FP’s Workplace Law Forecast 2025 Your workplace law recap for 2024 and predictions for 2025 to help you prepare for the coming year.
TABLE OF CONTENTS
As we close out 2024 and look ahead to 2025, one thing is clear: this has been a year like no other. From a groundbreaking Supreme Court ruling to a pivotal election result that will usher in a new administration, employers faced seismic shifts that demanded sharp focus, careful planning, and swift action. Through it all, we were by your side – helping you navigate the challenges, capitalize on opportunities, and keep your business on track.
Intro Wage and Hour
AI, Data, and Analytics Government Relations California Labor Relations Litigation and Trials Privacy and Cyber International Pay Equity Employee Defection and Trade Secrets Workplace Safety Immigration
If there’s one takeaway from this past year, it’s that uncertainty is a constant. But the good news? You can always count on us to provide clarity.
That’s why the FP Forecast report is one of my favorite resources we produce each year. Inside, you’ll find a comprehensive look back at 2024’s biggest developments in workplace law and the practical steps you need to take to adapt. From regulatory upheavals to litigation trends, we’ve summarized the most critical events and shared actionable guidance that goes beyond the obvious – rooted in our deep understanding of your business and your goals. And just as important, we’ve taken a hard look at predicting what 2025 will bring. From the growing influence of AI to the increasingly global reach of business and the rise of international law’s importance, we’re tracking the trends that will shape the year ahead. You’ll also find updates on the ever- evolving privacy landscape – one of the most complex issues businesses face today.
Employee Benefits and Tax PEO Advocacy and Protection Staffing Technology Retail
Education Hospitality Healthcare Workplace Investigations Agriculture Affirmative Action and Federal Contractor Compliance Manufacturing Construction Mexico Auto Dealers Sports
Our goal is simple: to arm you with insights that not only help you react to change but also stay ahead of it.
We hope our FP Forecast report provides the foundation you need to plan for a successful 2025. And as always, our team will be here every step of the way with the sharp thinking and practical advice you’ve come to expect.
Here’s to navigating the future together.
John Polson
Chairman and Managing Partner Fisher Phillips
WAGE AND HOUR
LOOKING AHEAD TO 2025
2024 PREDICTIONS RECAP
Return to Employer-Friendly Rules Now that the Biden administration is coming to an end, we don’t think the incoming Trump administration will pick up the legal battles over the OT rule, and the threshold will remain $35k for now—although we do anticipate that the DOL will take steps to modestly increase the salary threshold (as it did during the first Trump administration). This means employers have some critical decisions to make on how to move forward with compensation plans, particularly since many employers already complied with the now-halted phase one of the rule, which raised the threshold to $44k. We also expect the DOL to drop a Biden-era independent contractor standard and return to the more lenient rule issued during Trump’s first term. You can read more about those rules here. Similarly, we think the DOL will shift back to its pre-Biden, more employer-friendly joint employer standard. More Lawsuits from Business Groups In addition to the Trump administration returning to employer-friendly rules, we expect businesses to continue challenging Biden-era rules that strained operations. Notably, SCOTUS issued its blockbuster ruling in 2024 that overturned the famous Chevron doctrine and held that courts shouldn’t defer to an agency’s interpretation of an ambiguous federal statute. Already, the district court that blocked the overtime rule in November cited to the SCOTUS decision in its ruling. We expect even more litigation in 2025 challenging DOL rules under the new Supreme Court precedent. Support for Federal Minimum Wage Hike Although President-elect Trump criticized the idea of increasing the federal minimum wage as harmful to small businesses during his 2020 campaign, the political winds have shifted a bit since then and his 2024 campaign supported “raising wages.” It would not be surprising to see a push for a slight increase to the $7.25/hour federal minimum wage – but nowhere near the $15/hour rate supported by the Biden administration. Of course, Trump would need the approval of Congress to carry out any federal minimum wage hike, so that must be taken into account. Uptick in State and Local Activity We predict that the federal government will ease its enforcement efforts in 2025. On the flipside, we expect to see more activity at the state and local level. As employers continue to face costly wage and hour actions, you should note that state and local requirements can vary significantly — which makes it critical to stay informed about workplace trends in the locations where you operate.
Court Halts Federal Overtime Rule Nationwide
Focus on Child Labor Laws
We also correctly predicted a heightened focus at the federal and state level on child labor laws, since the DOL reported a 70% increase in the number of children illegally employed by companies in recent years. Although Florida relaxed work restrictions for older teens in July, other states, including California and Illinois, took steps to encourage compliance with child labor laws and fill in gaps in existing law, respectively. During the Trump administration, the DOL issued a joint employer rule that briefly created a more business- friendly standard by making it harder for employees to prove joint employment for wage and hour purposes. Biden’s DOL formally rescinded the rule in 2021 – and while we expected the Department to issue an update in 2024, a new rule was never proposed. No FLSA Joint Employer Updates
Last year, we predicted that the Biden DOL would move swiftly to finalize a higher exempt salary threshold for the FLSA’s so-called “white collar” overtime exemptions. We also anticipated that certain states and employer advocates would challenge the rule in business-friendly jurisdictions like Texas and Florida. We were right. In November, a federal judge in Texas blocked the rule nationwide, holding that the DOL exceeded its authority by raising the threshold too high (in two phases from $35K to $44k and then $59K) and allowing for automatic adjustments every three years. We knew the DOL would continue to partner with other agencies in 2024, particularly regarding investigations and data sharing. Indeed, in August, NLRB General Counsel Jennifer Abruzzo signed a Memorandum of Understanding (MOU) with the DOJ Antitrust Division, the DOL, and the FTC “to strengthen worker protections and fair competition by collaborating on labor issues in antitrust merger investigations.” The agencies have agreed to similar partnerships over the past few years – but we do expect the incoming administration to focus less on investigations and enforcement and more on employer education and community outreach. More Agency Partnerships
We got the predictions MOSTLY RIGHT HOW’D WE DO ON OUR PREDICTIONS?
Kathleen McLeod Caminiti
J. Hagood Tighe
New Jersey/New York Partner and Co-Chair, Wage and Hour Practice Group kcaminiti@fisherphillips.com
Columbia Partner and Co-Chair, Wage and Hour Practice Group htighe@fisherphillips.com
BACK TO HOME
AI, DATA & ANALYTICS
LOOKING AHEAD TO 2025
2024 RECAP
Government and AI
Colorado and Illinois Become First States to Take AI Legislative Plunge
• Trump will revoke Biden’s AI Executive Order by February, and his agency heads will follow suit to rescind current guidance. Some will be replaced with broad, industry-friendly guidelines, others will simply be deleted. And we won’t see any big AI legislation from Congress. • California or New York is going to pass something big. Expect disclosure and opt-out requirements for workers and applicants. We’ll soon see a patchwork of state laws with different approaches for addressing AI bias and other AI legal issues. • Someone new to D.C. is going to get wrapped up in an AI-related scandal. Get your bingo boards ready! In Your Workplace • AI Governance will become all-but-mandatory. It will allow companies to adopt AI with guardrails to help mitigate liability and risk issues. • AI will become an integral part of managing safety in industrial workplaces. It will be used more frequently to predict and intervene to prevent workplace injuries. • Schrödinger’s AI will have job seekers favoring pro-AI employers that show off their productivity suite in job postings, while objecting to any AI being used to grade their applications. At Your Desk • You’re going to open Microsoft Word one day in 2025 and be greeted by your new in-document AI Drafting Assistant. Will it be Clippy 2.0? Or something more useful? • Autonomous AI Agents will take things to the next level. Going on a trip? AI will not only create a perfect itinerary but make the reservations for you. It will also help employers automate administrative work so employees can focus more on higher skills tasks. • Will AI become your new best friend? In 2025, we will see AI being marketed as not only a business tool but a personal friend. Open AI has already warned that users may become emotionally connected to its advanced voice mode. Other LLMs will follow that lead. Will AI also become your life coach and therapist?
In May, Colorado became the first state that will soon require employers to take steps to ensure AI doesn’t discriminate against their workers, including mandatory notifications and impact assessments. Illinois followed with a similar law in September. Meanwhile, both California and New York saw similar efforts fail in 2024, while multiple AI bills failed in Congress this past year – including a notification/opt-out proposal buried in a data privacy bill. D.C. Provided Guidance to Employers While we didn’t see any definitive AI law or significant regulation come to pass from D.C. in 2024, we did get some guidance that could help create a series of best practices for businesses. A bipartisan group of Senate leaders unveiled a long-awaited AI roadmap in May, while the Department of Labor provided 10 steps employers can take to avoid AI discrimination during the hiring process in September. And then the CFPB reminded employers and vendors in October that they have FCRA obligations when it comes to use of workplace-related AI tools.
SAVE THE DATE
AI ADVANTAGE: An FP Conference for Business Leaders July 23-25, 2025
The Willard Intercontinental, Washington, D.C. The third annual conference promises to be our best yet, blending practical guidance with cutting-edge lessons about how to gain a competitive advantage through AI.
The Wave of Workplace AI Litigation Has Begun
2024 was the year that cracks in the dam began to show when it comes to claims involving the use of workplace AI. The ACLU filed claims with the EEOC and the FTC in May over AI-fueled personality assessment tests, video interview tools, and cognitive ability assessment screening devices. And a California federal court gave the green light in July to a discrimination lawsuit against an AI- based vendor after more than 100 employers that use the vendor’s screening tools rejected an older disabled Black applicant.
David J. Walton, CIPP/US
Erica G. Wilson
Philadelphia Partner and Chair, Artificial Intelligence Team dwalton@fisherphillips.com
Pittsburgh Associate and Vice Chair, Artificial Intelligence Team ewilson@fisherphillips.com
BACK TO HOME
CALIFORNIA
GOVERNMENT RELATIONS
California Will Revive Its Role as the Leader of the “Trump Resistance” California will lead the blue states resisting changes by the incoming Trump administration, in line with Gov. Newsom’s November 6 proclamation. Most of the substantive labor protections in California are already stronger than federal law, but California will attempt to push the legal envelope into areas of federal control – such as protecting immigrant workers and finding ways to make it easier for employees to unionize. California Will Enact the Nation’s Strongest AI Employment Regulation While a bill aimed specifically at the use of AI in employment (AB 2930) did not make the cut this year, it will certainly be back in 2025. Moreover, two different state agencies (the California Civil Rights Department and the California Privacy Protection Agency) are moving forward with ground-breaking initiatives (like these) regarding the use of AI in employment. Either by legislation or regulation, California will join and likely surpass other jurisdictions that have recently enacted their own requirements in the absence of comprehensive federal regulation. California Will Further Explore Industry-Specific Regulation Labor advocates succeeded in California this year with the creation of a Fast Food Council, a fast-food specific minimum wage, and a healthcare minimum wage. In a tough environment for union organizing (which may be made even tougher under a second Trump administration), labor advocates will look to explore other creative ways to legislate specific working standards for other industries. LOOKING AHEAD TO 2025
2024 IN REVIEW
Trump Shocks Businesses with Labor Department Leader Nomination Of all the surprising things that President-elect Trump has done since Election Day, employers might include the selection of Lori Chavez-DeRemer as his Secretary of Labor nominee at the top of the list. After all, this one- term House member made news this past year when she was one of only three Republicans to back the union-friendly PRO Act. We still believe she’ll largely carry out most of the employer-friendly initiatives you’d expect from a Trump appointment, though. Read all about what employers can expect here. Republican Trifecta Won’t Lead to As Many Congressional Gains As You’d Think Republicans captured back the White House and the Senate and retained a House majority – but don’t expect to see a cavalcade of conservative wish list items passed in Congress over the next two years. The Rs hold an insanely narrow majority in the House, meaning that ambitious plans can easily get derailed by upstart conservatives or moderate centrists. And John Thune’s (R-SD) tenure as Senate Majority Leader will be similar to Mitch McConnell’s – especially with several moderate Senators (namely Susan Collins (R-ME) and Lisa Murkowski (R-AK)) remaining in the chamber, joined by John Curtis (R-UT) – perhaps frustrating those who wish to plow forward with drastic policies and norm-busting sentiments. But a Few Interesting Weapons at Their Disposal That’s not to say we’ll see a toothless Congress in the next term. The party will band together to pass a fair number of business-friendly initiatives. At their disposal? The Budget Reconciliation process, an expedited way to pass legislation dealing with spending, and the Congressional Review Act, a tactic to snuff out some of the more hard-to-swallow Biden-era regulations. SCOTUS Power Solidified For Years to Come Another development to watch unfold in 2025 (or 2026) – the expected retirement of at least one conservative Justice on the U.S. Supreme Court. We expect to see Clarence Thomas (age 76) or maybe even Samuel Alito (age 74) decide to hang up his robe while the Senate remains in Republican control. If President Trump follows his first-term playbook and selects a replacement in their 50s, we could see a conservative SCOTUS for at least the next decade.
PAGA Reformed by Lawmakers and Limited by Courts: Employers Just Kept Winning A groundbreaking law enacted on July 1 (and effective the same day) overhauled California’s Private Attorneys General Act, offering much- needed relief to employers. A victory lap followed, as state courts issued decisions that limit the powers of additional non-party plaintiffs in PAGA actions, clarify public entities’ exemption from PAGA penalties, and bar PAGA representative claims after an employer prevails in arbitration. More employers were served a win in September, thanks to an extension of a PAGA exemption for certain construction employers. But California Employers Raced to Keep Up with New Workplace Laws Many new workplace laws took effect this year, requiring covered employers to develop a workplace violence prevention program, comply with a new heat illness standard for indoor work areas, and expand paid sick leave policies. In addition, Governor Newsom signed off on a wide range of new workplace laws this year that will take effect January 1, such as a ban on “captive audience” meetings, an expansion of victim-of-violence leave, rules against driver’s license discrimination, and new protections for freelance workers. Notably, California voters just rejected a ballot measure wage hike – meaning that the state’s non-industry-specific hourly minimum wage will In February, a California appeals court gave state privacy officials the green light to begin enforcing new regulations governing the state’s cornerstone data privacy law (and the state’s Supreme Court denied an appeal from the coalition of business groups). The California Privacy Protection Agency also issued its first Enforcement Advisories this year, including one in April on data minimization requirements and another one in September on the importance of avoiding “dark patterns” on websites. The CPPA has big plans for 2025, as you’ll see in our predictions. Lofty Efforts to Regulate Artificial Intelligence Fell Short While California lawmakers considered more than 30 AI-related bills this year, a groundbreaking AI discrimination bill failed to pass, Governor Newsom vetoed a controversial AI safety bill, and only a few AI bills were actually signed into law (including two new AI “digital replica” laws that could play a crucial role in resolving a drawn-out labor dispute between video game actors and developers). But the state is just getting started – so check out our predictions. rise to “only” $16.50 rather than $18 in 2025. Data Privacy Took the Spotlight
FP ADVOCACY IS HERE TO HELP Your organization needs a voice in the halls of power - both in D.C. and in your statehouse - now more than ever. FP Advocacy provides premier legislative and regulatory advocacy services to businesses across the country. With decades of insider experience in the political process and comprehensive knowledge of workplace law, we provide unparalleled access to key players and stakeholders – and a proven track record of accomplishment.
Benjamin M. Ebbink
Rick Grimaldi
Sacramento/Washington, D.C. Partner and Co-Chair, Government Relations Practice Group bebbink@fisherphillips.com
Philadelphia/Washington, D.C./New Jersey/Cleveland Partner and Co-Chair, Government Relations Practice Group rgrimaldi@fisherphillips.com
Braden Lawes
Benjamin M. Ebbink
Washington, D.C. Senior Government Affairs Analyst blawes@fisherphillips.com
Sacramento/Washington, D.C. Partner bebbink@fisherphillips.com
BACK TO HOME
LABOR RELATIONS
LOOKING AHEAD TO 2025
MORE OF 2024 IN REVIEW
2024 PREDICTIONS RECAP
The Agency’s Outsized Power Persisted in Many Ways
The new union representation process installed by the Board last year unsurprisingly led to an astronomical increase in election petitions filed in the first half of FY 2024. The Board’s General Counsel continued to push an ambitious policy agenda, including by issuing new guidance banning most non-compete agreements, cracking down on “stay-or-pay” provisions, and imposing heavy burdens on employers responding to union recognition demands. And the NLRB issued a final rule that makes it harder for workers to undo union representation, as well as a groundbreaking decision restricting employer communications about unionization. SCOTUS Ruled Against the NLRB The Supreme Court sided with Starbucks in June by holding that a lower court should have applied a more stringent standard when evaluating the Board’s request for temporarily reinstating workers – who were fired for hosting media interviews after-hours in a closed store in violation of company policy – while an unfair labor practice claim played out in court. More States Banned Captive Audience Meetings Captive audience bans continued trending at the state level, as California, Hawaii, Illinois, Vermont, and Washington enacted captive audience bans (and Alaska voters approved a ballot measure to adopt one). But legal challenges to these bans are popping up across the country. HOW’D WE DO ON OUR PREDICTIONS?
The Labor Relations Arena Will Return to a Level Playing Field Between the end of Chevron and the incoming Trump administration, we will see balance restored when it comes to federal labor law policy. Employers will have not only a new powerful tool to fight back against regulatory overreach under Loper Bright (perhaps paving the way for a lower threshold to challenge the Board’s ever-expanding interpretation of “protected concerted activity,” as well as decisions impacting both unionized and non-unionized employers) but also more leeway over the next four years under the Trump administration. A New NLRB General Counsel Will Undo Much of the Current GC’s Efforts We expect Donald Trump to jettison Jennifer Abruzzo as one of his first acts as President and appoint a new NLRB General Counsel who may work to undo much of the policy that GC Abruzzo pushed this year and in past years (such as directing agency investigators to target workplace surveillance and other electronic monitoring). Over Time, New Board Leaders Will Chip Away at the Biden Board’s Gains Once Republicans take control of the Board, we will see decisions such as Cemex , McLaren , Stericycle , and Thryv overturned. We’ll also see a recission of the “quickie” election rule and a return to more equitable decertification procedures.
SCOTUS Ended So-Called “ Chevron Deference”
The Supreme Court stripped power from federal agencies – including the National Labor Relations Board – by overturning the decades-old Chevron doctrine in June, just as we predicted. The landmark Loper Bright ruling replaces deference to an agency’s “reasonable” interpretation of ambiguous regulatory provisions with the court’s independent judgment. The Joint Employer Rule Died Again … As we predicted, employer advocacy organizations continued efforts to block the NLRB’s controversial joint employer rule, which would have resulted in increased union organizing efforts with related companies. Thanks to those efforts, a federal court struck down the rule in March just days before it was set to take effect. The Labor Board appealed the decision but dropped that fight soon after SCOTUS issued Loper Bright . Keep in mind that the Board’s definition of “joint employment” has flip-flopped several times throughout the past decade, and that the agency could soon try to shift the landscape through agency decisions. Ex-Cell-O-Corp. Remained Intact – But Captive Audience Meetings Did Not In a welcome surprise, labor officials did not expand remedies for unfair labor practices concerning failure to bargain, despite years of pushing for the reversal of the NLRB’s Ex-Cell-O Corp. decision. Even better? The Supreme Court issued a decision in June that undermines the Board’s ability to impose financial penalties on employers. However, the Board did endorse its General Counsel’s position on mandatory meetings discussing union matters and in November banned these “captive audience” meetings as unlawful interference with employees’ right to organize.
Steven M. Bernstein
Todd A. Lyon Portland/Los Angeles/San Francisco/Seattle Partner and Labor Relations Group Co-Chair tlyon@fisherphillips.com
We got the predictions MOSTLY RIGHT
Tampa Regional Managing Partner and Labor Relations Group Co-Chair sbernstein@fisherphillips.com
Joshua D. Nadreau
Boston Regional Managing Partner and Vice Chair, Labor Relations Group jnadreau@fisherphillips.com
BACK TO HOME
LITIGATION AND TRIALS
LOOKING AHEAD TO 2025
SCOTUS Watch The Supreme Court’s 2024-2025 term is well underway, and we’re watching several cases that will likely impact the workplace. Here’s what we’re predicting after tuning in to oral arguments in a few cases: Justices Will Reject Higher Standard of Proof in OT Exemption Cases • What evidence does an employer need to show a court to prove it correctly classified employees as exempt from minimum wage and overtime pay? The Supreme Court heard oral arguments in November in a case raising this question – and the Justices seem poised to agree with the employer that an unusually high “clear and convincing” evidence standard does not apply to federal wage law. Employers will want to pay close attention to E.M.D. Sales Inc. v. Carrera as the decision will impact your litigation strategy. It will also have practical implications when determining whether to classify your employees as exempt or non-exempt. No RICO Claim for Driver Who Failed Drug Test • A commercial truck driver who lost his job after failing a drug test wants to hold cannabis product makers liable under a federal racketeering law. The driver claims the product he used was advertised as THC-free, but he says it actually contained the psychoactive component of cannabis. Notably, these claims are generally brought under state law, and based on oral arguments in October, we think the Justices will say his federal racketeering claim is a stretch. Businesses in the cannabis industry will want to pay close attention to this case and employers in general may also be curious about how a SCOTUS ruling in Medical Marijuana, Inc. v. Horn will impact evolving cannabis laws. SCOTUS Will Make It Harder for Plaintiffs to Recover Attorney’s Fees • The Justices will soon decide whether obtaining a preliminary injunction is sufficient to qualify as a “prevailing party” to recover attorney’s fees in certain civil rights actions. After hearing oral arguments in October, we predict the Court will rule that obtaining a preliminary injunction, without a final determination from the court, is insufficient. While Lackey v. Stinnie is not a workplace case, it could impact the ability of employers to recover fees when challenging a state regulation, or how courts view other workplace laws, like civil rights or wage and hour laws, that grant attorney’s fees to prevailing plaintiffs. More Cases to Track We’re also following additional SCOTUS cases involving Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, arbitration, and more. Make sure you’re subscribed to Fisher Phillips’ Insight Systems so you don’t miss out.
2024 PREDICTIONS RECAP
SCOTUS Shakes Things Up The Supreme Court issued several momentous decisions last term that will have a lasting impact on employer practices. The Justices continued to shape the workplace law landscape by ruling on an array of issues involving federal agency power, labor relations, arbitration, and employment discrimination. Most significantly, as we predicted, SCOTUS overturned the decades-old Chevron doctrine, which required courts to defer to a federal agency’s position on the law when a statute is open to interpretation. The Court tossed out that standard in favor of judicial interpretation, enabling courts to strike down agency rules much more easily and giving employers a powerful tool to fight back against regulatory overreach. Uptick in “Nuclear” Jury Verdicts Employers have increasingly been on the receiving end of massive verdicts from so-called runaway juries in recent years, and we knew this trend would continue. A groundbreaking study from the U.S. Chamber of Commerce revealed that the jump in eight-figure jury verdicts over the past decade had far outpaced inflation, and record-breaking numbers continue to be reached year after year for workplace trials. In July, for example, a group of nursing facilities was ordered to pay a whopping $36 million in an overtime pay action. Employers need to take compliance more seriously than ever given the risk of massive damage awards.
MORE OF 2024 IN REVIEW
Feds File First Lawsuit Under Pregnant Workers Fairness Act The EEOC filed a lawsuit in September against an employer for allegedly failing to accommodate an employee’s known pregnancy-related limitations. This was the first-ever lawsuit filed under the Pregnant Workers Fairness Act (PWFA), prompting many employers to take a closer look at their compliance plans.
HOW’D WE DO ON OUR PREDICTIONS?
AI Reshapes Litigation
We knew Generative AI would have a huge impact on many aspects of work in 2024, including litigation. Beyond legal research, document review and drafting, and summarizing large amounts of data, AI technology continues to revolutionize the way litigators perform in and out of the courtroom. But you should be sure to have checks and balances in place. The only way to ensure that the AI you use aligns with your business goals, complies with regulations, and operates ethically is through “AI governance.”
We got the predictions RIGHT
Todd Alan Ewan
Karl R. Lindegren
Partner and Co-Chair Litigation Practice Group Philadelphia/Pittsburgh tewan@fisherphillips.com
Partner and Co-Chair California Litigation Practice Group Irvine/Los Angeles/Portland klindegren@fisherphillips.com
Suzanne Kelly Michael
Kristen J. Nesbit
Partner and Co-Chair Litigation Practice Group Seattle/Portland smichael@fisherphillips.com
Co-Regional Managing Partner and Co-Chair California Litigation Practice Group Los Angeles knesbit@fisherphillips.com
BACK TO HOME
PRIVACY AND CYBER
LOOKING AHEAD TO 2025
We’ll See a Skimpy Federal Privacy Law – and State-Led Litigation
2024 PREDICTIONS RECAP
With Republicans in control of Congress, and the Trump administration’s stated goal of reducing federal oversight, we’ll see a renewed push for a federal privacy law. But the aim of this legislation will be largely to supersede the patchwork of state laws on the books and reduce the perceived administrative burden of compliance (particularly for broad laws like California’s). It won’t touch on employment- related data and it won’t include a private right of action. We’ll then see blue states filing suit to maintain their own comprehensive laws in order to retain as much power as possible. State Laws Will Continue to Proliferate This federal privacy bill will not be one of the first matters addressed by the incoming administration and Congress, leaving a period of time in which state-specific consumer laws will continue to proliferate. Additionally, any federal privacy law will likely not replace laws relating to biometric privacy, facial recognition, geolocation tracking, employee monitoring, and other issues that are often the subject of state or locality-specific laws. We will continue to see new developments in these areas across the country. Plaintiffs Will Continue to Get Creative The ongoing trend of wiretapping and related claims filed against businesses that use third-party cookies, pixels, and other tracking technology will continue. While we hope to see more rulings like the recent court decision in Massachusetts that said third-party website tracking software does not violate the state’s wiretap act, it’s also possible that we will see more courts follow the lead set by the 9th Circuit in a May 2022 decision that originally opened the floodgates for decades-old wiretapping laws to apply to modern technology. Either way, we expect to see more decisions in 2025 addressing the issue of the application of state wiretapping laws to the use of tracking technologies. We’ll see those decisions concentrated in two-party consent states (such as Illinois and Pennsylvania), which have seen a spike in wiretapping litigation in recent years.
More States Passed Consumer Privacy Laws We predicted that 2024 would see a rise in the number of states that would pass consumer privacy laws. Sure enough, we saw a big jump from 13 to 20 states. This past year saw new laws take effect in Texas, Florida, Montana, and Oregon, while 2025 will see laws come online in Maryland, New Jersey, Delaware, Iowa, Minnesota, New Hampshire, Nebraska, and Tennessee – not to mention those taking effect in 2026 (Kentucky, Indiana, and Rhode Island). Congress Did Not Pass a Federal Privacy Law Even though a bipartisan group of federal lawmakers unveiled a sweeping proposal that would enact the nation’s first data privacy law in April, we predicted that no such law would come close to passing this year. And we were right. Disagreements over whether and to what extent state laws should be preempted and whether consumers should have a private right of action doomed the bill before it gained any serious traction. Cybersecurity Took Center Stage We predicted that ransomware and other cyberattacks would continue to plague businesses in 2024, with vendors becoming a favorite target. Sadly, we were right. The Snowflake attack became one of the largest data breaches of all time in May. A finance company lost more than $25 million to a deepfake scammer in January. And perhaps most troubling? A prominent cybersecurity training company got fooled itself when it hired a remote worker in July who turned out to be a North Korean cybercriminal who used AI deepfake tools to infiltrate the organization.
MORE OF 2024 IN REVIEW
Consumer Privacy Couldn’t Be Ignored No longer could businesses ignore the concept of consumer privacy. The new slate of consumer-friendly state laws, the expansion of such laws across state lines, and expanded data collection and transparency obligations meant that this needed to be front and center for all businesses in 2024. The last year also saw an astronomical increase in lawsuits filed against businesses that host third-party cookies, pixels, and other tracking technology on their websites, not to mention a $16.5M FTC fine against a company in June for unfairly collecting, storing, and selling consumers’ browsing information without adequate consent or notice.
HOW’D WE DO ON OUR PREDICTIONS?
We got the predictions RIGHT
INTRODUCING THE FP U.S. CONSUMER PRIVACY HUB The lack of a comprehensive federal privacy law has led to a diverse landscape of state privacy laws that often confuse the businesses trying to keep up. Each has their own set of requirements, definitions, protections, and enforcement mechanisms. The FP U.S. Privacy Hub provides businesses with an overview of the current state privacy laws, highlighting key similarities and differences while exploring their implications.
Usama Kahf, CIPP/US
Risa Boerner, CIPP/US, CIPM
BACK TO HOME
Irvine Partner and Co-Chair, Privacy and Cyber Group ukahf@fisherphillips.com
Philadelphia Partner and Co-Chair, Privacy and Cyber Group rboerner@fisherphillips.com
LOOKING AHEAD TO 2025
INTERNATIONAL
2024 PREDICTIONS RECAP
More AI Transparency for HR and Hiring Tools AI’s role in employment — especially in hiring, performance management, and data analytics — is likely to see strict oversight in several countries. The EU’s AI Act will likely inspire similar legislation elsewhere, with mandatory disclosures when AI is used for workplace decision-making. Companies may need to give employees the right to opt out of AI-driven processes, especially when it impacts career progression or compensation. Key focal points will be transparency in algorithms and avoiding hiring discrimination. The Rise of “Right to Disconnect” Laws While the “right to disconnect” has gained traction in the EU, we expect other regions to implement similar regulations, especially in Asia and the Americas. These laws will likely cover work-from-home policies, limiting after-hours communication, and regulating response times. Countries like Japan and South Korea, where burnout is a significant concern, may lead Asia in introducing such protections. Enhanced Pay Equity and Transparency Rules Pay equity efforts have already seen significant momentum in the EU and UK — and 2025 will likely bring a surge in similar laws globally. This could extend to mandatory salary range disclosures for job postings, detailed internal audits on pay discrepancies, and stricter enforcement mechanisms — and large multinational companies may need to ultimately disclose gender pay gaps. Additionally, pay transparency could be expanded to include a range of demographics, not just gender. Prioritizing Employee Well-Being and Mental Health Employee well-being, including mental health, will move from being a perk to a mandated corporate responsibility in many countries. Regulatory bodies may implement metrics for psychosocial risks in the workplace, and mental health protections could be built into workplace standards. Many governments, notably in Europe and North America, could implement guidelines requiring employers to take measurable steps to support employee mental health. New Regs on Short-Term “Digital Nomad” Employment The popularity of digital nomad visas will prompt new laws distinguishing between traditional employment and short-term, location-flexible work arrangements. Countries will likely create specific digital nomad legislation that include labor, benefits, and tax obligations. This could lead to a global patchwork of regulations, making it more complex for companies to manage and hire digital nomads.
Major Focus on Data Privacy
MORE OF 2024 IN REVIEW
As we predicted, multinational businesses grappled with new data privacy laws, regulations, and rulings in 2024. For example, new rules took effect in Brazil regulating international data transfers, and Brazil’s Superior Court of Justice recently offered helpful data privacy guidance. Understanding and navigating data privacy laws in every jurisdiction in which you operate has become more important than ever, which Dutch officials made clear by imposing a staggering penalty on Uber. Additionally, companies doing business in Mexico will want to keep updated on the country’s comprehensive data privacy framework.
Massive Award Granted in International Trade Secrets Dispute A recent federal appeals court ruling applied a U.S. trade secrets law to sales outside the country, finding that Motorola was entitled to $407 million in damages from a foreign competitor for trade secrets misappropriation. For businesses with an international workforce, this is likely a welcome development. The Defend Trade Secrets Act (DTSA) provides robust protections for employers, and now there is strong precedent for how it can be used to punish foreign acts. However the ruling also comes with a few cautions. Vietnam Took Steps Toward Major Overhaul of Trade Union System As global manufacturers pivot away from China and set their sights on Vietnam, the country’s labor and employment landscape is rapidly changing. This surge in demand from Europe and the U.S. has not only sparked economic growth, but also amplified pressure on Vietnam to modernize labor standards and safeguard workers’ rights.
Increased Use of PEOs and Employers of Record
To keep up with business needs and hire an ever more global workforce, we predicted more companies would turn to professional employer organizations (PEOs) and employers of record (EORs) in foreign countries where they have a relatively small workforce – and we were right. Click here for an example regarding temporary employment and professional employer organizations (PEOs) in Germany.
HOW’D WE DO ON OUR PREDICTIONS? We got the predictions RIGHT
UK Introduced Landmark New Employment Rights Bill
The bill aims to end unfair employment practices and help deliver economic growth. According to the United Kingdom’s Prime Minister’s Office, this is set to be the biggest upgrade to worker’s rights in a generation.
Nan Sato, CIPP/E, CIPP/C
William D. Wright
BACK TO HOME
Partner and Co-Chair, International Practice Group Philadelphia/New York nsato@fisherphillips.com
Partner and Co-Chair, International Practice Group Philadelphia/Washington, D.C. wwright@fisherphillips.com
PAY EQUITY
LOOKING AHEAD TO 2025
$
2024 PREDICTIONS RECAP
Trump Administration Won’t Pursue Pay Equity Initiatives We expect the incoming Trump administration not to pursue new pay equity initiatives – or even block them altogether. As mentioned, in 2017, the Trump administration dropped the revised EEO-1 report that the Biden EEOC is now seeking to revive. Trump officials cited concerns that the move to collect pay data lacked practical utility, would be unnecessarily burdensome, and failed to adequately address privacy and confidentiality issues. It seems unlikely that his position would have changed on this proposal, especially given the trend against expansion of agency power we have seen take root in the past year. States Will Step Up Their Game As you know, pay transparency was a hot topic in 2024 with lots of movement at the state level. We expect the momentum to continue in 2025. We predict that even more states will pass laws requiring employers to disclose salary ranges in job listings, among other related requirements. These laws affect all aspects of workplace relationships – including hiring, recruitment, and retention efforts; supervision and leadership; and compensation and benefits. So, you should be sure to track developments in the locations where you operate. Pay Data Reporting Will Be Required in More Cities and States We expect New York City to finalize its pay data reporting bill – and we also think more cities and states will mandate pay data reporting in response to the federal government shifting focus away from these initiatives. Rise in Pay Equity Litigation Failure to comply with state pay transparency laws has begun to spawn costly litigation across the country. As states become more active in passing and enforcing pay transparency laws, we expect to see a major surge in litigation over these rules. Thus, you’ll want to work with legal counsel to create a compliance plan and review your policies to ensure they are up to date.
More States Join the Pay Transparency Trend We were right that more states would enact pay transparency requirements in 2024. Indeed, we saw a flurry of activity as New Jersey, Massachusetts, Vermont, Minnesota, and Maryland joined the trend. Illinois also has a pay transparency law that will take effect in the new year. These laws highlight the importance for multistate employers to develop uniform pay disclosures for job postings and advertisements. Many employers have also worked with legal counsel to conduct a privileged pay audit, and you may want to consider doing the same. EEO-1 Reporting Changes Annual EEO-1 reporting is required for nearly all employers with 100 or more employees and for many federal contractors or subcontractors with at least 50 employees. We expected the Biden administration to make some key changes to reporting requirements in 2024, and while they pushed for changes, many of these changes haven’t been finalized. For example: • Race/Ethnicity Categories: As we predicted, in March the federal government changed how it categorizes people by race and ethnicity for the first time in over 25 years. The goal is for agencies like the EEOC and OFCCP to more accurately collect and report data. Notably, however, federal agencies were given 18 months to submit a compliance plan – so we’re still waiting for the EEOC and OFCCP to adopt these changes. • Pay Data Reporting: According to a regulatory agenda released in July, the EEOC is seeking to revive Component 2 pay data collection as part of the annual EEO-1 submission, which is highly contested by the employer community. Covered employers had to briefly submit this compensation information a few years ago after a contentious legal battle on the issue, but the Trump administration dropped the requirement to report pay data. We accurately predicted that the Biden administration would aim to pick this up again, but we expect the Trump administration to abandon the effort.
MORE OF 2024 IN REVIEW
NYC Poised to Have Most Stringent Pay Data Reporting in Nation A bill proposed in the New York City Council in July would amplify pay equity and transparency efforts by requiring employers with 25 or more employees who work within the five boroughs to comply with stringent pay and demographic data reporting rules. The State of New York requires that employers ensure equal pay for equal or substantially similar work and prohibits wage discrimination based on many protected categories, and both the State and New York City have recently implemented pay transparency laws requiring certain wage disclosures on job postings. But this NYC law would take the goal of pay equity to the next level.
HOW’D WE DO ON OUR PREDICTIONS?
We got the predictions MOSTLY RIGHT
Kathleen McLeod Caminiti
Lonnie D. Giamela
New Jersey/New York Partner and Co-Chair, Pay Equity Practice Group kcaminiti@fisherphillips.com
Los Angeles/Irvine Partner and Co-Chair, Pay Equity Practice Group lgiamela@fisherphillips.com
BACK TO HOME
EMPLOYEE DEFECTION AND TRADE SECRETS
LOOKING AHEAD TO 2025
Feds Will Be Less Interested in Regulating Non-Competes This is a fairly obvious prediction, but it needs to be emphasized. The Trump administration will quickly replace the NLRB GC, meaning her aggressive positions against non-competes and stay-or-pay provisions will be jettisoned by the end of January. Similarly, we’ll likely see new leadership at the FTC and the Department of Justice, so the efforts to ban non-competes on a federal level will die in the courthouse in the first quarter of 2025. Blue States Will Take Up the Fight Against Non-Competes But all that doesn’t mean your business is free and clear to do what it wishes. The last few years have seen an expansion of restrictions against non-competition agreements in traditionally progressive states (such as Colorado, Illinois, Massachusetts, Minnesota, Oregon, Virginia, and Washington), and we expect the pace to pick up in 2025. State lawmakers and governors in blue states will team up to respond to the Trump administration’s efforts to free up restrictive covenants, and we expect more of them will pass laws banning or limiting the use of non-compete restrictions. Be on the lookout in Delaware, Maryland, New Mexico, New York, Vermont, and Rhode Island, all of which seem likely to move in this direction. Additionally, attorneys general in the aforementioned states might get into the picture by bringing claims that certain types of restrictive covenants (such as those in the franchise context) constitute unfair competition. More Overlap Between Trade Secrets and Data Privacy Law States are passing an increasing number of data protection laws, which means the scope of employee access to sensitive information is also increasing. 2025 will see more situations where an employee who steals information in the final days of employment is going to (unwittingly) implicate data privacy laws as well as trade secret protection statutes. This is something that both plaintiffs and defendants will need to keep in mind. HAVE YOU MET BLUE PENCIL BOX? To stay up to speed on changes that will crop up in states across the country in 2025, check out one of FP’s latest offerings – Blue Pencil Box. This comprehensive resource not only provides detailed daily summaries of cases and laws involving non-competes and other restrictive covenants, but also maintains a comprehensive database and customizable checklists to help you comply.
2024 RECAP
Non-Compete Ban Struck Down The news that dominated 2024 was celebrated by many employers across the country: a Texas federal court struck down the FTC’s proposed non-compete ban mere weeks before it was set to take effect in September. Even though the FTC has several appeals pending in an effort to resurrect the rule, we anticipate the incoming administration will drop these efforts and cast the non-compete ban into the dustbin once and for all in 2025.
NLRB’s GC Doubled Down on Restrictive Covenant Attacks
The court setback described above didn’t stop the NLRB’s General Counsel from continuing her assault on restrictive covenants. Following her 2023 move to label just about all non-compete agreements as running afoul of the NLRA, GC Jennifer Abruzzo followed up in October by issuing a memo saying that many “stay- or-pay” provisions – agreements where workers are asked to repay their employer if they separate from employment – also violate federal law. But we also anticipate this memo to be swept aside shortly after the new administration takes office and most likely fires Abruzzo. Massive Court Award Demonstrates Reach of Trade Secrets Law Beyond Borders A federal appeals court applied U.S. trade secrets law to sales outside the country in a stunning July ruling, finding that Motorola was entitled to $407 million in damages from a foreign competitor for trade secrets misappropriation. A China-based company admitted to poaching key engineers who stole trade secrets and used them to develop a line of two-way radios identical to Motorola’s products. The 7th U.S. Circuit Court of Appeals concluded that Motorola was entitled to recover the competitor’s foreign profits from the misappropriation under the Defend Trade Secrets Act (DTSA). The ruling is good news for global businesses seeking damages in such situations – but comes with a few cautions, which you can read about here.
Michael P. Elkon
Robert Yonowitz
Atlanta Partner and Co-Chair, Employee Defection and
Irvine Partner and Co-Chair, Employee Defection and
Trade Secrets Practice Group melkon@fisherphillips.com
Trade Secrets Practice Group ryonowitz@fisherphillips.com
BACK TO HOME
WORKPLACE SAFETY
LOOKING AHEAD TO 2025
MORE OF 2024 IN REVIEW
2024 PREDICTIONS RECAP
OSHA Released First-Ever National Heat Safety Rule The agency announced a new proposed rule in July that aims to protect workers from heat-related illnesses and fatalities. The groundbreaking rule would require employers to implement robust measures to safeguard employees from extreme heat both indoors and outdoors. DOL Cracked Down on Workplace Contract Provisions The Labor Department’s top lawyer announced in October the agency’s plans to target certain employment-related contract provisions, including those that require workers to report safety concerns to management first before going to workplace safety agencies like OSHA (contrary to workers’ rights under federal law). The DOL will also target provisions that incorrectly classify workers as independent contractors just to dodge legal responsibilities such as safety standards. OSHA State Plans Also Ramped Up Safety Initiatives In addition to California’s workplace violence prevention program taking effect in July, the state’s legislature passed a slew of new workplace safety laws. In June, Nevada OSHA issued its own proposed heat safety rule, which took effect in November. The Maryland State Plan finalized a heat stress rule, which took effect on September 30. That same day, Kentucky’s safety officials adopted an emergency regulation (which took effect the next day) in line with federal OSHA’s new walkaround rule. And New York enacted a law that requires retail employers to implement comprehensive workplace violence prevention measures starting in March.
First-Ever “Department of Government Efficiency” Leaders Will Make Significant Cuts to OSHA Trump’s new DOGE initiative (which, despite its name, will not be an official government agency) will take off next year, led by Elon Musk and Vivek Ramaswamy. Musk claims that DOGE can reduce the federal budget by “at least $2 trillion” – while most agree this is an untenable goal, you can bet on big slashes to federal agencies, including significant reductions to OSHA’s overall headcount and to the number of compliance, safety, and health officers. Trump’s OSHA Will Undo or Scale Back Safety Rules Issued During the Biden Administration Safety professionals can expect several key changes from the Trump administration. However, Trump surprised the business community on November 18 when he announced Lori Chavez-DeRemer, who has earned the endorsement of several unions, as his nominee to lead the DOL. If approved by the Senate, Chavez-DeRemer would have an enormous influence on workplace safety, and we would ultimately see OSHA’s heat standard finalized in 2025 (though likely in a scaled-back form). But we still expect this Trump administration to put electronic submission requirements back on the shelf, just as the first one did. We will also say goodbye to the new walkaround rule, but a pending lawsuit in a Texas federal court will be the more likely means to that end. Most MSHA personnel will not change, but we will see a pull- back on discretionary enforcement initiatives. SCOTUS Decisions This Year Will Transform Workplace Safety and Mine Safety Employers and advocacy groups will rely on two Supreme Court rulings issued in June this year to fight back against regulatory overreach. First, they will use the Court’s landmark ruling overturning the decades-old Chevron doctrine to combat rules issued by both OSHA and MSHA. Second, they will point to SEC v. Jarkesy , which narrowly limited how agencies can use administrative law judges and left the door open for broader challenges, to erode ALJ authority. And the DOL will look to change its procedure for appointing ALJs to address arguments that those judges are double-protected from removal in violation of the Constitution.
OSHA’s New Electronic Recordkeeping Rule Impacted Employers Nationwide A long-anticipated electronic recordkeeping rule took effect January 1 and, as we predicted, changed the game for many employers across the country. For example, establishments with 100 or more employees in designated “high-hazard” industries became newly required to electronically submit information from their OSHA Forms 300 and 301 to the agency each year. Union Walkthroughs Became a Reality We correctly predicted that OSHA’s proposed “walkthrough” rule would become finalized and effective by mid-year. Since May 31, workers have been allowed to designate a union representative (or other third party) to accompany an OSHA inspector during a facility walkthrough inspection – even if the facility is a not a union shop. Check out our FAQs for Employers. Safety Officials Stressed the Importance of Criminal Enforcement Coordination We warned employers about OSHA’s enhanced criminal enforcement coordination, and an enforcement report published in January confirmed exactly that (and Cal/OSHA announced similar efforts in August). Federal OSHA announced in November that worker death investigations had so far decreased in 2024 and partially attributed the decline to its increasingly aggressive criminal referrals, particularly with regard to unprotected trenches. HOW’D WE DO ON OUR PREDICTIONS? We got the predictions RIGHT
Kristin R.B. White
Todd B. Logsdon
Denver Partner and Co-Chair, Workplace Safety and Catastrophe Practice Group kwhite@fisherphillips.com
Louisville Partner and Co-Chair, Workplace Safety and Catastrophe Practice Group tlogsdon@fisherphillips.com
BACK TO HOME
Page 1 Page 2-3 Page 4-5 Page 6-7 Page 8-9 Page 10-11 Page 12-13 Page 14-15 Page 16-17 Page 18-19 Page 20-21 Page 22-23 Page 24-25 Page 26-27 Page 28-29 Page 30-31 Page 32-33 Page 34-35 Page 36-37 Page 38-39 Page 40-41 Page 42-43 Page 44-45 Page 46-47 Page 48-49 Page 50-51 Page 52Made with FlippingBook Annual report maker