Johanna Matloff | The Wagner Law Group

Appeals Court Reverses Judge’s Interpretation of LTD Policy

2026-04-01T13:20:51Z

Appeals Court Reverses Judge’s Interpretation of LTD Policy - Johanna Matloff, Massachusetts Lawyers Weekly, March 18, 2026 (PDF)

14 Attorneys from The Wagner Law Group to be Recognized in 2026 Edition of The Best Lawyers in America©

2025-08-27T20:06:54Z

14 Attorneys from The Wagner Law Group to be Recognized in 2026 Edition of The Best Lawyers in America^© - The Wagner Law Group Press Release, August 21, 2025 (PDF)

HR & Employment Law Updates in Massachusetts, Maine, New Hampshire, and Vermont

2026-06-02T12:42:19Z

By Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff and Virgina Peabody I. Massachusetts: Pay Transparency Law Takes Effect In February 2025, the Wagner Law Group reported on amendments to the Massachusetts Equal Pay Act, which included new data reporting obligations and pay transparency rules for Massachusetts employers. Specifically, employers with 100 or more employees are now required to submit wage data reports on February 1 of each year. See “Massachusetts Pay Transparency Law: Key Provisions and Compliance Timeline.” (HB4890). Beginning on October 29, 2025, new salary posting rules under the Act take effect and apply to Massachusetts employers with 25 or more employees. The new salary posting requirements include: (i) disclosing pay ranges (annual salary or hourly wage) in all job postings – internal or external, and (ii) providing pay range information upon an employee’s request for their current position and/or when offering a promotion or transfer to a new role. Employers should begin preparing now to ensure their HR departments, job postings, and internal processes are fully compliant well in advance of the deadline and in anticipation of a more transparent labor market. This is also a good time for employers to review the total compensation packages for all employees and/or conduct an audit of job functions and corresponding pay to ensure equity and fairness in the workforce with an eye toward retaining top talent. II. Maine: Paid Family & Medical Leave Contributions Begin Contributions to Maine’s Paid Family and Medical Leave (“PFML”) Fund began on January 1, 2025. Once the benefits are available, all (full-time and part-time) employees in the private and public sectors (other than federal employees) will be able to take up to 12 weeks of paid leave per year if they earn at least six times the state average weekly wage (“SAWW”) in earnings subject to PFML premiums during the four quarters preceding the benefit year. Self-employed individuals may opt into the program if they wish to do so. Covered individuals may take leave for reasons that include their own serious health condition, bonding with a new child, caring for a family member with a serious health condition, addressing issues related to a family member’s military service, and for any other reason set forth in 26 M.R.S. § 843(4). Employers with 15 or more covered employees must pay a premium of 1% of wages to the ME PFML Fund, but may deduct up to 50% of the premium (0.5% of wages) from employees’ wages. Employers with fewer than 15 employees are required to contribute 0.5% and may deduct the full amount from employees’ wages. Employers can deduct their share of the premium as a business expense. In the case of a pick-up (i.e., where an employer with 15 or more employees chooses to pay the entire 1%, covering both its and its employees’ contributions), the employer may deduct the whole amount as a business expense. Employers that maintain a private plan providing benefits, rights, and protections that are “substantially equivalent” to the state program may apply for a private plan exemption and need not make contributions to the ME PFML Fund. Such plans must meet specific requirements. For example, a private plan must provide a substantially equivalent wage replacement rate, maximum weekly benefit amount, and duration of leave, and allow for the same covered reasons for taking leave as specified under the state program. If the private plan is self-insured, the employer must furnish a bond to the state with a surety company authorized to transact business in the state. In addition, a contested benefit determination by a private plan is subject to an appeal before the Department of Family and Medical Leave. (see 26 M.R.S. § 850‑H (1), (2), (5)). ME PFML benefits currently will be available starting May 1, 2026. However, due to a high volume of employers electing to establish private plans instead of participating in the state program, the ME PFML is reportedly underfunded. As a result, the Maine Department of Labor has indicated that the start date for benefit availability may be postponed. III. New Hampshire: New Nursing Break Requirements Effective July 1, 2025, employers with six or more employees must provide nursing employees with 30-minute unpaid lactation breaks for every three hours of work for up to one year after the birth of a child. The lactation breaks must be provided, regardless of the nursing employee’s classification or whether the break overlaps with regular rest periods. These breaks are for the purpose of “express[ing] breast milk,” which is defined as “the initiation of lactation by manual or mechanical means but shall not include breastfeeding.” NH Rev. Stat § 275:78. The law allows the break to be taken concurrently with any other break the employer already provides. For example, if the employee has a scheduled meal or rest break, the lactation break can run concurrently. Employers must provide a private space for nursing, other than a bathroom. The space must be within a reasonable walk of the employee’s worksite, unless otherwise mutually agreed, shielded from view, and free from intrusion. The space can be either temporary or permanent, but it must be clean, functional, and equipped with seating and an electrical outlet. The law requires employers to provide notice at the time of hire to all employees of the employer’s lactation break policy. It also requires nursing employees to provide two weeks’ advance notice before using the accommodation. This allows employers time to make the necessary arrangements. Employers may be exempt from this obligation if they can demonstrate that providing the accommodation imposes “undue hardship”, defined as “significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources, and the nature and structure of its operation.” Id. IV. Vermont: Pay Transparency Law Vermont’s Act Relating to Disclosure of Compensation in Job Advertisements (Act 155) became effective July 1, 2025. Act 155 requires employers with five or more employees and with at least one employee who works in Vermont to include a job’s salary or range of compensation in their job postings. Advertisements for jobs that are primarily compensated on a commission basis must state that the job is commission-based but need not include a salary or an expected compensation range. Further, employers are now required to identify tip-compensated positions as such and include the applicable base wage or range of base wages in job postings. Vermont’s new pay transparency law is exclusively enforced by the Vermont Attorney General, whose Civil Rights Unit currently enforces Vermont laws on equal pay and fair employment. According to the Attorney General, disclosing the “range of compensation” means disclosing “the minimum and maximum annual salary or hourly wage that the employer, acting in good faith, expects to pay for the advertised job at the time it creates the ad.” See Final Version of H 704 Guidance (12-31-24).pdf The new legislation does not cover oral advertisements, general notices of employment opportunities (rather than specific job openings), or job openings for work performed outside Vermont. However, it does apply to advertisements that describe a remote job calling for work that is predominantly performed either in a Vermont office or other Vermont work location. The ability of employers and workers to negotiate pay during the application or hiring process is also not limited by this act. It requires an employer to be transparent about the compensation or range of compensation for a job at the time that the advertisement is posted. If you have questions about how these changes may affect your organization or need assistance updating your policies and procedures, our Employment Law and Human Resources team is ready to help. Please feel free to reach out to Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, or Virginia Peabody for guidance and support.

The EEOC and Executive Orders: What Employers Ought to Know about EEO-1 Reporting (Filing Deadline June 24, 2025)

2026-06-02T12:46:14Z

By Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, or Virginia Peabody (Senior Consultant) What is EEO-1 Reporting? An EEO-1 Report is a document submitted to the Equal Employment Opportunity Commission (“EEOC”), a federal agency to which covered organizations must report specific demographic characteristics of their workforce, such as race, ethnicity, and sex. EEO-1 reports are filed annually. Who Needs to File?

Private employers with 100 or more employees.
Businesses with under 100 employees, if they are part of a group with a combined total of 100 or more employees.
Institutions with at least 50 employees that manage government funds or handle U.S. savings bonds and notes.
Federal contractors with 50 or more employees and a contract of $50,000+.

Filing Deadline. The 2024 EEO-1 reporting portal opened on Tuesday, May 20, 2025. The deadline to file is Tuesday, June 24, 2025. How To File an EEO-1 Report? Filers should visit http://www.eeocdata.org/eeo1 to access the EEO-1 Component 1 Online Filing System (OFS). The EEOC & Executive Orders. The EEO-1 Report serves as a data collection tool for both employers and the EEOC. The report can be used to identify potential patterns of disparate impact and potential disparities within an employer’s workforce. It can also be used to ensure compliance with fair employment practices and as an opportunity for employers to take proactive measures to address any issues. On April 23, 2025, President Trump issued an executive order titled “Restoring Equality of Opportunity and Meritocracy.” This order directed all federal agencies, including the EEOC, to deprioritize claims and cases that challenge neutral practices with disparate outcomes based on race, sex, or other protected characteristics. It also revoked certain Presidential approvals of regulations implementing Title VI that were promulgated by the Department of Justice in 1966 and 1973. These regulations prohibited specific types of discriminatory actions by employers receiving federal financial assistance based on race, color, or national origin. The regulations also prohibited the use of neutral policies or practices that have a discriminatory effect on a protected group and required affirmative action to overcome the effects of prior discrimination. Andrea Lucas, Acting Chair of the EEOC, acknowledged in a recent statement that the EEOC is an executive branch agency and, therefore, plans to comply fully with President Trump’s Executive Order deprioritizing disparate impact claims and prioritizing intentional discrimination claims. Lucas reiterated that the EEOC is committed to preventing and combating unlawful race and sex discrimination, stating that discrimination clearly remains impermissible. It is not entirely clear how the EEOC will differentiate between the types of discrimination claims pending before it, particularly where many charges include claims of both disparate impact and disparate treatment. In addition, while EEO-1 Reports have been used to identify patterns of disparate impact, which will no longer be a priority for the EEOC, they also could be used to identify claims of intentional discrimination. Employers should continue to carefully prepare and submit EEO-1 Reports and proactively address issues where appropriate, even though the EEOC plans to deprioritize disparate impact discrimination claims. Need Help with EEO-1 Reporting? If you need assistance with EEO-1 reporting, whether ensuring compliance, preparing and submitting your report, or navigating the statutory and regulatory requirements, our Employment Law and Human Resources Team at The Wagner Law Group is here to help. Contact Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, or Virginia Peabody for guidance and a streamlined filing process.

Important Update to the Federal Independent Contractor Test

2026-06-02T12:44:52Z

By Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, and Virginia Peabody (Senior Consultant) The Department of Labor (DOL), through its Wage and Hour Division (WHD), issued a Field Assistance Bulletin (FAB No. 2025-1) stating that as of May 1, 2025, it will no longer apply the 2024 Biden-era independent contractor rule in its enforcement of the Fair Labor Standards Act (FLSA). The 2024 rule set out a six-pronged “economic realities” test to determine whether a worker is an employee covered by the FLSA or an independent contractor, who is not. Overall, the Biden-era rule is pro-employee, meaning that utilizing the six-pronged test is more likely to result in a worker’s being classified as an employee. The six factors are: 1) Opportunity for profit or loss depending on managerial skill; 2) Investments by the worker and the potential employer; 3) Degree of permanence of the work relationship; 4) Nature and degree of control; 5) Extent to which the work performed is an integral part of the putative employer’s business; and 6) Skill and initiative. The question of who qualifies as an employee under the FLSA is not new. Near the end of his first term, President Trump’s Administration released what is commonly referred to as the Trump 2021 rule. The Trump 2021 rule emphasized two factors as determinative of a worker’s status: 1) The nature and degree of the worker’s control over the work, and 2) The worker’s opportunity for profit or loss based on initiative and/or investment. Compared to the 2024 rule, the Trump 2021 rule was seen as pro-business or pro-employer. It made it easier to classify workers as independent contractors, which generally excluded such workers from FLSA protections. By keeping things simple, it reduced uncertainty. The rule had its critics though, as many argued it tilted things too heavily in favor of businesses. That brings us to FAB No. 2025-1, issued on May 1. Instead of continuing to uphold the 2024 rule or reverting to the Trump 2021 rule, the DOL and its WHD are reverting to enforcement based on the 2008 version of Fact Sheet #13, which outlined the following seven-factor test: 1) The extent to which the services rendered are an integral part of the principal’s business; 2) The permanency of the relationship; 3) The amount of the putative contractor’s investment in facilities and equipment; 4) The nature and degree of control by the principal; 5) The alleged contractor’s opportunities for profit or loss; 6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor; and 7) The degree of independent business organization and operation. It is worth emphasizing that the 2008 framework does not invalidate the 2024 rule. The Biden-era rule remains formally in effect and may apply in private litigation. The DOL, however, will not enforce it in its investigations or when imposing penalties. In effect, the DOL is freezing enforcement of the 2024 rule. Employers may feel more confident using independent contractors under the 2008 standard, but caution is still warranted. Several states have stricter classification tests (e.g., California’s and Massachusetts’ so-called ABC test which starts with the presumption that all workers are employees) that may expose employers to liability even if they comply with federal standards. These are pitfalls that employers should be wary of, consulting legal counsel to avoid falling into them. If you have questions about how this enforcement shift may impact your worker classification practices, compliance obligations under the FLSA, or state law exposure, our Employment Law and Human Resources Team is here to assist. For strategic guidance and risk assessment, please contact Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, or Virginia Peabody (Senior Consultant).

Form I-9: What is It and What’s Changed

2026-06-02T12:45:32Z

by Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, or Virginia Peabody (Senior Consultant) The U.S. Citizenship and Immigration Services (“USCIS”) released a revised Form I-9, dated January 20, 2025. While the updates are minor, understanding both the purpose of the form and the nature of these revisions is essential for compliance. Form I-9 is a document submitted by an employer to the federal government verifying that an employee hired by the employer is authorized to work in the United States. Employers are required to maintain, in a file separate from their personnel file, a properly completed Form I-9 and must be prepared to produce it during an audit or investigation. Noncompliance can result in significant civil fines or criminal penalties, debarment from federal contracts, and reputational harm. In 2019, USCIS updated its I-9 related penalties:

Paperwork Violations: $230 - $2,292 per form
Knowingly Hiring Unauthorized Workers:

First offense (per worker): $573 - $4,586

Second offense: $4,586 - $11,463

Third or subsequent offenses: $6,878 - $22,927

Document Fraud (I-9 Fraud or Misuse):

First offense: $400 - $3,195

Subsequent offenses: $3,195 - $9,472 The 2025 updated Form I-9 contains the following changes:

Section 1, checkbox #4, has been renamed to “An alien authorized to work.”
USCIS has revised the descriptions of two List B documents in the Lists of Acceptable Documents.
The DHS Privacy Notice has been revised to reflect updated statutory language.

The new edition of Form I-9 is available for immediate use and will remain valid through May 31, 2027. While these updates are minor, they are emblematic of a more comprehensive systematic shift for employer obligations related to immigration reporting and compliance. In December, our Employment and Human Resources (“HR”) Law team issued a news alert informing our clients that employers ought to stay vigilant about Form I-9 reporting requirements, particularly in light of potential policy shifts under a second Trump administration. These updates reaffirm our initial prediction that employers will be under increased scrutiny in fulfilling their immigration reporting requirements. If you need assistance navigating Form I-9, updating your HR systems, or ensuring compliance with employment eligibility verification requirements, our Employment Law and Human Resources Team is here to help. Contact Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, or Virginia Peabody (Senior Consultant) for guidance and support.

Attention Employers: EEO-1 Reporting Deadline Approaching

2025-03-31T13:34:20Z

By Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff and Virginia Peabody (Senior Consultant) The EEO-1 report for covered employers must be filed with the EEOC by June 4, 2025.

Who Needs to File?

Private employers with 100+ employees.
Businesses with under 100 employees if they are part of a group with a combined total exceeding 100 employees.
Institutions with at least 50 employees that manage government funds or handle U.S. savings bonds and notes.
Federal contractors with 50+ employees and a contract of $50,000+

Note that at present it is unclear whether there will be further guidance for federal contractors.

Action Steps:

✔ Confirm if your business meets EEO-1 federal filing requirements. ✔ Submit your EEO-1 report to the EEOC by June 4, 2025.

Need Help With EEO-1 Reporting?

If you need assistance with EEO-1 reporting — whether ensuring compliance, preparing and submitting your report, or navigating the requirements — our Employment Law and Human Resources Team at The Wagner Law Group is here to help. Contact Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, or Virginia Peabody for guidance and a streamlined filing process.

Massachusetts Pay Transparency Law: Key Provisions and Compliance Timeline

2025-03-31T13:37:54Z

Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, and Virginia Peabody (Senior Consultant) On February 1, 2025, a new law regarding salary posting requirements went into effect for all Massachusetts employers with 25 or more employees. “An Act Relative to Salary Range Transparency” amends the Massachusetts Equal Pay Act (“MEPA”) by adding data reporting obligations and new pay transparency rules. Gov. Healy signed the act on July 31, 2024, and stated that the law aims to address pay disparities. Some provisions took effect on February 1, 2025, and the remaining provisions will take effect on October 29, 2025. Massachusetts employers with 25 or more employees must abide by the new salary posting requirements. Those requirements include: (i) disclosing pay ranges (annual salary or hourly wage) in all job postings – internal or external, and (ii) providing pay range information upon an employee’s request for their current position and/or when offering a promotion or transfer to a new role. Massachusetts employers with 100 or more employees must submit additional reports to the Secretary of the Commonwealth. EEO-1 data reports are to be sent by February 1 of each year. EEO-3, EEO-4, and EEO-5 reporting requirements rotate biennially, depending on whether the year is odd or even:

In odd-numbered years (2025, 2027, etc.):
- EEO-3 and EEO-5 reports are due on February 1.
In even-numbered years (2026, 2028, etc.):
- EEO-4 reports are due on February 1.

Employers should note that the Executive Office of Labor and Workforce Development (“EOLWD”) will publish industry aggregate wage and workforce data. However, individual wage data reports are not public records.

Date	Requirement
Feb. 1, 2025	Employers must begin submitting wage data reports.
Apr. 1, 2025	The Secretary of the Commonwealth will provide initial wage data reports.
June 1, 2025	First publication of aggregate wage data reports.
Oct. 29, 2025	Full implementation of the law.
Feb. 1, 2026	Additional employer reporting requirements take effect.

The Attorney General’s office has exclusive authority to enforce this law. Any covered employer that fails to submit the wage data reports and/or fails to include salary ranges in job postings, promotions, and upon request will face the following penalties:

1st offense: Warning
2nd offense: Fine up to $500
3rd offense: Fine up to $1,000
4th and subsequent offenses: Higher penalties under Section 27(c) of Chapter 149

Note that during the first two years after the law’s effective date, employers have two business days after notice of a violation to correct defects before fines are imposed. In other words, all violations will have a two-business-day grace period to fix issues before penalties are imposed. If you would like to discuss how Massachusetts’ new Pay Transparency law may impact your organization – whether in ensuring compliance with salary disclosure requirements, preparing wage data reports, or mitigating potential penalties – please reach out to our Employment Law and Human Resources Team: Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, and Virginia Peabody of The Wagner Law Group.

Leave & Accommodation Best Practices

2025-03-31T14:05:29Z

Leave & Accommodation Best Practices - Johanna Matloff, Radio Entrepreneurs interview, February 5, 2025

Legal Guidance About Leave & Accommodations

We offer in-depth and personalized attention to businesses nationwide in various employment law matters. If you are ready to meet with our experienced employment law team and see how we can help you. Contact our nationwide offices online or call [nap_phone id="LOCAL-REGULAR-NUMBER-Boston Phone"] to schedule your initial consultation.

Executive Orders Addressing Diversity, Equity, and Inclusion Initiatives

2025-03-31T14:18:31Z

By Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff and Virginia Peabody (Senior Consultant) Last week, President Trump signed two executive orders (the “Trump Executive Orders” or “Orders”) repealing diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility (“DEIA”) initiatives. The Trump Executive Orders require the federal government and federal contractors to terminate all discriminatory programs explicitly including DEI and DEIA mandates, policies, programs, preferences, and activities under whatever name they appear. They also require all federal agencies to encourage private-sector employers to terminate their discriminatory practices, including “race-and sex-based preferences,” and DEI mandates, policies, programs, and activities. The Trump Executive Orders make clear that employment decisions should be based on merit, aptitude, hard work, and determination without taking into consideration whether or not the individual is in a protected class. They also rescind Executive Order 11246 and the regulations promulgated under it that previously required the federal government to take affirmative action and prohibited federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Accordingly, on January 25, 2025, the Acting Secretary of Labor ordered Department of Labor employees to end all investigative and enforcement activity under Executive Order 11246 and to cease and desist from all related activities with respect to pending cases, conciliation agreements, investigations, complaints, and any other enforcement-related or investigative activity under Executive Order 11246. Federal contractors have 90 days to comply with the Trump Executive Orders. NOTE: While the Trump Executive Orders are quite broad and do not define illegal or discriminatory programs per se, they clearly state that rebranding a DEI or DEIA initiative would not be acceptable. In addition, the Trump Executive Orders do not provide any specifics on how to measure “merit, aptitude, hard work, and determination” in the context of employment decisions. Without any guidance from the federal government, it is not yet possible to determine the full scope of the prohibitions and what, if any, practices would be consistent with the Orders.

I. Federal Contractors and Subcontractors

In accordance with the Orders, the Office of Federal Contract Compliance Programs (“OFCCP”) must immediately stop: (i) promoting diversity, (ii) requiring federal contractors and subcontractors to comply with affirmative action, and (iii) encouraging federal contractors and subcontractors to maintain balanced workplaces based on race, color, sex, sexual preference, religion, or national origin.

Federal contractors and subcontractors may not consider race, color, sex, sexual preference, religion, or national origin in ways that violate federal civil rights laws in their employment, procurement, and contracting practices.

Furthermore, federal contractors and grant awards must include language stating that the contractor agrees to comply with applicable federal anti-discrimination laws. The contractor must also certify that it does not operate any programs promoting DEI in violation of federal anti-discrimination laws.

II. Private-sector Employers

The Attorney General must, within 120 days, provide a report to the Assistant to the President for Domestic Policy with recommendations to encourage private sector employers to end illegal discrimination and preferences. Among other things, the report must provide a strategic enforcement plan that: (i) identifies key areas of concern, (ii) identifies the most egregious and discriminatory companies in each area of concern, (iii) provides strategies to deter illegal discrimination and preferences, and (iv) identifies litigation that would be appropriate for federal lawsuits, intervention, or statements of interest. Each relevant agency must list up to nine potential civil compliance investigations of publicly traded corporations, large non-profits, foundations with assets of $500,000,000 or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion.

III. Educational Institutions

Within 120 days after the issuance of the Orders, the Attorney General and the Secretary of Education must provide guidance regarding measures and practices to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) which found that race-based affirmative action plans used for college admissions (except military academies) violated the Equal Protection Clause of the Fourteenth Amendment.

IV. Exceptions

The Trump Executive Orders indicate a possible exception in the case of employment and contracting preferences for veterans. They also do not prevent state or local governments, federal contractors, or federally-funded state and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech, and they do not prohibit federally-funded institutions of higher education from teaching, advocating for, endorsing, or promoting unlawful employment or contracting practices prohibited by the Trump Executive Orders.

V. Takeaways

Because the scope of the Trump Executive Orders is quite broad, employers should, with assistance from legal counsel, carefully review all their Human Resources practices (e.g., hiring, promoting, mentoring, etc.) to identify any policies, procedures or practices that may be perceived as including illegal discrimination and preferences under federal law. In addition, employers should continue to monitor guidance from the federal government regarding the scope and application of the Trump Executive Orders and perform regular training for managers and supervisors accordingly.

If necessary, Human Resources practices should be modified, with advice from legal counsel, to comply with the Orders. However, employers should be mindful that other federal statutes, such as Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Dodd-Frank Act, and individual state anti-discrimination laws still apply. Employers should train managers and supervisors so that they understand that, even though affirmative action and DEI initiatives may not be permitted, Title VII and other federal, state, and local statutes still apply.

Complying with Title VII may not be as straightforward as it has been in the past. Discrimination claims may become more complex. For example, a company promotes a woman instead of a man. The man files a complaint because he feels he deserves/merits the promotion more than the woman because he has more education or went to better schools. The company hired the woman even though she does not have as much education because she has more job-related experience. Employment decisions will need to be carefully documented to demonstrate that such actions are based on merit and/or other factors unrelated to race and sex and not based on illegal discrimination or preferences. To mitigate potential litigation, employers should carefully document Human Resources actions by explaining the business need for such action.

In the past, employers have made decisions because one individual is a better fit based on personality. This is a purely subjective opinion and should be carefully documented to demonstrate that the decision is not discriminatory.

Furthermore, employers may face more litigation if individuals who were not historically protected by anti-discrimination laws may now be able to file claims of discrimination based on their race or sex.

VI. Conclusion

The Trump Executive Orders will have a significant impact on federal contractors and subcontractors, private employers, and educational institutions. The scope of the changes will be clearer when guidance is issued. In the meantime, many private employers should review their programs in case they become the subject of an audit or investigation. Such a review would also be beneficial in case of litigation.

We will continue to monitor developments and provide alerts as more information becomes available. If you would like to further discuss the impact of the Trump Executive Orders on your organization, please reach out to our Employment Law and Human Resources Team: Katherine Brustowicz, Denise Chicoine, David Gabor, Johanna Matloff, and Virginia Peabody (Senior Consultant) of The Wagner Law Group.

Federal Court Awards $359,000 in FLSA/OSHA Retaliation Case: Lessons Learned for Employers

2025-03-31T14:25:37Z

In December 2023, Su v. Milford Sports Bars, LLC, a noteworthy case, concluded with a ruling in favor of the U.S. Department of Labor, resulting in a payment of $359,000. The court awarded damages including back pay, interest, emotional distress damages, compensatory damages, and punitive damages for violations of the Fair Labor Standards Act (“FLSA”) and the Occupational Safety and Health Act (“OSHA”). Su v. Milford Sports Bars, LLC was recently highlighted by the Department of Labor’s (“DOL”) Boston Regional Solicitor’s Office as a case of particular import. This news alert examines specific steps employers should take to bolster their protections against retaliation claims asserted under the FLSA and OSHA. The facts of the case are straightforward. The Defendants operated Champions Grill and Bar in Milford, Connecticut. In January 2022, the Defendants fired several employees shortly after those employees inquired about their compensation and spoke with an OSHA inspector who visited the restaurant the following day. One of the Defendants even threatened to fire any employees who complained about being paid or who spoke with OSHA or the DOL. In addition, the Defendants failed to pay some of the terminated employees for extra work they had completed before their termination. The temporal connection between the protected activity -- inquiring about their pay and speaking with an OSHA inspector -- and the adverse action was evident in this case. The court had no trouble finding a causal connection because the events occurred on the same day or within a few days of each other, and no other explanation was provided. That being the case, the court found that Milford Sports Bars violated FLSA (Section 15(a)(3)) and OSHA (Section 11(c)) -- both of which are statutes that protect against retaliation by an employer. It is worth noting that the FLSA violation was also based on the employers’ retaliation against the employees’ requests for their unpaid wages. This is the first case addressing both FLSA and OSHA retaliation claims in a single action. It exemplifies aggressive DOL enforcement and coordination across wage/hour and safety issues. Employers must comply with wage-and-hour and workplace safety obligations, encouraging open communication and training to prevent similar exposures. First, conducting internal policy reviews and training is crucial. Second, employers must work closely with their counsel to perform compliance checkups. Third, last but not least, employers must execute routine safety checks and address issues as they arise. Employers should think twice and consult with counsel before taking adverse action following an employee’s protected activities, such as those involving wages and safety. If you have questions about anti-retaliation policies, wage-and-hour compliance, or workplace safety obligations, please contact David Gabor, Katherine Brustowicz, Denise Chicoine, or Johanna Matloff of The Wagner Law Group’s Employment Law and Human Resources practice. For more information, please visit our website at www.wagnerlawgroup.com. [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2021/07/David-Gabor.jpg[/author_image] [author_info]David C. Gabor leads the firm's Labor, Employment & HR practice. He represents clients in the areas of litigation, negotiation of contracts, handling compliance issues, the creation of corporate infrastructure, the drafting of policies, training of employees and leading companies towards organizational excellence. [/author_info] [/author] [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2021/07/Katherine-Brustowicz.jpg[/author_image] [author_info]Katherine Brustowicz focuses on Employment Law & Human Resources, Labor Law, and Civil Litigation. Katherine's practice includes drafting employment-related policies and agreements, conducting employee and management training, and representing employers during audits.[/author_info] [/author] [author] [author_image timthumb='on']https://www.wagnerlawgroup.com/wp-content/uploads/sites/1101401/2023/11/Johanna-L-Matloff.png[/author_image] [author_info]Johanna Matloff is an experienced litigator in disputes involving ERISA and employment benefits as well as employment, insurance, non-profit organizations, complex torts, nursing homes, and consumer and home improvement products liability. Her ERISA litigation experience includes ERISA preemption issues, benefit claims, plan benefit calculation matters, as well as breach of fiduciary duty claims.[/author_info] [/author]

Employers: Prepare for New Laws and Regulations Under President Trump

2025-03-31T14:31:28Z

Employers: Prepare for New Laws and Regulations Under President Trump - Katherine Brustowicz, Denise Chicoine, David Gabor, and Johanna Matloff, The Wagner Law Group webinar, February 13, 2025, 1:00 - 2:00 PM (EST)

Learn More About Our Employment Law Practice

If you have questions about new employment laws and regulations, please contact The Wagner Law Group’s Employment Law and Human Resources professionals at [nap_phone id="LOCAL-REGULAR-NUMBER-Boston Phone"] or online.

The Wagner Law Group Virtual Lunch & Learn: How to Reduce Employer Risk From Hire To Fire

2024-10-16T14:26:39Z

The Wagner Law Group Virtual Lunch & Learn: How to Reduce Employer Risk From Hire To Fire - Katherine Brustowicz, David Gabor, Johanna Matloff and Denise Chicoine, November 13, 2024, 1:00 - 2:00 PM (EST) and November 21, 2024, 2:00 to 3:00 PM (EST) - Click here to register for November 13, 2024 event - Click here to register for November21, 2024

2026-05-21T04:51:16Z

12 Attorneys from The Wagner Law Group to be Recognized in 2025 Edition of The Best Lawyers in America^©- The Wagner Law Group Press Release, Marcia Wagner, Thomas Clark, Jr., Andrew Oringer, Harold Ashner, David Gabor, Israel Goldowitz, Russell Gaudreau, Jr., Johanna Matloff, Mark Poerio, Linda Rosenzweig, and Roberta Casper Watson, EIN Presswire, August 15, 2024 (PDF)

Important Takeaways For Employers Following The EEOC’s Final Rule Implementing the Pregnant Workers Fairness Act (PWFA)

2024-05-16T11:30:37Z

By Katherine Brustowicz, David Gabor, and Johanna Matloff Introduction This is a follow-up to our May 9, 2023, alert regarding the Pregnant Workers Fairness Act (PWFA) which went into effect on June 27, 2023. Congress required the Equal Employment Opportunity Commission (EEOC) to issue regulations under the PWFA. The EEOC has done just that by issuing its final rule and interpretive guidance which goes into effect on June 18, 2024. This alert outlines employers’ duties under the new law, provides clarity on pregnant workers’ rights and protections, and guides employers on ways to minimize risk and liability under the PWFA. What is this law? Covered entities are required to make reasonable accommodations to qualified employees or applicants who have known limitations related to pregnancy, childbirth, or related medical conditions, absent an undue hardship to the business. Who is a covered employer or entity? The PWFA applies to both private and public sector employers that have 15 or more employees. It also applies to Congress, Federal agencies, employment agencies, and labor organizations. Who is a qualified employee or applicant? Qualified employees or applicants include those who have a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and can either: a) perform the “essential functions” of the job with or without a reasonable accommodation, or b) if they are temporarily unable to perform the essential functions of the job but, could perform the functions in the “near future.” What physical and mental conditions are covered? As noted, the PWFA provides for reasonable accommodations for qualified workers with known limitations (i.e., physical or mental conditions that have been communicated to the employer) “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The EEOC’s rule takes a broad view of “pregnancy, childbirth, or related medical conditions.” The EEOC’s final regulation includes a non-exhaustive list of examples of such conditions including fertility treatments; morning sickness; lactation; miscarriage; stillbirth; abortion; gestational diabetes; postpartum depression; anxiety; psychosis; edema; frequent urination; and placenta previa. PWFA conditions encompass current, past, and potential pregnancy. Of note, physical or mental conditions can be considered PWFA limitations regardless of whether they meet the ADA’s stricter definition of “disability.” Employee’s Obligations: The employee must identify the limitation that is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and the accommodation at work due to the limitation. This can be as simple as informing the employer that, “I need time off from work to attend a medical appointment because of my pregnancy” or “I cannot lift more than 20 pounds while I am pregnant.” What must employers provide: Employers are required to provide accommodations under the PWFA, absent undue hardship. The best way for employers to handle this is to engage in the “interactive process”. The employer and employee communicate about the employee’s limitations and whether there is a reasonable accommodation that enables the employee to be able to continue to work. The employer must consider the employee’s preference but makes the final decision on the accommodation. Reasonable accommodations: Examples of reasonable accommodations include additional water, food, or restroom breaks; telework or time off to recover from childbirth or miscarriage; temporary reassignments or suspension of certain job duties; a place to sit while working; and time off for healthcare appointments. Potential accommodations related to lactation include ensuring that lactation spaces are within physical reach of mothers during work hours and the inclusion of essential features such as a private place to sit with proximity to refrigerators for milk storage. Documentation: Documentation from the employee is not required, but employers may request documentation when doing so is reasonable under the circumstances in order to confirm the physical or mental conditions arising from pregnancy, childbirth or related medical conditions, as well as the need for an accommodation. However, employers may not request unduly burdensome documentation. What Employers Should Do Now: Employers should ensure that supervisors and managers are properly trained on the PWFA and the interactive process so that they know how to respond to a request for an accommodation. When training managers, employers should understand that one of the goals of the PWFA is to find a way for employees to continue to work while pregnant. Managers should be prepared in advance to understand the rights of applicants and workers who are pregnant, trying to become pregnant, recently gave birth, or miscarried. Of note, employers cannot require a qualified employee to take a leave, whether paid or unpaid, when other accommodations can be provided. Employers must avoid retaliating against those who request or use a reasonable accommodation. The PWFA retaliation provision mirrors the protections under the ADA and Title VII. Lastly, management should also be reminded that the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. Attorneys Katherine Brustowicz, David Gabor, and Johanna Matloff of The Wagner Law Group’s Employment Law and Human Resources Team are available to assist employers in navigating the PWFA and related issues. Please do not hesitate to reach out for support.

FTC Ban On Noncompetes: 7 Things Employees & Executives Must Know

2024-05-10T12:59:30Z

FTC Ban On Noncompetes: 7 Things Employees & Executives Must Know - Quoting WLG Law Alert by Katherine Brustowicz, David Gabor, Johanna Matloff, Mark Poerio, Andrew Oringer, and Virginia Peabody, May 8, 2024 (PDF)

Ban on Non-Competition Agreements – What Employers Need to Know and Do Now

2025-12-10T01:56:35Z

[ez-toc]

Introduction

On April 23, 2024 the U.S. Federal Trade Commission (FTC) approved a proposed final rule which bans new non-competition clauses in employment contracts for most workers across the United States. The ban stems from the FTC’s view that non-competition clauses suppress wages and unfairly limit competition in violation of Section 5 of the Federal Trade Commission Act. This groundbreaking change in the law of non-competes is of significant importance to those employers and other service recipients who place value on non-compete agreements, and to those employees and other service providers who are adversely affected by non-competes.

Implications of Ban

Once the new rule goes into effect, existing non-compete agreements will become unenforceable, and employers will be required to provide notice to both current and former workers that their noncompete clauses are no longer enforceable. Employers will also need to reconsider forfeiture-for-competition provisions (which are often included in stock awards or deferred compensation plans) because the FTC’s non-compete prohibition extends to terms or conditions of employment that penalize workers for violating non-competition covenants. There is a grandfathering provision for senior executives (workers earning more than $151,164.00 per year who are in a “policy-making position”) who have non-competes that were entered into before the final rule’s effective date, but employers may not enter into or enforce new non-competition agreements with senior executives. Certain not-for-profit entities are exempt from the final rule. and non-competes entered into pursuant to a bona fide sale of a business entity may also remain in place.

Timing

The ban goes into effect 120 days after it is published in the Federal Register, on August 22, 2024. It does not apply retroactively to causes of action accruing before the final rule’s effective date. For example, if an alleged breach occurred before the final rule goes into effect, the ban would not apply. It is important to note that enforcement is likely to be delayed by legal challenges. This sweeping ban has already received negative feedback from various business groups, and the U.S. Chamber of Commerce has already sued the FTC, arguing the regulator has overstepped and the non-compete ban should be blocked. An injunction is likely to be sought to halt the rule from imminently taking effect. Although the rule appears to be motivated by the FTC’s goal of eliminating unfair methods of competition, there is substantial concern that the new rule will actually have the opposite effect and limit businesses’ ability to protect their legitimate trade secrets and confidential data.

State Law

The final rule supersedes state laws to the extent, but only to the extent, that such state laws conflict with the final rule or would otherwise permit or authorize conduct prohibited under the final rule. The notice requirement in the final rule supersedes any state law with a conflicting notice requirement. Employers must comply with state laws that have stricter bans on non-competes.

What Employers Should Do Now

Employers should review existing noncompetition agreements and identify categories of employees who may fall within an exception to the ban, including senior executives or employees involved in the bona fide sale of a business. Once the final rule is published, employers should draft notices that, in accordance with the final rule, advise employees that they will not enforce non-competes after the final rule’s effective date. The notice should be sent to current and former employees, excluding senior executives who are exempt, before the final rule goes into effect. The rule includes model notice language and creates a safe harbor for employers that use the model notice. Not-for-profits should perform a careful analysis to determine if they are subject to the final rule or if any of their businesses are subject to the final rule before any notices are sent to employees. Employers should update existing offer letters and non-disclosure and confidentiality agreements to remove restraints on competition and other restrictive covenants that may no longer be enforceable under the new ban. The ban does not nullify non-solicitation, non-recruitment, confidentiality, or non-disclosure agreements, but only if they do not have the impact or effect of a non-competition agreement. Such agreements should be carefully reviewed to ensure that they do not have provisions that would be considered non-compete language under the final rule. Since non-competes have largely been governed by state law, an employer should review state laws where it has employees to determine whether those laws have even stricter bans on non-competes and other restrictive covenants that may apply after the final rule goes into effect, and how that could impact any agreements with employees. Given the uncertainty surrounding the enforceability of the new rule, employers concerned with protecting their confidential and proprietary information should not only eliminate non-competes from their employment agreements but also carefully review and revise non-solicit, non-disclosure, and other restrictive covenants to ensure that they are narrowly tailored to protecting the employer’s confidential and proprietary information. Employers should review and augment confidentiality clauses and consider limiting the sharing of propriety information and trade secrets to only those employees who really need to know.

Conclusion

Employers are encouraged to discuss the impact of the ban on their business with their employment counsel. If you have any questions about the ban, or need assistance in crafting your restrictive employment agreements or understanding your state specific employment laws, please reach out to Katherine Brustowicz, David Gabor, Johanna Matloff, or Ginny Peabody (Senior Consultant) of The Wagner Law Group’s Employment Law Team. Mark Poerio and Drew Oringer of The Wagner Law Group’s Executive Compensation Group also have significant expertise in this area and are available to assist.

Taking the Human out of Human Resources? Artificial Intelligence and its Impact on the Employment Setting

2025-05-29T16:45:30Z

Taking the Human out of Human Resources? Artificial Intelligence and its Impact on the Employment Setting - Johanna Matloff, The Wagner Law Group Free Webinar, May 14, 2024, 1:00 - 1:30 PM (EDT)

Seasoned Litigator Joins The Wagner Law Group

2023-11-19T13:01:51Z

Seasoned Litigator Joins The Wagner Law Group - The Wagner Law Group Press Release, November 14, 2023