May 27, 2025

The Approaching Social Security Number No-Match Flood

Chris Thomas

Employers should be aware that we anticipate a flood of Social Security Number (SSN) no-match letters in the coming weeks. In the world of I-9 compliance, companies are stuck between the proverbial rock and a hard place. On the one hand, if they fall short in their compliance efforts, they face potential scrutiny from the Department of Homeland Security/Homeland Security Investigations (DHS/HIS). On the other hand, if they go too far in their vetting efforts, they face the wrath of the Department of Justice/Immigrant & Employee Rights (DOJ/IER). A few years ago, DOJ/IER published FAQs on how employers should navigate an SSN no-match notification. Some question whether DOJ/IER under the current administration would continue to enforce such rules, and yet, even if that’s true, nobody should question whether the private bar would be willing to take on such cases. Read more >>

May 22, 2025

New AI Hiring Rules and Lawsuits Put Employers on Notice: What HR Needs to Know

Adam Bouka

By Adam Bouka

Artificial Intelligence (AI) is transforming how companies find, evaluate, and hire talent—but it’s also raising red flags among regulators and courts. Two big developments in May 2025 show that HR teams must take a closer look at their hiring tools to avoid legal and compliance risks.

Let’s break it down.

What’s Happening in California?

California is preparing to implement new civil rights regulations that are likely to impact the use of automated decision-making systems (ADSs) in employment and other state-supported programs. These rules—expected to take effect as soon as July 1, 2025—aim to prevent discrimination based on protected characteristics such as race, gender, age, disability, or religion. While the regulations don’t ban AI tools outright, they make it unlawful to use any system, automated or not, that results in discriminatory outcomes. Read more >>

May 14, 2025

Are You Ready for a Surprise Visit from USCIS? How to Prepare for an Administrative Site Visit

Samantha Wolfe

By Samantha Wolfe

U.S. Citizenship and Immigration Services (USCIS), through its Fraud Detection and National Security Directorate (FDNS), regularly conducts unannounced site visits to employers who sponsor foreign workers. If your organization employs H-1B, L-1, or other nonimmigrant workers, it’s critical to be prepared.

What Is an Administrative Site Visit?

An Administrative Site Visit (ASV) is an on-site inspection designed to verify the facts in an immigration petition and ensure compliance with immigration rules. These visits often occur without advance notice and may take place at your headquarters, HR department, client sites, or even a remote work location listed in the petition or associated Labor Condition Application (LCA). Read more >>

April 23, 2025

A Shoddy Investigation Is Not Retaliatory

Mark Wiletsky

by Mark Wiletsky

When an employee complains of discrimination or harassment, companies often investigate the matter. Doing so allows a company to address alleged improper behavior and it may allow the company to avoid potential liability – if it takes prompt remedial action. But what if the employee believes the company’s investigation was half-hearted or inadequate – is that retaliatory? A recent decision from the Tenth Circuit Court of Appeals affirms that even a shoddy investigation does not give rise to a retaliation claim, absent some additional harm.

Stacie Culp and Stephanie Peters worked as servers at a restaurant operated by Remington of Montrose Golf Club (Remington). Both alleged that they were sexually harassed by the bartender / assistant floor manager. Initially, neither Culp nor Peters reported the harassment. Peters alleged that Remington management had not taken action in response to past complaints, and Culp feared that her complaints would not be taken seriously.

Culp eventually mentioned the harassment to a manager at a different restaurant, where she applied to return to her former job. This information reached Remington’s management, prompting an investigation. Remington interviewed 10 female servers, but asked each person only two questions: (1) is there anything inappropriate around the bartender that you would like to disclose or talk about, and is there anything you would like to add? Remington did not ask the individuals whether they had witnessed any inappropriate conduct between Culp or Peters and the bartender, nor did it ask follow-up questions, even when the interviewees disclosed harassment or other inappropriate conduct. Read more >>

April 22, 2025

Q&A: Paying Out PTO At Termination

Mark Wiletsky

by Mark Wiletsky

Question: If we offer unlimited paid time off (PTO) and employees don’t accrue PTO, do we have to pay anything out at termination?

Answer: Generally, the answer is no, but there is limited case law on this question and the answer may change based on how the unlimited PTO is administered. Under Colorado and other state laws, vacation is considered is a wage. Therefore, vacation cannot be forfeited and any accrued, unused vacation must be paid upon separation from employment. Paid Time Off (PTO) is typically viewed as a form of vacation and, therefore, it is arguably subject to the same rules.

With unlimited PTO, however, no PTO is accrued. Hence, no PTO is payable upon termination of employment. But that can change if the unlimited PTO is not truly unlimited. The Colorado Division of Labor and Employment provides the following guidance on this topic: Read more >>

April 16, 2025

What Employers Need to Know about New Enforcement of Alien Registration Requirements

Samantha Wolfe

By Samantha Wolfe

In April 2025, the Department of Homeland Security (DHS) began actively enforcing long-standing federal noncitizen registration laws that had been essentially inactive for years. Many noncitizens living in the United States may not realize they are now required to 1) register with DHS; and 2) carry proof of registration at all times. Failing to comply could result in serious consequences including fines, criminal charges/imprisonment, or even deportation.

To avoid the risk of losing members of their workforce, employers should inform any noncitizen employees about these requirements and consider providing access to legal help to ensure their employees are in compliance.

These Questions and Answers outline who must register, how to do it, and what’s at stake. Read more >>

March 21, 2025

DEI and Discrimination: What Employers Should Know

Brit Merrill

By Brit Merrill and Mickell Jimenez

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 >>