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White House and Supreme Court Workplace Compliance News & Resources

From Supreme Court rulings to Presidential Executive Orders, it is necessary for employers to keep an eye towards the highest levels of the U.S. government and the decisions made that will directly impact workplace policies and procedures.

Stay on top of the news this year from the Executive Branch and the Supreme Court. Be sure to seek legal counsel when you’re looking for how these changes will directly impact your business.

Past White House Workplace Compliance News

Who: California employers

When: Effective immediately

On February 15, 2023, the 9th U.S. Circuit Court of Appeals blocked California AB 51, which bans the use of mandatory arbitration agreements with employees and applicants. In its opinion on the U.S. Chamber of Commerce v. Bonta case, the court said AB 51 is preempted by the Federal Arbitration Act.

For now, California employers can require new hires to sign arbitration agreements as a condition of employment, including clauses related to claims for unpaid wages and discrimination, and causes of action under the Labor Code and the Fair Employment and Housing Act. However, the State of California can still appeal this decision.


  • Consult with legal counsel to review your arbitration agreements and ensure compliance with the law.
  • Continue to monitor for possible legal appeals.

Additional Resources:

Federal Arbitration Act

U.S. Chamber of Commerce v. Bonta

Assembly Bill No. 51

Who: Federal government employers and employees

When: Effective immediately

What: As of August 22, 2022, COVID-19 screening is no longer required by federal agencies for employees. Per the update, federal agencies are not permitted to ask employees their COVID-19 vaccination status, regardless of whether the employee has received a vaccine.

Unvaccinated workers and employees will no longer be subject to different isolation requirements than those of vaccinated workers and employees.

Federal agencies will also no longer be required to ask employees, contractors, and visitors their COVID-19 vaccination status before entering federal buildings.

The Biden Administration continues to recommend masking in areas with high levels of COVID-19 transmission.


Educate and inform your employees about federal mandates and safety protocols.

Update 11/1/22: On August 31st, 2022, the Safer Federal Workforce Task Force guidance was updated by the Biden Administration. Per the update, Executive Order 14042 will no longer be enforced, effectively lifting the COVID-19 vaccine mandate for federal contractors. To provide further information and clarification, the federal government has released a new FAQs.

An OMB Guidance for agencies was issued on October 19, 2022, by the Office of Management and Budget and the Safer Federal Workforce Task Force. Agencies should follow the instructions for obligations under Executive Order 14042.

Who: All employers

When: Effective immediately

What: President Biden issued an Executive Order Protecting Access to Reproductive Health Care Services on July 8, 2022. The order is a response to the Dobbs v. Jackson Women’s Health Organization ruling, which overturned the Roe v. Wade ruling, eliminated the constitutional right to an abortion, and returned authority to govern the matter to individual states. The order directs federal agencies to help safeguard access to abortions and reproductive health services. Agencies are to ensure the availability of emergency contraceptives and provide legal protections for out-of-state abortion providers and travel to those providers.

Specifically, the order directs the U.S. Department of Health and Human Services (HHS) to:

  • Submit a report to the president within 30 days that details the agency’s efforts to ensure the availability of emergency and long-acting reversible contraception and emergency medical care for pregnant women;
  • Take action to expand access to the full range of reproductive health services;
  • Explain its efforts to educate the public about protecting access to legal abortions; and
  • Consider ways to protect reproductive- and abortion-related patient information from law enforcement.

The order also directs the attorney general to provide technical assistance to providers that offer legal abortions in their states, and to states that protect the rights of out-of-state patients.


  • Consult with legal counsel to determine the interplay of the federal, state, and local employment laws that could affect your employees.
  • Review your health care benefits and leave policies; revise as needed.

Additional Resources:

FACT SHEET: President Biden to Sign Executive Order Protecting Access to Reproductive Health Care Services

Who: All employers

When: Effective immediately

What: On March 31, 2022, the Biden-Harris Administration released a statement announcing its support of the transgender community and the actions it has taken and will take to protect and promote the rights of LGBTQI+ individuals.

The list of actions is extensive. It includes:

  • Biden declared March 31 of each year a Transgender Day of Visibility.
  • Starting April 11, 2022, U.S. citizens will be allowed to select the gender marker “X” on their U.S. passports.
  • The Equal Employment Opportunity Commission (EEOC) will provide allow persons filing discrimination claims to select the gender marker “X.”
  • The Department of Homeland Security is implementing new measures to better serve transgender, nonbinary, and gender non-conforming travelers. Screening procedures will protect the dignity of all individuals. TSA PreCheck will allow “X” as a gender marker. TSA is streamlining the identity validation process.
  • When a person wants to update their gender identity on their Social Security card, the Social Security Administration will no longer require proof of identity or a physician’s note.

The Biden-Harris Administration is taking additional actions in support of transgender persons receiving proper mental health and medical care and fair access to housing.


  • Update your retaliation and personnel-file policies to comply with the law.

Additional Resources:

FACT SHEET: Biden-⁠Harris Administration Advances Equality and Visibility for Transgender Americans

A Proclamation on Transgender Day Of Visibility, 2022 Your Gender Marker

Who: Federal contractors

When: Effective January 30, 2022

What: Per Executive Order 14026 and the Department of Labor’s final rule, “Increasing the Minimum Wage for Federal Contractors,” the minimum wage for federal contractors increased to $15.00 per hour effective January 30, 2022. President Joseph Biden signed Executive Order 14026 on April 27, 2021, and the Department of Labor published the final rule on November 22, 2021. The minimum wage applies to workers performing work on or in connection with new, renewed, and extended covered federal contracts entered into or renewed on or after January 30, 2022.

The DOL final rule also provides for an annual increase in the minimum wage for federal contractors, the amount of which is to be determined by the Secretary of Labor. In addition, the final rule:

  • Eliminates the tipped minimum wage for federal contractors by 2024,
  • Ensures that federal contract workers with disabilities receive the increased minimum wage, and
  • Restores minimum wage to outfitters and guides operating on federal lands.


  • Update your federal contracts, pay rates, HR manual, and employee handbook as needed to comply with the new minimum wage requirements.
  • Monitor the Department of Labor workplace poster website for the Workers Rights Under Executive Order 14026 Federal Minimum Wage for Contractors poster that communicates the new minimum wage.

Additional Resources:

Executive Order on Increasing the Minimum Wage for Federal Contractors

Increasing the Minimum Wage for Federal Contractors Final Rule

Fact Sheet #83B – Raising the Minimum Wage from Contractors Under Executive Order 14026

Frequently Asked Questions: Minimum Wage EO 14026: Increasing the Minimum Wage for Federal Contractors

Who: Business sponsoring group health plans, consumers

When: Effective January 15, 2022

What: On January 19, the White House launched a website to order free COVID-19 tests. Each household is qualified to order up to four tests. The tests are expected to be delivered within seven to 10 days.

In addition to this new government website, the Department of Labor, Department of Health and Human Services, and the Treasury Department released a joint rule on January 10, 2022, stating that group health plans must pay for at-home over-the-counter (OTC) COVID-19 tests approved by the Food and Drug Administration.

Tests purchased on or after January 15, 2022, must be covered. Group Plans have the option to cover any tests purchased before January 15.

Group Health Plans must either arrange to provide the tests free of charge at the point of sale (through the plan’s regular pharmacy, retail network, or direct delivery system) or reimburse the cost after purchase. In the case of reimbursement, reasonable proof of purchase can include a UPC code or a receipt of purchase that includes the date and price. A doctor’s authorization isn’t necessary.

Plans must ensure that covered individuals can access the tests through an adequate number of means, whether in-person or through online outlets. Plans must communicate to covered individuals the dates the coverage program is available and a list of participating retailers or other locations.

There is a caveat in the rule that provides a $12 per test limit on the amount of reimbursement for out-of-network tests. The $12 limit doesn’t apply if the insurer isn’t able to provide free OTC tests through its plans and needs to provide the tests through other means. Reasons for needing to this could be because of significant delays for the test.

Each covered person may be reimbursed for up to eight OTC COVID-19 tests per month. If a health care provider has authorized additional tests, insurers can’t limit the number of reimbursed tests.

Centers for Medicare and Medicaid Respond

The Centers for Medicare and Medicaid also issued an FAQ document regarding COVID-19 testing, recommending consumers to check with their plan or insurer if it will provide direct coverage or if they must submit for reimbursement.

Workplace Required Tests Not Covered

The new rule doesn’t apply to required workplace testing. In situations where employers are requiring employees to submit COVID-19 test results as part of an employment condition, group health plans are not required to cover the costs.

It is notable that group health plans or issuers could ask individuals to confirm in writing whether their purchase was for personal use or for employment purposes.

Next Steps:

  • Employers who sponsor a group health plan should coordinate with their insurance carriers and third-party administrators to understand how they’ll comply with the new mandate.
  • Communicate any changes and options to employees on how to access OTC COVID-19 tests under the group health plan.

Additional Resources

FAQs About Affordable Care Act Implementation Part 51, Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Act Implementation

CMS Frequently Asked Questions How to get your At-Home Over-The-Counter COVID-19 Test for Free

CMS How to get your At-Home Over-The-Counter COVID-19 Test for Free

FACT SHEET: President Biden Announces New Actions to Protect Americans and Help Communities and Hospitals Battle Omicron

Past Supreme Court Workplace Compliance News

Who: All employers

When: Effective immediately

On February 22, 2023, the U.S. Supreme Court ruled in the Helix Energy Solutions Group v. Hewitt case that an employer didn’t pay a “salary” as defined under the Fair Labor Standards Act (FLSA), and therefore the employee was not overtime exempt. In the case, an employee who made more than $200,000 a year was paid at least a minimum rate on a daily basis, but the rate changed based on number of days worked in a row and didn’t provide a consistent weekly salary.

The question posed to the Court was whether being paid a minimum amount per day counts as a “salary” and therefore made the highly paid professional ineligible for overtime pay. The employer argued that the employee was overtime exempt and did not qualify for overtime compensation. The Court said to satisfy the exemption’s “salary basis” test, the employer would have had to guarantee a “predetermined amount” constituting “a steady and predictable stream of pay, week after week after week” regardless of the time worked.

Accordingly, employers should not assume that highly paid employees who would normally be overtime exempt are exempt if they pay them daily. Employees need to meet the salary basis, salary level, and duties to qualify for overtime exemption.


  • Review your overtime and pay practices to ensure compliance with FLSA and state laws and consult with competent counsel to see how this ruling could affect your employees.

Additional Resources:

Helix Energy Solutions Group v. Hewitt

Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA)

Who: All employers

When: Effective immediately

What: On July 15, 2022, a federal judge granted a preliminary injunction that prevents the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Education from enforcing the EEOC’s guidance on protections for LBGTQ+ employees. The guidance was published in a 2021 Technical Assistance Document. It gives examples of employer actions that may constitute discrimination, particularly those that would affect transgender employees. Two examples of potentially problematic practices are repeated and intentional use of a person’s incorrect pronouns and preventing access to bathrooms that correspond to a person’s gender identity.

Twenty  state attorneys general filed a lawsuit against the two federal , alleging that the agencies’ interpretation of the 1972 landmark civil rights statute known as Title IX and Title VII of the Civil Rights Act of 1964 directly interferes with their ability to enforce existing state laws. The states involved are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia.

The federal court agreed, and temporarily enjoined the agencies from enforcement on the grounds that the EEOC had not complied with the procedures that are required for it to issue legally binding guidance. The EEOC must follow the proper notice and comment procedures for rulemaking before reissuing its guidance.


  • Consider whether to continue to comply with the guidance until the EEOC either reissues or rescinds it and continue to monitor for updates.

Additional Resources:

United States District Court Eastern District of Tennessee at Knoxville Memo

Who: California employers

When: Effective immediately

What: On June 15, 2022, the U.S. Supreme Court issued its long-awaited ruling on Viking River Cruises v. Moriana, a case that involved an employee suing in state court under California’s Private Attorney General Act (PAGA) on behalf of herself and other employees for alleged wage and hour law violations. The Court held that California employers can enforce arbitration agreements to the extent that they require employees to arbitrate individual claims under PAGA and that once the employee’s individual claims are compelled into arbitration, that employee does not have standing to bring a representative claim under PAGA on behalf of other employees.

Generally, PAGA allows employees to bring suit to recover penalties as a proxy for the state of California (75% of penalties recovered go to the state and 25% go to the employees). PAGA actions can be brought on behalf of the employee and on behalf of other aggrieved current or former employees.

In Viking River Cruises, Moriana sued her former employer on behalf of herself and other employees under PAGA. Prior to that, Moriana had signed an arbitration agreement that contained a “class action waiver.” Her former employer moved to compel arbitration of her PAGA claims. The trial court denied this motion and the California Court of Appeal affirmed this decision based on a prior case, Iskanian v. CLS Transportation of Los Angeles, where the California Supreme Court held that arbitration agreements containing waivers of the right to bring a PAGA representative action were unenforceable.

However, the U.S. Supreme Court overruled the Court of Appeal, holding that the rule preventing the division of PAGA claims into individual and non-individual claims is preempted by the Federal Arbitration Act (FAA). Accordingly, the Court held that Moriana should have been forced to arbitration her individual PAGA claims, and that once Moriana’s individual claims are sent to arbitration, she is unable to bring non-individual PAGA claims on behalf of other employees.


  • Work with legal counsel to bring your arbitration agreements in line with the ruling.
  • Monitor whether the California legislature amends PAGA in light of the Viking River Cruises ruling.
  • Monitor current litigation related to AB 51 that could result in the disallowance of mandatory arbitration agreements as a condition of employment.

Additional Resources:

Viking River Cruises Inc. v. Moriana Ruling

Who: All employers

When: Effective immediately

What: On June 24, 2022, the U.S. Supreme Court ruled in the matter of Dobbs v. Jackson Women’s Health Organization. With this decision, the court upheld Mississippi’s legal restrictions on abortion and overturned Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). The ruling states that the U.S. Constitution does not confer a right to abortion and returned authority to govern the matter to individual states.

States may now pass laws that restrict abortion rights and criminalize the act of assisting individuals who seek an abortion. Some states have existing laws in place that ban some forms of abortion—laws that became or will become effective because federal authority over abortion was removed.

Employers need to be aware of the state laws they must abide by in relation to:

  • Assisting employees who are seeking an abortion;
  • Covering abortions under group health plans;
  • Covering abortion-related travel expenses to a jurisdiction where abortion is legal;
  • Granting leave in the case of abortion; and
  • Applying provisions of the Pregnancy Discrimination Act.

Group health plan benefits are tax-free to the extent that the medical care meets the requirements of Internal Revenue Code Section 213. The care does not need to be medically necessary, but it must be legal. Therefore, in some states, the care would have to be medically necessary to be covered as a tax-free benefit.

Fully insured medical plans must abide by state insurance laws. Self-funded plans are governed by the Employee Retirement Income Security Act (ERISA), which generally preempts state law. Litigation will likely ensue to determine the viability of the federal preemption over state laws related to abortion.

Employers should be aware that under the Pregnancy Discrimination Act, they may not take adverse employment action against an employee for having or considering an abortion, nor for the employee’s decision not to have an abortion. Under the Family and Medical Leave Act (FMLA), employees may be eligible to take protected leave for abortion-related care if their healthcare provider determines that they have a qualifying serious health condition.


  • Consult with legal counsel to determine the interplay of the federal, state, and local employment laws that could affect your employees.
  • Review your health care benefits and leave policies; revise as needed.
  • Monitor for developments in related legislation in the states where you operate.

Additional Resources:

Dobbs v. Jackson Women’s Health Organization

Planned Parenthood of Southeastern Pennsylvania v. Casey

Roe v. Wade

Past Federal Court Workplace Compliance News

Who: Louisiana, Mississippi, and Texas employers and employees

When: Effective immediately.

What: On June 15, 2022, the Fifth Circuit issued a ruling declaring that COVID-19 does not fall under the natural disaster notice exception under the federal Workers’ Adjustment and Retraining Notification (WARN) Act. In the case, employees of a Texas oil company were terminated without any advance notice. The employees filed suit, and the trial court determined that the COVID-19 pandemic was a form of “natural disaster.”

The employees appealed, and the Fifth Circuit Court ruled that the definition of “natural disaster” only applies to the examples given in the text of the WARN statute (i.e., hydrological, geological, and meteorological events). The Fifth Circuit specifically reasoned that Congress was familiar with past pandemics when the WARN Act was passed and could have included words such as “disease” or “pandemic” in the examples listed if it wanted to do so.


Review your current policies and procedures and update them to comply with the new ruling.

Educate and inform your employees about state mandates and safety protocols.

Additional Resources:

Easom v. US Well Services, Inc. No. 21-20202

Who: Federal employers and employees

When: Effective immediately

What: On April 7, 2022, the 5th U.S. Circuit Court of Appeals reversed a district judge’s ruling regarding COVID-19 vaccination, thereby reinstating the COVID-19 vaccine requirement for federal workers.

The vaccination requirement, which was issued in September of 2021 mandates that all executive agency employees must be fully vaccinated against COVID-19, with exemptions for medical reasons and religious beliefs.

Additional Resources:

Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees

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