The federal labor and employment landscape is in flux. For the first time during President Trump’s second term, the Equal Employment Opportunity Commission (EEOC or the “Commission”) reestablished a quorum following Senate confirmation of a new Commissioner in October. With that, the EEOC will regain some of its essential policymaking and enforcement authoritative functions when the government shutdown ends. By contrast, the administration failed to remedy the same issue at the National Labor Relations Board (NLRB or the “Board”), leaving the NLRB powerless and national labor policy largely on hold as the Senate waits to confirm Trump’s latest nominees. In the meantime, several states are stepping in to fill the void, inviting potential constitutional challenges from the NLRB’s Acting General Counsel.

Together, these developments mark a pivotal rebalancing of federal labor policy – one agency (EEOC) poised to assert influence, another effectively sidelined (NLRB), and states testing the boundaries of federal preemption. Against this backdrop, we out outline what employers may expect as these shifts take shape.

EEOC Quorum Restored: What to Expect from the Newly Empowered Commission

As the government shutdown continues with seemingly no end in sight, the EEOC, like other federal agencies, remains closed. Unlike those other agencies, however, the shutdown hasn’t changed much of the EEOC’s operations. For much of President Trump’s second term, the EEOC lacked a quorum, rendering it unable to issue new guidance, vote on high-impact litigation, or advance regulatory initiatives. While the EEOC still had some of its powers—such as the General Counsel being able to pursue limited litigation, field offices continued day-to-day work vis-à-vis issuing subpoenas and continuing investigations, and Administrative Law Judges hearing cases on open investigations—at the national level, the Commission remained hamstrung.

That changed on October 7, when the Senate confirmed Brittany Panuccio as the newest commissioner, giving Republicans a 2-1 majority and restoring full EEOC authority. The confirmation reactivates the EEOC’s ability to issue regulations and guidance and its power to pursue or intervene in high-impact or novel litigation. While formal action will await the end of the shutdown, Acting Chair Andrea Lucas has signaled the EEOC’s future direction through recent public statements and informal guidance. Key priorities appear likely to include:

• Narrowing the scope of the Pregnant Workers Fairness Act (“PWFA”): Acting Chair Lucas has criticized aspects of the previous administration’s regulations implementing the PWFA. In particular, she takes issue with the Commission’s interpretation of the phrase “pregnancy, childbirth, or other related conditions.” Acting Chair Lucas believes the interpretation conflates childbirth and pregnancy related accommodations with accommodations for the female biology. That is, she disagrees with the final rule’s inclusion of things like menstruation and abortion in that definition.
• Revisiting harassment standards under Title VII: Acting Chair Lucas has made it clear that she is “removing gender ideology” from the workplace and fighting sex-based discrimination by rolling back the harassment guidelines passed by the previous administration. She says the protections go well beyond the dictates of Bostock v. Clayton County, a Supreme Court case which held that discrimination based on sexual orientation and transgender status is a form of sex discrimination under Title VII of the Civil Rights Act. 590 U.S. 644 (2020). Specifically, she disagrees with the portions of the Biden Administration guidance that define denial of gender-consistent bathroom access and repeated, intentional misgendering as workplace harassment. Rather, Acting Chair Lucas plans to align the Commission’s sex-based harassment policies with President Trump’s Executive Order on gender ideology. Already, she has changed internal EEOC policies to reflect this shift by removing the agency’s “pronoun app” and the options to select “x” gender or “Mx.” as a title from charging documents.
• Scrutinizing DEI initiatives: Further aligning with Trump’s Executive Orders, the EEOC is expected to expand its focus on what it terms “DEI-related discrimination” in the workplace. According to informal guidance, the administration has indicated that DEI policies may violate Title VII if they cause employers to take employment actions motivated by any protected characteristics of employees. The guidance cites disparate treatment in the hiring process and “limiting, segregating, and classifying” employees based on protected characteristics to balance the workplace, as examples of DEI-related discrimination.
• Prioritizing religious accommodation claims: The EEOC looks poised to continue acting in the area of religious discrimination, including further pursuit of litigation over failure to accommodate religious exemptions to the COVID-19 vaccine. Acting Chair Lucas said the previous administration’s approach to religious discrimination “too often took a back seat to woke policies.” She promises to restore “evenhanded enforcement of Title VII—ensuring workers are not forced to choose between their paycheck and their faith.”
• Addressing “anti-American bias”: Acting Chair Lucas has suggested using the EEOC’s enforcement tools to challenge alleged employer preferences for non-citizen workers, signaling a likely uptick in citizenship-status-related investigations.

Although the new quorum has yet to take official action, employers should anticipate a marked shift toward textualist interpretations of Title VII, heightened scrutiny of DEI practices, and an emphasis on religious liberty and national identity themes in EEOC enforcement.

NLRB Moving Closer to Full Strength

Not to be outdone, the NLRB has had some quorum issues of their own. Unlike the EEOC, when the government reopens the Board will remain inactive, at least at a national level. While NLRB regional offices were still investigating unfair labor practice charges and working on representation cases before the shutdown, the Board itself has lacked a quorum all of Trump’s second term, meaning that it has been unable to perform many of its essential functions, like ruling on appeals of Administrative Law Judge decisions and resolving disputed issues in representation cases, since January of 2025.

Earlier this month, President Trump nominated James Murphy and Scott Mayer to fill two vacant seats on the NLRB. Murphy advanced from the Senate Committee on Health, Education, Labor, and Pensions (HELP) by a narrow 12-11 vote, while Mayer’s nomination stalled following a heated exchange with Senator Josh Hawley over the ongoing Boeing strike in St. Louis. Also advancing were Rosario Palmieri (Assistant Secretary of Labor) and Crystal Carey, nominated as NLRB General Counsel.

With the restoration of a quorum and a permanent General Counsel on the horizon, the Board looks poised to bring federal labor law in a more employer-friendly direction. Carey has signaled that her priority will be to overturn employee-friendly decisions from the Biden-era. For example, Carey takes issue with the Board’s decision in Amazon.com Services LLC, in which the Board departed from decades of precedent to ban captive-audience meetings. 373 NLRB No. 136. Until November of 2024, there was long-term precedence for the holding that captive-audience meetings, or required meetings during work hours where an employer expresses their views about unionization, were legal. See Babcock and Wilcox Co., 77 NLRB 577 (1948).

Although the nominees’ advancement foreshadows the NLRB obtaining a quorum, confirmation by the full Senate will remain pending until the Senate is back in session.

State Reactions to the NLRB’s quorum issues

Reacting to the lack of federal labor law enforcement for private-sector employees and responding to lobbying from labor unions, states have begun adopting creative (some argue questionably constitutional) laws to fill the gaps:

• California enacted AB 288, expanding the jurisdiction of the California Public Employee Relations Board to cover private employees during periods when the NLRB lacks a quorum.
• New York amended its State Labor Relations Act to automatically apply to private employers whenever the NLRB cannot “successfully assert jurisdiction.”
• Massachusetts and others are considering similar approaches.

In response, on September 12^th, Acting NLRB General Counsel William B. Cowen filed lawsuits against both New York and California. The complaint challenging the New York statute seeks declaratory judgement and injunctive relief, alleging that the statute “is preempted by the NLRA under the Supremacy Clause” because it “regulate[s] areas reserved for federal oversight.” On October 17, the General Counsel filed suit against California under largely the same theory.

While these lawsuits are still in a nascent stage, they are a sign of what’s to come should the NLRB remain without a quorum.

Key Takeaways for Employers

• Expect a re-energized EEOC to reexamine DEI, harassment, and religious-accommodation policies through a more conservative lens.
• Monitor NLRB confirmations closely. A restored quorum could swiftly undo major Biden-era precedents, particularly around union communications and protected activity.
• Stay alert to state action. Employers with operations in California, New York, or other progressive states may face new obligations—or conflicting regimes—if state labor boards assert temporary jurisdiction.
• Prepare for litigation flux. The combination of an empowered EEOC, a stalled NLRB, and active state legislatures creates overlapping, and at times contradictory, compliance obligations.

Notwithstanding government shutdowns and quorum issues, these agencies remain poised to advance the administration’s priorities by reshaping workplace policy. The lawyers at Hirsch Roberts Weinstein are here to answer any questions you may have.

For questions or more information, please contact:

• Samantha Halem (shalem@hrwlawyers.com/ 781-235-4878)
• Alexandra Mitropoulos (amitropoulos@hrwlawyers.com / 617-348-4332);
• Jeffrey Hirsch (jhirsch@hrwlawyers.com / 617-348– 4315);
• Peter Moser (pmoser@hrwlawyers.com / 617-348-4323);
• Alicia Ward (award@hrwlawyers.com/ 617-348-4357);
• Catherine Reuben (creuben@hrwlawyers.com/ 617-348-4316); or
• Any member of the HRW Team.

Double, double, toil and trouble…guidelines change, employers struggle. In 2025, the figurative Hydra monster of regulations and requirements sprouts new and vicious Venus Flytrap heads by the day in the federal government’s own Little Shop of Horrors. Through new legislation, guidance, and Executive Orders, something spooky and sinister lurks around every corner and behind every door. The surest defense against these ghoulish traps is nimble navigation through the ever-changing legal labyrinth, and the most important weapon in an organization leader’s arsenal is knowledge.

This Client Alert contains valuable reminders and tips for employers to exorcise bad practices and dodge the most common current and forthcoming legal trapdoors. We cannot possibly rip the mask off all legal developments that may impact your business, and this alert does not constitute legal advice, but we will take a stab at summarizing a few of the more hair-raising developments. There’s no better time than Halloween to get your haunted house in order.

They’re Heeeere…Pay Transparency Poltergeists

The effective date of Part II of the Massachusetts Pay Transparency Act arrived just days before Halloween (October 29, 2025, to be precise). By this witching hour, employers with 25+ employees in the Commonwealth must disclose pay ranges for open positions in job postings, promotions, transfers, or upon request. A “good faith” salary estimate does not need to include premiums, bonuses, or employee benefits, although advertising such things may help attract candidates. If you have questions about job posting wording or content, we suggest that you have counsel review your proposed drafts. Your HRW sorcerers stand ready to ensure that you include the correct incantations and charms in your job postings.

They’re Coming To Get You! Petrifying Poster Penalties

Beware of the terrifying pitfalls of failing to post required labor notices; prepare by updating your poster list to reflect the latest versions of federal and state employment law posters. The Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the Occupational Health and Safety Administration (OSHA), and many state agencies all (for good or evil) enforce specific posting rules. Failure to comply may result in torturous fines, many of which increase annually. For example, the current fine for failing to post the EEOC Know Your Rights poster is $680 per violation. Failure to post an OSHA-required poster may garner a civil monetary penalty of $16,550 per violation.

States may also have their own poster requirements. Employers in New York with more than 50 full-time employees are required to post the Veterans’ Benefits & Services poster “in a conspicuous place accessible to employees in the workplace.” New York alone has at least 19 separate poster requirements! Horrors!

In order to avoid the blood-curdling screams attendant to torture in the form of penalties and fines, it’s time to brush the cobwebs off of your posting requirement lists or Spellbook (er, Handbook) notices to ensure that they are current.

Horrifying H-1B Visa Fee Havoc

A White House Proclamation placing a demonic $100,000 fee on employers looking to sponsor H-1B visa employees mercilessly sank its fangs into employers’ necks on September 19, 2025. The implications of this Proclamation are still haunting all who employ such individuals. On October 20, 2025, the United States Citizenship and Immigration Services (USCIS) issued a statement which clarified some of the new eerie visa-related fee expectations. Petitions filed at the stroke of midnight (before 12:01 a.m. EDT) on September 21, 2025, as well as petitions for any individual with a previously issued or currently valid H-1B visa are exempt (for now) from the new fee. However, new H-1B petitions filed on or after the September 21 deadline must include evidence of the $100,000 payment or a grant of exception. Employers who rely on H-1B visas for any members of their employee roster would be well-advised to consult with immigration counsel for specific questions and situations.

Villainous Vaccine Policies

Flu and cold season has crept up on us—and with it, foreboding reminders from healthcare providers and pharmacies about yearly vaccines. Employers should steer clear of blanket vaccine policies, as vaccine guidelines are ever-changing, and vaccine status is a new protected class in a few states. If an employee seeks an exemption from a workplace vaccine requirement, employers must engage in an interactive dialogue relating to the employee’s sincerely held religious beliefs or documented disability. Employers cannot avoid this lurking-under-the-bed obligation by hiding under the “undue hardship” covers—standards for proving undue hardship are more exacting than ever under current case law. A clear policy, standard interactive dialogue procedure, and individualized evaluation of exemption requests will safeguard against discrimination claims and other hexes and curses.

Midnight Multistate Mayhem

Nightmarish Notice Requirements

If you have employees in more than one state, the potion in your HR cauldron must contain the proper state-specific tinctures, many of which are different from one another. Are you following the recipe in each state’s Spellbook correctly? In other words, are you issuing the correct notices and using the correct paperwork for your employees in states other than Massachusetts? For example, California recently passed a law requiring California employers to create a stand-alone notice of worker rights by January 1, 2026, and distribute it to their California employees by February 1, 2026, and annually thereafter, as well as to new employees upon hire. By March 30, 2026, California employers must also allow employees to designate a contact to be notified if the employee is arrested or detained at work or during work hours in cases where the company has actual knowledge of the arrest or detention. Failure to comply may result in hair-raising penalties of between $500 to $10,000 per employee.

Many states also have specific notice requirements for new hires and for terminations. For example, in Colorado, employers must give each new hire a written notice of their right to paid leave under Colorado’s Healthy Families & Workplaces Act. Many states, including Massachusetts, require an employer to provide specific forms on unemployment to employees upon termination.

We advise that all multistate employers check notice requirements for all states in which they have employees to determine whether they are compliant. Your team of HRW multistate wizards is here to help!

Unnervingly Unenforceable Restrictive Covenants

State governments are entering the fray on regulation of restrictive covenants (otherwise known as noncompete agreements, non-solicitation provisions, nondisclosure and confidentiality clauses, and patents and intellectual property pacts). Savvy employers still want to ensure that an employee who ghosts them doesn’t make off with valuable confidential information. A perilous pitfall for multistate employers is failing to account for state law requirements to ensure agreements are enforceable. Some states completely ban noncompetition agreements, while other states drastically curtail them. Many states have specific limitations for non-solicitation agreements, such as time and geographic limits, or the requirement that the non-solicit provision is limited to only people or customers an employee has directly worked with while at the company. Before having new employees sign standard NDAs, confidentiality agreements, or other restrictive covenants, employers must ensure that such agreements are tailored to the law of the state (or city or county) in which the employee works.

PFML Tricks and Treats

The Massachusetts Department of Family and Medical Leave has treated employers with a timely notice of the 2026 maximum weekly benefits for Paid Family and Medical Leave. The maximum amount for PFML will increase from $1,170.65 in 2025 to $1,230.39 on January 1, 2026. (The minimum income requirement for PFML benefits remains the same as it is this year: to be eligible for PFML, employees must have earned at least $6,300 in the four calendar quarters before their leave begins and at least 30 times the weekly benefit amount).

The six-month rebuttable presumption of retaliation for any adverse action is the treat that keeps on tricking employers. The 2025 Supreme Judicial Court case City of Newton v. Commonwealth Employment Relations Board expanded the types of actions that can support a retaliation claim under Massachusetts law, even where there appears to be a benefit to the employee. In that case, a police sergeant claimed that he was transferred to a less desirable work schedule after participating in union-based activities. Even though his new position offered an 8% increase in pay, the court still determined that the employer had retaliated against him. While this SJC case was not brought under the PFML, our crystal-ball gazers report that it is only a matter of time before this logic makes its way into PFML claims. Employers must be wicked vigilant about avoiding the specter of tricky retaliation claim traps, especially after leaves of absence, and should seek counsel if contemplating actions related to employees just returning from a leave of absence.

One final trick? There has continued to be a great deal of uncertainty about how courts will evaluate PFML claims, since there is little precedent under this still fairly new law. The corresponding “treat” came from the federal district court in Massachusetts, which recently clarified (in Tardiff v. Laborers Int’l Union of N. Am. Loc. Union 609) that it would use First Circuit Family and Medical Leave Act (FMLA) precedent to analyze PFML claims. We hope this will bring greater clarity to evaluation of PFML claims going forward (at least in federal court).

To discuss how these recent developments affect your organization, and for assistance in reviewing and revising your workplace policies, practices, and documents for compliance, please contact your HRW attorney:

• Sarah Ruter (sruter@hrwlawyers.com / 781-235-4879);

• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878);

• Catherine Reuben (creuben@hrwlawyers.com / 617-348-4316);

• Alicia Ward (award@hrwlawyers.com / 617-348-4357); or

• Any member of the HRW Team.

To sign up for our Client Alerts, click here.

© Hirsch Roberts Weinstein, LLP. October 30, 2025. Please note that this publication is for educational purposes only and does not constitute legal advice. Consult with counsel about the impact of these topics on your business.

Reminder: Effective October 29, 2025, employers with 25 or more employees based in Massachusetts will be required to disclose pay ranges in three circumstances: (1) in job postings; (2) to employees offered promotions or transfers; and (3) to applicants and employees upon request.

The implementation of this posting and disclosure requirement marks the second phase of the Massachusetts Wage Transparency Law, known as the “Frances Perkins Workplace Equity Act” (FPWEA), which added new sections to the Commonwealth’s wage and hour laws that impose data reporting and compensation disclosure requirements on employers. The first phase went into effect on February 1, 2025, when employers with 100 or more Massachusetts-based employees began mandatory compliance with data reporting requirements, including submission of EEO-1s, EEO-3s, and EEO-5s to the Secretary of State.

Overview of Posting and Disclosure Requirements

The Attorney General has provided guidance as well as answers to FAQs on the FPWEA. Key highlights of the law and guidance from the Attorney General include:

• Mandatory Pay Ranges Disclosure: Employers with 25 or more employees based in Massachusetts must disclose pay ranges in job postings for all Massachusetts-based positions. In addition, such employers must provide the pay range for a particular position to (i) a current employee who is offered a promotion or transfer to a new position with different job responsibilities, and (ii) upon request, any current employee holding such a position or an applicant for such position.

• Scope of “Employee”: For the purposes of the FPWEA, an employee is considered located within Massachusetts if their “primary place of work” is within the Commonwealth. This includes:

• Employees whose jobs are based fully in the Commonwealth,
• Employees who travel outside of the Commonwealth but return to a Massachusetts base of operations,
• Remote workers who “telecommute” to a Massachusetts based office, and
• Employees with fluctuating work locations but who spend the most time in Massachusetts.

• Applicants: “Applicants” are any individuals applying for a particular position, regardless of the individual’s level of qualification. Employers are required to share compensation information upon request with any individual applying for or inquiring about a position, not just those who are reasonably deemed qualified.

• Headcount Calculation: In determining an employer’s headcount, the law considers all full-time, parttime, seasonal, and temporary employees. The headcount should be taken once per year and should be a calculation of the average number of employees working over all pay periods. As such, to determine their headcount, employers should add up the number of employees working for them in each pay period and divide by the number of pay periods.

• Job Posting Requirements: In job postings, employers must include annual salary or hourly wage ranges that the employer reasonably and in good faith expects to pay for the position at the time of the posting. For commission-based jobs or those with piece rate pay structures, employers should include the piece rate or commission range they reasonably expect to pay for the position. Employers are not required to include information about other benefits, such as insurance or retirement plans, but may elect to do so.

• Violations: The Attorney General has exclusive jurisdiction to enforce the posting and disclosure requirements. Until October 29, 2027, employers will have two business days to cure defects upon receipt of a Notice to Cure letter from the Attorney General’s Office. If an employer is found to have violated the posting or disclosure requirements, the law provides for the following penalties:

• First offense: Warning
• Second offense: Fine of not more than $500
• Third offense: Fine of not more than $1,000
• Fourth or subsequent offenses: Potential fines between $7,500 and $25,000 per offense, depending on the circumstances

An “offense” includes one or more job postings for positions made by the same employer during a 48- hour period.

• Protections Against Retaliation: The FPWEA prohibits retaliation against employees or applicants who exercise their rights under the law. Discriminatory actions, such as adverse treatment related to salary inquiries, complaints, and legal proceedings, are strictly prohibited.

Intersection with Pay Equity

With job postings under the FPWEA expected to increase the focus on pay for both applicants and current employees, employers should also be prepared to handle questions from their current workforce about pay decisions and the rationale behind pay ranges.

In preparation for publicly posting pay ranges, employers may wish to take this opportunity to review their compensation philosophy and pay bands, and/or to conduct a pay analysis of their current employees. Such a pay analysis can have the added benefit of potentially providing an affirmative defense to a claim under the Massachusetts Equal Pay Act (MEPA). which requires equal pay between employees of different genders who perform “comparable work” (i.e., work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions), unless the pay difference is permitted by one of the six factors listed under MEPA: (i) seniority system, (ii) merit system, (iii) a system which measures earnings by quantity or quality of production, sales, or revenue, (iv) the geographic location of the job; (v) education, training or experience that are reasonably related to the job, or (vi) travel, if the travel is a regular and necessary condition of the job. Specifically, employers will not be liable under MEPA if they can show that they conducted a good faith, reasonable self-evaluation of their pay practices within the last three years and before an action is filed and reasonable progress has been made toward eliminating any unlawful gender-based wage differentials that such self-evaluation reveals. HRW recommends that employers conducting a pay analysis do so in consultation with counsel.

While conducting a pay analysis or self-evaluation is not required for compliance with MEPA or the FPWEA, employers should consider the benefits of doing so. Of course, any pay decisions must be made in compliance with MEPA.

Multistate Employers

Multistate employers should consider what other pay transparency laws they may be subject to, as an increasing number of states have adopted pay transparency laws in recent years, and some require additional information to be disclosed, such as benefits information.

Multistate employers should also review applicable pay equity laws in each jurisdiction where they have employees, as certain state equal pay laws require equal pay for comparable work among employees of a variety of protected classes, not just gender (as is the case under MEPA). While employer intent is generally irrelevant for determining whether there has been a pay equity law violation, intentional discrimination (i.e., paying an employee less than another employee of a different protected class because of their protected class status, such as race, gender, religion, national origin, etc.) is prohibited by a variety of federal and state statutes.

HRW attorneys are available to discuss the requirements of the FPWEA as well as to provide guidance on any pay analysis an employer may choose to undertake in preparation for posting pay ranges.

For more information about the FPWEA, please refer to our previous client alerts from August 13, 2024 and January 21, 2025.

For questions or more information, please contact:

• Sarah Ruter (sruter@hrwlawyers.com / 781-235-4879);

• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878);

• Catherine Reuben (creuben@hrwlawyers.com / 617-348-4316);

• Alicia Ward (award@hrwlawyers.com / 617-348-4357);

• Richard Loftus (rloftus@hrwlawyers.com / 617-348-4360);

• Caroline Galiatsos (cgaliatsos@hrwlawyers.com / 617-348-4363); or

• Any member of the HRW Team.

To sign up for our Client Alerts, click here.