Workforce Bulletin

As featured in #WorkforceWednesday®: This week, we’re bringing you a special episode on the first 100 days of the Trump administration, in which we highlight sweeping policy shifts, battles at the National Labor Relations Board (NLRB); revisions to diversity, equity, and inclusion (DEI) programs; the rapid evolution of artificial intelligence (AI) in the workplace; and more.

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.

In a decision with significant implications for employers and employees alike, the New Jersey Supreme Court on March 17, 2025, clarified that commissions constitute wages under the New Jersey Wage Payment Law (“NJWPL”). In Musker v. Suuchi, Inc. et al., the Court reversed the rulings of both the trial court and the Appellate Division, holding that commissions paid for an employee’s labor or services “always constitute a wage under the WPL.”

In drawing its conclusion, the court focused on the NJWPL’s definition of “wages,” which is defined as “direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis.” N.J.S.A. 34:11-4.1(c) (emphasis added).

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.

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.

The U.S. Court of Appeals for the District of Columbia Circuit, by the full court, has ordered that the stay of National Labor Relations Board (“NLRB” or “Board”) Member Gwynne Wilcox’s reinstatement to her seat on the Board be dissolved and that Wilcox, for the second time, be returned to her seat. This action by the D.C. Circuit means that the NLRB once again has three members and a “quorum,” as that term is defined in the National Labor Relations Act (NLRA).

Back and Forth and Back Again

As we previously reported, on February 3, President Trump fired Wilcox from her seat on the Board, leaving only two of the Board’s five seats filled and stripping the NLRB of the quorum required by the NLRA for the Board to issue decisions, make rules, and fulfill other statutory duties.