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As discussed in our blog here, President Trump’s series of executive orders aimed at eradicating “illegal” diversity, equity and inclusion policies and programs across the federal government and in the private sector did not define the term “illegal discrimination.” On March 19, the Equal Employment Opportunity Commission and the Department of Justice released guidance addressing this and outlining how DEI practices may be unlawful under Title VII of the Civil Rights Act of 1964 if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.

Together, the EEOC and DOJ issued a joint one-page technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work,” providing examples of “DEI-related discrimination” under Title VII and directing employees who “suspect [they] have experienced DEI-related discrimination” to “contact the EEOC promptly.” 

The EEOC simultaneously released more detailed guidance entitled “What You Should Know About DEI-Related Discrimination at Work,” which includes eleven questions and answers addressing the process for asserting a discrimination claim and the scope of protections under Title VII as they relate to DEI practices.Continue Reading EEOC and DOJ Issue Joint Guidance on DEI-Related Discrimination

On March 14, 2025, the Court of Appeals for the Fourth Circuit lifted the preliminary injunction blocking key provisions of President Trump’s executive orders related to diversity, equity, and inclusion (our summary of the DEI EOs is here). This decision temporarily reinstates the enforcement of Executive Orders 14151 and 14173, pending further appellate review.

Background

As discussed here, on February 21, a Maryland district court issued a nationwide preliminary injunction, citing concerns that the EOs were likely to violate the First and Fifth Amendments by chilling free speech and due process. The preliminary injunction had blocked the federal government from forcing contractors and grantees to certify that they aren’t promoting “illegal DEI.”

The government defendants immediately filed a notice of appeal with the Fourth Circuit, while also seeking a stay of the district court’s preliminary injunction. On March 3, the district court denied their request for a stay with Judge Abelson concluding that the potential harm of the orders outweighed the administration’s policy priorities.

The Fourth Circuit’s Panel Decision

The three-judge appellate panel unanimously stayed the injunction on March 14, with all three judges writing separate concurrences. There is an undercurrent in each opinion that the injunction came too early (for it’s unclear still what types of programs the government will try to eliminate) to determine if the government’s actions will implicate the First and Fifth Amendment concerns raised by plaintiffs. Also, the court takes the government defendant’s representations that the EOs are distinctly limited in scope and apply only to conduct that violates existing federal anti-discrimination law as true.Continue Reading Fourth Circuit Allows Trump Administration to Enforce DEI EOs (For Now)

** UPDATE ** On March 3, 2025, the federal judge in the Maryland lawsuit denied the Trump administration’s request to stay the preliminary injunction discussed below.
The judge ruled that the administration failed to demonstrate a likelihood of success on the merits and that the injunction was necessary to prevent potential violations of free speech
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From the groundbreaking mandate for paid prenatal leave to the upcoming requirement that employers disclose AI-related layoffs, 2025 is set to be a transformative year for New York employers. As you navigate the latest employment laws, keep this checklist close at hand. While it doesn’t cover every new regulation, it highlights the key changes our…

Employers across the country have been relieved of the obligation to comply with the Federal Trade Commission’s rule banning most postemployment noncompetes — for now. On August 20, U.S. District Judge Ada Brown of the U.S. District Court for the Northern District of Texas granted summary judgment for plaintiffs in Ryan LLC v. FTC.…

In June, we offered our annual Global Employment Law webinar series sharing expert insights on the business climate in major markets around the world for US multinational employers. Baker McKenzie attorneys from over 20 jurisdictions outlined the key new employment law developments and trends that multinationals need to know in four 60-minute sessions.

ICYMI: click below to hear updates for the Americas, Asia Pacific, Europe and the Middle East and Africa and contact a member of our team for a deeper dive on any of the information discussed.

Session 1: The Americas 

Presenters: Andrew Shaw, Clarissa Lehmen*, Daniela Liévano Bahamón, Benjamin Ho, Liliana Hernandez-Salgado and Matías Gabriel Herrero

Click here to watch the video.

*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

Continue Reading Summer Replay: Tune In To Our Global Employment Law Update Series (Recordings Linked!)

On the eve of the Fourth of July, the FTC rule banning most noncompetes is going up in smoke after a federal court in Texas held the US Chamber of Commerce and a tax firm are likely to prevail on their argument that the agency overstepped its authority to adopt the nationwide prohibition.

The decision, on the heels of the US Supreme Court’s ruling reining in federal agency power under the Chevron doctrine, demonstrates the challenge the FTC faces in promulgating substantive regulations dealing with competition in the economy.Continue Reading Red, White and Blocked: Federal Judge Pauses FTC’s Ban on Employment Noncompetes

We’re bringing the world to you. Join Baker McKenzie for our annual Global Employment Law webinar series.

In the face of intensifying geopolitical risk and continuing economic uncertainty, the challenges for global employers to plan carefully and operate strategically to maintain a thriving workforce is greater than ever. We’ll help employers navigate those challenges in…

The FTC rule banning post-employment noncompetes was published in the Federal Register on May 7, which means the rule will take effect on September 4, 2024, unless pending lawsuits to void the rule are successful.

Despite considerable uncertainty around when, or even whether, the rule will apply, employers should prepare now so as not to be caught flatfooted. The first step is to understand the rule’s parameters and potential impact on your business. Our FAQs guide you through the intricacies of the rule and the steps you should take while waiting for the lawsuits challenging the rule to be resolved.

Application of the Rule to Workers

1. Does the rule apply to B2B noncompetes?

No, the FTC rule does not apply to business-to-business (B2B) noncompetes. Instead, existing federal antitrust laws should continue to be considered when evaluating B2B noncompetes.

2. Does the rule apply to all workers?

No, there are limited exceptions. First, the rule does not invalidate existing noncompete agreements (i.e. agreements entered into on or before the effective date of September 4, 2024) with “senior executives.” After that date, new noncompetes with all US employees will be prohibited.

“Senior executive” means a worker who received “total annual compensation” of at least $151,164 in the preceding year (or the equivalent amount when annualized if the worker was employed during only part of the year) and who is in a “policy-making position.”

  • “Total annual compensation” may include salary, commissions, nondiscretionary bonuses, and other nondiscretionary compensation earned during the preceding year, but does not include the cost of, or contributions to, fringe benefit programs.
  • Those in a “policy-making position” may include the President, CEO or equivalent, or others with “policy-making authority,” meaning “final authority to make policy decisions that control significant aspects of a business entity or common enterprise.” In the Supplementary Information to the rule (the FTC’s commentary on the rule), the Commission notes “many executives in what is often called the ‘C-suite’ will likely be senior executives if they are making decisions that have a significant impact on the business, such as important policies that affect most or all of the business. Partners in a business, such as physician partners of an independent physician practice, would also generally qualify as senior executives under the duties prong, assuming the partners have authority to make policy decisions about the business.”

Second, the rule does not apply to workers outside of the United States. See FAQ 11 below.Continue Reading Thirteen Things You Didn’t Know About the FTC’s Noncompete Ban and Five Steps to Prepare Now in Case it Takes Effect

New York employers now have a big “to do” item for 2025. Starting January 1, 2025, New York employers will be required to provide employees with 20 hours of paid prenatal personal leave (PPPL) during any 52‑week calendar period in addition to paid sick and safe leave (PSSL). New York is the first state in the US to require employers to provide such leave.

The new obligation results from Governor Hochul’s FY 2025 executive budget bill (A 8805), which passed April 20, 2024 and (among other things) amends New York Labor Law § 196-b (New York state’s paid sick and safe leave law). The new law does not change an employee’s entitlement to other leaves such as PSSL (which is 40 or 56 hours per year, depending on the size of the employer) and New York Paid Family Leave (which provides eligible employees job-protected, paid time off for reasons including to bond with a newborn, adopted or fostered child).

Breaking down PPPL

Who does this apply to?

All employers in New York are required to provide PPPL to all pregnant employees.

What type of leave is covered by PPPL?

PPPL is leave taken for health care services received by an employee during their pregnancy or related to such pregnancy, including

  • Physical examinations
  • Medical procedures
  • Monitoring and testing, and
  • Discussions with a health care provider related to the pregnancy

Does PPPL have to accrue before employees can take PPPL?

No. Eligible employees can take all 20 hours of PPPL they are entitled to for the 52-week period starting the effective date of the new law–without waiting for PPPL to accrue.

Are there certain increments for taking leave?

Employees are permitted to take PPPL in hourly increments.

How is PPPL paid?

PPPL must be paid in hourly installments. Employers must pay employees for PPPL at the employee’s regular rate of pay, or the applicable minimum wage–whichever is greater.Continue Reading New York Employers’ New “To Do” Item for 2025: Provide Paid Prenatal Personal Leave Starting January 1