Workforce Bulletin

On April 3, 2025, the Office of Management and Budget (“OMB”) issued two Memoranda (Memos) regarding the use and procurement of artificial intelligence (AI) by executive federal agencies. The Memos—M-25-21 on “Accelerating Federal Use of AI through Innovation, Governance, and Public Trust” and M-25-22 on Driving Efficient Acquisition of Artificial Intelligence in Government”—build on President Trump’s Executive Order 14179 of January 23, 2025, “Removing Barriers to American Leadership in Artificial Intelligence.”

The stated goal of the Memos is to promote a “forward-leaning, pro-innovation, and pro-competition mindset rather than pursuing the risk-adverse approach of the previous administration.” They aim to lift “unnecessary bureaucratic restrictions” while rendering agencies “more agile, cost-effective, and efficient.” Further, they will, presumably, “deliver improvements to the lives of the American public while enhancing America’s global dominance in AI innovation.” The Memos rescind and replace the corresponding M-24-10 and M-24-18 memos on use and procurement from the Biden era.

Although these Memos relate exclusively to the activities of U.S. federal agencies with regard to AI, they contain information and guidance with respect to the acquisition and utilization of AI systems that is transferable to entities other than agencies and their AI contractors and subcontractors with respect to developing and deploying AI assets. In this connection, the Memos underscore the importance of responsible AI governance and management and, interestingly, in large measure mirror protocols and prohibitions found in current state AI legislation that governs use in AI by private companies.

As featured in #WorkforceWednesday®: This week, we’re covering the relaxation of state-level non-compete rules, the recent block of Executive Order 14173’s diversity, equity, and inclusion (DEI)-related certification requirement, and a federal appeals court’s decision to pause a challenge to the Biden-era independent contractor rule.

Wage and hour compliance often presents complex challenges for employers, with unclear regulations and changing enforcement priorities.

Addressing these issues proactively and resolving potential disputes are vital for maintaining compliance and reducing risks.

In this one-on-one interview, Epstein Becker Green (EBG) attorney Paul DeCamp sits down with fellow EBG attorney George Whipple to offer his seasoned perspective on wage and hour matters. Tapping into his experience as the former head of the Wage and Hour Division under President George W. Bush, Paul provides an insider’s view of government enforcement priorities, compliance pitfalls, and the complexities employers face when disputes arise.

As featured in #WorkforceWednesday®: This week, we’re examining the potential shake-up in presidential power over independent federal agencies and what a review of a 90-year-old precedent by the Supreme Court of the United States (SCOTUS) could mean for regulatory authority and employers nationwide.

With presidential power over independent federal agencies entering uncharted territory, SCOTUS may soon revisit its 1935 Humphrey’s Executor decision, which limits a president’s ability to fire members of independent federal agencies—such as the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission—without cause. SCOTUS could choose to:

• reaffirm Humphrey’s Executor,
• overturn the case entirely (potentially politicizing agency functions), or
• define “for cause” and allow terminations only under stringent circumstances.

Former Acting Attorney General of the United States and Epstein Becker Green attorney Stuart Gerson explores how a shift in this precedent could impact employers, industries, and the balance of federal power.

Case law related to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) continues to develop.  In late 2024, the Third Circuit seemed poised to bring further clarity as to which claims fall within the EFAA and, therefore, are shielded from pre-dispute arbitration agreements. On April 6, 2025, the Court provided guidance related to the timing of “disputes” as used in the statutory text, but remanded for further consideration of whether an arbitration agreement existed at all under New Jersey law. Cornelius v. CVS Pharmacy, Inc., 2025 WL 980309 (3d Cir. Apr. 2, 2025).

Cornelius was a longtime CVS employee who alleged that she experienced discrimination from her male supervisor. After Cornelius filed numerous internal complaints, CVS terminated her employment in November 2021. She brought a Charge to the EEOC, received a right-to-sue letter, and filed a lawsuit in the U.S. District Court for the District of New Jersey. CVS moved to compel arbitration pursuant to its “Arbitration Policy.” Plaintiff opposed, arguing that the EFAA rendered the arbitration agreement unenforceable as to her claims.  The District Court disagreed, ruling that the EFAA did not apply to Cornelius’s claims because “her claims did not constitute a ‘sexual harassment dispute’” within the meaning of the statute, and compelled arbitration. Id. at *2.

As featured in #WorkforceWednesday®: This week, we’re discussing the state-level, employment-related artificial intelligence (AI) laws and regulations sweeping the nation:

State laws are rapidly stepping in to regulate AI in the absence of federal legislation, with at least 45 states introducing AI-related bills this year.

Hear from Epstein Becker Green attorney Frances M. Green as she outlines how employers can navigate this evolving landscape by developing governance policies and providing clear training and guidelines to ensure the safe, transparent, and accountable use of AI tools.

As featured in #WorkforceWednesday®: This week, we highlight new guidance from the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) on diversity, equity, and inclusion (DEI)-related discrimination.

We also examine the Acting EEOC Chair’s letters to 20 law firms regarding their DEI practices, as well as the Office of Federal Contract Compliance Programs (OFCCP) Director’s orders to retroactively investigate affirmative action plans.

On Thursday, March 26, 2025, a federal judge for the Northern District of Illinois issued a Temporary Restraining Order (TRO) prohibiting enforcement of portions of Executive Order 14151 (“the J20 EO”) and Executive Order 14173 (“the J21 EO”), two of President Trump’s first directives seeking to eliminate Diversity, Equity, and Inclusion (DEI), previously explained here. This order has implications for federal contractors and grant recipients nationwide, at least for now.

The Case

The case, Chicago Women in Trades v. Trump et. al., was brought by a Chicago-based association, Chicago Women in Trades (CWIT), that advocates for women with careers in construction industry trades.  Federal funding has constituted forty percent of CWIT’s budget. After the issuance of the J20 and J21 EOs, CWIT received an email from the U.S. Department of Labor’s (DOL) Women’s Bureau stating that recipients of financial assistance were “directed to cease all activities related to ‘diversity, equity and inclusion’ (DEI) or ‘diversity, equity, inclusion and accessibility’ (DEIA).” Similarly, one of its subcontractors emailed CWIT to immediately pause all activities directly tied to its federally funded work related to DEI or DEIA. CWIT brought the action against President Trump, the DOL, and other agencies alleging, among other things, that its Constitutional rights were violated by various provisions in both EOs. For example, CWIT argued that the J20 EO targeted “DEI,” “DEIA,” “environmental justice,” “equity,” and “equity action plans” without defining any such terms. This lack of definition, according to CWIT, makes it difficult to understand what conduct is permissible and what is not.

On March 4, 2025, the New York Senate passed Senate Bill S372 (the “No Severance Ultimatums Act” or “S372”). If enacted, S372 would add a new section to the New York Labor Law requiring New York employers to provide for a 21-business day review period and a seven-day revocation period in all severance agreements. Currently, similar protections are afforded to employees who are over the age of 40 pursuant to the Older Workers Benefit Protection Act (OWBPA), which amends the Age Discrimination in Employment Act (ADEA). Similar protections are also available to New York employees who enter into agreements settling claims of discrimination, harassment, or retaliation, but only if the agreement contains a non-disclosure provision relating to those claims.

Specific Requirements Under Consideration

Under the terms of S372, any severance agreement offered to an employee or former employee will need to:

• contain a notice advising the employee of their right to consult an attorney regarding the agreement;
• provide at least 21 business days for review of the agreement; and,
• acknowledge a seven-day period within which the employee may revoke the agreement.

As featured in #WorkforceWednesday®: This week, we’re focused on federal contractors and the effects that the reinstatement of Executive Orders 14151 and 14173 will have on employers.

President Trump’s executive orders against diversity, equity, and inclusion (DEI) are back in effect after the U.S. Court of Appeals for the Fourth Circuit stayed a nationwide injunction, posing new compliance challenges for federal contractors.

In this week’s episode, Epstein Becker Green attorneys Nathaniel M. Glasser and Frank C. Morris, Jr., outline the implications for employers, focusing on the False Claims Act, whistleblower risks, and the need for certification of compliance with anti-discrimination laws. Tune in to learn what steps your organization can take to mitigate potential penalties and retaliation claims.