Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
NOTE: there is continued instability and fluctuation with continual change in federal labor and employment law resulting from executive orders (EOs) and court decisions, so check with us or another employment lawyer before taking any action based on something in our posts.
The post on Sunday 4/20/2025 told us fired EEOC Commissioner Samuels files lawsuit against Trump.
Former EEOC Jocelyn Samuels filed suit recently in federal court against the Trump administration alleging that the president illegally terminated her. Samuels, along with fellow former Democratic Commissioner Charlotte Burrows and General Counsel Karla Gilbride, was fired just days after Trump took office in January. The lawsuit will likely serve as yet another case to test the 90-year-old Supreme Court decision, Humphrey’s Executor v. United States. See our post of Sun. 4/13/2025 for more on Humphrey’s Executor. Overruling Humphrey’s Executor could expand the president’s authority to control the executive branch.
This suit is the first to be filed against Trump and the EEOC over the unprecedented firings. As for the status of the EEOC now, see our posts of Mon. 4/7/2025 and Fri. 4/11/2025.
Samuels’ suit argues that Trump’s firing “undermined the EEOC’s historic independence and interfered with its statutorily mandated duties to protect workers from discrimination, at a time when workers around the country are particularly vulnerable to discrimination.” More arguments made in the suit are in the post.
Interestingly, Samuels was first nominated to the EEOC by Trump in 2020 and then was renominated by President Joe Biden in 2021, with a term set to end July 1, 2026.
While the first by a former EEOC leader, this suit is not the only one against the administration by ousted officials. Gwynne Wilcox, a Democratic member of the National Labor Relations Board who was fired by Trump before her term expired, and Cathy Harris, a member of the Merit Systems Protection Board, both also have suits making their way through the courts. See our posts of Mon. 4/7/2025 and Fri. 4/11/2025. Similar to Samuels, both Wilcox and Harris have challenged the president’s authority to remove federal agency leaders.
The Trump administration has questioned the continued validity of Humphrey’s Executor. In February, Acting Solicitor General Sarah Harris sent a letter to Sen. Richard Durbin, D-Ill., ranking member of the Judiciary Committee, announcing the administration’s plans to challenge that case. Now the administration has moved forward with that plan by submitting the Wilcox and Harris cases to the U.S. Supreme Court in an emergency filing.
TAKEAWAY: The constitutional reach of the President’s power is being test like at no other time in history – only time will tell as the US Supreme Court will probably end up ruling on all of the cases winding their way through the system.
The post on Monday 4/21/2025 alerted that DOL signals withdrawal of 2024 independent contractor rule – impact on employers. In recent court filings in several pending suits, the Department of Labor (DOL) has indicated that it will reconsider its rule issued by the Biden Administration and in fact may issue a new rule.
The 2024 independent contractor rule, which became effective Mar. 11, 2024, revised the DOL standard for determining whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). What the rule did is in the post. The 2024 rule also rescinded a 2021 independent contractor rule issued during the final days of the first Trump Administration – that rule was considered more favorable to businesses seeking to utilize an independent contractor model. The continued flip-flopping regarding the independent contractor rule reduces the weight courts may place on any rule issued by DOL (especially given the overturning of Chevron deference).
DOL has moved to stay one case and has signaled it will request stays in other suits challenging the rule “in order to permit the Department of Labor sufficient time to complete the process of reconsidering the regulation.”
Let’s take a closer look at the five (5) pending cases challenging the 2024 rule. The “scorecard” as of now is in the post. But with the turnover in administration, DOL has sought several continuances to give the new leadership a chance to review the 2024 rule and consider the agency’s next steps.
The U.S. Court of Appeals for the Fifth Circuit placed Frisard’s Transp., LLC v. United States DOL, on hold on April 8 after the DOL submitted a status report (the content of which is noted in the post). This case is before the Fifth Circuit on interlocutory appeal of a decision by a federal court in Louisiana which refused to issue a temporary restraining order or preliminary injunction barring DOL from enforcing the rule pending resolution on the merits.
In another of the pending cases, Warren v. United States DOL, pending in the Eleventh Circuit, DOL filed a motion to stay on April 4. The basis for the motion is in the post. In the decision below, a federal court in Georgia had ruled that a group of freelance writers and editors suing to preserve their independent contractor status lacked standing to challenge the rule because they are not a party subject to the DOL regulation. Because the Eleventh Circuit had not yet ruled on the motion to stay, DOL also filed its appeal brief addressing only the standing issue.
DOL’s motion to dismiss a case brought by business groups is pending in a Texas federal court in Coalition for Workforce Innovation v. Micone. The plaintiffs agreed to DOL’s initial request for a continuance in light of the agency’s leadership transition. They objected to the second request for the reason noted in the post. The current status of this case is also discussed in the post.
The background and status of the other two cases pending in federal courts in Tennessee (Littman v. United States DOL) and New Mexico (Colt & Joe Trucking v. United States DOL) are discussed in the post.
So what happens now? The 2024 independent contractor rule remains in effect. How DOL has characterized the rule in its recent filings is noted in the post, signaling that it may not actively enforce the rule. But what happens next remains uncertain. The administration may undertake new rulemaking to restore the 2021 rule or it may just allow the courts to address the independent contractor issue without agency regulations.
TAKEAWAY: The best advice for employers is to follow the 2024 independent contractor rule at this time as it is still in effect. You don’t want to be the case where DOL decides to enforce it at this time.
The post on Tuesday 4/22/2025 told us the US Supreme Court stays the lower court stay of MSPB and NLRB board member removals. Another zig in this important legal fight.
The Court’s stay means that the removals are effective for now; the lower court orders that had shielded them from dismissal are now on hold. Chief Justice John Roberts, acting on behalf of the court, issued the stay relative to the firings of Cathy Harris from the Merit Systems Protection Board and Gwynne Wilcox from the National Labor Relations Board before their terms expire. What Roberts’ administrative stay does is described in the post. Roberts’ order also directed lawyers for Harris and Wilcox to file a response to the government’s request by April 15.
The government’s argument in favor of the stay is in the post. District Judges Rudolph Contreras and Beryl Howell had separately upheld federal laws protecting officials serving in these posts from being fired without cause, rejecting Trump’s constitutional argument that is noted in the post. The U.S. Court of Appeals for the District of Columbia Circuit recently declined to stay those rulings while the cases proceed after an earlier ruling by the Circuit Court had permitted the removals.
In case it is not clear from our many prior posts, including on Sun. 4/13/2025, the legal fight over these firings has emerged as a key test of Trump’s efforts to bring federal agencies meant by Congress to be independent from the president under his control, testing the continued validity of Humphrey’s Executor in that process.
Harris was appointed to the MSPB in 2022 by President Joe Biden to serve a seven-year term. Trump moved to fire her on February 10 after naming Henry Kerner, a Republican, as acting chair of the board. The effect of Harris’s firing on the MPSB’s ability to act is in our post of Fri. 4/11/2025.
The MPSB is important, especially now. Federal workers who lose their jobs can bring a challenge before the Board, seeking to be reinstated. More than 8,000 workers have filed with the Board since Trump returned to office in January, a massive surge. How the MPSB has ruled so far is discussed in the post.
Wilcox’s case is similar relative to her firing from the National Labor Relations Board. What the NLRB, which has five members when full, does, and its import, is detailed in the post.
TAKEAWAY: We bet that prior to February 2025 you never heard of Humphrey’s Executor, but now you know what it held and how its continued validity is being tested by the administration in a partisan push for what are to be independent agencies.
The post on Wednesday 4/23/2025 told us that HOA subject to increased liability for guests’ injuries in Common Areas, appeals court rules.
Colorado’s second-highest court ruled for the first time recently that guests of homeowners who are injured in HOA common areas only need to satisfy a relatively low hurdle to sue the HOA. Under CO law, someone who is injured on another person’s property will have either a harder or easier time holding the landowner responsible based on their status. A trespasser can only sue for injuries the landowner “willfully or deliberately caused.” In contrast, a licensee, can sue over hazards the landowner caused and “actually knew about.” An invitee has the easiest burden to satisfy: see the post.
Relying on other states’ decisions and analogizing the situation to how the law treats renters and their guests, a three-judge panel of the CO Court of Appeals decided that guests of homeowners who are injured on HOA-owned areas are invitees, giving them the easiest path for filing suit (see above and the post). The court’s reasoning is also in the post.
The possible effect of the ruling on HOAs is also in the post.
In the underlying case, Tiffani Willis alleged she lived in the Twin Shores HOA. She described herself as the common law spouse of a unit owner. Although her name was not on the title, she served on the HOA’s board and paid association dues occasionally. After she slipped and fell on an icy sidewalk, Willis sued over her injuries. The case then turned to Willis’ legal status. The first judge who ruled in the case determined Willis’ status and what she had to prove to hold the HOA liable – see the post. Then in January 2024, the judge to whom the case was transferred ruled based on that status and decided in favor of the HOA and its management company.
Willis appealed, emphasizing all the ways in which she was actually in a different status. Her argument is in the post. The appellate panel did not rule on the exact argument made by Willis. Instead, it decided that based on the facts her status was different (as noted in the post) which meant she had a different standard of proof. The court analogized that case to CO landlord-tenant law; see the post. But because it was unclear whether Willis’ injuries occurred on HOA-owned property, the panel returned the case to the trial court for further proceedings.
TAKEAWAY: Community associations (condo and HOA) must fulfill all obligations relative to repair and maintenance to minimize risk and liability. Consult a community association lawyer to ensure you know that those obligations are.
In the post on Thursday 4/24/2025, we read that ‘We need this party’: bar owner fights condo lawsuit. What would you do if you lived here?
Tensions are flaring once again between a condo tower and a beachfront bar — this time, over late-night after-parties tied to one of Atlantic City’s biggest summer events. The Ocean Club Condominium Association filed suit in state court on March 28, accusing Cocorico, the tropical-themed beach bar next door owned by SECAA LLC, of breaching a 2018 settlement agreement that bans entertainment past 1 a.m.
The suit targets Beach Road Trip (BRT) Weekend, scheduled for July 11 to 13, which is expected to draw thousands to Atlantic City’s beaches. What the suit argues is in the post (along with a statement by the condo association’s attorney. The association wants the court to issue an order that tickets that have been sold are to be refunded.
But Cocorico owner Steven Tabeek sees things differently. What time he says the parties end, and how he plans to proceed, is all in the post. The basis for his argument is also noted in the post (but it appears to be superseded by the prior settlement agreement). Tabeek said the event is critical not only for his business, but for Atlantic City’s entire local economy. How he framed things is in the post. Perhaps importantly, Tabeek also clarified that BRT won’t even take place near the Ocean Club (see the post).
TAKEAWAY: Apparently these two parties tangled in court a few years ago and entered into a settlement. The current case is just enforcement of that agreement, not a new opportunity for the bar to relitigate the case. But the association will probably be entitled to reimbursement of its attorneys’ fees if it is successful.
The post on Friday 4/25/2025 reiterated that SCOTUS pauses restoration of NLRB & MPSB quorum, asks parties for further briefing. This matter is so important that we thought it merited our post on Tues 4/22/2025 and again today. We won’t repeat what we said above, but know that it is important for the reasons in the post (and as noted in our 4/22/2025 post). Wilcox and Harris had to respond to the Trump administration’s stay application by 5 p.m. on April 15, 2025.
On the same day that Chief Justice Roberts issued his stay, Jocelyn Samuels, a former Democratic member of the EEOC who was removed by Trump, brought suit against the administration alleging that her termination was unconstitutional. See our post of Sun. 4/20/2025 for more on Samuels’ suit.
The outcome of both Wilcox’s and Samuels’ cases could have serious implications for the operation of federal agencies. See the post for what might happen if a final ruling goes in favor of the administration.
TAKEAWAY: There is a reason these agencies are to be independent; overturning the precedent of Humphrey’s Executor removes that independence and the protections that go along with it. Stay tuned.
Finally, in the post yesterday 4/26/2025, we looked at 2025 employment law trends: navigating the shifting landscape and what employers need to know (which seems to change daily …). As we move further into 2025, the employment law landscape continues to evolve rapidly, driven by significant regulatory changes and emerging workplace dynamics. For employers and their counsel, staying on top (and if possible, ahead) of these trends is crucial for mitigating risks. Here are some of the key employment law trends to watch in 2025:
Regulatory Shifts Under the New Administration. The new presidential administration has brought a wave of changes, particularly through executive orders and agency actions. The focus has shifted toward reducing federal oversight and regulatory burdens on businesses. But there has been another effect too (as noted in the post). This dynamic requires employers to stay vigilant and compliant at all levels
EEOC’s Evolving Priorities. As noted in many of our prior posts, including Thurs. 4/3/2025 and Wed. 4/16/2025, the EEOC has undergone significant leadership changes that impact its enforcement priorities. The EEOC is now focusing less on systemic discrimination and more on individual cases. There are also other changes as noted in the post. What employers should do given these changes is also in the post.
Artificial Intelligence in the Workplace. Artificial intelligence (AI) is in the news on a daily basis – it has had a revolutionary effect on the workplace, especially in white-collar sectors. The current administration has adopted a more open approach to AI, encouraging its integration to enhance efficiency. But this technological shift brings legal challenges as noted in the post – employers must navigate the changes carefully to avoid litigation related to AI implementation.
Return to Work Policies, Immigration and Workforce Compliance, Pregnant Workers’ Fairness Act (PWFA), and more changes are discussed in the post (the last is interesting and puts employers on a different footing). Suggestions as to actions employers should take for each category are also in the post.
TAKEAWAY: Employers must always know the law and how to implement that law relative to its workforce; now the laws, or the rules/guidance interpreting the laws, have changed (often more than once), so employers must stay in touch with their employment lawyers in an effort to remain compliant.
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