March 21, 2025

DEI and Discrimination: What Employers Should Know

Brit Merrill

Warning of unlawful DEI-related discrimination in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) issued guidance this week outlining when a DEI initiative, policy, or practice may be unlawful under Title VII.

The guidance includes a joint one-page technical assistance document titled “What To Do If You Experience Discrimination Related to DEI at Work” and an EEOC-issued question-and-answer technical assistance document titled “What You Should Know About DEI-Related Discrimination at Work.” Technical assistance documents do not carry the force of law and are not legally binding, but do provide insight and guidance on agency policy.

Mickell Jimenez

Key Takeaways

1. DEI programs cannot segregate or exclude employees based on a protected characteristic.

Prohibited conduct may include

“Limiting membership in workplace groups, such as Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups”; and
“Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources[.]”

Note the guidance that “other privileges of employment” cannot segregate or exclude employees based on a protected characteristic. As detailed below, the guidance specifies that this applies to exclusion from training, mentorship programs, and fellowships. Read more >>

March 21, 2025

Wyoming Legislature Takes a Bite Out of Covenants Not to Compete

Brad Cave

by Brad Cave

Governor Gordon signed a bill this week to significantly narrow the enforceability of covenants not to compete under Wyoming law. While the new law leaves Wyoming businesses with a few options to continue to use those covenants, employers need to move quickly in advance of the new law’s effective date.

New Covenants Not to Compete Are Void, With Some Exceptions. The new law, known in the Legislature as Senate File 107, prohibits contractual restrictions on a person’s ability to work: “Any covenant not to compete that restricts the right of any person to receive compensation for performance of skilled or unskilled labor shall be void.” This language is broad enough to invalidate all such covenants, whether contained in an employment contract, an independent contractor agreement, or some other contract. Read more >>

March 13, 2025

The Role of Immigration in Solving Healthcare Workforce Changes

By Samantha Wolfe

The United States faces a critical shortage of healthcare professionals, particularly in rural areas. Hospitals, nursing homes, and clinics struggle to find qualified workers, leading to increased patient wait times and limited access to essential care. One effective strategy to address this workforce gap is hiring foreign healthcare professionals through various immigration pathways. Below, we explore key visa options and strategies for recruiting and retaining international healthcare workers, including nurses, physicians, and allied health professionals.

Immigrant and Nonimmigrant Visa Options for Healthcare Workers

Healthcare employers seeking to recruit foreign professionals have two main visa pathways: nonimmigrant (temporary work visas) and immigrant (permanent residence/green cards) options. Nonimmigrant visas allow healthcare workers to fill temporary positions, often tied to employer sponsorship, with defined time limits and renewal options. In contrast, immigrant visas provide a path to permanent residency, enabling foreign healthcare professionals to establish long-term careers in the U.S. Understanding these visa options allows employers to navigate the immigration process strategically, addressing both immediate staffing shortages and long-term workforce stability. Read more >>

March 3, 2025

Federal Court Blocks Trump’s DEI Restrictions—What It Means for Employers

Adam Bouka

by Adam Bouka

A federal court in Maryland recently issued a nationwide injunction blocking key parts of President Donald Trump’s executive orders (EOs) that sought to limit diversity, equity, and inclusion (DEI) programs in workplaces across the country.

The ruling temporarily halts enforcement of key provisions affecting DEI initiatives, particularly for federal contractors, grant recipients, and private companies that faced uncertainty, compliance risks, and potential penalties. The court found that the provisions were vague, potentially unconstitutional, and could unlawfully restrict free speech, allowing businesses to continue their DEI efforts without immediate government intervention.

What Was Blocked?

The court’s decision prevents the government from:

Stopping or canceling federal contracts or grants related to DEI.
Forcing federal contractors or grant recipients to declare that they do not have DEI programs.
Investigating or penalizing private employers for having DEI programs or engaging in diversity-related discussions.

For now, both federal contractors and private employers can continue their DEI programs without fear of federal enforcement actions. Read more >>

February 12, 2025

Disability-Related Remote Work Accommodation Requests: First COVID, then the Deluge

Joseph Robertson

by Joseph Robertson

Many employers instituted work from home policies during the pandemic that they are now fine-tuning or rethinking. While telework technology advances and return to onsite work initiatives unfold, employers must navigate part-time and full-time remote work requests, including ones lodged under the Americans with Disabilities Act (ADA). This article outlines how to navigate a request for remote work related to a disability with examples of recent decisions that impact employers in Colorado.

Generally, a remote work accommodation request should be processed like any other accommodation request. The ADA requires employers to provide reasonable accommodations to disabled employees that will allow them to perform their essential job functions, so long as such accommodation does not constitute an undue hardship for the employer. An employer’s failure to provide such accommodations, or actions an employer takes against an employee in response to such a request, may result in a claim under the ADA for disability discrimination or retaliation. As a result, each remote work accommodation request must be considered individually even if the employer has a policy that generally prohibits working from home. Read more >>

February 10, 2025

Quick Q&A on Remote Work Policies

Joseph Robertson

by Joseph Robertson

Can remote polices from the pandemic be used against a company trying to bring employees back into the office?

In certain circumstances, yes. Recently, courts have allowed juries to decide if onsite work is essential when the employer could not definitely demonstrate that onsite work was required or when a previous policy allowed substantial remote work.

What if the medical documentation provided by an employee appears untrustworthy?

If the employee has not produced reliable medical documentation, then the employer may require the employee to submit to an independent medical examination (IME) to ascertain the alleged disability and reasonable accommodations, provided that the examination is job-related and consistent with business necessity. Physicians who regularly conduct IMEs often provide concrete accommodations recommendations, which may present reasonable alternatives to remote work. The decision to ask for an IME should not be made lightly. Any decision to terminate or discipline an employee who refuses to submit an IME should be backed up with a valid reason for requiring the IME in the first place. Read more >>

January 24, 2025

Preparing for Worksite Enforcement Investigations

Ann Lee

By Ann Lee

Question: We are worried that there may be an increase in worksite enforcement investigations. What can we do in preparation?

Answer: There was a surge in worksite enforcement investigations in the fiscal year of 2018 by U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI), and they are expected to surge again. ICE uses the I-9 inspection program to promote compliance with the law, part of a comprehensive strategy to address and deter illegal employment. Beyond I-9 compliance, the Department of Labor may perform site visits to investigate wage and hour issues, unfair labor practices, and even examining H-1B sponsoring employers’ Public Access Files. Read more >>

January 22, 2025

Wyoming Legislature Considers Eleven Employment Bills

Brad Cave

by Brad Cave

The Wyoming Legislature convened last week, and our elected representatives have a full agenda of proposed employment laws. From changing the rules for time off for voting to prohibiting mandatory DEI training, the proposed legislation could result in more changes for Wyoming employment law than we have seen in decades. Wyoming employers should pay attention to these proposals.

Anti-Woke Proposals. The growing nationwide “anti-woke” movement and its related resistance to diversity, equity and inclusion programs (DEI) has influenced several bills before the legislature.

What is a Woman Act. House Bill 32 would create statutory definitions of the terms sex, male and female, tied to a person’s biological sex at birth, and would define boy, girl, father and mother in relation to biological sex at birth. The bill would also establish, at least as a matter of Wyoming law, that separate accommodations based on biological sex are not inherently unequal, and that accommodations can be equal with respect to biological sex without being the same or identical. Read more >>

December 19, 2024

Lessons for Employers: Navigating Return-to-Office Policies and ADA Recordkeeping Compliance

Leslie Perkins

by Leslie Perkins

Fresh off the press, the Equal Employment Opportunity Commission (“EEOC”) has issued an important finding this week highlighting key compliance pitfalls for employers under the Americans with Disabilities Act (“ADA”).

On December 18, 2024, the EEOC ordered an Arizona tire company (the “Company”) to pay a former employee $64,500 in damages, in addition to mandating required corrective measures. These steep penalties followed an adverse finding where the EEOC found reasonable cause to believe that the Company retaliated against its former employee and violated the ADA by enforcing a 100% return-to-office policy without engaging in the interactive process for employees requesting a reasonable accommodation. While the EEOC did not publish the details of the reasonable accommodation sought in relation to the return-to-office policy, the EEOC’s order serves as a crucial reminder to employers that their duty to engage in the interactive process remains even when implementing a company-wide policy. Companies should consider, for example, whether a 100% in-office policy will affect employees who may have limited mobility or other conditions that reasonably require them to work from home at least part of the time. Read more >>

December 18, 2024

DHS Finalizes H-1B Modernization Rule Effective January 17, 2025

Ann Lee

By Ann Lee

On December 17, 2024, the Department of Homeland Security (DHS) announced the final implementation of the long-anticipated H-1B modernization rule. This rule, titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers” will take effect on January 17, 2025.

Published in the Federal Register on December 18, 2024, this regulation builds upon earlier modernization efforts initiated in October 2023. The first phase of the H-1B overhaul, focusing on revising the H-1B lottery, “Improving the H-1B registration Selection Process and Program Integrity ”, was implemented on February 2, 2024. Read more >>