NEWS Archive

FEDERAL PREGNANT WORKERS FAIRNESS ACT FOUND CONSTITUTIONAL

On August 15, 2025, in State of Texas v. Bondi, the Fifth Circuit Court of Appeal overturned a decision from a Texas district court that previously found the Pregnant Workers Fairness Act (“PWFA”) to be unconstitutionally enacted.

As background, the PWFA is a federal law enacted in 2022 that aims to protect pregnant workers or workers who have conditions tied to pregnancy and childbirth by requiring employers with 15 or more employees to offer reasonable workplace accommodations to such employees. The law also prohibits discrimination or retaliation against these employees. The law covers not only pregnancy but also related medical conditions, such as morning sickness, gestational diabetes, and postpartum depression.

The PWFA became law in December 2022 after passing in both the House and the Senate as an amendment to the Consolidated Appropriations Act (a $1.7 trillion bill). The bill was passed using a pandemic-era rule that allowed lawmakers to vote remotely by proxy.

The PWFA went into effect on June 27, 2023.

In February 2023 (before the law took effect), the State of Texas filed a lawsuit against the federal government, challenging the federal government’s omnibus spending package and specifically targeting two provisions of the bill: enactment of the PWFA and funding for unauthorized immigrant social services. The State of Texas focused its lawsuit on the U.S. Constitution’s quorum clause, which requires a majority of members of the House or Senate to be present in order to constitute the necessary quorum to pass legislation.

In February 2024, a federal judge in Texas agreed with the State of Texas and blocked the EEOC from enforcing the PWFA against the State of Texas. Specifically, the judge ruled that the law could not be enforced against the State because the House did not have a proper quorum when it passed the Consolidated Appropriations Act in 2022. The judge ruled that the remote voting by proxy violated the Constitution’s quorum clause.

With this 2024 ruling, the judge issued a permanent injunction, barring the federal government from filing suits under the PWFA against the State of Texas. The injunction would also block the EEOC from accepting state employees’ charges alleging violations of the PWFA, investigating those charges, issuing right-to-sue letters or suing on behalf of employees. The injunction however would not block state employees in Texas from filing suits under the PWFA and did not impact private employers.

This decision was appealed to the Firth Circuit, which held that House lawmakers did not need to vote in person to have a quorum under the Constitution, and that the district court judge adopted an improper interpretation of the quorum clause in ruling that the bill required the physical presence of a majority of House members when it was passed. The Fifth Circuit explained that the constitutional text, history, and tradition indicate that the quorum clause does not contain a physical-presence requirement.

With this decision, the EEOC’s ability to enforce the PWFA against the State of Texas is restored and the decision makes clear that covered employers, both public and private, must comply with the PWFA. Thus, employers must make sure their accommodation policies and related policies address pregnancy-related needs and also take into account medical conditions related to pregnancy.

Those seeking a more in-depth understanding of the PWFA and pregnancy discrimination are invited to read Chapter 5 of the Employment Discrimination and EEO Practice Manual for California Employers by Attorney Richard J. Simmons of Sheppard Mullin. The Manual is available from Castle Publications.

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About The Author

Rachel Patta Howard is an associate in Sheppard Mullin’s Labor and Employment Practice Group in the firm’s Century City office. Ms. Howard represents employers in a variety of industries including financial services, banking, retail, healthcare, manufacturing, and entertainment. She has successfully litigated and favorably resolved cases involving allegations of discrimination, retaliation, harassment, failure to accommodate, wrongful termination, trade secret misappropriation, and defamation, as well as wage and hour cases, including representative and class actions. Additionally, Rachel advises and counsels clients on day-to-day employment issues including internal investigations, discipline and terminations, leaves of absence, the interactive process, reasonable accommodations, personnel policies, and other wage and hour compliance issues.

She has written a number of articles for the Sheppard Mullin Labor and Employment Blog and is a contributing author of the ALERT Newsletter.

Ms. Howard received her law degree, as well as her undergraduate degree, from the University of California, Los Angeles.

WHAT EMPLOYERS NEED TO KNOW ABOUT THE NEW H-1B EXECUTIVE ORDER

On September 19, 2025, the White House issued a Presidential Proclamation imposing a $100,000 filing fee for certain H-1B workers.

The advent of this Proclamation has created a lot of uncertainty. The Department of Homeland Security (“DHS”) issued some initial clarifying guidance on September 20, 2025, but we are hopeful that more guidance will ensue.

Several groups have already announced that they intend to challenge the legality of the Proclamation, since USCIS filing fees must bear a reasonable relationship to the cost for the agency to provide that service and the agency must also first publish them in the Federal Register.

1. Key Takeaways, In The Interim

1. We are still waiting for more agency guidance as to whether the Presidential Proclamation of Sept 19, 2025 only applies to new H-1B lottery petitions starting in April 2026 and that designate consular processing for brand new workers that are still overseas.

2. The U.S. Citizenship and Immigration Services (“USCIS”) and U.S Customs and Border Protection (“CBP”) issued memos on September 20 indicating that the $100,000 fee only applied to new petitions filed on or after September 21, 2025. However, the memos were silent on all other issues.

3. The White House press secretary issued a clarification on X on September 20 indicating that the fee will first apply to H-1B lottery cases starting in April. See the X posting below.

4. Petitions filed before September 21, 2025 should not be impacted, nor should H-1B travel or visa stamping be impacted at this time for petitions that were filed prior to that date.

5. The USCIS website makes no mention of any $100,000 filing fee for any H-1B petition filing. Indeed, at this time there appears to be no way to even pay the fee if it were required.

6. H-1B workers with petitions filed before September 21, 2025 should be able to travel abroad and return with a valid H-1B visa stamp and passport based on the White House posting on X and the agency memos from September 20. And to date we have not heard of any H-1B workers having difficulty returning to the U.S.

7. Non-lottery petitions filed on or after September 21, 2025 might incur a $100,000 filing fee but the guidance on this question is unclear. Therefore H-1B workers who are the beneficiary of a new petition filed on or after September 21, 2025 should not travel abroad at this time until more guidance is given by the federal agencies.

8. It also remains unclear how the Courts will look at this Proclamation and subsequent agency actions – whether it is within the Executive Branch’s authority or only that of Congress.

9. Assuming the Courts uphold most or all of the Proclamation, it also remains unclear whether the Secretary of Homeland Security will use the discretion granted to her in the Proclamation to exempt certain industries, companies, or individuals from the $100,000 filing fee on the basis of national interest.

10. While there is no guarantee, this is what we know about the new fee at this time. It could change. We will keep readers apprised as developments occur.

2. White House Clarification Posted On X On September 20

To be clear:

1.) This is NOT an annual fee. It’s a one-time fee that applies only to the petition.

2.) Those who already hold H-1B visas and are currently outside of the country right now will NOT be charged $100,000 to re-enter.

H-1B visa holders can leave and re-enter the…

— Karoline Leavitt (@PressSec) September 20, 2025

3. Additional Guidance And Commentary

• While not a certainty, it appears the primary intent of the Proclamation is to target IT workers who are overseas and hope to be selected in the March 2026 H-1B lottery. If they are overseas and their visa number is selected in the lottery, then the employer will have to file an I-129 petition, indicate consular processing, and pay the $100,000 filing fee prior to filing the petition.

• When Congress created the H-1B program in 1990, it did not tie it to proving that there was a shortage of U.S. workers. At the time there was a known shortage of IT workers, so Congress only mandated that the position require a 4-year degree related to the duties of the position and that wages would not adversely affect U.S. workers. Congress also set an annual quota on the number of new H-1B visa holders.

• The Proclamation also directs the Department of Labor (“DOL”) to review and prioritize H-1B petitions and visas for the most highly skilled and highly paid workers. The lottery will give four selection opportunities for a position where the employer is willing to pay a Level 4 wage, three selection opportunities for a Level 3 wage offer, etc. The Proclamation cites the H-1B Labor Condition Application (“LCA”) requirement as outlined in 8 U.S.C. 1182(n). The congressional statute cited in the Proclamation requires that H-1B wages be on par with what U.S. workers are being paid for the same position and job requirements and that the H-1B wage not adversely impact U.S. worker wages.

• Limiting the H-1B lottery program to only the highest paid and highest skilled workers may thwart the intent of Congress which limited the H-1B program to professional occupations involving at least a relevant 4-year degree. Therefore, this area seems ripe for litigation as Congress wrote in the statute that the program must protect American wages, but it did not require that only the highest skilled and highest paid workers (“Level 4”) be accepted. On the other hand, if the White House feels that U.S. wages are being adversely affected by the current H-1B lottery selection method, the Courts could uphold the new H-1B lottery selection method.

• It is also likely that the DOL will attempt to increase the prevailing wage for all H-1B petitions (including not lottery petitions) and start commencing more H-1B wage and hour audits to determine if employers are paying at least what the agency believes is the correct prevailing wage level for the position.

• It remains to be seen how this will play out. Since the DOL sets the 4 level prevailing wage already, the presumption is they are already accurate and protecting U.S. workers. https://flag.dol.gov/wage-data/wage-search

4. Conclusion

The intent of the Proclamation is primarily to stem the future flow of IT workers from overseas, which the Administration feels causes U.S. wages to drop and is leading to rising unemployment in this sector. Also, generally employers should expect to pay higher wages to H-1B workers in the future.

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About The Authors

Greg L. Berk is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County office. He leads the Firm’s immigration practice and is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization>. He has over 25 years of experience advising on all aspects of U.S. immigration matters. He assists employers worldwide with the hiring and retention of foreign national executives and highly talented individuals that are needed in their U.S. workforce. He also works with investors on E-2, L-1, and EB-5 matters. He also handles I-9 and other immigration compliance matters.

Greg frequently lectures on immigration issues and is a regular contributor to the California Labor and Employment ALERT Newsletter and Sheppard Mullin’s Labor & Employment Law blog. Mr. Berk received his J.D. from Western State University College of Law, his M.B.A. from George Washington University and his B.A. from California State University.

Jonathan Meyer is a Partner in the Governmental Practice Group with the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s Washington DC offices. He counsels clients on their interactions with federal and state government, as well as national and homeland security, Congressional oversight, cybersecurity, AI, high tech, and transportation security, among other issues.

Prior to returning to Sheppard Mullin, Jon was nominated by President Biden and confirmed by the Senate as the Sixth General Counsel of the U.S. Department of Homeland Security, serving from 2021 to 2024.

Jon is regularly sought out by the media – including CBS News, NPR, The Wall Street Journal, The New York Times, The Washington Post and Politico – on issues including national security, homeland security, government investigations, cybersecurity, immigration, politics and Congress.

DOL RETRACTS BIDEN-ERA INDEPENDENT CONTRACTOR RULE

On May 1, 2025, the U.S. Department of Labor’s (“DOL”) Wage and Hour Division announced it would not enforce or apply the Biden-era 2024 Final Rule regarding independent contractor classification (“2024 Rule”). Specifically, the DOL directed its investigators “not to apply the 2024 Rule’s analysis” in enforcement matters. The DOL’s announcement will undoubtedly make it easier to classify workers as independent contractors at the federal level—and continues a seesaw of regulatory pull-back from Biden-era directives. While the 2024 Rule does remain in effect for private litigation and certain state-specific tests still impose higher worker classification standards than the current federal guidelines, the DOL’s announcement bodes well for employers seeking to classify workers as contractors under federal law. However, it does not affect the status of workers under state law, such as California’s AB 5.

1. The 2024 Rule

Under the 2024 Rule, classifying workers as independent contractors was somewhat akin to threading a needle. Imposed on March 15, 2024, the 2024 Rule mandated a complex, employee-friendly analysis that focused on a holistic review of the “totality of the circumstances” to ascertain whether a worker was “economically dependent” on an employer and, therefore, not an independent contractor. These six factors included:

1. The nature and degree of an employer’s control over the worker;

2. The worker’s opportunity for profit or loss;

3. Any investments by the workers and the employer;

4. The degree of permanence of the working relationship;

5. The extent to which the work performed is integral to the employer’s business; and

6. The amount of specialized skill and business initiative required.

Under the 2024 Rule, no factor was assigned more weight than another. Thus, the 2024 Rule was commonly referred to as the “totality of the circumstances” test. The net result was a high degree of both difficulty and uncertainty for employers seeking to classify workers as independent contractors.

2. Legal Challenges To The 2024 Rule

Business groups quickly challenged the 2024 Rule in courts across the country. At present, five lawsuits are pending. In each, the main argument is that the 2024 Rule was arbitrary, capricious, and imposed an undue burden on businesses. No court has halted or enjoined the 2024 Rule. While the Biden-era DOL mounted a vigorous defense in each case, the current DOL’s retreat from the 2024 Rule renders the ultimate outcome of these cases unclear. For example, in one case pending before the Fifth Circuit (Frisard’s Transp., LLC v. United States), the Court of Appeals stayed the proceeding after the government submitted a status report noting the DOL was in the process of reconsidering the 2024 Rule-at-issue in the litigation. Ultimately, the DOL’s pivot to the more lenient standard could have massive implications for these proceedings.

3. The DOL Retracted The 2024 Rule

In its May 1 announcement, the DOL directed investigators to analyze a worker’s status under the longstanding “economic reality” test, described in the DOL’s 2008 Fact Sheet 13 and 2019 Opinion Letter. The more traditional economic realities test looks at various factors to determine whether workers are actually in business for themselves (and therefore contractors) or dependent on the hiring entity (and thus an employees). These factors include:

1. Whether the work is integral to the hiring entity’s business;

2. The permanency of the parties’ relationship;

3. The contractor’s investments in facilities or equipment;

4. The degree of control by the hiring entity over the contractor;

5. The contractor’s opportunity for profit or loss;

6. The amount of independent judgment or initiative required in marketplace competition for the contractor to succeed; and

7. The degree of independence with which the contractor organizes and operates their business.

This traditional economic reality test is widely considered more employer-friendly. It is highly-likely that the DOL under President Trump will issue new, formal rulemaking on the subject in the near future.

4. Practical Considerations

Regardless of the DOL’s announcement, employers should remain careful and ensure they comply with other applicable classification rules; which greatly vary by jurisdiction.

For example, many state laws establish classification standards that are stricter than the federal guidelines. California uses the much stricter “ABC test” to determine whether a worker is an independent contractor. Under that test, employers must prove (1) a worker is free from the hiring entity’s control and direction, (2) the work is outside the hiring entity’s usual course of business, and (3) the worker is customarily engaged in an independently established trade, occupation, or business. Employers must prove all three elements to properly classify a worker as an independent contractor.

Employers should also closely monitor regulatory developments. As noted above, it is likely that the DOL will implement a new final rule in the near future. If and when that occurs, employers should be prepared for accompanying changes and evaluate their existing worker classifications. Given the shifting administrative environment, it is crucial that employers stay flexible in order to both maximize opportunities presented by favorable changes and, conversely, be prepared if—or when—the regulatory winds shift once more.

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About The Author

Jonathan E. Clark is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in the Firm’s Dallas office. He is an experienced, strategic, and aggressive trial lawyer who specializes in “employee departure” litigation. To that end, Jonathan frequently represents businesses seeking to enforce restrictive covenants against high-level, departing employees who gained access to their former employer’s most valuable confidential information, trade secrets, and customer relationships. Conversely, he also defends companies seeking to hire personnel who may be bound by restrictive covenants with a former employer. These scenarios often require immediate and precise legal maneuvers. Accordingly, Jonathan often spearheads emergency injunction actions in state and federal court designed to halt contractual and legal violations before the damage is done and it’s too late.

Jonathan is a contributor to the California Labor and Employment ALERT Newsletter and Sheppard Mullin’s Labor & Employment Law blog. Mr. Clark received his J.D. from Texas A&M University School of Law, Dean’s List and his B.A. from Southwestern University.

EMPLOYEES CAN VOLUNTARILY WAIVE MEAL PERIODS IN ADVANCE

California law requires employers to provide an off-duty meal period of at least 30 minutes to an employee who works more than five hours in a day and a second meal period to an employee who works more than 10 hours. However, it also authorizes employees to waive meal periods under limited circumstances. In the April 21, 2025 decision of Bradsbery v. Vicar Operating, Inc., 110 Cal. App. 5th 899 (2025), a California Court of Appeal concluded that revocable, prospective waivers signed by employees are enforceable in the absence of evidence they were unconscionable or unduly coercive.

1. Background Of Case

In 2014, two employees sued their former employer, Vicar Operating, Inc., alleging claims on behalf of a class of employees. They alleged Vicar failed to provide them with the meal periods required by Labor Code Section 512 and Wage Orders 4 and 5. In response, Vicar asserted the employees signed a valid, written agreement that prospectively waived all waivable meal periods throughout their employment. The agreement provided the employees could revoke it at any time.

Vicar moved for summary adjudication regarding the validity of the waiver under Labor Code Section 512 and the wage orders. The trial court found the waivers valid and ruled for Vicar. The court of appeal affirmed the decision, finding that prospective written waivers of a 30-minute meal period for shifts between five and six hours accords with the text and purpose of Section 512. The legislative and administrative history confirmed the legislature and Industrial Welfare Commission determined such waivers are consistent with the welfare of employees.

2. Vicar Operated A Network Of Veterinary Hospitals

The two plaintiffs worked for Vicar, which operated a network of veterinary hospitals. In April 2009, both plaintiffs signed a written meal period waiver.

The parties stipulated that Vicar could file a motion for summary adjudication to determine whether its blanket meal period waivers to prospectively waive meal periods on qualifying shifts are enforceable under California law. Vicar asserted as an affirmative defense to liability that the employees validly waived the disputed meal periods. Oddly, the employees argued the prospective waivers were prohibited by California law. They further argued employees could waive meal periods for a given shift only after they were scheduled to work that shift. Neither argument appeared logical, let alone persuasive. The trial court granted Vicar’s motion for summary adjudication based on the plain language in the law.

The employees conceded that Section 512 and the wage orders were silent as to when the first meal period could be waived, yet argued that prospective waivers were impermissible. This argument was ill-fated. The employees argued that other features of the wage orders expressly stated that waivers could apply prospectively and, by negative implication, the failure of the meal period provisions in dispute to do the same thing implied that prospective waivers were unlawful. The court determined that the employees read too much into an assumed “implication” as meal period waivers did not expressly need to be written for shifts of five to six hours.

3. Conclusion

The court summarized its conclusion by stating: “Plaintiffs have not demonstrated Vicar’s use of prospective written waivers violates the Labor Code or the applicable wage orders at issue in this case.” On a practical level, this means that employers can enter into waivers with employees who work 5 to 6 hours to voluntarily waive their meal period. While the waiver in issue was written and revocable on its face, the court declined to opine whether a written waiver is necessary or whether it can be oral. Employers may prefer to avoid the risk of using an oral agreement to waive a meal period where employees work 6 or fewer hours and instead use written waivers that document the consent of both parties.

The topics of meal periods and meal period waivers are addressed in Section 4.2 of the Wage and Hour Manual for California Employers (27th Edition) by Attorney Richard J. Simmons of Sheppard Mullin. The book is available from Castle Publications, LLC.

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About The Author

Richard J. Simmons is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. He represents employers in various employment law matters involving litigation throughout the country and general advice regarding state and federal wage and hour laws, employment discrimination, wrongful discharge, employee discipline and termination, employee benefits, affirmative action, union representation proceedings, and arbitrations. Mr. Simmons received his B.A., summa cum laude, from the University of Massachusetts, where he was a Commonwealth Scholar and graduated in the Phi Kappa Phi Honor Society. He received his J.D. from Berkeley Law at the University of California at Berkeley where he was the Editor-in-Chief of the Industrial Relations Law Journal, now the Berkeley Journal of Employment and Labor Law.

Mr. Simmons argued the only case before the California Supreme Court that produced a victory for employers and business in 2018. He was recently recognized as the Labor and Employment Attorney of the Year by the Los Angeles Business Journal and was inducted into the Employment Lawyers Hall of Fame. He has lectured nationally on wage and hour, employment discrimination, wrongful termination, and other employment and labor relations matters. He is a member of the National Advisory Board to the Berkeley Journal of Employment and Labor Law, published by Berkeley Law at the University of California at Berkeley. He was also appointed by the California Industrial Welfare Commission as a member of three Minimum Wage Boards for the State of California.

CAL/OSHA PUBLISHES UPDATED VERSION OF DRAFT WORKPLACE VIOLENCE PREVENTION STANDARD

For the past year, nearly all California employers have been required to comply with the State’s workplace violence prevention law (Labor Code Section 6401.9), which became effective on July 1, 2024. Section 6401.9 requires, among other things, that employers implement a written workplace violence prevention plan (“WVPP”), train employees on the WVPP and workplace violence hazards, maintain a violent incident log and other workplace violence-related records, and conduct periodic reviews of the WVPP. Section 6401.9 also instructed California’s Division of Occupational Safety and Health (“Cal/OSHA”) to propose a general industry workplace violence prevention standard by December 1, 2025 and gave Cal/OSHA’s Standards Board until December 31, 2026 to adopt the standard. On May 13, 2025, Cal/OSHA published an updated draft of its standard and requested additional public comments by July 14, 2025.

1. Background On Cal/OSHA’s Draft Standard

On July 15, 2024, Cal/OSHA published its initial draft standard and requested public comments on the draft by September 3, 2024. The initial draft contained numerous revisions to the language in Section 6401.9. On January 24, 2025, Cal/OSHA held an advisory meeting to consider the changes to Section 6401.9 in the initial draft. In the updated draft published by Cal/OSHA on May 13, 2025, Cal/OSHA revised much of the language added in the initial draft and made further additions, all of which appear to stem from the public comments and advisory committee meeting feedback. Cal/OSHA will hold an advisory committee meeting on the updated draft later this year.

2. Summary Of Key Proposed Revisions

The updated draft standard contains numerous key revisions to the current law, including the following:

• Exemption Clarifications: Section 6401.9 exempts a very limited number of employers and places of employment, including those that are not accessible to the public and have less than 10 employees working at any given time. However, the updated draft standard clarifies that only employers with a total headcount of “less than a total of 10 employees” are exempt. The updated draft further states that this exception does not apply to security services, janitorial services, and domestic workers at those workplaces. In other words, the standard applies to security services, janitorial services, and domestic workers who work in places of employment that are not accessible to the public and where there are less than 10 employees.

• “Threat Of Violence” Definition Clarification: The updated draft standard clarifies under the definition of a “threat of violence” that the employer is not responsible for an “employee’s texts, electronic messages, or personal social media that are not brought to the attention of the employer or that the employer could not otherwise be reasonably be aware of.” The updated draft standard also clarifies that the term “workplace violence” includes the crime of stalking (as defined in California Penal Code 646.9) which occurs at a place of employment, or in connection with a place of employment that is brought to the attention of the employer or that the employer could otherwise be reasonably be aware of.

• “Engineering Controls” Definition Clarification: The initial draft standard identified various engineering controls for employers to implement, such as electronic/mechanical access to employee-only areas, weapons detectors, enclosed workstations with shatter-resistant glass, and furniture affixed to the floor. The updated draft clarifies that the controls listed are not required. Rather, they are examples and should be implemented where applicable.

• “Work Practice Controls” Definition Clarification: The initial draft standard also identified various work practice controls for employers to adopt, such as appropriate staffing levels, dedicated security personnel, and methods and procedures to prevent unauthorized firearms and weapons in the workplace. The updated draft also clarifies that the controls listed are not required and constitute examples for employers to implement where applicable.

• “Workplace Violence Hazards” Definition Addition: The updated draft standard includes a new “workplace violence hazards” definition that lists examples of working conditions that may increase the risk of an incident, such as areas with poor illumination or blocked visibility of surrounding areas, “work locations, areas, or operations that lack effective escape routes,” “frequent or regular contact with the public,” “entries to places of employment where unauthorized access can occur.” The list also includes subjective conditions, such as “hostile work environments,” “required and excessive overtime,” and “inadequate staffing.” This added definition likely will be the subject of many public comments.

• “Authorized Employee Representative” Definition Addition: The updated draft standard includes a new “authorized employee representative” definition, which applies only to this standard and means “an organization that has a collective bargaining relationship with an employer or an organization acknowledged by a public agency as representing its employees.” Presumably, this means an employee’s counsel does not qualify as an “authorized employee representative.”

• Removal Of Language Banning Criminal Confrontations: The initial draft standard contained language prohibiting employers from requiring or encouraging employees (other than dedicated security personnel) to confront persons suspected of committing a criminal act or persons suspected of engaging in workplace violence. The updated draft removed that language entirely and replaced it with language prohibiting employers from retaliating against an employee “involved in a lawful act of self-defense or defense of others.”

• Removal Of Additional Language: The updated draft standard removed certain language that Cal/OSHA added in the initial draft, including (1) a requirement for employers to allow employees to remove themselves from any unsafe condition when necessary and without fear of reprisal, and (2) a requirement that employers must keep a record of corrective measures considered or implemented to address workplace violence hazards.

• Employee Reporting: The updated draft standard includes a provision that requires employers to ensure that employees can report “type 3” workplace violence (i.e., violence by an employee against another employee, supervisor, or manager) to someone who is not the reporting employee’s direct supervisor.

• Record Retention Clarification: The updated draft standard clarifies that all workplace violence-related records required under Section 6401.9 must be kept for five years, except for training records, which must be kept for at least one year.

3. Practical Considerations

It is likely that the updated draft standard will undergo further edits before Cal/OSHA publishes its final standard for the Standards Board to adopt. In the meantime, the current requirements under Section 6401.9 will remain in effect, and employers should ensure they continue to comply with those requirements. Notably, Section 6401.9 currently requires compliance with the following obligations on an annual basis: (1) conduct workplace violence prevention training for employees, and (2) review the effectiveness of the WVPP and revise as needed. Employers who completed an initial workplace violence prevention training in the summer of 2024, but have not done a subsequent training for current employees, should do so as soon as possible. Likewise, employers who have not reviewed their WVPP since rolling it out last summer should ensure they review it again to determine if any changes are necessary. Employers with any questions or concerns about compliance should consult with experienced employment law counsel.

For more information and guidance on developing and implementing a workplace violence prevention plan, please refer to the Employer’s Guide to Workplace Violence Prevention by Sheppard Mullin Attorneys Richard J. Simmons and Robert K. Foster. The publication is now available from Castle Publications.

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About The Author

Robert K. Foster is an Associate with Sheppard, Mullin, Richter & Hampton LLP in the firm’s San Diego (Del Mar) Office. Mr. Foster represents employers in various types of employment litigation, including class action wage and hour claims; PAGA claims; and discrimination, wrongful termination, harassment and retaliation lawsuits. In addition, he also provides strategic advice to employers on a wide range of employment issues, including wage and hour compliance, employee classification, and OSHA matters. He is a frequent contributor to the California Labor and Employment ALERT Newsletter and several other articles and is the co-author of the Employer’s Guide to Workplace Violence Prevention.

Robert litigates actions involving trade secret claims, unfair competition and enforcement of restrictive covenants and non-competes. He also handles various commercial litigation disputes, including breach of contract, breach of fiduciary duty, fraud, tortious interference with contract, unfair competition and shareholder derivative claims.

WHAT EMPLOYERS SHOULD KNOW ABOUT RESPONDING TO ICE ENFORCEMENT ACTIONS

With the Trump Administration’s renewed focus on immigration, many companies are asking what to expect, and how to respond to a potential raid on their facilities by Immigration and Customs Enforcement (“ICE”). As enforcement activities continue to unfold, employers should take proactive steps to prepare for possible ICE visits or audits.

ICE is charged with the arrest, detention and removal of certain non-citizens. Most employers are already aware that ICE conducts occasional I-9 audits. But the new administration signals an increased likelihood of ICE visiting worksites to arrest non-citizens who are subject to removal from the U.S. These actions are typically based on a civil administrative warrant, although occasionally they arise from a judicial criminal warrant. Most likely though, the Enforcement & Removal Operations (“ERO”) division of ICE will focus on non-citizens with serious criminal convictions and those who were ordered removed by an Immigration Judge but have failed to depart the U.S.

Additionally, we anticipate an increase in I-9 audits in the coming years. However, due to limited agency resources and the likely economic impact, we do not expect mass raids. While some I-9 audits will be randomly selected, others will be based on a broader investigation that ICE may be conducting of that company.

Below is some guidance to prepare employers for possible ICE visits or audits.

1. ICE Priorities

The Enforcement & Removal Operations division of ICE has announced that it will target non-citizens with serious criminal convictions and those who were ordered removed by an Immigration Judge but failed to depart the U.S.

2. Civil Arrests With An Administrative Warrant From ICE

Most immigration status violations are a civil matter, not criminal. ICE has authority to issue civil administrative warrants to take custody of individuals that it has probable cause to believe are removable from the U.S. These are signed by ICE immigration officers.

3. Federal Criminal Arrests With A Warrant From A Federal Judge

Individuals are subject to criminal arrest by ICE if they have:

• Been ordered removed but never departed the U.S.;

• Re-entered the U.S. after being removed;

• Used false documents to obtain employment in the U.S.;

• Knowingly hired an individual who is not work authorized (this is reserved for a pattern/practice);

• Retained an employee after ICE informed the employer that the employee is not work authorized; or

• Any federal crime that happens to come under the jurisdiction of ICE.

4. ICE Raids

As discussed further below, we do not anticipate many mass raids by ICE. Rather, ERO will conduct targeted enforcement actions. This is because of a number of reasons.

a. Resources And Logistics: ICE has a limited number of agents, detention space, airplanes, and funds with which to conduct removal operations. In addition, almost all individuals who are arrested by ICE are entitled to a hearing before an Immigration Judge before they can be removed. Therefore, ICE has to conduct targeted operations, not mass raids.

b. Private Property: ICE may not enter private property including the private portions of commercial establishments without permission, absent the rare circumstance where there is a criminal warrant issued by a Judge.

c. Hospitals: Even though it has recently reversed a policy prohibiting this, it is very unlikely that ICE will enter a hospital to make a civil administrative arrest. ICE understands that patients are undergoing medical treatment and the agents do not want to take custody of a patient who requires medical treatment. Moreover, hospitals understandably will not release confidential data due to HIPPA requirements.

d. Schools And Churches: Unless a school or church has a pattern and practice of promoting illegal immigration and/or harboring large numbers of migrants from ICE, it is highly unlikely ICE will enter these facilities.

e. Homes: With civil administrative warrants, absent exigent circumstances, ICE must knock on the door and cannot enter without permission. However, if there is no cooperation, ICE will consider asking a Judge for a criminal arrest warrant if there are grounds to do so. In addition, if ICE encounters challenges to completing the arrest, they may be more likely to want to arrest other non-citizens in the home that lack legal status in the U.S.

5. Right To Remain Silent

Individuals, including non-citizens, may invoke their right to remain silent when questioned by ICE. Any statements they make may be used against them. That said, employers may choose to cooperate with ICE so as to avoid complications with the agency. Consult with legal counsel prior to admitting any liability.

6. ICE Request For Immigration Papers

When in public, immigration officers may ask a non-citizen for their immigration papers. The non-citizen is required to have such papers with them and to provide them to the officer. Failure to do so can lead to a $100 fine and/or up to 30 days in jail.

7. Data Analytics

To assist in their investigations, ICE has access to a host of data including state and federal arrests and convictions, employer quarterly federal payroll reports, Social Security information, U.S. passport databases, lawful permanent resident (green card) databases, Employment Authorization Document (“EAD,” or work permit) databases, I-94 databases and birth certificate information from some states.

8. I-9 Notice Of Inspection vs. I-9 Raid

Most I-9 audits involve Homeland Security Investigations (“HSI”, a different division of ICE from ERO), which drops off a Notice of Inspection and then collects the company’s I-9’s. In some states, like California, once a federal I-9 audit has commenced, the state requires that the employer post the Notice of Inspection and notify any union. An employer is liable for missing I-9’s or I-9’s that have substantive errors. However, they are not liable if an employee’s documents looked real at the time of hire but turn out to be fake. Toward the end of the audit, if ICE finds missing or false papers, it traditionally has issued a Notice of Suspect Documents advising the employer to terminate individuals on that list. However, going forward it’s possible ICE may sometimes bypass issuing the Notice of Suspect Documents and simply arrive at the worksite with civil warrants for the arrest of those employees. However, we believe this will not be the norm, due to limited agency resources.

9. Cooperation With ICE

While an employer does not have to cooperate with a civil administrative warrant, there is a risk that the agency could commence an I-9 audit if they felt an employer was obstructing their need to arrest a non-citizen employee, or in some cases obtain a criminal warrant from a Judge if they feel the conduct supports it.

10. Avoid Discrimination In Hiring

Do not ask an applicant for employment about their immigration status. You may ask if they require visa sponsorship to work for you now or in the future. After a job offer has been extended, you may give them an I-9 form to complete, in order to confirm that they are authorized to work. If you are not sure if someone is work authorized, consult with counsel. Denying employment when someone is work authorized can create substantial liability for the company.

11. Navigating The Maze

Please find a decision tree below which may be used if immigration officers visit your facility. This diagram is for general informational purposes and should not be construed as individual legal advice. Always consult legal counsel to ensure compliance and avoid liability.

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About The Authors

EMPLOYMENT STATUS OF MANY FEDERAL EMPLOYEES STILL UNCLEAR

Employment for thousands of federal employees remains in limbo as courts respond to layoffs initiated by the Trump Administration under the auspice of maximizing governmental efficiency and productivity. Recently, both the U.S. Supreme Court and the U.S. Court of Appeals for the Fourth Circuit intervened in separate actions to pause federal court orders mandating the reinstatement of tens of thousands of probationary federal workers. At the same time, the U.S. Court of Appeals for the Ninth Circuit in a different lawsuit denied an emergency motion seeking to stay a preliminary injunction preventing the termination of these same federal workers. This ongoing litigation not only continues to raise important questions about the Executive Branch’s authority to restructure the vast federal bureaucracy, but also calls into question the scope of judicial review.

1. The Mass Firing Of Government Employees

The legal battles began on February 13, 2025, when the Office of Personnel Management (“OPM”) issued a directive as part of President Trump’s broader effort to streamline federal operations. This directive led to the termination of tens of thousands of federal employees, a move the Trump Administration justified as necessary to dramatically improve workforce efficiency. Probationary employees, typically those in the first year or two of their federal employment, were disproportionately impacted by the OPM’s directive.

Various non-profits and advocacy groups challenged this directive, including the American Federation of Government Employees and the American Federation of State, County, and Municipal Employees. These groups argued the OPM exceeded its statutory authority under the Administrative Procedure Act by directing terminations across multiple federal agencies without congressional approval. They further argued that the substantial loss of federal employees would adversely affect the services they rely on and harm their workers.

2. First Preliminary Injunction In The Northern District Of California And Supreme Court Intervention

The legal challenge gained significant momentum when Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction on March 13, 2025. Basing his decision only on the challengers’ arguments, Judge Alsup concluded that the OPM’s actions were “ultra vires,” meaning beyond its legal authority, as the power to hire and fire federal employees is vested in individual agencies, not the OPM. In his detailed ruling, Judge Alsup emphasized that the mass terminations were orchestrated without proper authorization and violated statutory requirements. The injunction mandated the immediate reinstatement of roughly 16,000 employees from the Departments of Agriculture, Defense, Energy, Interior, Treasury, and Veterans Affairs.

On April 8, 2025, the U.S. Supreme Court intervened, granting an emergency application filed by the OPM to stay Judge Alsup’s order. In a 7-2 vote, the Justices agreed the nine non-profit organizations challenging the terminations lacked standing—a legal right to sue—thereby halting the reinstatement process. Providing little explanation, the unsigned order stated, “[t]he District Court’s injunction was based solely on the allegations of the nine non-profit-organization plaintiffs in this case. But under established law, those allegations are presently insufficient to support the organizations’ standing.”

Justices Sonia Sotomayor and Ketanji Brown Jackson dissented, arguing that the standing issue should not have been addressed at this stage.

3. Second Preliminary Injunction In The Northern District Of California

On May 9, 2025, in a separate lawsuit filed in the U.S. District Court for the Northern District of California brought by a similar coalition of non-profits and advocacy groups, Judge Susan Illston issued a preliminary injunction blocking the enforcement of the executive order directing federal agencies to initiate large-scale layoffs and reorganizations. The court determined the coalition of unions, nonprofits, and cities challenging the order showed a strong likelihood of success, particularly because such extensive federal reorganization requires explicit congressional approval. Judge Illston explained Congress holds the authority to create, fund, and define federal agencies, and the President and OPM cannot unilaterally impose widespread layoffs in violation of separation of powers principles.

In response, the Trump Administration immediately moved for a stay by seeking emergency relief from the U.S. Court of Appeals for the Ninth Circuit. The administration argued the injunction encroached on the President’s Article II authority over Executive Branch personnel and the efforts to reorganize and streamline federal government operations. In a 2-1 decision, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the request for a stay on May 31, 2025. The panel concluded the government failed to show irreparable injury from the preliminary injunction and had not demonstrated a strong likelihood of success on the merits.

The government subsequently filed an emergency application with the U.S. Supreme Court on June 2, 2025, requesting intervention. The U.S. Supreme Court has requested the coalition of non-profits, advocacy groups, and cities respond to the emergency application by June 9, 2025, before it issues a ruling.

4. Ongoing Legal Battles In The Fourth Circuit

While battles continue in the Ninth Circuit, a separate battle has been ongoing in the Fourth Circuit. On March 13, 2025, Judge James K. Bredar of the U.S. District Court for the District of Maryland sided with a number of agencies and states that challenged the OPM’s directive and held that the mass terminations violated federal reduction-in-force statutes. Judge Bredar ordered the reinstatement of employees across 20 federal agencies. This order applied to a broader range of agencies in 19 states and the District of Colombia.

However, on April 2, 2025, the U.S. Court of Appeals for the Fourth Circuit granted the Trump Administration’s request to stay Judge Bredar’s order, ruling the U.S. District Court for the District of Maryland likely lacked jurisdiction.

5. Where Things Stand Now

The employment status of thousands of federal workers remains uncertain after a series of legal and political challenges. The U.S. Supreme Court’s intervention provided temporary relief to the Trump Administration, allowing it to avoid the reinstatement of federal employees while litigation unfolds. Subsequently, the U.S. Court of Appeals for the Ninth Circuit confirmed an injunction preventing the termination of these same federal employees pending further litigation. Meanwhile, litigation in the Fourth Circuit is ongoing regarding the scope of reinstatement ordered by the U.S. District Court for the District of Maryland. As a result, federal employees whose jobs were affected by the mass terminations remain in a state of limbo.

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About The Author

Luke Bickel is an attorney in Sheppard Mullin’s Labor and Employment Practice Group in the firm’s San Diego (Del Mar) office. Mr. Bickel defends employers of all sizes in matters involving discrimination, retaliation, harassment, wrongful termination, and wage and hour. He has experience defending all aspects of employment-related claims, from single plaintiff to class and PAGA matters, in state and federal court. Beyond the realm of litigation, Luke advises clients on employment issues ranging from wage and hour compliance to federal OSHA and Cal/OSHA investigations. Luke’s experience also includes helping clients obtain workplace violence restraining orders and conducting workplace investigations.

Luke is a consistent contributor to Sheppard Mullin’s Labor & Employment Law Blog, Trade Secrets Law Blog, and the California Labor and Employment ALERT.

Mr. Bickel received his law degree from the USC Gould School of Law and his undergraduate degrees from Cal Poly State University, San Luis Obispo, magna cum laude.

CALIFORNIA FINALIZES AI HIRING REGULATIONS: WHAT EMPLOYERS NEED TO KNOW

On March 21, 2025, the California Civil Rights Council adopted final regulations governing the use of artificial intelligence and automated decision systems in employment decisions. These regulations, pending approval by the Office of Administrative Law, are expected to take effect on July 1, 2025.

1. Background

The new regulations apply to any automated system—such as AI tools, algorithms, or machine learning models—that helps make employment decisions. These regulations will prohibit discriminatory use of these tools and impose obligations around selection practices, accommodation, and recordkeeping. Unless these regulations are preempted by pending federal legislation, employers, staffing agencies, and vendors using such systems in California will need to comply once the rules take effect.

2. Key Provisions

The regulations adopt a broad definition of automated-decision system (“ADS”), covering any computational process—including those using artificial intelligence, algorithms, machine learning, or statistical modeling—that is used to make or support decisions or evaluations related to employment benefits. Examples include tools used to screen resumes, evaluate interviews, assess traits or characteristics of job applicants, or targeted job advertisements. The definition excludes passive tools like spellcheckers, formatting tools, or similar general-use technologies unless they actively affect employment outcomes.

The regulations make it unlawful to use an ADS or any selection criteria—including employment tests, qualification standards, or proxies—that results in discrimination against applicants or employees based on protected characteristics. This includes both disparate treatment (i.e., when an employer intentionally treats applicants and employees differently based on a protected class) and disparate impact (i.e., when an otherwise neutral policy or practice results in a discriminatory outcome). The presence or absence of anti-bias testing or similar safeguards is expressly relevant in determining whether an unlawful practice has occurred and whether any available defense (such as business necessity) applies.

The regulations also address certain pre-employment practices. Employers may not use ADS that elicit or rely on information about protected characteristics unless justified by a lawful defense. For example, if a scheduling-based screening tool excludes applicants due to availability, the employer may need to provide a mechanism for individuals to request reasonable accommodation based on a disability or religious need. The same applies to systems that analyze voice, facial movements, or behavioral characteristics that may correlate with disability, religion, or other protected factors.

Employers are required to retain records related to the use of ADS. This includes all applications, personnel records, employment referral records, membership records, selection criteria, and all ADS-related data—such as inputs, outputs, and any information dealing with employment practices or employment benefits. These records must be preserved for at least four years from the date of the relevant employment action or record creation. If a complaint is filed, the obligation continues until the matter is resolved.

3. Practical Considerations

California employers should act now to assess their use of AI and automated tools in hiring and employment decisions. This starts with identifying any systems—whether in-house or provided by a third party—that meet the regulations’ broad definition of an automated-decision system. Employers should then evaluate whether those systems could result in disparate treatment or adverse impact based on protected characteristics, and document any business necessity justifications.

Where ADS is in use, employers should review whether the system could screen out applicants based on protected characteristics, and ensure that a process exists for individuals to request reasonable accommodation. Notices regarding the use of ADS are not explicitly required in the regulation text, but transparency and accessibility are emphasized in several contexts, particularly where accommodations may be necessary.

Additionally, employers should ensure they are retaining all records related to ADS use—including inputs, outputs, evaluations, and related documentation—for at least four years. These recordkeeping obligations apply regardless of whether the employer is the developer of the system or merely its user. By taking these steps proactively, employers can reduce legal risk and help ensure fair, compliant use of hiring technologies in California.

Finally, on May 22, 2025, the U.S. House of Representatives narrowly passed the “One Big Beautiful Bill Act” which as of early June 2025, is being considered by the U.S. Senate. The proposed legislation includes a near total ban on states enacting or enforcing AI-related legislation for 10 years. In the event Congress enacts, and President Trump signs, legislation barring state regulations over AI, such federal laws will likely have a significant impact on California’s proposed regulations.

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About The Author

Ryan J. Krueger is a Partner with Sheppard, Mullin, Richter & Hampton LLP in the firm’s Los Angeles office. He specializes in labor and employment matters on behalf of employers, including wage and hour violations, employment discrimination, wrongful termination and sexual harassment. Mr. Krueger has experience in all aspects of employment litigation, including brief writing and oral argument, taking and defending depositions, and negotiating settlements. He has also second chaired multiple trials and arbitrations, and argued before the California Court of Appeal. Mr. Krueger also regularly counsels employers regarding California and federal employment law issues.

Ryan is a co-author of the California’s Private Attorneys General Act (PAGA) Litigation and Compliance Manual, and is a frequent contributor to the California Labor and Employment ALERT Newsletter. He is a co-speaker at the Castle Publications’ Seminars as well as the Labor Law Update for Sheppard Mullin.

He received his J.D. from the University of California, Los Angeles and his B.A. from the University of Wisconsin, with distinction. During law school, Mr. Krueger served as extern to the Honorable Morton Denlow, U.S. District Court for the Northern District of Illinois. He is admitted to practice in all California state courts, along with the United States District Court for the Central District of California and the Ninth Circuit Court of Appeals.

LEGAL CHALLENGES MOUNT AGAINST TRUMP’S EXECUTIVE ORDERS ON DEI PROGRAMS

In January 2025, President Trump issued a series of executive orders aimed at dismantling Diversity, Equity, and Inclusion (“DEI”) programs within the federal government and among federal contractors. These actions have sparked significant legal challenges, raising questions about executive authority, constitutional protections, and the future of DEI initiatives in the United States.

1. Executive Orders Issued

a. Executive Order 14151: Titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” this order mandates the termination of all DEI and DEIA (Diversity, Equity, Inclusion, and Accessibility) programs within federal agencies. It also prohibits federal contractors from implementing DEI initiatives, asserting that such programs violate federal civil rights laws.

b. Executive Order 14173: Known as “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” this order revokes previous directives that required federal contractors to adopt affirmative action plans promoting diversity.

2. District Of Maryland Issues Nationwide Injunction

On February 21, 2025, the U.S. District Court for the District of Maryland issued a preliminary injunction halting the enforcement of certain provisions of the executive orders. This injunction came in response to a lawsuit filed by federal employees who contend that the orders improperly targeted DEI-related training and programs, which they argued were essential for creating inclusive, non-discriminatory work environments. They also asserted that the orders violated their free speech rights, as these programs often involved the free exchange of ideas on race, sex, and other social justice issues.

The District Court judge found that the plaintiffs had raised serious legal questions, particularly regarding the vagueness of the executive orders’ language on “divisive concepts.” The judge ruled that the broad scope of the orders could result in the suppression of protected speech and disproportionately affect minority employees, particularly those in historically marginalized groups. As a result, the judge granted the injunction, temporarily blocking the orders’ enforcement while the case moved forward in court.

3. Fourth Circuit Court Of Appeals Ruling

On March 14, 2025, the Fourth Circuit Court of Appeals lifted the nationwide injunction that had been previously granted by the Maryland District Court. This ruling effectively allowed the Trump Administration’s anti-DEI executive orders to be enforced while legal challenges continued.

The Fourth Circuit determined that the Trump Administration had likely acted within its authority to issue the executive orders, citing the president’s broad powers over federal agencies and contractors. The court concluded that the plaintiffs had not demonstrated sufficient harm to justify a nationwide block on the orders, which had been issued as part of the president’s effort to curb federal spending on DEI programs.

While the ruling allowed the executive orders to proceed, it did not definitively resolve the underlying constitutional issues. The case is expected to continue its way through the legal system, with further challenges likely to be heard by the U.S. Supreme Court in the coming months.

4. EEOC Issues Guidance

Most recently, on March 19, 2025, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance regarding the DEI executive orders. The guidance emphasized that while the executive orders aimed to restrict certain DEI programs, they did not outright ban all diversity-related activities. Specifically, the EEOC noted that programs focused on preventing discrimination and promoting equal opportunity—core principles under Title VII of the Civil Rights Act of 1964—would still be permissible, even under the new restrictions.

The EEOC set forth the steps for employees who wish to file a lawsuit arguing they were discriminated against through an employer’s use of DEI programs. The EEOC made clear that employers cannot use a protected characteristic, e.g., race, gender, etc. in making employment determinations, even if the protected characteristic is not the sole determinative factor.

The EEOC clarified that federal employers could still conduct training aimed at preventing workplace discrimination, as long as the content did not promote “divisive” concepts, as outlined in the executive orders. However, the EEOC did note that DEI training can create a hostile work environment if an employee can prove the training was discriminatory in some way.

The legal and practical landscape of the anti-DEI executive orders is rapidly and frequently changing. There are likely to be myriad challenges to the orders and there may be conflict between the judiciary and the executive branch.

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About The Author

Tyler J. Johnson is a Partner in Sheppard Mullin’s Labor and Employment Practice Group in the firm’s Los Angeles office. Mr. Johnson represents employers in every stage of the litigation process, from prelitigation disputes to class certification hearings and trials. He represents businesses of every size, and has extensive experience in the healthcare, agricultural, fashion, and temporary staffing industries. Tyler defends employers against claims of discrimination, harassment, and retaliation, and has prevailed at trial in a pregnancy discrimination case. Tyler also routinely represents businesses in complex litigation, including proposed class actions and representative actions under the Private Attorneys General Act. Tyler has defeated class certification in a number of cases and frequently obtains summary judgment for employers.

Tyler is a co-author of the Private Attorneys General Act (PAGA) Litigation and Compliance Manual as well as a contributing author of the ALERT Newsletter.

Mr. Johnson received his law degree from the Pepperdine Caruso School of Law and his undergraduate degree from University of Maryland.

CAL/OSHA’S COVID-19 PREVENTION NON-EMERGENCY STANDARDS HAVE LARGELY ENDED

As discussed in the January 2023 and March 2023 editions of the ALERT, the California Division of Occupational Safety and Health’s (“Cal/OSHA”) COVID-19 Prevention Non-Emergency Regulations (“Non-Emergency Standards”) became effective on February 3, 2023, with an expected sunset date of February 3, 2025. On February 4, 2025, Cal/OSHA issued a press release confirming that “most” of the requirements under the Non-Emergency Standards expired on February 3, 2025.

1. Employers Are No Longer Required To Document And Follow Certain COVID-19 Prevention Procedures

Under the Non-Emergency Standards, California employers were required to identify their COVID-19 procedures which address COVID-19 as a workplace hazard in either their written Injury and Illness Prevention Program (“IIPP”) or a separate standalone document, similar to the COVID-19 Prevention Program (“CPP”) required under Cal/OSHA’s COVID-19 Emergency Temporary Standards, which were in effect earlier during the pandemic. The Non-Emergency Standards also required employers to follow certain procedures for notifying “close contacts” of potential exposure and for responding to an “outbreak” of three or more COVID-19 cases within an exposed group over a 14-day period. With the sunset of the Non-Emergency Standards, these specific requirements have expired and are no longer required.

2. Remaining COVID-19 Related Obligations

Cal/OSHA’s press release notes that although there is no longer a specific set of COVID-19 prevention regulatory requirements, California employers must still:

• Maintain a safe and healthful place of employment as required by Labor Code Section 6400.

• Establish, implement, and maintain an effective IIPP as required by Title 8, California Code of Regulations, Section 3203.

• Identify, evaluate, and correct any unsafe or unhealthy conditions, work practices, or work procedures associated with COVID-19 if they identify COVID-19 as a workplace hazard at their place of employment.

In addition to the above, certain COVID-19 reporting and recordkeeping requirements under the Non-Emergency Standards remain in effect until February 3, 2026. Under these requirements, employers must:

• Keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of the positive COVID-19 test and/or COVID-19 diagnosis. Notably, these records must be retained for an additional two years.

• Provide information on COVID-19 cases to the local health department with jurisdiction over the workplace, such as the CDPH, Cal/OSHA, and NIOSH, immediately upon request, and when required by law.

3. Practical Considerations

Employers with an IIPP containing specific COVID-19 related procedures should update their IIPP to eliminate any procedures that are no longer required. Similarly, employers with a standalone CPP are no longer required to maintain the CPP. That said, employers should ensure they continue to comply with the obligations outlined above, especially where COVID-19 is a workplace hazard.

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