Category Archives: Employment Law

DOJ Defines “Illegal DEI,” Warns Recipients of Federal Funds to Take Notice

by Adam S. Hickey, Marcia E. Goodman, Ruth Zadikany, and Hiral D. Mehta

Left to right: Adam S. Hickey, Marcia E. Goodman, Ruth Zadikany, and Hiral D. Mehta (photos courtesy of Mayer Brown)

On July 29, 2025, U.S. Attorney General Pam Bondi issued Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination (the “Guidance”). Following the creation of the Civil Rights Fraud  Initiative by the Department of Justice (“DOJ”), and joint guidance issued by DOJ and the U.S. Equal Employment Opportunity Commission (“EEOC”) on “unlawful DEI-related discrimination“, the Guidance is the most tangible guidance released to date on what the administration views as “illegal DEI” and a likely roadmap for DOJ’s False Claims Act (“FCA”) investigations under the Civil Rights Fraud Initiative.

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DOJ Secures First Criminal Conviction in Wage-Fixing Case

by Christopher A. Miller and Nicole Jefferson

Left to right: Christopher A. Miller and Nicole Jefferson (photos courtesy of Miller Shah LLP)

On April 14, 2025, the Department of Justice (DOJ) Antitrust Division (“The Division”) secured its first wage-fixing criminal conviction in United States v. Lopez, after a federal jury found that Eduardo “Eddie” Lopez violated Section 1 of the Sherman Antitrust Act (“Section 1”) by engaging in wire fraud and wage fixing. This decision signifies a shift in the DOJ’s approach to antitrust conduct in the labor market toward an expansion of criminal enforcement and deviates from the majority of antitrust litigation, which has largely been civilly prosecuted.  

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Supreme Court Rejects Heightened Test for “Reverse Discrimination” Claims Under Title VII

by Matthew M. Yelovich, Jennifer Kennedy Park, Christopher R. Kavanaugh, and Ethan Singer

From left to right: Matthew M. Yelovich, Jennifer Kennedy Park, Christopher R. Kavanaugh, and Ethan Singer (photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

On June 5, 2025, the Supreme Court unanimously ruled in Ames v. Ohio Department of Youth Services that plaintiffs who belong to a majority group do not face a heightened burden to establish a disparate treatment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Court’s holding resolves a significant circuit split and affirms that Title VII’s protections apply equally to all individuals. This decision arrives as the Trump Administration has launched significant new initiatives to bring Title VII and civil rights investigations and claims against employers with diversity, equity, and inclusion (“DEI”) programs that the Administration views as unlawful. In light of this decision and the various DEI-related Executive Orders, employers should consider the following:

  • Employers should continue to carefully scrutinize human resource related programs that consider demographic characteristics in any way.
  • Employers should review their whistleblower programs, policies, and practices to ensure they are robust around discrimination-related issues.
  • Notably, the Ames decision considered a disparate treatment claim, and the Administration has ordered the Equal Employment Opportunity Commission (“EEOC”) and other agencies to cease pursuing disparate impact investigations and claims.[1]

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CFTC Begins Its Enforcement of NDA Rule with Action Against Trafigura

by Benjamin Calitri

Benjamin Calitri

Photo courtesy of the author

On June 17, 2024, Trafigura Trading LLC (“Trafigura”) agreed to pay $55 million to settle charges brought by the Commodity Futures Trading Commission (“CFTC”) that they “traded gasoline while in knowing possession of material nonpublic information, . . . manipulated a fuel oil benchmark to benefit its futures and swaps positions,” and notably that they violated CFTC Regulation 165.19(b) by “requir[ing] its employees to sign employment agreements, and request[ing] that former employees sign separation agreements containing non-disclosure provisions prohibiting them from disclosing company information, with no exception for law enforcement agencies or regulators.” This is the CFTC’s first enforcement of Regulation 165.19(b).

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The Supreme Court’s Business Docket: October Term 2023 in Review

by John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Akua Abu

Photos of the authors

Left to right: John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Akua F. Abu. (Photos courtesy of the authors)

In early July, the Supreme Court concluded its most consequential Term in years, with a flood of decisions on contentious issues ranging from abortion access to the regulation of social media companies and gun possession to presidential immunity. The Court’s business docket was no less active. While the Consumer Financial Protection Bureau narrowly survived a constitutional challenge to its funding mechanism, the Court’s conservative majority elsewhere struck body blows to the administrative state—including the long-anticipated reversal of the Chevron doctrine of judicial deference to agency interpretation of ambiguous statutes. Beyond this headline-grabbing showstopper, the Court issued a string of commercially significant decisions, affecting bankruptcy, arbitration, securities, and employment law. We summarize below the key business decisions from this Term and flag a few key cases to watch in the coming Term.

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European Union Finally Adopts Corporate Sustainability Due Diligence Directive

by Samantha Rowe, Patricia Volhard, Jin-Hyuk Jang, John Young, Ulysses Smith, Jesse Hope, Harry Just, and Andrew Lee

Photos of the authors

Top left to right: Samantha Rowe, Patricia Volhard, Jin-Hyuk Jang and John Young. Bottom left to right: Ulysses Smith, Jesse Hope, Harry Just and Andrew Lee. (Photos courtesy of Debevoise & Plimpton LLP)

On 24 May 2024, the European Council (the “Council”) formally adopted the Corporate Sustainability Due Diligence Directive (the “CSDDD” or the “Directive”). The regime introduces human rights, environmental and governance due diligence obligations for in scope companies’ and their subsidiaries’ operations, and in their “chain of activities”, which are companies’ supply and distribution chains.

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Understanding the FTC’s Non-Compete Clause Rule and Its Impact on NDAs

by Joshua H. Lerner, Laura E. Schneider, and Andrew Stauber

photos of the authors

From left to right: Joshua H. Lerner, Laura E. Schneider, and Andrew Stauber (Photos courtesy of WilmerHale)

As we previously reported, the Federal Trade Commission (FTC) announced on April 23, 2024, its Non-Compete Clause Rule (Final Rule), which aims to ban all new post-employment non-competition restrictions and invalidate most existing ones. The Final Rule already has sparked multiple lawsuits seeking to prevent it from taking effect as scheduled on September 4, 2024. The United States District Court for the Northern District of Texas is expected to make a decision in one such lawsuit by July 3, 2024.

As September 4 approaches, many questions remain regarding the potential impact and scope of the Final Rule. This alert focuses on how the Final Rule might affect confidentiality and non-disclosure agreements (NDAs) that employers use to protect their trade secrets and other confidential information.

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Preparing for AI Whistleblowers

by Charu A. Chandrasekhar, Avi Gesser, Arian M. June, Michelle Huang, Cooper Yoo, and Sharon Shaji

Photos of the authors

Top row: Charu A. Chandrasekhar, Avi Gesser, and Arian M. June
Bottom row: Michelle Huang, Cooper Yoo, and Sharon Shaji
(Photos courtesy of Debevoise & Plimpton LLP)

As artificial intelligence (“AI”) use and capabilities surge, a new risk is emerging for companies: AI whistleblowers. Both increased regulatory scrutiny over AI use and record-breaking whistleblower activity has set the stage for an escalation of AI whistleblower-related enforcement. As we’ve previously written and spoken about, the risk of AI whistleblowers is rising as whistleblower protections and awards expand, internal company disputes over cybersecurity and AI increase due to a lack of clear regulatory guidance, and public skepticism mounts over the ability of companies to offer consumer protections against cybersecurity and AI risks.

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Divided FTC Decrees Sweeping Ban of Employment Non-Competes

by Nelson O. Fitts, Michael J. Schobel, and Emily E. Samra

Photos of the authors

Left to right: Nelson O. Fitts, Michael J. Schobel, and Emily E. Samra (photos courtesy of Wachtell, Lipton, Rosen & Katz)

In a recent public meeting, a divided Federal Trade Commission voted along party lines to issue a final rule prohibiting non-compete clauses for nearly all U.S. workers. The FTC previously published the proposed ban in January 2023, drawing thousands of public comments. The final rule hews closely to the initial proposal, but with slightly broader exceptions.

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January Surprise: Court Ruling on Post-Employment Restrictive Covenants in Delaware

by  Jeremy Ben Merkelson, James K. Goldfarb, Travis J. Distaso, and Gerald Stein

Photos of authord

From left to right: Jeremy Ben Merkelson, James K. Goldfarb, Gerald Stein, and Travis J. Distaso (photos courtesy of Davis Wright Tremaine LLP)

Equity and capital forfeiture for competition provisions given less scrutiny than other post-employment restrictive covenants

Companies subject to Delaware law were handed a welcome surprise in a recent Delaware Supreme Court decision bolstering the enforceability of certain post-employment restrictive covenants. The provisions at issue are so called “forfeiture for competition” provisions. They condition post-employment equity interests, distributions, return of capital, or other benefits upon a departing employee’s continuing compliance with certain post-employment restrictive covenants. Forfeiture for competition provisions frequently are at play in equity award agreements with executives and business partners. The recent decision provides for an alternative avenue for securing post-employment restrictive covenants when traditional non-competes may otherwise be unenforceable.

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