department responsible for issuing visas—does not appear to be impacted at this early stage, the Buzz will continue to monitor the situation as it develops.

DOL Staff Exit. Workers at the DOL are leaving, either pursuant to deferred-resignation offers from the new administration or involuntary reductions in force.

• Deferred Resignations. Almost 20 percent of the DOL’s employees will reportedly leave their positions in September 2025 after accepting deferred-resignation offers.
• OFCCP Continues to Shrink. According to media reports, most employees in the Office of Federal Contract Compliance Programs’ (OFCCP) enforcement division’s national office and five of its six regional offices have been placed on administrative leave in advance of planned reductions in force at the agency. (Employees in the Southwest and Rocky Mountain Region—often referred to by practitioners as “SWARM”—were not impacted.) The action follows on the heels of a February 2025 DOL memo indicating that 90 percent of OFCCP employees would eventually be removed from their positions. A group of Democratic senators and representatives wrote a letter to Secretary of Labor Lori Chavez-DeRemer, warning that the dramatic reduction in staff at OFCCP would leave veterans and individuals with disabilities vulnerable to discrimination.

The Buzz will keep tabs on how staff reductions at the DOL in general, and OFCCP specifically, will impact the department’s regulatory and enforcement agendas.

Remember the Maine! On April 25, 1898, Congress declared war on Spain. The Cuban War of Independence, the rise of sensationalistic “yellow journalism,” U.S. self-interest, and the February 15, 1898, explosion of the USS Maine in Havana Harbor all contributed to a series of congressional actions that culminated in a declaration of war. The declaration read:

A bill declaring that war exists between the United States of America and the Kingdom of Spain.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, A.D. 1898, including said day, between the United States of America and the Kingdom of Spain.

Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this act into effect.

Approved, April 25, 1898.

The war ended several months later with the signing of the Treaty of Paris on December 10, 1898, and resulted in the United States’ acquisition of Puerto Rico, Guam, and the Philippines.

Quick Hits

• On April 23, President Trump issued a new EO designed to “elevate the value and impact of our nation’s HBCUs as beacons of educational excellence and economic opportunity that serve as some of the best cultivators of tomorrow’s leaders in business, government, academia, and the military.”
• The EO establishes an initiative—“the White House Initiative on Historically Black Colleges and Universities”—“housed in the Executive Office of the President and led by an Executive Director designated by the President.”
• There are approximately one hundred HBCUs in the United States. Although HBCUs were originally founded to educate Black students, they now enroll students who are not Black.

The executive order establishes the White House Initiative on Historically Black Colleges and Universities under the executive office of the president, to be led by an executive director designated by the president. The executive order outlines two primary missions for the initiative: (1) increasing the private-sector role, including the role of private foundations, in strengthening and further supporting HBCUs; and (2) enhancing HBCUs’ capabilities to serve the country’s young adults. Specifically, the executive order calls for increasing the private-sector role in:

• assisting HBCUs with “institutional planning and development, fiscal stability, and financial management”;
• “upgrading institutional infrastructure, including the use of technology”; and
• “providing professional development opportunities for HBCU students to help build America’s workforce in technology, healthcare, manufacturing, finance, and other high-growth industries.”

In addition, the executive order calls for enhancing HBCUs’ capabilities to serve the country’s young adults by:

• “fostering private-sector initiatives and public-private and philanthropic partnerships to promote centers of academic research and program excellence at HBCUs”;
• “partnering with private entities and [K-12] education stakeholders to build a pipeline of students that may be interested in attending HBCUs”;
• “addressing efforts to promote student success and retention at HBCUs, including college affordability, degree attainment, campus modernization, and infrastructure improvements.”

The executive order establishes, within the U.S. Department of Education, a board, referred to as “the President’s Board of Advisors on Historically Black Colleges and Universities.” The board is to be comprised of current HBCU presidents and representatives in philanthropy, education, business, finance, entrepreneurship, innovation, and private foundations. The board is tasked with advising the president on matters pertaining to the HBCU PARTNERS Act, which became law in 2020.

Furthermore, the initiative will organize an annual White House summit on HBCUs “to discuss matters related to the [i]nitiative’s missions and functions.”

While the executive order does not specifically identify or otherwise promise funding for the initiative, the White House also released a fact sheet that references HBCU-related funding secured during President Trump’s first term.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance and Higher Education blogs 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.

Amanda T. Quan is a shareholder in Ogletree Deakins’ Cleveland office.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• The Wisconsin Supreme Court interpreted the phrase “any … other offense” in the WFEA to include noncriminal offenses.
• The court’s interpretation is the final chapter in extended, seesaw litigation resulting from a school district’s decision to fire two employees who allegedly stole scrap metal from the district, pocketing the money they received from recycling the stolen material.
• The district elected to dismiss the brothers after they were cited by the police for municipal theft (a noncriminal offense).
• Relying on its expansive interpretation of the term “other offense,” the court determined that the district’s decision to fire the employees was based on “arrest record,” in violation of the WFEA.

Background

As discussed in our 2024 article addressing prior developments in this case, the Cota brothers worked on the grounds crew for the Oconomowoc Area School District. They were accused of taking the district’s scrap metal to a scrapyard and not remitting to the district the several thousand dollars they received for the scrap.

After an internal investigation was unable to determine which employees were responsible for the alleged theft, the district contacted the Town of Oconomowoc Police Department. The police ultimately cited the Cotas for theft. Approximately a year later, an assistant city attorney told the district he believed he could obtain convictions and that he also believed the case against the Cotas could be settled. He proposed dismissing the citations against the brothers in exchange for a $500 “restitution” payment. The district supported the proposal; however, the Cotas did not agree to the deal and were fired the next day. The municipal citations against the Cotas were later dismissed.

In response, the brothers filed a complaint under the WFEA alleging the district unlawfully fired them because of their arrest records. After an evidentiary hearing, an administrative law judge (ALJ) found that the Cotas failed to establish unlawful discrimination by the district. On appeal by the Cotas, the Labor and Industry Review Commission (LIRC) reversed the ALJ’s decision, concluding that the district did discharge the brothers because of their arrest records. The circuit court then affirmed LIRC’s conclusion. The court of appeals subsequently reversed LIRC, holding that “arrest record” under the WFEA includes only information related to criminal offenses (i.e., not including the municipal offenses the Cotas were cited for). LIRC then petitioned the Wisconsin Supreme Court for review.

Arrest and Conviction Record Discrimination Under the WFEA

Wisconsin is one of a minority of states that prohibit discrimination against employees and applicants because of arrest or conviction records. In sum, the WFEA deems it unlawful for an employer to make employment decisions (including hiring and firing decisions) on the basis of an employee’s arrest or conviction record. Employers risk liability when they, for example, decline to hire an employee due to the contents of a background check or fire an employee when they learn of the employee’s arrest.

Importantly, the WFEA includes an exception—employers may defend an adverse employment decision motivated by arrest or conviction record when a pending arrest or conviction “substantially relates” to the job. In general, an arrest or conviction is “substantially related” to a job when there is some overlap between the circumstances of the job and the circumstances of the offense.

Under the WFEA, an employer may refuse to hire an applicant or suspend an employee based on a pending arrest if the offense is substantially related to the position in question. An employer may also take adverse employment action based on an individual’s conviction record, provided there is a substantial relationship between the crime of conviction and the relevant position. Thus, an employer cannot, in most circumstances, fire an employee based on a pending arrest or an arrest that did not lead to a conviction.

The Court’s Reasoning and Its ‘Strange Results’

The Wisconsin Supreme Court concluded that the ordinary meaning of the phrase “any … other offense” includes violations of both criminal and noncriminal laws. The majority opined that this interpretation of “offense” is consistent with how the word “offense” is used throughout the Wisconsin Statutes. The court’s majority also found that such an interpretation was consistent with the WFEA’s statutory purpose of “protect[ing] by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of … arrest record ….”

The majority thus found that LIRC correctly concluded that the Oconomowoc Area School District discharged Gregory and Jeffrey Cota because of their arrest records, in violation of the WFEA.

In a concurring decision, Justice Janet Protasiewicz lamented that the court’s decision, while correctly interpreted, makes for a “strange result.” Justice Protasiewicz wrote that, “[a]s a result of today’s decision, the [Oconomowoc Area School] District may not fire employees who it suspects stole from the District. That is no way to treat the victim of an offense.” Justice Protasiewicz added that if the district had fired the brothers when they suspected them of stealing, instead of going to the police (or had fired the brothers before they were cited by the police), they would not have violated the WFEA. Under these circumstances, the decision could not have been motivated by an arrest record that did not yet exist. “Our statutes should not hamstring employers who are victims that way,” Justice Protasiewicz stated. “An employer should be allowed to take employment action when it is the victim of an offense and suspects an employee did it, even when it relies on information from law enforcement.”

Key Takeaways

The 2024 court of appeals decision in this case narrowed the scope of employer obligations under the WFEA’s arrest record provisions. But this relief was short-lived. Employers doing business in Wisconsin are now confronted with the possibility of a wider array of offenses serving as the basis for arrest record discrimination claims.

Employers may want to note that the definition of “arrest record” under the WFEA includes noncriminal offenses—any information indicating an individual has been questioned, apprehended, or charged with any offense, criminal or noncriminal, may fall under the protection of the WFEA. And employers may also want to note that they have limited options when contending with an employee’s “arrest” by law enforcement. Even if the arrest involves conduct substantially related to the employee’s position (such as was the case with the Cotas’ alleged theft), employers risk liability if they discharge rather than suspend the suspected employee prior to conviction.

Under appropriate circumstances, employers may be well-served to discharge suspected employees prior to police action that may create an arrest record. And as lamented by Justice Protasiewicz, this outcome makes little policy sense and is contrary to the purposes of the WFEA.

While beyond the scope of this article, it is important to note that Wisconsin employers may also lawfully discharge an arrested employee based on their own independent investigation, if they can show that their discharge decision was motivated by the underlying conduct itself and not the fact the employee was arrested (the “Onalaska defense”). Employers may therefore want to conduct thorough internal investigations and document their findings independently of any arrest records—even if it is not possible or advisable to discharge an employee suspected of criminal wrongdoing prior to police action.

Ogletree Deakins’ Milwaukee office will continue to monitor developments and will publish updates on the Background Checks and Wisconsin blogs as additional information becomes available.

Further information is available in the Ogletree Deakins Client Portal in the Use & Evaluation – Arrests, Use & Evaluation – Convictions, and Miscellaneous Background Checks law summaries. (Full law summaries are available for Premium-level subscribers; Snapshots and Updates are available for all registered client-users.) For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• New Jersey Assembly Bill A5433 proposes a five-year phase-out of the tip credit, spanning from 2026 to 2030.
• The bill would mandate employers pay the full state minimum wage to tipped employees before the addition of tips.
• Potential consequences include increased labor expenses for businesses, higher prices for consumers, and uncertain effects on the overall income of tipped workers.

The tip credit is a legal provision allowing employers to pay tipped employees a direct cash wage below the applicable minimum wage rate, and allows employers to use a portion of the tips received by the employee to make up the difference.

This initiative has sparked intense debate about its potential consequences. Advocates claim the bill promotes fairness and worker protection, while opponents fear it will inflate business costs, drive up consumer prices, and trigger job losses within the restaurant and hospitality sectors.

Understanding the Tip Credit

Most employers in New Jersey are governed by two wage and hour laws: the federal Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL). Employers must pay their nonexempt employees the federal ($7.25) or state ($15.49) minimum wage rate, whichever is higher. Currently, both laws also permit employers to count a portion of their employees’ tips toward their minimum wage obligation—a legal mechanism known as the “tip credit.”

Under the FLSA, to utilize the tip credit, employers must first inform employees of their intent to do so. Subsequently, employers must pay “customarily tipped” employees (e.g., waiters and bartenders) a direct cash wage of at least $2.13 per hour. If an employee earns at least $5.12 per hour in tips (the difference between the $2.13 minimum cash wage and the $7.25 minimum wage) over the employee’s shift, the employer can apply these tips as a “credit” against the employee’s minimum wage obligations.

The NJWHL also allows for a tip credit, capped at $9.87 per hour as of 2025. Employers must pay tipped employees a minimum cash wage ($5.62 per hour in 2025), and the total of wages and tips must meet or exceed the state minimum wage.

Employers must ensure that the sum of the direct cash wage and the received tips equals or surpasses the federal (and state) minimum wage for all hours worked in a workweek. If the total falls short, the employer must pay the difference to the employee. This guarantees that the employee receives at least the minimum wage, regardless of the combination of employer-provided cash wages and customer tips. Employers are not required to use the tip credit, but employers commonly use it because it can reduce their costs.

Proposed Changes: Assembly Bill A5433

Assembly Bill A5433 aims to completely eliminate the tip credit under the NJWHL by reducing the amount of tip credit an employer may claim over a five-year period:

• 2026: $7.90 per hour allowable tip credit
• 2027: $5.92 per hour allowable tip credit
• 2028: $3.95 per hour allowable tip credit
• 2029: $1.97 per hour allowable tip credit
• 2030 and beyond: Tip credit eliminated

Crucially, the bill would not prohibit tipping; it would only prevent employers from using a portion of those tips to fulfill their obligation to pay nonexempt employees the minimum wage. By 2030, employers would be required to pay all tipped employees the full state minimum wage before any additional tips.

While the FLSA still permits employers in other states to utilize the tip credit, employers in New Jersey would be obligated to comply with the more stringent requirements of the bill. Thus, eliminating the tip credit under the NJWHL would effectively prohibit New Jersey employers from utilizing the tip credit under the FLSA as well, as taking any tip credit would constitute a violation of New Jersey’s minimum wage law for tipped employees.

Potential Impacts and Concerns

On April 10, 2025, the New Jersey Assembly convened a two-hour hearing to gather public feedback on the bill. The potential elimination of the tip credit elicited strong and contrasting reactions from employees and employers.

The bill’s sponsor, Assemblywoman Verlina Reynolds-Jackson, stated the bill’s intent is to ensure tipped workers “make a decent wage; people should be paid fairly for the work they do.” Proponents argue that eliminating the tip credit guarantees a stable baseline income that is not dependent on the discretionary nature of tipping. This simplified wage structure could also enhance employees’ understanding of their rights and streamline the enforcement of wage laws, thereby reducing wage theft.

Opponents say it would paradoxically reduce earnings for servers, who often make significantly more than minimum wage through tips. Restaurants would bear the increased burden of directly paying all tipped employees the full minimum wage, leading to increased labor costs. Restaurants might be forced to implement mandatory service charges that don’t necessarily benefit their tipped employees, or they could reduce staff hours and eliminate positions altogether. These changes could result in higher menu prices, potentially harming the business, and could also discourage individuals from seeking server positions due to diminished earning potential. Opponents also argue New Jersey’s current system functions effectively, already guaranteeing minimum wage while allowing for substantial earning potential through tips.

Conclusion

The proposed elimination of the tip credit in New Jersey has the potential to dramatically reshape the state’s legal landscape, particularly within the restaurant and hospitality industry. While intended to foster a more equitable wage system, the potential repercussions for employees, businesses, and consumers warrant careful consideration as the legislative process unfolds.

Ogletree Deakins’ Morristown office will continue to monitor the bill and will provide updates on the Hospitality, New Jersey, and Wage and Hour blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on wage and hour laws, including New Jersey minimum wage and minimum wage tip credit requirements. Full law summaries are available for Premium-level subscribers; Snapshot and Updates are available for all registered client users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• President Trump signed an executive order aimed at ending the legal theory of disparate impact discrimination by deprioritizing its enforcement within federal regulations, including Title VII of the Civil Rights Act of 1964.
• The move is part of a broader effort by the Trump administration to reshape federal antidiscrimination and DEI policies and could lead to potential legal disputes.

The EO, titled “Restoring Equality of Opportunity and Meritocracy,” effectively deprioritizes disparate impact, calls for technical assistance to be issued by the U.S. Equal Employment Opportunity Commission (EEOC), and questions disparate impact regulations under Title VII of the Civil Rights Act of 1964 and other laws that implicate disparate impact causes of action and liability.

Disparate impact refers to the legal doctrine whereby employers or other entities may be held accountable for a specific employment practice or policy that, while neutral on its face and not intended to discriminate, causes a substantial adverse impact to a protected group (such as sex) and cannot be justified as serving a legitimate business goal for the employer.

Disparate impact liability has been a key component of federal antidiscrimination law and has been upheld in multiple landmark court cases and codified in Title VII as part of the Civil Rights Act of 1991 (42 U.S.C. 200e-2(K)). However, the EO states it is now “the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”

Specifically, the EO orders “all agencies” to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” including Title VII. The order directs the Attorney General and the EEOC chair to “assess pending investigations, civil suits, or positions taken in ongoing matters” that “rely on a theory of disparate-impact liability.”

The EO further revokes “Presidential approval” of key regulations carrying out Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance.

Next Steps

The EO is the latest related to antidiscrimination and diversity, equity, and inclusion (DEI) policies, as the Trump administration seeks to refocus federal policy and eliminate “unlawful” racial preferences. However, the policies have faced over 200 legal challenges, and some aspects of the orders have been enjoined. It is likely that the latest EO could similarly be challenged. Further, while the EO seeks to stop the federal agencies from pursuing claims or taking positions that rely on theories of disparate impact, private individuals may still pursue such claims.

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

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 Governmental Affairs blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• Under SSB 55408, which amends the Equal Pay and Opportunities Act, Washington employers may now list a fixed pay amount instead of a wage range if only one amount is offered, including for internal transfers; postings that are replicated without employer consent are not considered official job postings.
• Between the law’s effective date and July 27, 2027, employers have five business days to correct a noncompliant posting after receiving written notice and can avoid penalties if the posting is timely corrected.
• The amended law further defines and clarifies two separate remedies, each of which is exclusive: administrative remedies (civil penalties up to $1,000 and statutory damages between $100 and $5,000 per violation) or remedies via private civil actions, including statutory damages between $100 and $5,000 per violation. Each permits statutory damages and considers factors such as willfulness and employer size.

Key Updates to RCW 49.58.110

The key updates to RCW 49.58.110 follow below.

Wage Scale or Salary Range

The wording of the previous statute appeared to require a “wage scale or salary range,” even if all individuals employed in that position had the same pay or the same starting pay. Amended SSB 5408 permits employers that offer only a fixed amount of pay to list only that fixed amount, and they are not required to provide a wage scale or salary range that does not really exist. This also applies for internal transfers where the employer only offers a fixed wage amount.

Definition of “Posting”

Amended SSB 5408 makes clear that a posting does not include a “solicitation for recruiting job applicants that is digitally replicated and published without an employer’s consent.”

Cure Period

For postings between the effective date of Amended SSB 5408 and July 27, 2027, employers must be given the opportunity to correct a job posting that does not meet the requirements of the law. Under the new law, any person may provide “written notice” to the employer that they believe a posting fails to comply with the job pay transparency requirements, and the employer has five (5) business days from the receipt of the written notice to correct the posting and notify any third-party posting entity to correct the posting. The cure opportunity must be provided before the individual may seek any remedy under the law, and if the posting is timely cured, no damages, penalties, or other relief may be assessed.

Damages/Relief

RCW 49.58.110 previously relied on damages sections that arose from the equal pay law as it existed prior to the job posting wage transparency laws. Amended SSB 5408 now further defines and clarifies two separate remedies, each of which is exclusive.

• Administrative remedies. Amended SSB 5408 permits an investigation, encourages conference and conciliation, and, if that fails, permits the director to assess a civil penalty of $500 for a first violation and up to $1,000 for repeat violations, or up to ten percent of the damages. In addition to the civil penalty, costs, and other relief for the affected job applicant or employee, the department may “order the employer to pay each affected job applicant or employee statutory damages of no less than $100 and no more than $5,000 per violation.” Amended SSB 5408 provides factors to be considered when assessing the penalty, including the willfulness of the violation or whether it was a repeated violation; the employer’s size; the amount necessary to deter noncompliance; the purposes of the law; and other factors deemed appropriate.
• Private civil action. Amended SSB 5408 leaves in place an affected job applicant or employee’s right to bring a private right of action. The new law, however, provides that an affected job applicant or employee may be “entitled to statutory damages of no less than $100 and no more than $5,000 per violation, plus reasonable attorneys’ fees and costs.” The court, in assessing statutory damages, may consider the same factors as the agency.

Next Steps

Ogletree Deakins’ Pay Equity Practice Group and Seattle office will continue to evaluate how these changes affect the current litigation in Washington State, monitor the rules process as the Department of Labor and Industries begins developing rules governing the interpretation and enforcement of these changes, and will provide updates on the Pay Equity and Washington blogs as additional information becomes available.

Follow and Subscribe

LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• The May 2025 final action dates in the EB-3 categories are unchanged for all countries except India, which has moved ahead by two weeks.
• The May 2025 final action dates in the EB-5 categories are unchanged for all countries except India, which has retrogressed by six months.
• U.S. Citizenship and Immigration Services (USCIS) has confirmed it will accept adjustment of status applications based on the final action dates chart in May 2025.

Source: U.S. Department of State, May 2025 Visa Bulletin

The final action dates chart shows only slight movement since the final action dates chart in the April 2025 Visa Bulletin of the following categories and countries:

• EB-3 India has advanced two weeks from April 1, 2013, to April 15, 2013.
• EB-5 India retrogressed six months from November 1, 2019, to May 1, 2019.

Next Steps

Starting May 1, 2025, individuals with a priority date earlier than the listed final action date can file a Form I-485, Application to Register Permanent Residence or Adjust Status.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• The Sixth Circuit upheld a jury verdict against a school psychologist who alleged Equal Pay Act violations after she was offered a lower salary than the salary paid to a male psychologist two years earlier.
• The court upheld the jury verdict, determining that a reasonable juror could conclude, based on the evidence of budget constraints and market forces, that the pay differential was based on a legitimate business reason other than sex.
• The case highlights the fine line between legitimate business reasons and discriminatory practices in setting new hire compensation.

On April 2, 2025, a Sixth Circuit panel issued a decision in Debity v. Monroe County Board of Education. The court upheld a magistrate judge’s decision to deny a female school psychologist’s motion for a judgment as a matter of law as to whether the board successfully established its affirmative defense that the pay differential was based on a reason other than sex. The Sixth Circuit further affirmed a magistrate judge’s decision to throw out the jury’s $195,000 damages award for the plaintiff as it was inconsistent with the jury’s finding on liability.

Much of the Sixth Circuit’s decision focused on whether the magistrate judge had properly handled an inconsistent jury verdict in which the appellate court agreed with the magistrate judge’s ultimate conclusion to throw out the damages award.

But the Sixth Circuit additionally found that “a reasonable juror could find that the Board offered” the female school psychologist “a lower salary … for a reason other than sex,” providing an example of how, in some circumstances, budget constraints and market pressures can appropriately influence compensation decisions.

Background

Marina Debity applied for a school psychologist position with Monroe County schools in Tennessee after completing an internship with the district. She alleged she was offered a lower salary than the salary paid to a male psychologist hired two years earlier, who negotiated for his pay. She alleged that when she requested equal pay, the county board of education withdrew her job offer. Debity then brought claims for sex discrimination and retaliation in violation of the Equal Pay Act (EPA), Title VII of the Civil Rights Act of 1964, and the Tennessee Human Rights Act.

Supply and Demand

The Sixth Circuit upheld the jury’s determination that market forces of supply and demand could constitute a legitimate, non-sex-based reason for the pay disparity, an affirmative defense under the EPA. The court’s analysis focused on the testimony of a school district administrator, who testified that when the school hired the previous male school psychologist in 2019, the board was in a “desperate” situation where one of the district’s four psychologists was retiring and another was moving to part-time. This urgency, combined with the lack of applicants, led the board to offer a higher salary. In contrast, Ferguson testified that when Debity applied in 2021, the school already had four full-time psychologists and had not previously employed five.

“It would be reasonable for a juror to conclude that Monroe County had a low demand for psychologists in 2021 with the same supply, one person, to fill the opening,” the Sixth Circuit said. “Therefore, a reasonable juror could believe that market forces of supply and demand caused Debity’s lower offer, not her sex.”

While the Sixth Circuit noted employers “may not use supply and demand as an excuse to discriminate generally by sex just because there are more people from a certain sex applying for a given job,” the school district administrator’s testimony showed there was not this type of “generalized discrimination.” The court said the question of whether Ferguson would have treated a woman applying in 2019 the same as the male psychologist, who was offered more money, was a matter for the jury.

Budget Constraints

The Sixth Circuit further said that an employer’s desire for cost savings can be a legitimate business justification for a pay differential. The school administrator’s testimony showed that the board was “genuinely concerned about the budget.” According to the decision, the administrator “testified that he tried to find enough room in the budget to hire Debity … but could not” because it was a higher priority to hire a full-time teacher at the elementary school.

The court rejected Debity’s arguments that the board could have shifted unused funds from elsewhere, stating that it is not the court’s role to second-guess the board’s budget decisions. “It is irrelevant whether the Board’s budgeting decision was wise or even based on a correct understanding of the facts,” the Sixth Circuit said. “The EPA does not outlaw incompetence—it prohibits discrimination by sex.”

Next Steps

The Debity case highlights the fine line between legitimate business reasons and discriminatory practices in setting new hire compensation. Budget constraints and market forces may, in some situations, be legitimate, nondiscriminatory business reasons that justify certain pay disparities between males and females. In the Debity case, the Sixth Circuit focused on testimony about the low supply of applicants and the immediate need to hire a school psychologist when it hired the male psychologist two years earlier as evidence as to why the male comparator was offered higher pay.

While the Debity decision is a favorable one for employers, employers facing similar market forces and budget limitations when making compensation decisions may still wish to proceed with caution. Employers may want to avoid overreliance on budget constraints and market pressures as vague, general justifications for compensation decisions. Instead, if a pay differential is necessary, despite the employer’s efforts to avoid one, employers may want to keep detailed records of budgetary decisions and the specific circumstances at play.  

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law, Pay Equity, and State Developments blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• OMB is seeking the public’s input on deregulation, including public comment on and recommendations for potentially outdated or burdensome OSHA regulations, with a submission deadline of May 12, 2025.
• Safety professionals and the public now have the opportunity to suggest the elimination or revision of specific OSHA regulations.
• Potential targets for deregulation pursuant to OMB’s request for information include OSHA’s “walkaround rule,” electronic recordkeeping regulations, and the proposed heat injury and illness prevention program.

On April 11, 2025, the Office of Management and Budget (OMB) published a notice, titled, “Request for Information: Deregulation,” soliciting the public’s comments and deregulatory recommendations with respect to rescinding or replacing agency regulations, including OSHA rules. This request for information (RFI) is in keeping with the Trump administration’s regulatory freeze issued at the outset of the president’s term of office.

On its face, the request for information (RFI) states that “OMB solicits ideas for deregulation from across the country. Commenters should identify rules to be rescinded and provide detailed reasons for their rescission. OMB invites comments about any and all regulations currently in effect.” The RFI continues and states the following:

OMB seeks proposals to rescind or replace regulations that stifle American businesses and American ingenuity. We seek comment from the public on regulations that are unnecessary, unlawful, unduly burdensome, or unsound. Comments should address the background of the rule and the reasons for the proposed rescission, with particular attention to regulations that are inconsistent with statutory text or the Constitution, where costs exceed benefits, where the regulation is outdated or unnecessary, or where regulation is burdening American businesses in unforeseen ways.

Without any parameters or limitations on RFI submissions, it is possible that someone might recommend that all OSHA regulations be eliminated, that the construction standards (29 C.F.R. 1926) be eliminated, or that the recordkeeping requirements be eliminated. It is unlikely that any of these would take place, as the Occupational Safety and Health (OSH) Act requires the agency to issue regulations and collect data concerning workplace injuries and illnesses.

Section 2 of the OSH Act states:

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources —

…

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act[.]

Section 24 of the OSH Act states:

(a) In order to further the purposes of this Act, the Secretary, in consultation with the Secretary of Health and Human Services, shall develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics. Such program may cover all employments whether or not subject to any other provisions of this Act but shall not cover employments excluded by section 4 of the Act. The Secretary shall compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses, whether or not involving loss of time from work, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.

Consequently, OSHA is effectively obligated by the OSH Act to issue occupational safety and health standards to “assure so far as possible every working man and woman in the Nation [a] safe and healthful” workplace and to collect data concerning workplace safety and health matters. Seeking to eliminate all OSHA standards or recordkeeping rules would require revising the OSH Act.

Which OSHA regulations are probable targets of these efforts? The so-called “walkaround rule” related to who can accompany an OSHA compliance officer during an inspection seems a very likely candidate. Similarly, the electronic recordkeeping regulations may be subject to deletion or elimination. To the extent that OSHA is seeking to implement a heat injury and illness prevention program, it, too, could fall prey to this RFI.

There is no limit on the agency, regulation, or topic that may be submitted pursuant to the RFI. Undoubtedly, there will be an enormous number of suggestions related to OSHA and other agencies—from the U.S. Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives, to the U.S. Department of the Interior’s Bureau of Indian Affairs, to the U.S. Food and Drug Administration (a federal agency of the U.S. Department of Health and Human Services)—to name but a few. Many suggestions will likely be dismissed out of hand, but there will also likely be well-reasoned, thoughtful submissions that do receive at least some attention. The deadline for submissions in response to the RFI is May 12, 2025, and submissions may be made through the website Regulations.gov.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Workplace Safety and Health 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.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts