From Lawyer to Employer | Season 4, Episode 4: From the Front Lines: 2025’s Biggest Employment Law Trends

Dan Schwartz: So this seminar was really a lot of fun.

Did you enjoy seeing clients at the uh, labor and employment seminar?

Abby Booth: I did. It was great that we had it back in person for the first time since COVID, the Hotel Marcel was, I think, an incredible venue, hopefully one that we could maybe use in the future.

Dan Schwartz: Yeah, that would be great and I've talked about it on some prior episodes, so won't spend any more time on Hotel Marcel, but really an interesting, uh, interesting place made me want to go watch the movie The Brutalist 'cause that is a classic definition, a brutalist architecture there.

So Abby, I know you and I would rather be talking about concerts that we've been to Abby was a little jealous that I got to go to the Chappell Roan concert. earlier this fall. We'll have to find another podcast episode where we can weave in some, some concerts there. But why don't we talk about some of the topics that came up at the, uh, at the program.

Sound good?

Abby Booth: Sounds great.

Dan Schwartz: So, I'll start because it's really been a big year among immigration law and right before the presentation started there was a lot that was in flux. And so the time we're recording this and I, I often don't have to say that, but I feel like with this administration we have to sort of give caveats because who knows in the days after we put this out, things can change. But there were some changes to H1B petitions changes to a weighted lottery system. But I think one of the other things that we've heard about are. I9 audits, and this is something I think employers need to think about when they hire people, right?

Abby Booth: Of course. Um, what we've been hearing is that the federal government really plans to double the number of I9 audits that it's going to complete this year. So this is important even for employers who don't use foreign labor. You really need to ensure that you're reviewing your electric I9 systems to ensure compliance.

Dan Schwartz: Yeah. And recent headlines from a while ago show sort of the importance of doing so and also the risks that still exist in there. And this was. The Des Moines superintendent of schools apparently submitted a driver's license and a social security card for I9 compliance, but it turned out he may not have had all of his documentation at issue. So make sure you're doing the I9 correctly and that you really review them and ensure you also have the necessary documentation.

Let's switch gears for a second. I, I know the topic of the NLRB and labor law came up. I, you know, we could spend a whole podcast episode just on that, but were there any developments that stood out from the presentation that you wanted to mention?

Abby Booth: Of course. I think as an initial matter, it's important to note that the NLRB still doesn't have a quorum, and so that's been affecting the manner in which the NLRB can make final decisions. And so we're seeing updates, and again, as Dan was saying, who knows what could happen maybe between now and when this podcast episode is released, but just something to consider.

Additionally, there were two major cases that were discussed that stand out. First is Hiran Management via NLRB, in which the Fifth Circuit is questioning whether the NLRB can award expanded, make hold damages, including consequential losses. This case, like I said, is at the Fifth Circuit, but could certainly end up at the US Supreme Court.

Additionally, the DC circuit is reexamining the successor bar doctrine in Hospital Menonita via NLRB, which affects employers acquiring unionized businesses.

Dan Schwartz: I've also heard New York is amending its labor law. What? What was that all about?

Abby Booth: So, as you just said, New York recently amended its labor law to require the NLRB to get a court order before asserting jurisdiction and private sector disputes promoting a preemption lawsuit.

Dan Schwartz: Yeah, so I think employers doing business in multiple states, uh, should probably expect some more complexity here, not less. Right?

Abby Booth: Exactly. And like I said, stay tuned for when the NLRB has its full quorum and can really start to put out its own decisions. But in the meantime, we're in a period where both the federal and state authorities are testing the limits of their power and how they interact with the NLRB.

Dan Schwartz: Yeah. Sounds, uh, sounds good. Let's pivot a little bit to harassment claim. I mean, it's something every employer worries about. Over the summer, we had this sort of Coldplay video that came, uh, went viral with the CEO there. And I was struck because the presentation sort of noted a surging claim. So what's, what's driving that?

Abby Booth: I think employers are really seeing this familiar pattern play through of an employee who receives poor review or negative feedback and that that employee ultimately files a harassment or hostile work environment complaint based on that negative review or poor feedback that they receive, and then the employee decides to go out on leave and it really puts the employer in a bind and creates a risk of retaliation if the employer you know, decides to move forward with any disciplinary action or even potentially a termination.

Dan Schwartz: Yeah. So, if an employee goes out on leave, the employer still has to conduct an investigation, presumably into an harassment complaint, right?

Abby Booth: Of course they do. And I think what's really important here and what we discussed during our session is that the best defense is really that in real time documentation. So, if you are conducting that harassment investigation or moving forward with any disciplinary action that you are documenting the steps that you're taking, even if the employee's out on leave during that period.

Dan Schwartz: Yeah. Does the documentation also apply to like performance reviews and making sure you've got the necessary documentation to put them on a performance improvement plan or give them that negative feedback?

Abby Booth: Yes, of course. And as you're saying, that's even more important if the employee has taken unrelated leave.

Dan Schwartz: Got it. Yeah. And I've been talking with some employers about the fact that performance reviews can be both subjective and objective in that they rely on criteria, maybe a uh, uh, sales figures, right - but that doesn't necessarily preclude employers from focusing on, ‘hey, you, you need to have to show up on time or have a, an attitude where you're welcoming to customers’, real time documentation and not really after the fact documentation, I think is, uh, is important. That was a takeaway that I heard from when you all were talking.

So let's switch gears too, because the presentation really covered a lot and I want to be sure to hit on some of these topics. Reductions in force, obviously something we're hearing about. You've seen it now at the federal government. We've been hearing about it for employers with this rise in economic uncertainty, whether it's the tariffs or otherwise, what is sort of the latest there.

Abby Booth: Well, really we were just reminding employers of their current obligations affected during reductions in force. And so first of all, we had some public sector employers or even private sector employers that have unionized employees. And so really ensuring first that you're reviewing a collective bargaining agreement, which typically dictates the process for any RIF that's taking place.

Additionally, we wanted to remind employers about the Warn Act compliance, so that 60 days written notice before a covered layoff or a plant closing. Additionally, I think most importantly is just ensuring that you prepare as, as an employer, you prepare a clear RIF memorandum explaining the business reasons and the selection criteria for any reduction in force that's taking place.

Dan Schwartz: Yeah, a reduction in force has a number of rules attached to it. I think the WARN Act, uh, is, is a great red flag for employers. That isn't one that comes up often, but when a reduction in force happens it's the law that is out there. Did you talk about, at all about the severance agreements, uh, and what they need to have for reduction in force?

Abby Booth: Yes. We also really, you know, we suggested having severance agreements with waivers and releases of liability to reduce any litigation risk if you are separating employment with a number of your employees.

Dan Schwartz: Yeah, and just a reminder, under the older workers' benefit protection act, if you're doing a reduction in force employees, then get 45 days to consider it.

And this is older employees over the age of 40, I should mention 45 days to consider the agreement versus the 21 under a normal termination. And then they get a list of people who are terminated by ages and titles. Only as well, right?

Abby Booth: Yes, exactly.

Dan Schwartz: Okay. Supreme Court, certainly a busy Supreme Court session last year.

Supreme Court has just started this year, so we don't really have decisions from its new term, uh, just as yet. But was there any employment case or two from, from the last term that, uh, stood out that you guys talked about in the presentation?

Abby Booth: Yes. There were two specific US Supreme Court cases that we discussed.

First was Muldrow v City of St. Louis, in which the court lowered the bar for proving an adverse action under Title VII. The court ultimately held that now employees only have to show some harm, not significant harm, for an adverse action, which really broadens a range of transfer and reassignment claims that an employee can make when previously transferring to a different department or a different position may not have met that bar of significant harm.

Dan Schwartz: Yeah. You mentioned there was another case as well. Was that the, the Ames v. Ohio Department of Youth Services case?

Abby Booth: Yes, Dan. And this specifically applied to the distinguishment between majority and minority groups in Title VII cases. And so in Ames v Ohio Department of Youth Services, the court ruled that the protections of Title VII apply equally to majority and minority groups. So there's no heightened burden for reverse discrimination claims. There was a circuit split prior to this decision with some circuits requiring a heightened burden for those majority groups to prove their prima facie case of discrimination.

Dan Schwartz: Interesting. So I would think, and though, you know, time will tell, we might end up seeing more cases sort of survive early dismissal because the court is essentially saying on under Aims - you don't need this heightened pleading standard. It's just notice pleading with, you know, with some, some facts in there. But employers should certainly expect to see some of these claims go forward. Right?

Abby Booth: Exactly. And I think even more importantly too is that Muldrow, Barr as well, to ensure that employers are retraining their managers to ensure that there's, you know, proper documentation on any transfer decisions being made, or any reassignment decisions to have legitimate and well-documented reasons for those changes, so they would not be considered an adverse action.

Dan Schwartz: Yeah. And one of the other topics that I think came up related to Supreme Court decisions, and I this sort of dates back a few years to the Roth v. DeJoy case and others, but, you know, uh, vaccine requirements and sincerely held religious beliefs are back in the news, right?

Abby Booth: Yes, they are at the Connecticut Supreme Court level we just wanted to note that there is a vaccine case moving through our state courts vaccines in the school context. So certainly, uh, keep your eye out for any, um, updates on that. But even for employers, courts are starting to redefine what counts as a sincerely held religious belief under Title VII. So there were two specific cases, Barnett v Nova Healthcare and Domski v. Blue Cross Blue Shield of Michigan. Which employees refuse vaccines for religious reasons, ultimately were reinstated or awarded damages because they were able to prove that there was a sincerely held religious belief that prevented them from meeting their employer's vaccine requirement.

Dan Schwartz: Yeah, and I think this sort of continues the trend, as I noted of recent years, where religious accommodations are really given a lot more weight than they were.

Say five or 10 years ago where employers didn't really have to treat them the same as ADA requests, and now I don't think there's a huge difference between the two. Right?

Abby Booth: Exactly. So here, employers, you know, to prove that undue hardship of allowing employee to have an exemption from those vaccine requirements would really have to show substantial increased costs and not just an inconvenience.

Dan Schwartz: Yeah, employers. I think the takeaway from the presentation that I took from it is that employers really do need to treat these accommodation requests more seriously, analyze them on a case-by-case basis and not just apply sort of blanket rules for that and presumably documenting everything as well.

Abby Booth: As always, Dan,

Dan Schwartz: As always, we love our documentation as employment lawyers here.

Connecticut obviously has had a number of developments as well. Were there any Connecticut Supreme Court cases that stood out to you that employers should be aware of?

Abby Booth: Yeah. Similarly to the US Supreme Court, there were two Connecticut Supreme Court decisions that we highlighted during our presentation.

First was related to, uh, whistleblower protections, which is the Department of Health via Estrada, an opinion from 2024, which clarified that in some circumstances employees could receive whistleblower protection. Even when they're self-reporting their own errors, they still ultimately have to prove retaliation based on their self-reporting.

But it certainly is different than the standard of an individual reporting, you know, malfeasance by, by another employee that they work with.

Dan Schwartz: Yeah, the that one caught my eye as well, the sort of blowing the whistle on yourself and getting protection for that. But, you know, that's, uh, that's the case and employers need to be aware of it as well.

What was the other case that stood out to you?

Abby Booth: The second case was O’Reggio v. CHRO, which as you can tell from the title, was a, originally a CHRO complaint related to vicarious liability for harass. So in this decision also from 2024, the Connecticut Supreme Court, the takeaway is that they reaffirmed that Connecticut's Fair Employment Practices Act and their analysis of it really follows federal precedent in Title VII. Specifically in this circumstance, the Connecticut Supreme Court accepted the US Supreme Court's definition of supervisor for vicarious liability, meaning an individual who can take a tangible employment action, so hiring, firing, demotion. And that would lead to automatic employer liability.

Dan Schwartz: Yeah. And if you've been keeping up on this, so this decision happened in 2024 and earlier this year there was a legislative proposal to sort of revise the definition of the supervisor statutorily didn't end up coming to pass, but I do think it's something we are likely to see in the future and should keep an eye on. So, Abby, before we wrap up, what was the sort of big picture that employees and employers should have from this year?

Abby Booth: I think this year's message is really documentation, ensuring compliance and also understanding that compliance is moving targets, right? So federal and state agencies are becoming more aggressive and slightly more employee friendly in certain circumstances, as are the courts and expanding employee protections. And as always, especially with any, you know, potential retaliation or harassment claim, ensuring that we have proper record keeping.

Dan Schwartz: Yeah, and again, it was a great program. If you want more of that, you can certainly go to Shipman & Goodwin.com. I think some of our materials may still be up there. Certainly go to Employment Law Letter.com to subscribe to our blog posts as well on the subject. So Abby, thanks for joining us.

Abby Booth: Of course. Thanks, Dan. Always a pleasure.

Dan Schwartz: All right, and, and like I said, next time, next time we're gonna do a concert review.

Abby Booth: We have Taylor Swift's new album that just came out. I know. So we have a lot to discuss the

Dan Schwartz: Lots lot to discuss as well, so. Thanks again for listening and for joining from Lawyer to Employer.

As always, you can subscribe to our podcast wherever you get your podcast, whether it's on Spotify, Apple Podcasts, or your own platform. If you have any questions that you would like to see us cover on an upcoming episode, feel free to email me at dSchwartz@goodwin.com. Until next time, stay informed, stay compliant, and again, we appreciate you listening.

Take care.

Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast. This podcast is produced and copyrighted by Shipman & Goodwin, LLP. All rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice.

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