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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: All employers

When: Effective immediately

On February 28, 2024, President Biden released an Executive Order that represents the first federal law governing data privacy. The order prevents U.S. persons from selling or releasing Americans’ “bulk sensitive personal data” and certain U.S. government–related data to countries of concern. The purpose is to prevent foreign adversaries from using personal data to engage in malicious activities such as blackmail and espionage.

Sensitive data includes information about finances, genetic makeup, personal health, biometrics, geolocation, and other specific types of personally identifiable information. Government-related data is defined as information that is a) linked to or could be used to identify U.S. government personnel and b) linked or linkable to specific sensitive locations controlled by the U.S. government. Countries of concern include Iran, North Korea, Russia, China, Cuba, and Venezuela.

The Department of Homeland Security and the Attorney General’s office will work together to set security standards to help prevent access to personal data by other countries through means such as data brokers or employment agreements. The Department of Justice released an Advance Notice of Proposed Rulemaking, and public comments are due by April 15, 2024.


  • Review your data privacy policies and update them to comply with the law.
  • Ensure that vendors and third parties to whom you disclose sensitive data are not located in a country of concern.
  • Ensure that vendors and third parties to whom you disclose sensitive data have policies that comply with the law.
  • Remove any tracking technology on your websites that belong to a country of concern.
  • Prepare to update your vendor, employment, and investment agreements with security requirements that protect sensitive covered data.

Additional Resources:

Executive Order on Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern

FACT SHEET: President Biden Issues Executive Order to Protect Americans’ Sensitive Personal Data

FACT SHEET: Justice Department Will Issue Advance Notice of Proposed Rulemaking Following Forthcoming Groundbreaking Executive Order Addressing Access to Americans’ Bulk Sensitive Personal Data by Countries of Concern

Advance Notice of Proposed Rulemaking (ANPRM)

Who: All employers

When: Effective immediately

On October 30, 2023, President Joe Biden signed an “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” to help govern the use of Artificial Intelligence (AI).

The Executive Order doesn’t create new laws for the private sector; it directs federal agencies to take action in the next year to ensure the safe and secure use of AI. Employers should take note, however, because there will be outcomes that affect the private sector.

The government is establishing a number of new offices and task forces and requiring each federal agency to appoint a Chief AI Officer. The Biden administration also released a fact sheet about the executive order, which addresses:

  • Using AI technology safely and securely;
  • Responsible innovation, competition, and collaboration;
  • How to support American workers;
  • Maintaining equity and civil rights;
  • Protection of American consumers, patients, passengers, and students;
  • Protection of privacy and civil liberties;
  • The federal government’s use of AI; and
  • Strengthening American leadership abroad.

The Executive Order requires the U.S. Department of Labor to plan how federal agencies will prevent unnecessary job loss and disruption due to the use of AI. The Executive Order prescribes how the federal government will address job discrimination based on the use of AI and keep individuals’ data private. It also provides for regulation of private industry companies that are involved in the development of large-scale, powerful AI platforms. The takeaway for private employers is that they must protect workers’ rights as they introduce AI into the workplace.

To attract AI experts to the U.S., the Executive Order directs agencies to make changes in immigration policies that will streamline the work visa procedure and attract and retain said experts.

Employers can expect increased regulation of their monitoring of employees and use of AI in the workplace. The Secretary of Labor is tasked with coming up with specific steps employers should take with regard to “labor standards and job quality, including issues related to the equity, protected-activity, compensation, health, and safety implications of AI in the work place” and AI-related data collection.

The EEOC has also issued guidance regarding the general use of AI in the private sector.  Here are five major factors to be aware of and prepared to address:

  • The use of AI tools may violate Title VII of the Civil Rights Act, such as (but not limited to) resume scanners; virtual assistants; video interviewing software; testing software used in the selection process; and employee productivity monitoring software.
  • The EEOC may apply the “Four-Fifths Rule” to AI selection procedures that could cause a disparate impact on a protected class group. This test compares the rate of selection of a protected group against the group with the most successful selection rate. If the rate of the protected group is less than four-fifths of the successful group, the employer may be subject to a disparate impact challenge.
  • Employers should proactively conduct self-audits to screen AI tools and processes for discriminatory results. Such self-monitoring is not limited only to the Four-Fifths Rule and employers should request assistance from legal counsel.
  • Private employers are not immune from liability for violations caused by their vendors. The EEOC has said that enforcement of non-discrimination laws will include holding employers liable for actions of their “agents.” In this case, it include AI vendors on contract. When selecting an AI vendor, be sure to ask a vendor you are considering to develop safeguards against disparate impact, such as the Four-Fifths Rule test, and to develop an algorithmic decision-making tool to mitigate potential disparate impact.
  • The EEOC is not the only federal agency increasing their focus on Title VII violations. The EEOC has recently been partnering with the Department of Justice, the Federal Trade Commission, and the Consumer Financial Protection Bureau. They have released several technical guidance documents that explain where the agencies may focus their enforcement efforts.

The EEOC has also issued guidance focusing specifically on the use of AI and the Americans with Disabilities Act (ADA).  This guidance focuses on:

  • Accessibility for those with visual disabilities;
  • Accommodation by providing alternatives if it is difficult for persons with disabilities to use the tool; and
  • Ensuring that the tools assess individuals in the context of any reasonable accommodation the employer is likely to give them in the execution of their job duties.

The EEOC distinguishes between design and testing criteria for compliance with Title VII and non-discriminatory selection practices regarding ADA, such as inadvertent medical inquiries.


  • Monitor for additional guidance from the federal government and your state or local jurisdictions regarding use of AI in the workplace and how to protect worker rights and privacy.
  • Review your policies and practices to determine how your use of AI impacts workers, their privacy, and their job security.
  • Consult legal counsel if you have questions or concerns.

Additional Resources:

“Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.”

FACT SHEET: President Biden Issues Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence

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: Public employers

When: Effective immediately

On June 30, 2023, the U.S. Supreme Court ruled in 303 Creative v. Elenis. The case was a pre-enforcement challenge to enjoin the Colorado Civil Rights Commission from enforcing the state’s anti-discrimination law against 303 Creative, a web a graphic design business. Lorie Smith, the owner of the business, was considering adding website design to her portfolio of services. She did not want to be sued for refusing to build wedding websites for same-sex couples based on her religious beliefs. She argued that following Colorado’s Anti-Discrimination Act (CADA) would violate her First Amendment right against compelled speech. CADA states that it is unlawful for a person to refuse full and equal enjoyment of goods or services in a place of public accommodation.

The District Court denied Smith’s request for an injunction, and the Tenth Circuit Court of Appeals affirmed the District Court’s decision.

On review, the U.S. Supreme Court reversed the decision, stating that by creating wedding websites, Smith was providing an “expressive service” and engaging in “pure speech,” which is protected under the First Amendment. Justice Neal Gorsuch stated, “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.” He added, “Public accommodations statues can sweep too broadly when deployed to compel speech.”

Justice Sonia Sotomayor—in the minority—stated, “Today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. … [T]he decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service.” She argued that “the act of discrimination has never constituted protected expression under the First Amendment.”

This Supreme Court Decision does not affect state and federal anti-discrimination laws for private employers. Private employers may still create their own anti-discrimination and anti-harassment policies to ensure a welcoming environment for employees and customers, and they may discipline employees who violate those policies.


  • Consider whether you should clarify your nondiscrimination policies and training.

Additional Resources:

303 Creative v. Elenis

Who: Public and private universities (see summary for relevance to private employers)

When: Effective immediately

On June 29, 2023, the U.S. Supreme Court ruled in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College to effectively dismantle affirmative action in the higher education admissions process.

The decision does not directly impact private employers, who can implement and maintain their own diversity, equity, inclusion, and accessibility programs, as long as they comply with U.S. Department of Labor and Equal Opportunity Employment Commission rules. In a press release following the ruling, the EEOC stated, “[i]t remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”


  • Consult with legal counsel to ensure your diversity, equity, and inclusion programs, practices, and policies comply with applicable laws.

Additional Resources:

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College

Who: All employers

When: Effective immediately

On June 29, 2023, the U.S. Supreme Court ruled on Groff vs. Dejoy, a case that impacts how employers handle religious accommodations under Title VII of the Civil Rights Act of 1964. Groff was an evangelical Christian who worked for the United States Postal Service (USPS) when it started to require workers to deliver for Amazon on Sundays. Groff refused to work on Sundays, which led to disciplinary notices. He eventually resigned and then sued USPS under Title VII, arguing that USPS could have reasonably accommodated his Sundays off for worship without incurring significant costs or difficulty.

The lower courts ruled against Groff, saying that accommodating his Sunday worship days had imposed additional duties on his co-workers, disrupted the workplace, and lowered employee morale, requiring USPS to bear more than a de minimis cost. The U.S. Supreme Court disagreed and stated that showing “more than a de minimis cost” does not suffice to establish undue hardship.

Rather, the Court said a party shows an undue hardship when “the burden of granting an accommodation would result in substantially increased costs in relation to the conduct of its particular business.” The case was remanded to the lower courts, which must apply the new standard to the facts of the case.


  • Update your policies and procedures as needed to comply with the law.
  • Train managers and HR personnel on the law.
  • Consult with legal counsel regarding recent accommodation requests to determine if you need to adjust your decisions, and to determine what evidence you’d have to supply to prove hardship when denying an accommodation request.

Additional Resources:

Groff v. DeJoy

Who: All employers

When: Effective immediately

On June 1, 2023, the U.S. Supreme Court ruled in Glacier Northwest v. Teamsters that an employer may pursue a state tort claim when strikers damage company property if they failed to take “reasonable precautions” to protect that property. The court held that such a right is not preempted by the National Labor Relations Act (NLRA). Under the NLRA, workers have a protected right to engage in negotiations with an employer, including the right to strike.

In this case, the worker strike was executed in such a manner that would not only make a perishable product (concrete mixed that morning) unusable, it would damage the delivery mechanism (the mixing trucks). The court’s decision obligates striking unions to take steps to mitigate foreseeable and imminent harm to employer property, especially when it involves perishable products. Employers can sue unions for damages if strikers do not take reasonable precautions to prevent damage.


  • Unions and strikers must take reasonable precautions to protect their employer’s property due to work stoppages and avoid labor-related misconduct.
  • Consult with labor relations legal counsel regarding current and future labor conflicts.

Additional Resources:

Glacier Northwest v. Teamsters Ruling

National Labor Relations Act

Who: All employers

When: Effective immediately

On June 23, 2023, the U.S. Supreme Court ruled in Coinbase, Inc. v. Bielski that if a trial court denies a party’s request to compel arbitration, it must stay pre-trial and trial proceedings while the party appeals the decision on arbitrability.

The three key benefits of arbitration are privacy, cost savings, and efficiency. Court proceedings are public records, which can mean sensitive information is shared with the public. Arbitration proceedings are more private, especially when they include a confidentiality clause. Litigating in court is a costly process and when paused pending an appeal, the parties avoid those costs. Arbitration is also a more efficient process because it avoids the common scenario where the parties go through litigation, then the employer prevails on appeal.

Justice Brett Kavanaugh stated that “If the district court could move forward with pre-trial and trial proceedings while the appeal on arbitrability was ongoing, then many of the asserted benefits of arbitration—efficiency, less expense, less intrusive discovery and the like—would be irretrievably lost.”


  • Review your arbitration agreements and consult with legal counsel to ensure compliance with the law.

Additional Resources:


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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