APPLIES TO All Employers

EFFECTIVE February 19, 2025

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look EEOC will be prosecuting national origin discrimination against American workers.

Discussion:

The Equal Employment Opportunity Commission (EEOC) recently cautioned against “illegal preferences against American workers.” The EEOC intends to protect against national origin discrimination, including against American workers, which will “reduce the abuse of legal immigration programs.” The announcement was targeted at employers violating anti-discrimination laws and staffing agencies who unlawfully comply with client companies’ illegal preferences against American workers.

 

Acting Chair Andrea Lucas has said that “[m]any employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers—in direct violation of federal employment law prohibiting national origin discrimination.” The EEOC acknowledges that, “[a]lthough Title VII’s national origin nondiscrimination requirement generally means that employers cannot prefer American workers, it equally means that employers cannot prefer non-American workers and disfavor Americans.” The EEOC also gave examples of impermissible reasons to violate Title VII:

 

• lower cost labor (whether due to payment under the table to illegal aliens, or exploiting rules around certain visa-holder wage requirements, etc.);
• a workforce that is perceived as more easily exploited, in terms of the group’s lack of knowledge, access, or use of wage and hour protections, antidiscrimination protections, and other legal protections;
• customer or client preference;
• biased perceptions that foreign workers are more productive or have a better work ethic than American workers.

 

“The EEOC works collaboratively with other federal agencies such as the Department of Justice, the Department of Homeland Security, and the Department of Labor on labor and employment issues that overlap with immigration-related law enforcement.” Employers who do not comply with existing anti-discrimination laws, like Title VII of the Civil Rights Act, are at risk of civil penalties and potential criminal prosecution.

 

Action Items

1. Review the EEOC’s statement here.
2. Review job postings and recruiting strategies for compliance.
3. Coordinate recruiting strategies with staffing agencies, as applicable.

 

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase

APPLIES TO As Indicated

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look Sixteen states identified legal DEI strategies used to comply with anti-discrimination laws. The U.S. Department of Education (DOE) announced its intention to revoke federal funding from educational institutions who engage in anti-discriminatory practices. Fifteen states rebut the DOE’s guidance and discuss race-neutral neutral strategies for legally achieving diversity goals. A federal district court issued a preliminary injunction against enforcement of certain Executive Orders.

Discussion:

Diversity, Equity, and Inclusion (DEI) continues to be an issue highlighted by this Administration, with competing interpretations at the federal and state levels. Recently, the focus has returned to primary, secondary, and higher education. Also, a preliminary injunction was issued against enforcement of certain Executive Orders involving DEI.

 

States’ Response to DEI Executive Order

 

On February 13, 2025, in response to Executive Order 14173, 16 state Attorneys General issued Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives. Specifically, Massachusetts, Illinois, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont seek to highlight “the continued viability and important role of diversity, equity, inclusion, and accessibility efforts … in creating and maintaining legally compliant and thriving workplaces.” The Guidance states that “[p]olicies and practices that promote diversity, equity, inclusion, and accessibility are not the same as preferences in individual hiring and promotion decisions that have been found to be unlawful.” “Instead, modern best practices focus on ensuring that businesses can recruit, hire, and retain the most qualified employees, and ensure that no one is overlooked or bypassed because of a protected characteristic.”

 

The Guidance highlights the significance of using DEI strategies to promote business success and reduce the potential for discrimination claims. A research study showed “companies in the top quartile for diversity were 35% more likely to have financial gains above their respective industry median.” In stark contrast, an employer’s “[failure] to implement adequate non-discrimination and fair employment policies, procedures, and trainings may be used by [state] offices or courts to assess culpability and liability for discriminatory conduct.” The Guidance provides examples of permissible DEI activities in recruitment and hiring, professional development and retention, and assessment and integration.

 

U.S. Department of Education Letter

 

On February 15, 2025, the U.S. Department of Education (DOE) sent a Dear Colleague Letter to educational institutions receiving federal funds notifying them that they must cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative support, sanctions, discipline, and beyond. The DOE announced it was beginning compliance assessments by March 1, 2025. The DOE also published an FAQ for more information on its interpretation of the law.

 

The DOE said that “students should be assessed according to merit, accomplishment, and character—not prejudged by the color of their skin.” The letter requires compliance with Students for Fair Admissions v. Harvard in admissions, and schools (e.g., elementary, middle, and high schools) cannot make hiring, compensation, promotion, scholarship, prize, sanctions, and disciplinary decisions or operate programs based on race or race stereotypes or they risk losing access to federal funds.

 

The DOE criticized “diversity statements” and eliminating “standardized testing to achieve a desired racial balance or to increase racial diversity.” It also claimed that “DEI programs … preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not.” Additionally, educational institutions have promoted the “false premise” that the United States is built upon “systemic and structural racism.”

 

It is important to note that no new law has been issued through this Letter. Rather, this Administration continues to put forth its enforcement intentions. Employers are reminded to comply with federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), as well as comparable state and local laws. Generally, employers cannot discriminate against employees and applicants on the basis of any protected characteristics.

 

States’ Response to Education Letter

 

On March 5, 2025, in response to the U.S. Department of Education’s Dear Colleague Letter and FAQ, 15 Attorneys General issued Joint Guidance for Schools. Specifically, Illinois, Massachusetts, New York, California, Connecticut, Delaware, Maine, Maryland, Minnesota, New Jersey, Nevada, Oregon, Rhode Island, Vermont, and the District of Columbia seek to address the “Supreme Court’s June 2023 decision on race-conscious admissions policies at institutions of higher education, and clarifies the legal landscape for Institutions of Higher Education (IHEs) and K-12 schools operating in our states as they work to advance educational goals and access to educational opportunities.”

 

The Guidance criticizes the DOE’s interpretation of Students for Fair Admissions (SFFA) v. Harvard, distinguishing it as being applicable to higher education admissions practices wherein the Supreme Court expressly said that a school may lawfully consider the ways in which race affected a particular student’s life. The Guidance includes legal guidance on the interpretation of SFFA. Moreover, the Supreme Court has historically encouraged use of “race-neutral alternatives” to achieve “the diversity the [institution] seeks.” The Guidance also condemns the Letter’s description of DEI program impacts in education. It contends that practices and programming that lawfully promote DEI “foster learning environments that provide all students an equal opportunity to learn and better prepare students to work in our diverse country and participate in our multiracial democracy. They are essential to promoting fair treatment and eliminating stigmatization.”

 

Ultimately, the Guidance cautions that “[f]ear of the ‘Dear Colleague’ letter or the loss of federal funding is not a justification to impose or reimpose discriminatory practices. The Attorneys General stand ready to enforce their States’ robust civil rights protections—which in many cases exceed federal civil rights protections—wherever discrimination may be found.”

 

Preliminary Injunction Against Executive Orders

 

On February 21, 2025, in National Association of Diversity Officers in Higher Education v. Trump, a Maryland Federal District Court issued a nationwide preliminary injunction against enforcement of certain provisions of Executive Order 14151 (J20) titled “Ending Radical Government DEI Programs and Preferencing,” and Executive Order 14173 (J21) titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The main components of the orders that are challenged involve the Termination Provision of J20 (i.e., all executive agencies were directed to terminate “equity related grants or contracts”); Enforcement Threat Provision of J21 (i.e., deter illegal DEI practices by targeting large corporations, organizations, and educational institutions); and Certification Provision of J21 (i.e., requirement of federal contractors to certify that they are not engaging in “illegal” DEI practices).

 

Specifically, the court criticized the Executive Orders as being too vague for enforcement. “The Termination Provision leaves [federal] contractors and their employees, plus any other recipients of federal grants, with no idea whether the administration will deem their contracts or grants, or work they are doing, or speech they are engaged in, to be ‘equity-related.’” Similarly, the Enforcement Threat provision “leaves the private sector at a loss for whether the administration will deem a particular policy, program, discussion, announcement, etc. to be among the ‘preferences, mandates, policies, programs, and activities’ the administration now deems ‘illegal.’” Additionally, the “Certification and Enforcement Threat Provisions squarely, unconstitutionally, ‘abridge[] the freedom of speech’” in violation of the First Amendment of the U.S. Constitution. Further rulings are anticipated to determine whether the injunction becomes permanent.

 

 

Action Items

1. Review policies and procedures for compliance with anti-discrimination laws.
2. Have appropriate personnel trained on anti-discrimination requirements.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase

APPLIES TO All Employers

EFFECTIVE February 26, 2025

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look The FTC’s new Joint Labor Task Force will focus on investigating and prosecuting labor practices, including noncompete agreements, no-poach clauses, and wage-fixing agreements, that are deemed unfair or anticompetitive to workers. Employers should prepare for increased scrutiny of noncompete agreements and other restrictive employment practices, ensuring they are necessary, reasonable, and not overly burdensome on workers’ mobility.

Discussion:

The Federal Trade Commission (FTC) announced that a new Joint Labor Task Force has been created to focus on identifying and prosecuting deceptive, unfair, and anticompetitive labor practices, with a specific focus on scrutinizing noncompete agreements. The Task Force will prioritize investigating agreements between employers that limit worker mobility, including no-poach and wage-fixing agreements, and review noncompete clauses that may impose unnecessary restrictions on former employees.

 

The newly established Joint Labor Task Force is tasked with several key responsibilities, including prioritizing investigations into deceptive or anticompetitive labor practices. The team will work across various bureaus within the FTC to uncover and prosecute potentially harmful behaviors. One of the key focuses of the Task Force will be agreements between employers, such as no-poach agreements that prevent companies from hiring each other’s employees, or agreements to fix wages. These types of agreements are expected to be seen as automatic violations. Noncompete agreements are also a primary concern for the Task Force, though they will be assessed on a case-by-case basis, focusing on whether the restrictions are unnecessarily burdensome on employees.

 

The FTC’s renewed focus on noncompete agreements comes despite the fact that its attempt to ban these agreements nationwide was blocked by federal courts last year. Instead, the Task Force will focus on investigating specific noncompete agreements that it believes unfairly hinder worker mobility. Unlike other agreements such as no-poach or wage-fixing arrangements, noncompete clauses are not automatically deemed illegal, but the FTC will closely examine the scope of restrictions, including the duration and geographic scope, and the specific nature of the employee involved. The Task Force will investigate whether these agreements are being used in ways that impede workers from moving freely between jobs in their respective industries, as well as whether they are necessary and reasonable for the employer, especially in protecting sensitive business interests.

 

For employers, this means that they should carefully review their use of noncompete agreements to ensure compliance with these emerging standards. Noncompete clauses should be applied only when necessary to protect legitimate business interests, such as safeguarding confidential information or preventing unfair competition. Employers should consider whether less restrictive alternatives, such as confidentiality agreements or non-solicitation clauses, could be used instead of noncompete agreements.

 

Action Items

1. Review noncompete agreements and other restrictive covenants with legal counsel.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase

APPLIES TO All Employers with Employees in CO

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look HB-24-1130 adds protections for individuals’ biometric data by requiring entities to control or process one or more biometric identifiers to meet certain obligations. This would apply in the employment context for those employers who require employees to provide biometric data for matters such as access, security, or timekeeping.

Discussion:

Finalized rules addressing amendments to the Colorado Privacy Act (CPA) go into effect later this year. SB 24-041 goes into effect on October 1, 2025, and addresses additional requirements for entities that offer any “online service, product or feature to [Colorado residents] whom the controller actually knows or willfully disregards is under the age of 18 and their processors.” A “controller” is a person that controls or processes one or more biometric identifiers. HB 24-1130 is effective July 1, 2025, and affects all employers.

 

HB 24-1130 adds protections for individuals’ biometric data by requiring controllers to meet certain obligations. This would apply in the employment context for those employers who require employees to provide biometric data for matters such as access, security, or timekeeping. Biometric data means one or more biometric identifiers that are used or intended to be used, singly or in combination with each other or with other personal data, for identification purposes. A biometric identifier means data generated by the technological processing, measurement, or analysis of an individual’s biological, physical, or behavioral characteristics, which data can be processed for the purpose of uniquely identifying an individual. This includes fingerprints, voiceprints, a scan or record of an eye retina or iris, a facial map, facial geometry, or facial template or other unique biological, physical, or behavioral patterns or characteristics.

 

The employer or controller must adopt a written policy with the following components:

 

• A retention schedule for biometric identifiers and data;
• A protocol for responding to a data security incident that may compromise the security of biometric identifiers or data;
• Include guidelines requiring the deletion of a biometric identifier on or before certain dates; and
• Make the written policy available to the public.

 

Additional requirements also apply to collection and disclosure of such biometric identifiers. A controller is prohibited from collecting a biometric identifier unless they have provided a disclosure notice and obtained consent. The disclosure must include how the individual’s biometric identifier is to be used. Employers requiring the collection of biometric identifiers as a condition of employment must comply with the requirements of the CPA.

 

Action Items

1. Review the final rules here.
2. Review collection and use of biometric data and identifiers.
3. Create a written policy in accordance with the requirements.
4. Provide employees with a written disclosure and obtain consent in accordance with the requirements.
5. Create protocols for responding to security breach incidents involving biometric data or identifiers.
6. Review required policy, notice, and disclosure requirements with legal counsel.
7. Have appropriate personnel trained on the requirements.

 

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase

APPLIES TO All Employers with Employees in ME

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look The Maine Department of Labor announced the private insurance plans that are approved to provide coverage under the Maine Paid Family and Medical Leave program. Employers using a private insurance plan must submit an application for approval starting April 1, 2025.

Discussion:

The Maine Department of Labor announced the private insurance plans that are approved to provide coverage under the Maine Paid Family and Medical Leave program. The program is set to go into effect January 1, 2026. Under the program, eligible employees can take up to 12 weeks of paid time off for qualifying family, medical, safe, or military leaves. The program is funded through payroll premiums shared by the employer and employee. Employers are required to submit premiums and contribution reports quarterly starting April 30, 2025.

 

Under the program, employers may use a private insurance plan to meet its obligations after applying for and receiving approval from the MDOL. MDOL has certified 12 fully insured, private insurance plans after determining that they provided substantially equivalent benefits offered by the state’s plan. Employers using a private insurance plan must submit an application for approval starting April 1, 2025.

 

Action Items

1. Review the approved private plan providers here.
2. File for approval of a private plan through the Paid Leave Portal.

 

 

 

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase