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Written by various Employment Law Attorneys at Fisher Phillips
With the federal government shutdown ending, employers need to shift gears fast. Key federal agencies will soon resume normal operations, and we’ll see regulatory action and oversight surge back into motion. This is the moment to move from pause to power-up: review where your organization hit the brakes, identify what got delayed, and prepare for the ramp-up ahead. Here’s what you should expect and what you should do.
Mechanics of the Restart
With federal funding resumed, many previously “non-essential” agency functions will begin to re-activate. But don’t expect an immediate return to normalcy. Agencies will need to dig out from the backlog created by the longest shutdown in our nation’s history, so you’ll see a gradual ramp-up period for pending investigations, audits, applications, and compliance checks. Officials will likely prioritize high-risk or high-profile issues.
For employers, your quiet window is now closed. If your organization postponed compliance initiatives, filings, or responses during the shutdown, now’s the time to dust off those items. Most importantly, you should review your exposures or any postponed enforcement activities, gearing up for agencies to resume their outreach, inspections, investigations, and litigation.
EEOC Back in Action – and More Powerful Than Pre-Shutdown
Action Steps for Employers
Expect a Labor Board Backlog
Action Steps for Employers
Prepare for Wage and Hour Changes
Action Steps for Employers
Workplace Safety Action Will Ramp Up
Action Steps for Employers
Key Immigration Processes Return
Action Steps for Employers
Renewed Activity for Federal Contractors
Action Steps for Contractors and Subcontractors
Conclusion
Make sure to sign up for Fisher Phillips Insights to stay up to speed on the latest developments from our Government Relations Practice Group and other FP attorneys. If you have questions, contact your employment law attorney, or the authors of this update.
Reprinted with approval from Fisher Phillips
Update Provided by: Spencer W. Waldron, Fisher Phillips
California officials just announced that the statewide minimum wage will increase for all employers to $16.90 on January 1, 2026, as required by the state’s annual inflation-based adjustment process. The Department of Finance certified the applicable Consumer Price Index (CPI) increase with Friday’s announcement, triggering an impending rise in the statewide minimum wage for all businesses, regardless of size. What are the five things you need to know and what should you do in response to this announcement?
Why This Matters
In addition to affecting hourly pay, the change impacts exempt employee classifications, wage-related premiums, sick leave accruals, and even wage statement compliance. Employers should also note that this increase operates alongside numerous local minimum wage ordinances and industry-specific rules that may impose higher or different standards.
Five Things Employers Need to Know
Action Items for Employers
Conclusion
We will continue to monitor developments and provide updates so make sure you are subscribed to Fisher Phillips’ Insight System to gather the most up-to-date information. If you have questions, please contact the author of this Insight, or your employment law attorney.
Reprinted with permission from Fisher Phillips
Update provided by:
Jennifer S. Grock, Jonathan Judge
Atkinson, Andelson, Loya, Ruud & Romo
California employers are encouraged to review their cellular phone and driving policies in light of a recent Court of Appeal decision which bars drivers from using any functions on a handheld cellular phone while driving. People v. Porter, 111 Cal. App. 5th 927, 333 Cal. Rptr. 3d 168, 171 (2025).
On June 3, 2025, the California Court of Appeal issued a ruling in Porter, which reinstated the traffic conviction of a driver who had viewed a mapping application on his cellular phone while holding the phone and driving. The defendant, Nathaniel Gabriel Porter, who was convicted of violating Vehicle Code section 23123.5(a) – which prohibits drivers from “holding and operating” a handheld cellular phone unless it is used in a manner that allows voice-operated and hands-free operation – appealed his traffic conviction to the appellate division of the Santa Clara Superior Court. Porter argued that the statute prohibited only listening and talking on a handheld phone. The appellate division agreed and reversed the conviction, concluding that “operating” a cellular phone under the statute requires active use or manipulation of the device, such as talking, listening, emailing, or otherwise engaging with the phone, rather than simply observing GPS directions. The Court of Appeal then reviewed the case, ultimately reinstating Porter’s conviction.
The court’s ruling concluded the statute prohibits all use of a cellular phone’s functions while driving and holding the phone, including passively looking at an application on the phone. The Legislature intended to curb distracted driving stemming from the expanded functionality of modern phones by banning all use of a phone’s functions while held in the hand. Further, the court reasoned that Porter’s use of his handheld cellular phone while driving implicated safety concerns. Under Porter’s interpretation of the statute, the court opined that a driver could not only view a mapping application, but also watch a video or other similarly dangerous, distracting activities, while driving. The court decided that Vehicle Code section 23123.5(a) was correctly interpreted as barring drivers from using any application or function on a cellular phone while holding the phone and driving.
Given this ruling, California employers should consider if any updates are necessary to their employment policies. While many employers may already have policies in place which require hands-free cellular phones to make and receive calls while driving, the Porter case holds that any use of a cellular phone violates the law when holding the phone and driving. Employers may need to review their policies to ensure the policy bars employees who are driving for work purposes from engaging in any use of a handheld phone and to suggest alternatives such as a cellular phone windshield mount so that drivers can observe mapping applications if necessary.
Employers with questions about their cellular phone, driving, and other employment policies may contact the authors of this post or their usual counsel.
Reprinted with permission from AALRR
Updated Provided by:
Grant C. Furukama
Atkinson, Andelson, Loya, Ruud & Romo
On July 1, 2025, multiple California cities and counties will implement mid‑year minimum wage increases. These adjustments generally reflect shifts in the Consumer Price Index (CPI) and are designed to help employees keep pace with inflation. Below is a non-exhaustive list of the jurisdictions that will raise their minimum wage:
Jurisdiction | New Rate (July 1, 2025) |
Alameda | $17.46 / hour |
Berkeley | $19.18 / hour |
Emeryville | $19.90 / hour |
Fremont | $17.75 / hour |
Los Angeles (citywide) | $17.87 / hour |
LA County (unincorp. areas) | $17.81 / hour |
Milpitas | $18.20 / hour |
Pasadena | $18.04 / hour |
San Francisco | $19.18 / hour |
Santa Monica | $17.81 / hour |
Malibu (suspended)* | Remains $17.27 / hour |
*The Malibu City Council voted 4-1 on May 21, 2025 to suspend the scheduled minimum wage increase in light of the Palisades fire.
Employers should keep an eye on California’s ever-evolving minimum wage laws to ensure their pay practices are compliant. Failing to pay the correct wage can expose employers to penalties, backpay liability, and costly litigation. The California Department of Industrial Relations (DIR) maintains a minimum wage website, which links to the following website that tracks local city and county minimum wage rates: https://laborcenter.berkeley.edu/inventory-of-us-city-and-county-minimum-wage-ordinances/#s-2
For additional information, or if you need assistance in these areas, please contact the author of this blog or your usual employment law attorney.
Andrea Y. Cervantes, Ann K. Smith, Paul S. Fleck
Atkinson, Andelson, Loya, Ruud & Romo
Workers’ Compensation claims and wage and hour lawsuits discovered they make great travel companions. Employers should heed notice that their response to a Workers’ Compensation claim could directly lead to a wage and hour lawsuit.
Plaintiffs’ attorneys are increasingly accepting workers’ compensation claims hoping they will facilitate separate wage and hour lawsuits. Employer disclosures of time and pay records through the workers’ compensation process can reveal vulnerabilities in employer record keeping with potential violations leading counsel to file separate civil wage and hour claims against the employer.
These lawsuits can come in the individual variety, seeking relatively modest compensation on behalf of the same employee who filed for workers’ compensation. But, more likely, these wage and hour claims can take the form of monstrous class action lawsuits seeking lucrative penalties for plaintiffs’ attorneys through the Private Attorneys General Act (“PAGA”). These suits prove costly even for employers with comprehensive wage and hour policies.
From the plaintiffs’ counsel perspective, the one-two punch makes practical sense. An employee seeks counsel to navigate their workers’ compensation claim after suffering a workplace injury. In the process of handling that claim, attorneys may fish for time and pay records, or an earnest and well-intentioned employer may provide them as part of the broader production of personnel records. However, these documents, are likely not relevant to the claim at issue. The time and pay records may then provide a direct on-ramp to a civil suit, either handled by those same attorneys or referred to specialized wage and hour counsel.
Employers in California are already aware that they are likely to encounter wage and hour cases given the prevalence of such actions. These cases, even for organizations with relatively strong compliance and record keeping, can prove costly and time-consuming given that they can cover large numbers of employees for claims extending up to four years back. Employers, however, may not yet know that their response to workers’ compensation claims may inadvertently end up encouraging another legal headache.
Key Takeaways
Employers should consult with their regular employment lawyer regarding responses to applicant attorneys’ request for records and subpoenas related to workers’ compensation claims to clearly understand their rights and obligations when producing documents. Separate and apart from open workers’ compensation claims, employers should consult their counsel to review their procedures and take the opportunity to generally assess their wage and hour compliance.
Employers with questions about the potential for wage and hour claims from workers’ compensation filings may contact the authors of this post or their usual counsel at AALRR. AALRR attorneys can help with payroll and personnel file requests, subpoenas or demands. They can further help employers by conducting wage and hour audits.
Reprinted with Permission from AALRR
Update Provided by Scott & Whitehead
The U.S. Department of Homeland Security (DHS) has released a revised Form I-9, which is now available on the U.S. Citizenship and Immigration Services (USCIS) website: uscis.gov/i-9. While the new version is now in effect, employers may continue to use the prior edition until its expiration on July 31, 2026.
Key Updates to Form I-9
The updated form includes minor, but important, changes to reflect current legal requirements, including:
Reminder: In-Person Document Review Requirements
Employers must physically inspect original identity and work authorization documentsunless they are enrolled in E-Verify and meet the requirements for remote examination.
Authorized Representative Guidance
DHS guidance confirms that:
For more information on using authorized representatives and completing Form I-9, refer to the DHS guidance available at: uscis.gov/i-9-central.
If you have questions or need assistance with Form I-9 compliance, please contact the authors of this update or your employment law attorneys.
Reprinted with permission from Scott & Whitehead
Update Provided By:
Lisa Nagele-Piazza, Terri R. Stewart of Fisher Phillips
It’s been five years since the COVID-19 pandemic forever changed the way we approach remote work, but the push to bring workers back to the office full-time has gained momentum over the last few months. For instance, the Trump administration issued an executive order in January directing federal agencies to require in-person work when feasible, and some big corporations have been taking steps to scrap the hybrid model in favor of five days a week in the office. Is this news making you rethink your remote or hybrid work program, too? There are quite a few pros and cons to work through before making a move. Here are seven top issues you’ll want to assess as you consider whether to update or unwind your remote work policies.
1. Attracting and Retaining Employees
Among the chief concerns for employers that want to bring workers back to the office is fear of losing top talent. Will your star players leave for competitors that offer more flexibility? How will your talent acquisition efforts be affected?
It is important to consider employee sentiment and take their concerns into account before implementing a mandatory return-to-office policy. Many employees have grown accustomed to the flexibility of remote work, which includes reduced commuting costs and childcare expenses and the ability to live in more affordable areas. Forcing employees to return to the office full-time may lead to dissatisfaction and increase the likelihood that some employees and job candidates will seek opportunities elsewhere.
However, if you’ve been waiting for the right moment to bring workers back onsite, now might be the time since so many other employers are doing the same. Additionally, more job seekers are entering the market due to both public- and private-sector layoffs. According to recent reports, February and March brought the largest U.S. job cuts since the early days of the pandemic in 2020. The cuts were largely made by the federal government, as well as the tech and retail industry. While some employees may be seeking only remote or hybrid opportunities, others may be looking for or willing to consider a full-time office arrangement again.
Messaging is important for your recruitment and retention strategy. You’ll want to highlight the benefits of in-person work, such as:
| Be ready to walk the talk: Make sure that any benefits you boast in your recruitment and retention programs are integrated into your actual policies and practices. You’ll also want to ensure your leadership team and managers are setting the example by working from the office, too, and taking the opportunity to make meaningful in-person connections. |
2. Offering Return-to-Office Incentives
To mitigate the challenges associated with mandatory return-to-office policies, employers may also consider offering the following benefits:
3. Setting Consistent Standards
When you’re bringing employees back to the office, make sure the exceptions don’t swallow the rule. If some employees are required to return to the office and others are not, make sure you have objective guidelines for making those decisions. Consider the following questions:
The key is to set clear and objective standards for all employees and apply them consistently.
4. Allowing for Reasonable Accommodations
While you can generally require employees to work in person, you may have employees who request full-time remote or hybrid arrangements due to health conditions, caregiving responsibilities, or other legitimate reasons. You should be prepared to address these requests on a case-by-case basis, considering both legal obligations and the needs of your workforce.
For example, you’ll want to ensure your policies don’t run afoul of the Americans with Disabilities Act (ADA) or similar state laws. Let’s say an employee requests to work 100% remotely as an accommodation for their anxiety disorder and submits a doctor’s note to support their request. Do you have to grant it? Maybe – here’s what you should consider:
5. Accounting for Office Space Challenges
Ensure your physical workspace is set up for effective teamwork and solo work, as appropriate. Consider the following questions as you build your return-to-office plan:
6. Delivering Onsite Orientation and Training
If improving teamwork and employee engagement are among your top priorities, you’ll want to set the right tone from the beginning. Consider developing a series of trainings and teambuilding activities to help employees get excited about working in-person and to get to know each other better.
Here’s another consideration: An increasing number of employees – particularly those in Gen Z – have never worked in person. This transition may be a bit scary for those workers, and they may not be accustomed to business etiquette and office norms that are automatic to others. Think about how you’ll orient these employees to the office environment and what type of training will be most effective for your particular business, industry, and culture.
7. Developing a Communication Plan
The way you communicate your decision to bring workers back to the office may be critical to success:
Conclusion
Before you roll out a return-to-office policy, you’ll want to carefully consider your business needs and legal concerns and create an action plan that facilitates a smooth transition. Should you have questions regarding your policies, contact your employment attorney or the authors of this Update.
Reprinted with permission from Fisher Phillips.
If You, or Someone You Know, Has Lost Their Job or Had Hours Reduced
Unemployment benefits are available to workers impacted by the fires. The one-week waiting period benefits will start from the first week of unemployment.
Disaster Unemployment Assistance (DUA) is also available for workers and self-employed people in Los Angeles County affected by the California wildfires and severe winds. DUA covers workers who normally are eligible for regular unemployment benefits. DUA benefits apply to losses the week of January 12, 2025, and claims must be filed by March 10, 2025.
Apply for unemployment or DUA benefits through myEDDand indicate that the job loss is due to the disaster.
Governor Gavin Newsom has also announced $20 million to create temporary jobsillion to create temporary jobs in impacted areas and provide workers with supportive services. Workers can contact their America’s Job Center of California for more information.
Disability and Paid Family Leave Benefits
Workers can apply for disability benefits if they were injured, or their health was impacted by the fires. Or apply for Paid Family Leave benefits if they need to take time off to care for a family member. Citizenship or immigration status doesn’t affect your eligibility!
If Your Business Was Impacted
Employers affected by the disaster can request a 60-day extension to file payroll reports and taxes without penalties.
Many employers use commission and bonus structures to reward and incentivize their employees for hard work. These are often tied to sales goals, completing a busy season, or hitting specific targets. Some employers provide housing, meals, or piecework pay to employees. While all of these benefits can be great motivators, there’s an often-overlooked aspect when paying non-exempt employees that can lead to costly errors. Employers who offer these types of benefits to non-exempt employees are encouraged to ensure that they are properly calculating the “regular rate of pay.” The regular rate of pay affects overtime, paid sick leave, meal break premiums, rest break premiums, and reporting time pay.
These types of additional compensation and benefits affect a non-exempt employee’s regular rate of pay, which is not the same as an employee’s base rate of pay. Failing to factor non-discretionary bonuses, commissions, and certain other types of compensation into an employee’s regular rate of pay will lead to underpayment of the employee, which could result in penalties and back pay claims.
What is the “Regular Rate of Pay”?
In simple terms, the regular rate of pay includes more than just an employee’s base hourly rate. It encompasses all compensation that a non-exempt employee earns, including non-discretionary bonuses, commissions, piecework pay, and other forms of remuneration. It includes bonuses that are guaranteed based on performance or specific criteria, such as meeting sales quotas or working certain shifts. These amounts must be included when calculating overtime pay, paid sick leave, meal and rest break premiums, and reporting time pay for non-exempt employees.
What’s Not Included in the “Regular Rate of Pay”?
Not all types of pay are included in the regular rate of pay. Exclusions include:
How Non-Discretionary Bonuses Affect “Regular Rate of Pay” Calculations for Overtime Pay
There are two main types of non-discretionary bonuses that affect the regular rate of pay: flat-sum bonuses and production bonuses. Let’s look at how each is handled.
The following details how to calculate the overtime pay owed to an employee who earns a flat-sum bonus:
1. Determine the Per-Hour Value of the Flat-Sum Bonus:
2. Calculate the Overtime Bonus Rate:
3. Determine the Total Overtime Due:
Non-Discretionary Production Bonuses
A production bonus is tied to an employee’s output, such as paying a percentage of sales or units produced or sold. When calculating overtime for a production bonus, the total bonus is divided by all hours worked (both regular and overtime). Then, the per-hour value of the bonus is multiplied by 0.5 to find the additional overtime pay owed. To properly calculate the overtime owed when a production bonus is involved, follow these steps:
Determine the Per-Hour Value of the Production Bonus:
Calculate the Overtime Bonus Rate:
Determine the Total Overtime Due:
Why This Matters for Employers
It’s essential for employers who offer any form of non-discretionary bonuses, commissions, or certain other remuneration to ensure these amounts are correctly factored into the regular rate of pay for non-exempt employees, including for overtime calculations. Ignoring this requirement can lead to substantial penalties, back wages, and potentially legal disputes.
By understanding how to correctly calculate the regular rate of pay, employers can protect their businesses from potential liabilities and ensure their employees are fairly compensated.
Key Takeaways for Employers
For more detailed guidance, including calculation examples and requirements, the Division of Labor Standards Enforcement (DLSE) offers helpful resources. You can visit their official guidance here: HERE and read about specific insights in the DLSE Manual here: HERE
If you need help reviewing your policies or calculating the regular rate of pay, we’re here to help! Reach out to the KMR team or to your own legal team for personalized support.
Reprinted with permission from Kennedy McCarthy & Rumm
The Labor Department’s top lawyer announced on Tuesday that the agency would target seven specific employment-related contract provisions that she believes could discourage workers from exercising their rights under federal workplace laws. U.S. Solicitor of Labor Seema Nanda’s October 15 Special Enforcement Report on “coercive” contractual provisions serves as a stark warning to employers. But it also announces that the agency will take innovative approaches to address its concerns – including filing groundbreaking lawsuits and filing friend-of-the-court briefs to attack disobeying employers. What are the seven contract provisions under the DOL’s microscope and what should employers do about this development?
You can read the full report here, but here’s an overview of the seven areas targeted by the DOL and some examples of provisions that could land you in hot water with the agency.
1. Requiring Workers to Waive Wage and Hour Rights
The report says that employers sometimes try to get workers to sign away their Fair Labor Standards Act (FLSA) rights to minimum wage, overtime pay, and certain related damages by adding clauses that shorten the time workers have to bring claims or reduce the penalties employers face if they’re found at fault. Federal law, however, makes these wage and hour protections non-negotiable. The report states that these are fundamental rights designed to prevent exploitation and ensure fair compensation. The DOL report says that clauses like these are illegal because they undermine workers’ ability to hold employers accountable for unfair pay or excessive hours.
2. Incorrectly Classifying Workers as Independent Contractors
Some contracts label workers as “independent contractors” with the real aim of avoiding benefits and protections like minimum wage, overtime, and safety standards. However, as courts and agencies have often made clear, a label (even one included in a written contract) doesn’t decide legal status. The report reminds employers that you can’t legally reclassify workers as contractors just to dodge legal responsibilities, instead needing to focus on the actual working relationship to determine classification status. The DOL report warns employers that it often challenges such labels and takes action on behalf of misclassified workers, even if they are labeled as contractors. If you are unclear about the federal rules in place for classifying workers as independent contractors, check out this summary of the DOL’s current positionand a similar standard deployed by the National Labor Relations Board (and don’t forget state rules, which might be even stricter).
3. Shifting Liability for Legal Violations to Workers or Others
Certain contracts include indemnification provisions, aiming to shift the financial risk of legal violations onto workers and forcing them to cover the company’s legal costs – even if they successfully win a claim. The DOL says this tactic is illegal because it discourages workers from taking action when their rights are violated, as they create a chilling effect and effectively silence workers who fear financial retaliation for speaking out. The report warns employers not to sidestep liability by making workers financially responsible for the costs of the employers’ own wrongdoing.
4. Forcing Losing Party to Pay Attorneys’ Fees in Legal Disputes
Similarly, some contracts require workers to pay the employer’s attorney’s fees if they lose a legal dispute. These “loser pays” clauses create a financial risk so high, the report says, that many workers would avoid pursuing legitimate claims. The DOL believes this approach goes against federal laws like the FLSA, which allow fee-shifting only in favor of workers – meaning employees who win their cases can get their legal fees covered, but companies cannot demand the same from workers who lose. The result of such provisions is a significant deterrent to workers enforcing their rights in the eyes of the DOL.
5. Stay-or-Pay Provisions
“Stay or pay” provisions require workers who leave a job before a set period to reimburse the employer some amount, often charging them for training or relocation costs. But these steep penalties can trap workers in a job, says the DOL’s report, especially those who can’t afford to pay to leave, even when facing poor or unlawful working conditions. The DOL reminds employers that labor laws mandate that wages must be paid “free and clear,” meaning without any strings attached. Provisions that serve as pure penalties and pull workers’ wages below minimum standards or solely benefit the employer are not permitted under federal law. And the NLRB’s top lawyer just came down with a blistering attack against stay-or-pay provisions that you should also keep in mind.
6. Confidentiality, Non-Disclosure, and Non-Disparagement
Workplace contracts sometimes include broad restrictions on what workers can discuss or disclose to third parties, preventing them from discussing working conditions or reporting violations outside the organization, or even cooperating with government investigations. The DOL says that these clauses make employees feel they can’t report issues, effectively silencing them on workplace realities. Such restrictions can run counter to federal workplace laws, which rely on employees’ ability to report issues freely and without fear. The DOL’s report firmly establishes that employees must be allowed to communicate with labor enforcement agencies – and warns employers not to stop this kind of communication through contract clauses.
7. Requiring Workers to Internally Report Safety Concerns Before Going to Government
Some companies require workers to report safety concerns to management first before going to workplace safety agencies like OSHA. According to the DOL’s report, this kind of policy often discourages workers from reporting violations if they think management will retaliate or ignore the issue. The report reminds employers that federal law upholds workers’ rights to report safety concerns directly to government authorities, ensuring quick and unbiased responses to potential hazards. This right is fundamental to creating safer workplaces, according to the DOL, as it prevents delays that could arise if workers feel obligated to report internally before seeking external assistance.
Review all of your workplace policies, applications, forms, and other agreements to determine whether you have any language that could cross the line. The agency specifically noted that it would be targeting “fine print” provisions, so make sure you review all of your language – especially provisions that may have existed for years without question.
If your contracts contain any such language, check with your employment lawyer to determine your risk factor. This report does not carry the force of law and may take positions that courts might not agree with.
Pay special attention to your independent contractor agreements since they were specifically called out by the DOL as being vulnerable to attack. Remember that simply entering into such an agreement does not guarantee that a government investigator or court will conclude that your worker is a contractor and not an employee.
Conclusion
If you have questions regarding your workplace agreements, contact your employment attorney or the authors of this Update.
Reprinted with permission from Fisher Phillips
