Quick Hits

• Under Mexico’s Chair Law, the main obligations for employers are: (i) having enough seats with a backrest for employees’ use, and (ii) avoiding prohibiting employees from taking seated breaks when the nature of the works allow it.
• Noncompliance with the Chair Law could trigger fines.

The Chair Law’s General Content and Employers’ Main Obligations

Employers in the service and retail industries, and similar sectors, are the main covered employers under the Chair Law. Covered employers will have 180 days (as of the day of the law’s publication) to comply with the following requirements:

• Provide enough chairs with backrests for employees.
• Allow employees to take periodic breaks to sit and rest on chairs with backrests during their work shifts. The objective is for employees not to have to remain standing for the entirety of their work shifts.
• Any employer rules regarding rest periods and the use of chair backrests must be contained in the company’s internal work regulations.
• Inform and advise employees about the health risks related to prolonged standing periods.

Although the Chair Law specifies that service and retail industry employers are subject to its requirements, it does not exempt employers in other industries, so it is likely that all employers will have to meet the law’s requirements. The law’s only exception concerns whether the nature of the work could harm employees if performed sitting. Nonetheless, some rest period must be granted whenever the nature of the work allows it.

Finally, the implementation of the law, and how the Secretary of Labor and Social Welfare will supervise compliance, both remain unclear. Once the Chair Law is enforceable and the authority starts compliance reviews, there should be more clarity for employers to proceed.

Enforceability and Penalties for Noncompliance

Once the 180-day period elapses, the Chair Law will become fully enforceable, and the Secretary of Labor and Social Welfare will be entitled to verify, inspect, and review employers’ compliance.

In cases of noncompliance, fines will be triggered and will range from 250 to 2,500 times the Mexican Measurement and Updating Unit (UMA), equivalent to amounts from $27,142.50 to $271,425.00 Mexican pesos ($1,344.80 to $13,448.02 USD).

Ogletree Deakins’ Mexico City office will continue to monitor developments and will provide updates on the Cross-Border blog as additional information becomes available.

Pietro Straulino-Rodríguez is the managing partner of the Mexico City office of Ogletree Deakins.

Natalia Merino Moreno is an associate in the Mexico City office of Ogletree Deakins.

María José Bladinieres is a law clerk in the Mexico City office of Ogletree Deakins.

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’Twas the Night Before … A Federal Government Shutdown. Earlier this week, it looked like the U.S. Congress had its government funding bill all wrapped up in a nice little package. But lawmakers got frosty and a bit nervous about the legislation’s post-holiday credit card bill and put the bill on ice. As the Buzz goes to publication, Republican leaders in the U.S. House of Representatives are making a list and checking it twice to see if they have the votes to keep the government open past midnight ET this evening. If the government shuts down, you can learn what happens to labor and employment agencies here and immigration-focused agencies in this article by James N. Garilas.

Biden-Era NLRB Wraps Up. With the 2021 appointments of David Prouty and Gwynne Wilcox, the Biden-era National Labor Relations Board (NLRB) in earnest began tilting the labor-management policy landscape in favor of organized labor. But this pro–big labor era at the Board will likely be coming to an end soon. December 16, 2024, was the last day of NLRB Chair Lauren McFerran’s term. The U.S. Senate’s 50–49 rejection of McFerran’s reconfirmation on December 11, 2024, leaves the Board with two Democrats—Gwynne Wilcox and David Prouty—and one Republican—Marvin Kaplan. It also presents President-elect Donald Trump with the opportunity to quickly gain a Republican majority on the Board in 2025. But change won’t happen immediately—it will take some time for nominees to get confirmed and cases to get reversed.

Board Limits Employers’ Control Over Their Own Operations. With Chair McFerran’s departure from the Board, the regulated community is seeing the predicted “flurry” of decisions that happens when members’ terms expire. Most recently, the Board issued a decision that will make it more challenging for unionized employers to make changes to their business operations. In this case, the Board held that collective bargaining agreements must contain a “clear and unmistakable” waiver of the union’s right to bargain over workplace changes. Thomas M. Stanek and Zachary V. Zagger have the details.

H-1B Changes Finalized. On December 18, 2024, U.S. Citizenship and Immigration Services (USCIS) published a rule, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” Brian D. Bumgardner and Marissa E. Cwik have the details on the changes made to the definition of “specialty occupation,” the codification of deference to prior approvals, expansion of the H-1B cap exemption, site visits, and more.

By finalizing the remaining aspects of the proposed rule (the first part, which focused primarily on H-1B registration, selection, and integrity, went into effect earlier this year), the Biden administration takes a step toward shoring up its high-skilled immigration policy preferences. Of course, the rule is clearly subject to review pursuant to the Congressional Review Act (CRA). The incoming Congress could vote to rescind the regulation and would only need a majority vote in the Senate to do so (though Republican majorities in both chambers of Congress are razor-thin). Of course, once the CRA is used to rescind a regulation, agencies are prohibited from issuing any new rule that is “substantially the same form” as the disapproved rule. In this case, if Republicans use the CRA to rescind this rule, it could prohibit the incoming Trump administration from adjusting the prevailing wages for H-1Bs, as they tried to do in the first administration.

OSHA Finalizes PPE Rule. On December 12, 2024, the Occupational Safety and Health Administration (OSHA) published a final rule, “Personal Protective Equipment in Construction.” Existing requirements only state that personal protective equipment (PPE) must be “of safe design and construction for the work to be performed.” The new regulations state that employers must ensure that PPE “is selected to ensure that it properly fits each affected employee.” OSHA pursued the rulemaking with smaller employees in mind, particularly women. The rule is scheduled to go into effect on January 13, 2025. John D. Surma and Savannah M. Selvaggio have the details.

For the Birds. If you think the national bird of the United States is the bald eagle, think again. Although the eagle is a patriotic symbol that we’re used to seeing on currency, government buildings, and military uniforms, the bald eagle is not officially recognized as our national bird. We have a national anthem (of course), a national flower (rose), a national march (“The Stars and Stripes Forever”), and a national tree (the oak), but no national bird. But this week, the House of Representatives passed a bill designating the bald eagle as the official bird of the United States. The Senate passed the bill earlier this year, so it now heads to President Biden’s desk. Hopefully, we won’t have to wait around owl day for him to sign it.

This is our last Beltway Buzz of 2024. We will return on January 10, 2025.

Quick Hits

• If Congress fails to pass federal government funding legislation, critical immigration functions performed by the U.S. Department of Labor (DOL), such as PERM processing, prevailing wage determinations, and labor condition applications (LCA) will be suspended.
• E-Verify, the federal government’s web-based system used for employment eligibility verification would likely be unavailable during the shutdown.
• Immigration-related services at U.S. consulates abroad would likely be reduced or suspended due to reduced operational impacts at the U.S. Department of State.

Although a federal government shutdown is not certain, recent negotiations in Congress have not been close to bridging the gap on key differences. While a federal government shutdown would likely increase the processing times for many immigration matters, the most critical impacts would affect U.S. employers in the following contexts:

• the inability for employers to obtain certified LCAs for H-1B, H-1B1, and E-3 petitions;
• the inability for employers to receive PERM labor certifications and prevailing wage determinations; and
• the suspension of, or significant delays to, foreign nationals obtaining employment-based visas from U.S. embassies and consulates abroad; and the likely inability of E-Verify employers to initiate new E-Verify cases or resolve tentative nonconfirmations for active cases.

Because U.S. Citizenship and Immigration Services (USCIS) is a fee-generating agency, USCIS would remain operational, although processing delays should be anticipated as other governmental functions are impacted.

U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) are essential agencies for national security, and therefore will remain fully operational in the event of a federal government shutdown.

Next Steps

Employers may want to consider strategies to minimize the impact of potential processing delays to pending cases, including whether to proactively file eligible cases with the DOL prior to midnight ET to ensure timely filing prior to a potential shutdown.

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

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Quick Hits

• A new law permits certain workers in New Hampshire to store guns and ammunition in a locked car on the employer’s property.
• Covered employers may not discharge or discipline an employee for storing a gun or ammunition in a locked car.
• The law will take effect January 1, 2025.

The law prohibits covered employers from taking adverse action against workers for storing firearms or ammunition in a locked vehicle. Employers can still ban guns from being carried on an employee’s person, in company-owned or -leased vehicles, and from everywhere else on the employer’s premises. This provision applies to state agencies, municipalities, and private employers that receive public funds from the federal or state government.

The law also prohibits employers from inquiring into or searching for firearms or ammunition in locked vehicles on the employer’s property. This provision applies to all employers.

While the firearm does not need to be locked in a safe or otherwise secured in the vehicle, it must be out of sight. The law provides civil immunity to employers for any economic loss, injury, or death that results from an employer’s compliance with the law.

Safety at the workplace is an important priority for many businesses, and some have banned the possession of firearms at the workplace, including in parking lots that workers use. The federal Occupational Safety and Health (OSH) Act’s general duty clause requires employers to protect employees from foreseeable hazards, including incidents of workplace violence.

Background on Guns at Work

In June 2022, the Supreme Court of the United States ruled that private individuals have the right to carry a loaded gun in public for self-defense. It struck down a New York law that required people who applied for a concealed carry permit to show they had proper cause to carry a concealed gun. Thus, the Court invalidated similar requirements in other states.

Since then, Alabama and Louisiana have joined many other states that allow people to carry a concealed gun in public without a permit. Many states have laws permitting guns in workplace parking lots, but not in other parts of an employer’s property.

Next Steps

Employers in New Hampshire may wish to revise their employee handbooks and policies to adhere to the new law regarding guns in locked vehicles. They may also wish to clearly communicate to employees about the new rules regarding having guns in a locked car or elsewhere on the employer’s premises.

Employers can continue to maintain zero-tolerance policies toward workplace violence.

Ogletree Deakins will continue to monitor developments and will provide updates on the New Hampshire, Workplace Safety and Health, and Workplace Violence Prevention blogs as new information becomes available.

Jeff S. Mayes is a shareholder in Ogletree Deakins’ Houston office.

Aimee B. Parsons is a shareholder in Ogletree Deakins’ Portland (ME), office and is also barred in New Hampshire.

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

• Ontario’s Working for Workers Acts (Four, Five, and Six) have introduced changes to the ESA and the OHSA, impacting sick leave policies, job posting transparency, and workplace safety regulations.
• Some changes are already in force; others are coming in 2025 and 2026, including stricter job posting requirements.
• The proposed Working for Workers Six Act, 2024 includes unpaid leave provisions for child placement and long-term illness, as well as increased fines for repeat OHSA violations resulting in serious injury or death.

In this article, we highlight some key changes brought about by the following acts:

• Working for Workers Four Act, 2024 (WFW Act Four)
• Working for Workers Five Act, 2024 (WFW Act Five)
• Working for Workers Six Act, 2024 (WFW Act Six)

We previously reported on WFW Act Five. This article will focus on WFW Act Four and the updates to WFW Act Five, as the government has now provided dates for when certain provisions become effective. This article also covers WFW Act Six’s proposed changes.

Ontario’s Working for Workers Four Act and Working for Workers Five Act

WFW Act Four (aka Bill 149) and WFW Act Five (aka Bill 190) both received Royal Assent earlier this year, officially making them law.

On December 3, 2024, many key provisions in both WFW Act Four and WFW Act Five took effect, along with additional regulations clarifying the application of these new regulations.

Below are key changes that these acts introduced to the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act (OHSA).

Amendments to the ESA

• Sick notes: Effective October 28, 2024, employers are limited on when and what they can request as evidence in support of an employee’s absence. Employers cannot ask for a medical note from a “qualified health practitioner” for the three-day sick leave provided under the ESA, but they can ask for “evidence reasonable in the circumstances.” For other statutory leaves or sick days exceeding three days, the employer may still ask for such a medical note.

• Tips and gratuities pooling: As of June 21, 2024, employers that have tip-sharing policies have to post a copy of the policy in a “conspicuous place in the employer’s establishment.” Furthermore, an employer is required to pay an employee’s tips or other gratuities by cash, by a cheque payable only to the employee, by direct deposit, or by any other prescribed method of payment.

• Job postings: The changes introduce new transparency requirements for job postings and recruiting. Starting on January 1, 2026, employers must disclose if they are using artificial intelligence (AI) during the hiring process and if the position is currently vacant. Also, employers with twenty-five or more employees must include information about the expected compensation range in publicly advertised job postings. The lowest and highest ends of the range of a posted compensation may not exceed a $50,000 difference (for example, a posted compensation range of $75,000 –$150,000 would not be acceptable, but $110,000 to $150,000 would be acceptable). Furthermore, information on compensation is required only for positions that have an expected compensation of $200,000 annually or less (or where the compensation range’s upper limit is no more than $200,000 annually).

Employers are also prohibited from including Canadian experience requirements in publicly advertised job postings or associated job application forms.

The new rules clarify the definition of a “publicly advertised job posting” as “an external job posting that an employer or person acting on behalf of an employer advertises to the general public in any manner.” There are exceptions for certain job postings that are not included in this definition. Employers must retain documents such as job postings, applications, and post-interview information for three years.

Included in these changes is also a requirement that employers inform interviewees about the status of the positions for which they applied—for instance, whether a hiring decision was made. Employers have forty-five days after the date of the interview or within forty-five days of the last interview to provide the interviewee with this information in person, in writing, or using technology.

• ESA violation fines: Effective October 28, 2024, the maximum fine for individual violations of the ESA doubled, increasing to $100,000.

Amendments to the OHSA

Offices located in private residences are now specifically excluded from the definition of “industrial establishment,” under the OHSA. However, the OHSA still applies to “telework performed in or about a private residence.” Additionally, the definitions of “workplace harassment” and “workplace sexual harassment” now include virtual activities.

Effective July 1, 2025, employers and constructors are obligated to ensure workplace washrooms are kept clean and that cleaning records are available.

Starting January 1, 2026, cleaning records must be posted by employers in a (1) conspicuous place in or near the washroom facility or (2) electronically where workers can access them.

Ontario’s Working for Workers Six Act, 2024

The WFW Act Six (aka Bill 229) was introduced by the Ontario government on November 27, 2024, and builds on the previous Working for Workers Acts. Here are some key proposed amendments under the WFW Act Six.

Proposed Amendments to the ESA

• The WFW Act Six introduces a new “placement of a child” leave, which grants employees with a minimum of thirteen weeks of service the right to take up to sixteen weeks of unpaid leave following the placement or arrival of a child into their custody, care, and control through adoption or surrogacy.

• The legislation also introduces long-term illness leave, which allows employees with a minimum of thirteen weeks of service to take up to twenty-seven weeks of unpaid leave if they are unable to perform their job duties due to a serious medical condition. Currently, employees must look to laws outside the ESA, such as human rights legislation, to support leaves taken for their own long-term illnesses.

Proposed Amendments to the OHSA

• The WFW Act Six proposes a minimum fine of $500,000 for any corporation convicted of a second or subsequent offense under the OHSA that results in death or serious injury of workers within a two-year period.

• An additional OHSA amendment would give the chief prevention officer the power to create policies concerning general training under the OHSA.

Other Proposed Statutory Amendments

• The WFW Act Six would amend the Highway and Traffic Act to include additional driver requirements when a work vehicle is stopped on a highway.

• The WFW Act Six would amend the Ontario Immigration Act (OIA) to prohibit individuals from making oral or written misrepresentations in an application under the OIA, submitting false documents, or advising others to engage in these acts.

Ogletree Deakins’ Toronto office will continue to monitor developments and will provide updates on the Cross-Border blog as additional information becomes available.

Emily Cohen-Gallant is of counsel in the Toronto office of Ogletree Deakins.

Christina Kaszap is a 2024 graduate of the University of Western Ontario Faculty of Law, and she is an articling student in the Toronto office of Ogletree Deakins.

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Quick Hits

• An in loco parentis relationship could exist between adults over the age of eighteen when one intends to and assumes a parental role over the other.
• The in loco parentis relationships under the FMLA are broader than a conventional parent-child relationship.

Background

Celestia Chapman, a finance manager at Brentlinger Enterprises, d/b/a Midwestern Auto Group (MAG), provided extensive care to her terminally ill sister who was battling non-Hodgkin lymphoma and was unable to care for herself. Chapman provided her sister with financial support, daily caregiving including cooking, cleaning, personal hygiene, and hand-feeding, and emotional support. After exhausting her paid leave, Chapman requested, but MAG denied, FMLA leave on the ground that the FMLA does not cover leave to care for siblings. After Chapman was late to work one day, MAG terminated her employment. Chapman then filed a lawsuit, including FMLA interference and retaliation claims.

What Does ‘In Loco Parentis’ Mean Under the FMLA?

The Sixth Circuit had to resolve whether Chapman could be considered in loco parentis to her adult sister, thereby qualifying for FMLA leave. The FMLA allows employees to take leave to care for a “son, daughter, or parent,” including individuals who stood in loco parentis to the employee when the employee was a child. However, the FMLA does not explicitly address whether an in loco parentis relationship can develop between adults.

The Sixth Circuit’s Decision

The Sixth Circuit rejected the district court’s reading and found that “the ‘child’ in the in loco parentis relationship need not be a minor at the time the relationship forms, have developed a debilitating condition as a minor, or have developed that condition before the relationship formed.”

The Sixth Circuit also delved into the common law definition of in loco parentis, which refers to a person who has assumed the obligations of a parent without formal adoption. The court emphasized that the “touchstone” of this inquiry is intention to assume a parental relationship.

The court highlighted several nonexclusive factors to “determine whether a person intended to assume parental status over another adult” to create an in loco parentis relationship between adults:

• Close physical proximity: Whether the parties live together or near each other.
• Assumes responsibility for support: Whether the caregiver provides financial and daily support.
• Control and rights: Whether the caregiver exercises control or has rights over the dependent adult.
• Close emotional or familial bond: The presence of a close emotional or familial bond akin to that of a parent and child.

The Sixth Circuit reversed the district court’s summary judgment in favor of MAG, holding that the district court erred in concluding that an in loco parentis relationship could not form between adult siblings. The Sixth Circuit remanded the case for further consideration, instructing the district court to evaluate whether Chapman and her sister intended to form a parental relationship during her final months.

Implications for Employers

This decision clarifies that in loco parentis relationships under the FMLA can extend to adult caregivers and other adults, provided there is clear evidence of an intention to assume a parental role. With this clarification, employers may carefully consider the nature of caregiving relationships when reviewing FMLA leave requests, particularly in situations involving adult dependents.

Key Takeaways

The Sixth Circuit’s decision underscores the importance of understanding the nuances of in loco parentis relationships in the context of the FMLA. It is significant because it establishes that an in loco parentis relationship does not need to form during an individual’s childhood and can develop during adulthood. It provides a broader interpretation acknowledging evolving family caregiving responsibilities and ensuring employees can take necessary leave to care for their loved ones regardless of age or conventional definitions of parent-child relationships.

Employers may want to consider workplace policies reflecting the diverse caregiving needs of modern families and proceed with caution when denying FMLA leave based on a relationship that does not neatly fit into the well-established boxes of “son, daughter, or parent” of the employee.

Ogletree Deakins’ Detroit (Metro) office, Charlotte office, and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence and State Developments blogs as additional information becomes available.

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Quick Hits

• The EEOC released new guidance to assist healthcare providers in facilitating workplace accommodations for employees experiencing pregnancy- and childbirth-related conditions under the PWFA and encouraging healthcare providers to educate their patients on the PWFA.
• The guidance clarified that while employers can request supporting documentation for accommodations, such requests must be limited and relevant.
• The guidance warned employers of their ongoing obligations to keep medical information confidential.

The EEOC issued a technical assistance document titled “Helping Patients Deal with Pregnancy- and Childbirth- related Limitations and Restrictions at Work Under the PWFA.” The document addresses the role of healthcare providers in helping workers obtain accommodations under the PWFA, which took effect in June 2023 and requires employers to provide reasonable accommodations for the known physical and mental limitations related to pregnancy, childbirth, or related medical conditions.

The guidance highlights that under the PWFA, employers may, but are not required to, ask employees seeking an accommodation under the PWFA to provide supporting documentation from a healthcare provider in certain circumstances. According to the EEOC, the new guidance in the form of frequently asked questions (FAQs) is meant to give healthcare providers a resource for “the type of documentation that will most likely support [the] patient’s request.”

The guidance does not have the force of law but explains the EEOC’s interpretation of the PWFA and tracks the agency’s previous guidance. The guidance comes after the EEOC’s final rule implementing the PWFA took effect on June 18, 2024, and the EEOC has ramped up enforcement efforts.

Reasonable Accommodations

Employees are eligible for reasonable accommodations under the PWFA if they have a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that interfere with their work. These conditions can range from minor, modest, or episodic issues to more serious problems.

The EEOC explained that some patients may not know about the PWFA and that healthcare providers may tell their patients about the law and the ability to get accommodations from work, which may include a temporary suspension or excusal from essential job functions if the patient is unable to perform them due to a childbirth- or pregnancy-related condition.

Arising Out of Pregnancy, Childbirth, or Related Medical Condition

Notably, the guidance clarifies that healthcare providers determine whether an accommodation qualifies. The guidance states: “Whether in a specific situation something is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions depends upon the specifics of your patient’s condition and your judgment and expertise as a health care provider.”

According to the guidance, the PWFA applies to a physical or mental condition that is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” and does not need “to be the sole cause, major cause, or even substantial cause of the physical or mental condition.” (Emphasis in original). The EEOC further noted that the PWFA does not require the physical or mental condition or related medical condition to be within a certain time of the pregnancy or childbirth.

Supporting Documentation

If employers may request supporting documentation and they do so, the EEOC explained healthcare providers should:

• explain the healthcare provider’s qualifications;
• confirm the employee’s physical or mental condition;
• confirm that the condition is related to pregnancy, childbirth, or related medical conditions; and
• describe the needed adjustment or change at work, including the expected duration.

Further, the guidance stated that patients may need additional information or clarification from healthcare providers, such as a view on whether a proposed “alternative accommodation would be effective.”

Confidentiality and Disclosure

Employers generally cannot require specific forms for accommodations exclusively under the PWFA, unless the patient is also seeking an accommodation or protected leave under other laws, such as the FMLA or ADA. The guidance clarified that qualifying physical or mental conditions under the PWFA “can, but do not have to be, disabilities covered by the ADA or serious health conditions covered by the FMLA.” (Emphasis in original).

If an employer’s form does request more information than necessary, the EEOC said healthcare providers and their patients “can decide how best to respond to the employer.”

Additionally, the EEOC guidance warned that PWFA does not alter a healthcare provider’s legal or ethical obligations regarding the disclosure of employee information. Further, the guidance states, “[e]mployers are required to keep all medical information related to an accommodation request confidential.”

Key Takeaways

The guidance confirms that the PWFA is an area of focus for the EEOC. Employers’ ability to request supporting documentation or information about an employee’s request for an accommodation under the PWFA is limited and that employers have confidentiality obligations regarding employees’ medical information. Moreover, the guidance confirmed that despite similarities to the ADA and FMLA, accommodations requests under the PWFA differ from similar accommodations or leave requests under those laws, particularly with regard to documentation.  

Employers may further want to note that the EEOC views an employee’s healthcare provider as central to determining whether a condition related to childbirth or pregnancy is covered under the PWFA and whether an employer’s alternative accommodations proposals will be effective.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Healthcare and Leaves of Absence blogs.

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Quick Hits

• Some federal courts applying Loper Bright have struck down agency rules.
• Sixteen states, as well as Puerto Rico and Washington, D.C., have acknowledged Loper Bright, though few states have addressed head-on its relation to their existing jurisprudence concerning the interpretation of state agency matters.
• While it largely remains to be seen how Loper Bright may be utilized at a state level, Loper Bright is likely to continue being used to challenge certain federal employment law rules or regulations in the future.

The Wake of Loper Bright

In Loper Bright, the Supreme Court overturned four decades of deference to federal agencies, known as Chevron deference, meaning that a federal court may no longer defer to an agency’s reasonable interpretation of a statute where the law is silent or ambiguous on a provision under the agency’s purview. Instead, the high court said, interpretation of federal law is within the jurisdiction of the federal courts.

Most notably, in the wake of Loper Bright, federal courts have struck down two new U.S. Department of Labor (DOL) rules issued under the Fair Labor Standards Act (FLSA). In November 2024, a federal judge of the U.S. District Court for the Eastern District of Texas vacated the DOL’s “white-collar exemption” rule, finding it exceeded the agency’s authority to “define and delimit” the exemption, and that the agency’s authority was not “unbounded.” That decision came after the U.S. Court of Appeals for the Fifth Circuit in August 2024 invalidated the DOL’s final tip credit rule, finding it contrary to the FLSA.

But Loper Bright is the gift that keeps on giving. States, too, have been left grappling with what impact the decision has on their interpretations of state law. To date, sixteen states, Puerto Rico, and Washington, D.C., have acknowledged Loper Bright, though few states have addressed it head-on.

Some states are bound by existing state law precedent embracing Chevron deference, meaning that courts are bound by existing jurisprudence until such time as a state’s highest court or legislature sets forth a new standard. For its part, in a recent case citing to it, the Court of Appeals of Georgia seemed eager to welcome in Loper Bright. Meanwhile, the Court of Appeals of Indiana recently took a more neutral approach, simply recognizing its precedential reliance on the doctrine of Chevron deference and applying it accordingly until it is changed by the Indiana Supreme Court or legislative enactment. Notably, Indiana’s legislature changed its deference to administrative agencies for any decisions made after June 30, 2024, which appears to align with Loper Bright principles.

A few high courts in states with existing Chevron deference have considered Loper Bright. For example, the Vermont Supreme Court recognized the change brought by Loper Bright but declined to decide the impact on its jurisprudence of the decision by distinguishing the holding from a recent matter before it. On the other hand, the Supreme Court of Hawaii made clear its rejection of both the Supreme Court’s reconsideration of long-standing precedent, generally, and its Loper Bright decision specifically, going so far as to note that “a court’s domain is the law, and judges should recognize the limits of their expertise.”

Not all states have adopted Chevron-like deference to administrative agencies, and thus already operate in accordance with Loper Bright’s analysis. The Michigan Court of Appeals, for example, wrote in a November 2024 decision,

Loper Bright is a federal case dealing with federal law and has no particular relevance to this state-law dispute. Indeed, Michigan has long understood that separation-of-powers concerns imply that courts do not defer to an administrative agency’s interpretation of law.

Other states, such as Colorado, Kentucky, Missouri, and Wisconsin, recognize the decision as additional legal support for their existing state jurisprudence.

Key Takeaways

A Trump administration working to make good on its campaign promises for deregulation and limitations on administrative agencies will likely benefit from the Loper Bright opinion as challenges to agency regulatory interpretation gain new traction in the courts.

Labor and employment law issues that may be vulnerable to attack could include Biden-era DOL child labor violation penalties and heightened investigation tactics, as well as some accommodation concepts and abortion-related provisions in the Pregnant Workers Fairness Act.

In many states, the federal decision in Loper Bright is just catching up to existing jurisprudence. In others, the courts can either wholesale reject Loper Bright or distinguish it from the facts of the cases before them until such time as their legislatures make new laws and policies or the courts (and states) are ready for such change.

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

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Quick Hits

• On December 11, 2024, the Los Angeles City Council approved yearly incremental increases to the minimum wage rate for airport and hotel workers in the city, beginning with an increase to $22.50 per hour on July 1, 2025, until the rate reaches $30.00 per hour on July 1, 2028.
• The City Council also approved an increase in healthcare benefit payments for hotel workers to $8.25 per hour beginning on July 1, 2025, with annual adjustments.

On December 11, 2024, the Los Angeles City Council voted 12-3 in favor of a motion directing the city attorney to prepare legislation to amend the Living Workers Ordinance (LWO) and the Los Angeles Citywide Hotel Worker Minimum Wage Ordinance (HWMO) to institute yearly minimum wage rate increases for airport and hotel workers up to $30.00 per hour on July 1, 2028, just weeks before Los Angeles is set to host the 2028 Summer Olympic and Paralympic Games.

The airport and hotel worker minimum wage hike, commonly called the “Olympic Wage,” comes amid pressure from unions and workers groups to increase wages for workers in the tourism industry.

Minimum Wage Increases

The motion calls for raises to the hourly wage for airport and hotel workers as follows:

• $22.50 per hour on July 1, 2025
• $25.00 per hour on July 1, 2026
• $27.50 per hour on July 1, 2027
• $30.00 per hour on July 1, 2028

The new minimum wages will apply to hotels with sixty or more guest rooms under the HWMO. The motion will also add a “hardship exemption clause” to the LWO for “concessionaires” with fifty or fewer employees at the Los Angeles International Airport (LAX) “under a lease in effect at the time of the passage of the ordinance.” The exemption will be “applicable only to the proposed amendments” and allow businesses to seek a waiver in certain situations to avoid bankruptcy or significant reductions in force—similar to the Los Angeles Hotel Worker Protection Ordinance.

In total, the increases over the next three-and-a-half years are a 56 percent increase for airport workers from the $19.28 minimum wage for airport workers under the LWO and a 48 percent jump for hotel workers from the $20.32 per hour minimum wage rate under the HWMO. The minimum wage rate for other employees in Los Angeles is currently $17.28 per hour.

Healthcare Benefit Payments

The motion further calls for a healthcare benefit payment of $8.35 per hour beginning on July 1, 2025, an increase from the current $5.95 per hour under the LWO. The motion provides that the healthcare benefit payment be “adjusted by the percentage equal to the percentage increase, if any” by state data from the preceding year beginning on July 1, 2026, and occurring annually thereafter.

Civil Action

The motion will allow an employee or an employee’s representative to file a civil action for a violation of the LWO or HWMO after the employee or the employee’s representative has provided written notice to the employer of the alleged violations and the employer does not take action to cure the alleged violations within thirty days of receipt.

Next Steps

The Los Angeles city attorney still must finalize legislation for the minimum wage increases, but it is anticipated that such action will be taken before the first hike on July 1, 2025. Employers at LAX and covered hotels may want to consider steps to begin compliance with the new obligations and review other recent adjustments to minimum wages in California.

The Los Angeles airport and hotel worker minimum wage increase comes after California voters defeated a measure in November 2024 that would have raised the statewide minimum wage to $18.00 per hour. In April 2024, the minimum wage for California fast-food workers increased to $20.00 under the California Food Accountability and Standards Recovery Act (FAST Recovery Act).

Ogletree Deakins will continue to monitor developments and will provide updates on the California Hospitality, Retail, and Wage and Hour blogs.

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Quick Hits

• DHS’s new final rule amends and updates the regulatory definition and criteria governing “specialty occupation” adjudication, codifies existing policies related to deference to prior adjudications, and clarifies circumstances requiring the filing of a new or amended H-1B petition.
• The final rule expands H-1B cap exemption benefits by updating the definitions of “nonprofit research organization” and “governmental research organization,” and it extends the timeline for F-1 cap-gap where there is a timely filed H-1B cap petition.
• The final rule includes provisions related to program integrity, codifying USCIS’s authority to conduct site visits and impose penalties for compliance failures, and it requires employers to establish the availability of bona fide positions as of the requested start date.

According to a press release issued by DHS’s Office of Public Affairs on December 17, 2024, the goals of the final rule are to “modernize[] the H-1B program by streamlining the approvals process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program.”

Modernization and Efficiencies

Amended Definition of ‘Specialty Occupation’

The final rule will update the regulatory definition of “specialty occupation” as follows:

[A]n occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

The rule establishes that a position is not a specialty occupation if “attainment of a general degree, without further specialization, is sufficient to qualify for the position.” This provision differs from DHS’s draft rule in that the draft rule included references to specific degree titles that have been removed, namely to general degrees in business administration or liberal arts. In DHS’s response to public comments on the rule, DHS indicates that the final rule places the burden on the petitioner to demonstrate the required relationship between the degree and the occupation (i.e., that the degree and the occupation are directly related). The final rule provides a definition of the term “directly related,” meaning that there is a logical connection between the required degree and the duties of the position.

The final rule also updates the regulatory criteria used to demonstrate that a position qualifies as a specialty occupation. Specifically, petitions must now demonstrate at least one of the following criteria:

(1) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular occupation;

(2) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is normally required to perform job duties in parallel positions among similar organizations in the employer’s industry in the United States;

(3) The employer, or third party if the beneficiary will be staffed to that third party, normally requires a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, to perform the job duties of the position; or

(4) The specific duties of the proffered position are so specialized, complex, or unique that the knowledge required to perform them is normally associated with the attainment of a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent.

In response to public comments, DHS indicates that meeting one of the criteria is necessary to satisfy the definition of “specialty occupation”; however, meeting only one criterion may not be sufficient to establish H-1B eligibility depending on the facts of the petition.

The final rule defines the term “normally” to mean “conforming to a type, standard, or regular pattern, and is characterized by that which is considered usual, typical, common, or routine.” The final rule clarifies that “normally” does not mean “always.”

Amended Petitions

The final rule codifies current U.S. Citizenship and Immigration Services (USCIS) policy related to worksite changes and the requirement of filing an amended H-1B petition. Namely, if there are material changes in the terms and conditions of employment, including the authorized worksite, the amended H-1B petition must be filed before the material changes take place. This includes material changes in the beneficiary’s worksite.

The final rule clarifies that any change in the worksite location that requires a corresponding labor condition application (LCA) to be certified to USCIS is considered a material change and will require an amended petition to be filed with USCIS before the H-1B worker may begin employment at the new place of employment, unless permitted by H-1B portability provisions.

Provided there are no material changes in the terms and conditions of the H-1B worker’s employment, a petitioner does not need to file an amended or new H-1B petition in the following examples:

• The beneficiary moves to a new job location within the same area of intended employment as listed on the LCA certified to USCIS in support of the current H-1B petition approval;
• The beneficiary is placed at a short-term placement(s) or assignment(s) at any worksite(s) outside of the area of intended employment for a total of thirty days or less in a one-year period, or for a total of sixty days or less in a one-year period where the H-1B beneficiary maintains a permanent worksite, the beneficiary spends a substantial amount of time at the permanent worksite in a one-year period, and the beneficiary’s residence is located in the area of the permanent worksite and not in the area of the short-term worksite(s); or
• An H-1B beneficiary is going to a non-worksite location to participate in employee development, “will be spending little time at any one location,” or when the job is peripatetic in nature, in that the normal duties of the beneficiary’s occupation (rather than the nature of the employer’s business) requires frequent travel (local or non-local) from location to location.

Deference to Prior Adjudications

The final rule, consistent with current guidance in the USCIS Policy Manual, confirms that when a Form I-129, Petition for a Nonimmigrant Worker, involves the same parties and facts, USCIS officers will give deference to its prior determination. However, USCIS officers are not required to give deference to a prior determination if there was a material error involved with a prior approval, there has been a material change in circumstances or eligibility requirements subsequent to the adjudication of the prior petition, or there is new, material information that adversely impacts eligibility for the immigration benefit.

Evidence of Maintenance of Status

The final rule provides that a petition for an amendment or extension of stay must include evidence that the applicant or beneficiary maintained the prior nonimmigrant status before the extension was filed. Such evidence may include but is not limited to copies of paystubs, W-2 forms, quarterly wage reports, tax returns, contracts, and work orders.

Elimination of the H-1B Itinerary Requirement

The final rule will eliminate itinerary requirements for H-1B petitions. Specifically, at the time of filing, a petitioner must establish that it has a bona fide position in a specialty occupation available for the beneficiary as of the start date of the requested validity period. A petitioner is no longer required “to establish specific day-to-day assignments for the entire time requested in the petition.”

Validity Expirations Before Adjudication

The final rule establishes that if USCIS officers adjudicate an H-1B petition after the validity period end date requested in Form I-129, and the petition is otherwise approvable, USCIS may issue a request for evidence (RFE) asking the petitioner if they wish to update the requested dates of employment, which may include submission of a new LCA even if the LCA was certified after the H-1B petition filing date.

Benefits and Flexibilities

Expansion of Eligibility for Cap-Exempt Classification

The final rule expands options for nonprofit and governmental research organizations to petition for cap-exempt beneficiaries. The final rule amends the regulatory language to replace the term “primary” with the term “fundamental” in regard to the role of research in these organizations. This change was made to include nonprofit and government research organizations that conduct research as a fundamental activity but where research may not be the primary mission of the entity.

Additionally, the final rule expands eligibility for cap-exempt employment for a beneficiary not directly employed by the qualifying organization if the beneficiary spends at least half of the time supporting the purpose of the qualifying organization, and includes work arrangements that are hybrid or fully remote.

Cap-Gap Extension

The final rule provides an automatic extension of stay and post-completion optional practical training (OPT) until April 1 of the relevant fiscal year (FY) for which the H-1B petition is requested or until the validity start date of the approved H-1B petition, whichever is earlier.

Program Integrity

H-1B Registration

A large portion of the proposed rule addressing updates to the H-1B cap lottery went into effect on March 4, 2024. The final rule includes additional updates to the cap lottery process, including removing language limiting related entities from submitting multiple H-1B cap registrations for the same individual. In the agency’s codification of the beneficiary-centric process in the March 2024 final rule, and in subsequent data from the FY 2025 cap season, DHS confirmed that the switch to the beneficiary-centric process greatly decreased the number of multiple registrations for the same beneficiary, and the beneficiary-centric process eliminates any unfair advantage previously gained by multiple registrations. DHS concluded that the limitation on multiple registrations by related entities is no longer necessary, and it is excluded from the final rule.

Bona Fide Job Offer for a Specialty Occupation Position

The final rule authorizes USCIS to request contracts, work orders, or similar evidence to show the bona fide nature of the beneficiary’s position and that the position offered meets the definition of a specialty occupation. This language is a change from the initial draft, which proposed to give USCIS authority to request documentation on the terms and conditions of the beneficiary’s work. If the H-1B worker will be staffed to a third party, the requirements of the third party’s role must meet the definition of specialty occupation.

The final rule includes a definition of “U.S. employer” for H-1B purposes. The new definition removes reference to an employer-employee relationship and includes a requirement that the petitioner have extended a bona fide job offer to the H-1B beneficiary to work in the United States. The new definition also requires that the petitioner have a legal presence in the United States and be amenable to service of process in the United States.

H-1B Beneficiary-Owners

The final rule confirms that business owners may petition for themselves for H-1B status when the beneficiary owner has a controlling interest in the petitioning entity, though validity of the initial petition and the first extension will be limited to eighteen months. DHS defines “controlling interest” in the regulations as more than 50percent ownership or the majority voting rights in the petitioning company.

Site Visits

The final rule codifies USCIS’s authority to conduct both in-person and electronic inspections to confirm the validity of the H-1B petition information. The authority includes the right to inspect both the petition and any third-party location at which the beneficiary is placed. USCIS can conduct inspections for petitions at any stage in the filing process, both pending and approved filings. The final rule also confirms that if USCIS is unable to verify the facts contained in the petition, including due to a failure of the petitioner or third-party worksite host to cooperate, USCIS can deny or revoke the petition and any other petitions filed by that employer or at those specific worksites.

Next Steps

DHS will publish the final rule on December 18, 2024, and the rule is expected to become effective thirty days later, on January 17, 2025, only three days prior to the inauguration of the new presidential administration. In its December 17, 2024, press release, DHS indicated that a new edition of the Form I-129 would be required, beginning on the effective date of the rule (January 17, 2025) and with no grace period for accepting prior form editions. It remains to be seen if the new H-1B modernization rule will be subject to challenges from the new administration, either under the Administrative Procedure Act (APA) or via congressional review and rescission pursuant to the Congressional Review Act (CRA).

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

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