Insights

In a landmark verdict on April 14, 2025, the U.S. Department of Justice Antitrust Division notched its first-ever jury trial conviction for criminal wage-fixing under the Sherman Act in United States v. Eduardo Lopez in the District of Nevada. A home health care staffing executive, Eduardo (“Eddie”) Lopez, was found guilty of (1) conspiring with several competing home healthcare staffing agencies to fix the wages of home health nurses in the Las Vegas area, and (2) defrauding the unwitting buyer of his agency by concealing the then-ongoing antitrust investigation into nurse wage and hiring practices. It is worth noting, however, that while the Lopez conviction is a significant milestone for the DOJ’s campaign into labor antitrust violations, wage-fixing cases may be more straightforward to prosecute than no-poach agreements, where the DOJ still has not prevailed before a jury. This victory nonetheless affirms the DOJ’s ability to criminally prosecute labor market collusion as a criminal offense after numerous failed attempts, signaling the prudence of further caution for companies and individuals to mitigate risk in labor antitrust markets.

The settlement approval hearing in In re College Athlete NIL Litigation, No. 4:20-cv-03919 (N.D. Cal.) is set for April 7, 2025. Commonly known as the “House Settlement,” the pending resolution between plaintiffs and the NCAA, if approved by Judge Claudia Wilken, could have far-reaching implications for higher education NCAA-member institutions and student-athletes.

After months of negotiations, Belgium’s new federal government has reached an agreement introducing significant changes to labor law, employment flexibility, and social security. These reforms aim to boost employment rates, simplify regulations, and reduce labor costs for employers.  

Late on Friday, a federal judge in Maryland issued a preliminary injunction pausing certain elements of the Trump Administration’s two recent executive orders (“EOs”) addressing “illegal DEI programs.” The two EOs, Exec. Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing (the “J20 Order”) and Exec. Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (“J21 Order”), contain a number of provisions that, among other things, direct the federal government to dismantle “illegal DEI programs” within federal agencies and federal contractors. Please refer to our prior alert on these EOs for a full breakdown of the provisions in each.

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

On February 13, 2025, a coalition of sixteen state attorneys general issued a “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives” (the Guidance). Led by Attorney General Andrea Campbell of Massachusetts and Attorney General Kwame Raoul of Illinois, and joined by the Attorneys General of Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont, the Guidance is a direct response to concerns from the private sector in the aftermath of President Trump’s recent Executive Order 14173, which  directed federal agencies “to encourage the private sector to end illegal discrimination and preferences, including DEI.” The Guidance clarifies “the state of the law for businesses, nonprofits, and other organizations operating” in their respective states.

Collective Bargaining Agreement (CBA) 32bis applies in Belgium in the event of a transfer of undertakings. It establishes the legal framework that protects employees’ rights during such a transfer.

On Inauguration Day, President Trump issued a flurry of executive orders.  Among the first he signed was the Initial Rescissions Of Harmful Executive Orders and Actions Executive Order (the “Rescinding EO”). This directive rescinded 78 executive orders issued by the Biden Administration.  The revocation of one in particular, Executive Order 14055 of November 18, 2021 Non-displacement of Qualified Workers Under Service Contracts (the “EO 14055”), will have an immediate impact on federal contractors performing and bidding on Service Contracts.

The first day of the Trump Administration included the issuance of 26 executive orders(“EOs”), the most in modern presidential history. Among these EOs, President Trump signed the Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government Executive Order (the “EO” or “Order”). While focused on federal policy, the Order has broad implications for private sector employers.

Late on the night of January 21, 2025, President Trump signed the “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” Executive Order (the “EO”). This EO, like a number of the executive orders issued on his first day in office, took aim at Diversity, Equity, and Inclusion (“DEI”) programs by, among other things, broadly directing executive agencies and departments to terminate all “discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements;” curtailing the Office of Federal Contract Compliance Programs’ (OFCCP) operational authority and directing agencies to scrutinize the DEI practices of private sector employers. Additionally, this language raises questions about the future and status of certain programs, preferences, and set-aside procurements administered by the U.S. Small Business Administration, U.S. Department of Transportation, and other agencies. 

On 23 October 2024, the European Parliament adopted Directive (EU) 2024/2831 (“the Directive”), aimed at improving conditions for individuals working for digital platforms.  The Directive introduces comprehensive measures to: address the employment status of digital platform workers, ensure transparency and fairness in algorithmic management, and strengthen the protection of personal data. The Directive came into force on 1 December 2024, and Member States are required to adopt the necessary measures for transposition into national law by 2 December 2026.

New York Department of Labor Issues Guidance Regarding Paid Prenatal Leave, Taking Effect January 1.

On September 30, 2024, Chief Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York dismissed a putative class action in Mejia v. High Brew Coffee Inc., 1:22-cv-03667-LTS (S.D.N.Y. Sep. 30, 2024), holding that an online-only business’s website is not a place of public accommodation under Title III of the Americans with Disabilities Act (“ADA”). Chief Judge Swain’s opinion is the first of its kind for the Southern District and is the latest installment in an ongoing judicial debate about the reach of the ADA’s regulatory reach.  

Following a multi-million-dollar ruling against it by the National Labor Relations Board (“NLRB”), nursing home operator Care One, LLC, is now challenging the authority of NLRB-appointed Administrative Law Judges (“ALJs”) on constitutional grounds before the Second Circuit Court of Appeals. The Second Circuit’s line of questioning during the November 12, 2024, oral argument revealed the Court’s apparent skepticism towards Care One’s challenges, creating the prospect of a circuit court split on key issues that are likely to make their way to the Supreme Court. Care One’s arguments follow the trend over the past several years of employers increasingly questioning the authority of ALJs to adjudicate their labor and employment claims before administrative agencies.

On October 29, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register that it received two requests under the Freedom of Information Act (“FOIA”) for 2021 Type 2 EEO-1 Reports filed by federal contractors.  The two requests came from the University of Utah and a non-profit organization named “As You Sow.”  The OFCCP notified federal contractors that the information might be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, and requested that any entities that filed these reports and object to their disclosure submit objections by December 9, 2024.  Objectors are strongly encouraged to use the OFCCP portal.  Alternatively, contractors may also submit written objections via email at OFCCPSubmitterResponse@dol.gov, or by mail. 

On Friday, October 4, 2024, the Supreme Court granted certiorari in an appeal from the Sixth Circuit decision in Ames v. Ohio Department of Youth Services, a Title VII case involving claims of reverse sexual orientation discrimination.  Plaintiff Marlean Ames, a heterosexual woman, alleges that she was demoted and replaced by a gay man and was also denied a promotion in favor of a gay woman because of her sexual orientation.  The Sixth Circuit affirmed summary judgment in favor of the employer-defendant, holding that—to establish a prima-facie case under Title VII as a member of the majority—in addition to the “usual” showing Plaintiff was required to make an additional showing of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” 87 F.4th 822, 825 (6th Cir. 2023) (citation omitted). The Court observed that such a showing is typically made with evidence that the minority group (here, gay people) made the challenged employment decision or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group—neither of which Plaintiff satisfied.

Earlier this week, another case of apparent Modern Slavery and Forced Labour came to light in the UK. [1]  According to media reports, the former UK Prime Minister, Baroness Teresa May of Maidenhead, now Chair of the Global Commission on Modern Slavery and Human Trafficking[2] – described the case as “shocking” and showed “large companies not properly looking into their supply chains”. The UK Government is now contemplating further steps to strengthen UK Modern Slavery and Forced Labour laws. This recent UK case, follows a number of other cases in Europe – particularly the EU – including those involving high profile Italian fashion houses.[3] In all these cases, the ethical and social responsibilities – including the legal obligations – incumbent on large companies to root-out modern slavery and forced labour concerns in their supply chains, have been focused on. This comes in the wake of, a number of concerns in the same area with, for example, a United Nations Working Group recently noting a general lack of understanding in the banking and investment community that ESG data and information requires undertakings to provide information and data on the “S” – including, therefore, on human rights issues.[4]

Plastic pollution is a growing concern worldwide, and State Attorneys General increasingly turn to litigation to address this issue. These lawsuits tend to focus on alleged deceptive advertising and misleading statements, but sometimes include public nuisance claims to address alleged injuries to the environment and public health. Broadly, the actions of State Attorneys General target companies directly for the products they sell and the claims they make to sell them, de-emphasizing consumer choice as a driver of these harms.

Effective January 1, 2026, H.B. 3773 amends Article 5, Section 2 of the Illinois Human Rights Act to explicitly prohibit employers from using artificial intelligence (“AI”) for a broad swath of employment decisions, including recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment, if such use has the effect of subjecting employees to discrimination on the basis of a protected class.  The amendment also prohibits employers from using zip code as a proxy for protected classes.  H.B. 3773 further provides that employers will be required to provide notice to employees prior to using AI for such employment-related purposes.  The law applies to any employers employing one or more employees within Illinois during 20 or more calendar weeks during the calendar year. 

Plaintiffs battling the Federal Trade Commission’s ban on non-compete clauses in employment agreements notched a significant victory recently.  On August 20, 2024, U.S. District for the Northern District of Texas Judge Ada Brown permanently blocked the agency’s action in Ryan LLC v. Federal Trade Commission, concluding the rulemaking exceeded the agency’s statutory authority.  Judge Brown had previously granted a preliminary injunction that limited its effect to the plaintiffs in the case.  Yesterday’s ruling, however, which granted the plaintiffs’ summary judgment motion, permanently blocks the ban nationwide.