Employment

Recent amendments to New York City’s Earned Sick and Safe Time Act (ESSTA) went into effect this month. Consistent with recent amendments to New York State law (which we discussed here and here), the City’s amended leave law now explicitly requires NYC employers to provide up to 20 hours of paid prenatal leave for eligible employees within a 52-week period and seeks to integrate related paid prenatal leave obligations into the existing ESSTA compliance framework for safe/sick time. The amendments also clarify the available penalties, remedies, and enforcement mechanisms for violations of the paid prenatal leave requirements.  

The Massachusetts Department of Family and Medical Leave (the “Department”) recently updated its Employer Portal, issued a reminder for the private plan reporting deadline of August 31, 2025 and summarized tax guidance concerning the Massachusetts Paid Family and Medical Leave law. We explore each of these updates in more detail.

Reimbursements for relocation expenses have once again become a key component of attracting top talent. If not carefully structured, however, such expense reimbursements may inadvertently trigger significant adverse tax consequences under Section 409A of the Internal Revenue Code. This post discusses some of the requirements under Section 409A and offers tips for avoiding some of the common pitfalls in drafting relocation benefits.

Many Massachusetts residents have recently considered taking, or have undertaken, steps to relocate from Massachusetts to jurisdictions with lower or no state income taxes, especially in light of the recently enacted 2023 Massachusetts “Millionaire’s Tax”.  While such a move could offer significant tax advantages, a recent Massachusetts Appeals Court decision, Welch v. Commissioner of Revenue, could reshape how nonresidents are taxed on capital gains from stock sales, emphasizing where the value was earned over where it is recognized. 

In an era where President Trump has revoked existing federal AI policies and directives and federal agencies have followed suit, several state legislatures and courts are weighing in to account for potential AI-enabled bias in employment decisions, ranging from hiring and recruiting to separation and termination, including regulating the use of automated decision systems (ADS) in the workplace. This post provides a brief overview of some recent AI employment-related proposed legislation and legal challenges.     

The recently enacted TAKE IT DOWN Act makes it a federal offense to share online nonconsensual and explicit images, regardless of whether the images are real or computer generated. The law is intended to protect victims from online abuse, set clear guidelines for social media users, and deter “revenge porn” by targeting the distribution of real and digitally altered exploitative content involving children. While the 2019 Shield Act criminalized the sharing of intimate images with the intent to harm, the TAKE IT DOWN Act provides additional protections by establishing a removal system that allows victims to request removal of harmful and intrusive images, and mandates tech platforms to remove such images within 48 hours of receiving a takedown request from an identifiable person or authority acting on behalf of such individual. The law aims to respond to the recent era of artificial intelligence (“AI”) “deepfakes” or realistic, digitally generated or altered videos of a person, often created and distributed with malicious intent. Additionally, the law attempts to combat the rise of “nudification technology” used to create highly realistic and sexually explicit images and videos, by removing the clothes from original images of clothed people. Users of this technology can disseminate the images rapidly, broadly, and anonymously.

In a closely watched decision, the Massachusetts Supreme Judicial Court in Miele v. Foundation Medicine, Inc. clarified that the Massachusetts Noncompetition Agreement Act (MNAA) (G.L. c. 149, § 24L) does not apply to non-solicitation covenants

If your company is required to submit a federal EEO-1 report, you have until June 24, 2025 at 11:00 p.m. ET to file it online. The EEOC has already indicated there will be no grace period.

Can members of a majority group be subject to a heightened pleading standard for their Title VII discrimination claims?  The United States Supreme Court answered this question with a unanimous “no” in Ames v. Ohio Department of Youth Services. The Court’s decision resolves a Circuit split and disposes of the “background circumstances” standard long applied by certain courts, which required majority group member plaintiffs to make an extra showing, as part of their prima facie or initial case of discrimination, that their employer is the “unusual employer who discriminates against the majority.” While disparate treatment discrimination claims are still generally analyzed under the traditional three-step burden shifting framework set forth in McDonnell-Douglas v. Green, employers should be aware that the Ames decision may result in an uptick of so-called “reverse discrimination” cases. 

In a rare but significant “win” for employers, the Ontario Court of Appeal confirmed that an employer can enforce a termination provision limiting an employee’s entitlements strictly to the minimum standards under the Employment Standards Act, 2000 (the “ESA”). The decision, in Bertsch v Datastealth Inc. (2025 ONCA 379), may mark a turning point in a legal landscape where such provisions are often struck down for ambiguity or statutory non-compliance.  

The Province of Ontario recently introduced a guide (“Guide”) to help employers navigate recent and upcoming changes to the Employment Standards Act, 2000 (the “ESA”). We have highlighted some of the key upcoming changes below along with other employment considerations, including mandatory disclosures to new employees, information in public job postings, and new types of statutory leave.

New York State has resolved a recent judicial split regarding pay frequency violation remedies by amending the New York Labor Law (“NYLL”) to limit an employee’s ability to recover sizeable liquidated damages. New York employers will welcome the newfound certainty (and capped damages) provided by this legislative development.

The Trump Administration issued its latest Executive Order entitled Restoring Equality of Opportunity and Meritocracy (the “EO”) on April 23, 2025.  The EO focuses on “disparate impact” discrimination and is the latest in a string of orders impacting the workplace – the effects of which American workplaces are still digesting.

As summarized in detail here, President Trump’s recent executive order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”) takes aim at non-compliant Diversity, Equity and Inclusion (“DEI”) programs in both the public and private sectors.  With the prospect of “civil compliance investigations” and other actions, the Order is a warning to private employers that have allegedly “adopted and actively use[d] dangerous, demeaning, and immoral race-and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.” Many private employers have struggled with how to respond to the Order, particularly given the Order’s vagueness and contradictory state and local laws.  One of the questions that has emerged is how the Order impacts employers’ commercial free speech rights given the U.S. Supreme Court’s view that such rights are critical to the “uninhibited marketplace of ideas[.]” 

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) released joint “technical assistance documents” (i.e., non-binding interpretive guidelines for enforcement agents) which identify specific diversity, equity, and inclusion (“DEI”) practices that those agencies may consider “illegal” and “discriminatory.” 

As part of the Trump Administration’s significant efforts to roll back the Biden Administration’s policies, the Acting General Counsel of the National Labor Relations Board (the “NLRB”)  recently rescinded, via Memorandum GC 25-05, more than 30 Biden Administration memoranda.  Chief among the rescinded memoranda is the NLRB’s 2023 guidance regarding non-disparagement and confidentiality provisions included within non-managerial employees’ severance agreements, which followed the NLRB’s February 21, 2023 decision in McLaren Macomb. 

As of this writing, the Trump administration has implemented a 25% tariff on most Canadian goods imported into the United States. Canadian governments at all levels are preparing relief programs for local businesses, but these may not mitigate the potentially material adverse effects on the Canadian economy. Canadian employers may be faced with difficult decisions respecting personnel, including changing employment terms and conditions, temporary layoffs, and reductions in force. Here are some important legal concepts for employers to keep in mind when navigating these challenges.

President Trump’s executive orders aimed at Diversity, Equity and Inclusion (DEI) programs and policies, including the executive order titled “Ending Illegal Discrimination and Restoring Merit Based Opportunity” (Executive Order 14173), are impacting the way publicly traded companies approach their DEI-related disclosures.  Although enforcement of the executive orders was recently temporarily halted (as we wrote about here), as calendar year end public companies begin to file their Form 10-K Annual Reports for the fiscal year ended December 31, 2024, we have seen, and expect to continue to see, a shift in new DEI disclosures as compared to prior years.  Companies are paying consideration to whether they want to include such disclosures, how comprehensive such disclosures should be, and what language should be employed to strike an appropriate balance.  

President Donald Trump has swiftly signed several immigration-related executive orders and implemented other immigration initiatives since his inauguration.  These executive orders and policy changes have the stated intent to further the President’s policy objectives of deploying “the largest domestic deportation operation in American history” and targeting undocumented immigrants.  Their reach is vast and varied, including pausing refugee resettlement to those who had been vetted and approved; ending humanitarian parole that had temporarily allowed over 500,000 migrants from Cuba, Haiti, Venezuela and Nicaragua to enter and work in the U.S.; and launching efforts to find, apprehend and remove millions of unauthorized immigrants.  However, their impact extends beyond these groups and have significant implications in the workplace.  Employers need to prepare and establish practices and procedures to prepare for government raids, enforcement actions, regulatory changes and compliance challenges. 

A federal district court in Maryland has temporarily enjoined enforcement of several key aspects of two recent DEI-related executive orders from the Trump Administration – Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) and Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity, discussed further here) (together, the “Executive Orders”). In this post, we briefly summarize the court’s decision and outline the implications for employers.