Top 10 Most Important Labor and Employment Law Changes in 2025

As we normally do, we reviewed 2025's biggest labor and employment law changes. This webinar featured Jim Wimberly and Les Schneider discussing the year's “most critical subjects.”

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Webinar Key Insights

• Audit and Update Religious Accommodation Procedures: Implement a centralized process for religious requests, as first-line supervisors are often unequipped to handle the new "substantial harm to the business as a whole" legal standard.
• Re-evaluate DEI Terminology and Individual Decision-Making: Ensure every employment decision is based on individual merit rather than group representation to avoid the EEOC's top priority: rooting out DEI-motivated discrimination.
• Eliminate Applicant Flow Logs: Stop tracking race, sex, and national origin for job applicants—unless required by state law—to remove the statistical data necessary for plaintiffs to build adverse impact lawsuits.
• Establish a Formal AI Usage Policy: Create clear guidelines for the use of AI in hiring and performance reviews to prevent discriminatory outcomes and protect your trade secrets and attorney-client privilege.
• Draft "Surgical" Social Media Policies: Avoid overly detailed social media rules that could be viewed as chilling protected speech; instead, use carefully worded protocols that include "weasel words" to protect management's right to intervene.
• Develop a Tiered Immigration Policy: Adopt a comprehensive policy (ideally 10+ pages) that dictates how management should respond to tips regarding undocumented workers and requires regular I-9 audits to ensure full compliance.
• Prepare for Captive Audience Rule Reversals: Be ready to re-implement small group meetings and one-on-ones during union organizing campaigns as the NLRB moves to reverse previous restrictive rulings.
• Monitor National Origin Protections for American Workers: Stay alert to a new enforcement emphasis on protecting American workers from being passed over in favor of immigrant labor through temporary visa programs.
• Adopt a "Merit-Only" Evaluation Model: To stay out of legal trouble, evaluate candidates solely on their merits compared to other applicants, as the government has shifted away from enforcing the "adverse impact" theory in its own prosecutions.
• Handle Gender Identity Issues with Special Counsel: Given the conflict between Supreme Court rulings and current executive orders regarding "binary reality," treat any bathroom or pronoun-related disputes as high-risk matters requiring specialized legal handling.

Les A. Schneider (00:00):
Good afternoon. Good afternoon. My name is Les Schneider, and across the table from me is Jim Wimberley. And we're here to discuss with you today the top 10 most important labor and employment changes in 2025. We will go through what we consider to be those top 10, and then we will certainly be available to answer any of your questions.

James W. Wimberly, Jr. (00:24):
Let me just tell you the overall goal here. We did try to pick out what we considered the most important developments, and I wanna make a teaching point at the end of each development to take with you. So with that being said, let's go to the first part.

Les A. Schneider (00:40):
Okay. Well, Jim, obviously the administration, the current administration has many, has made many changes including less pro-union, pro-union rulings at the NORB and more employer friendly policies at the NLRB. And we've seen the same thing with the Department of Labor and the EEOC and osha. So why don't you comment on some of those?

James W. Wimberly, Jr. (01:03):
Well, let me say that I don't know that we've seen but a small portion of the changes the NLRB did not have a quorum, meaning the minimum number necessary to render a decision until two or three weeks ago. Secondly they didn't have an appointed general counsel who investigates and prosecutes cases until a couple of weeks ago. So there are many things that are awaiting in the wings, including about 700 cases that have been pending there without a decision. So I I, I think the major changes are gonna take some time. Now we know what some of those changes are going to be because there was an acting general counsel prosecutor who has already revoked certain memorandum issued by the previous general counsel. So we kind of know the direction we're headed. I think some of the changes that have been made, and all three or four of the agencies that I mentioned, the NLRB, the EEOC, the Department of Labor are to offer voluntary programs for companies to participate and reduce the potential for fines and liquidated damages and things of that nature. So those changes are already in place. As a matter of fact, the Department of Labor had one of the highest years ever in recovery of back wages for wage and hour violations. And the theory is that the voluntary programs caused some employers to come forward realizing it was a good time to straighten up their policies and cut a deal with a administration that's more willing to enter an acceptable mutual agreement. So does

Les A. Schneider (03:05):
That cut down, Jim, on perhaps instance, the liquidated damages that a company might have to pay in wage an hour matter if they do these voluntary?

James W. Wimberly, Jr. (03:15):
Yeah. No, no, no liquidated damages. That's one of the advantages of these volunteer programs. Now, let me point out that the new administration is not entirely a pro employer. A majority of working class households, including union households, voted for the Republicans this past year. And so there are gonna be lingering pro-union policies that remain. The best example would be project labor agreements in the construction industry. So far, the new administration has not removed that requirement for large scale public construction projects to have union labor under these so-called project labor agreements. I'll also point out that the new Secretary of Labor, although she had been a Republican representative from Oregon, she had signed off on the PRO Act, which is the most pro-union law that's ever been offered in Congress. So she was backed by the Teamsters. Indeed, as you know, the teamsters spoke at the Republican National Convention. So there's an increasing pro-union segment in the Republican party, the best example being Senator Hawley of Missouri, Senator Marino of Ohio, and a couple of other senators. So the party is as a, as a general proposition of becoming somewhat more open to union policies as well as pro management policies.

Les A. Schneider (04:52):
And what, and Jim, what about the, all the rules on union elections where there was the quickie elections and things like that? Has any of that changed?

James W. Wimberly, Jr. (05:00):
No. No. None of that has changed.

Les A. Schneider (05:02):
Okay. So, pro Union. Pro Union.

James W. Wimberly, Jr. (05:06):
So keep in mind, as long as these current regulations or rulings are in effect, the regional offices, the NLRB will be applying, so don't expect any overnight changes at the NLRB. It's gonna be a slow process. We, we know, as I say, where there are gonna head though, and in my opinion, the first two items that are gonna go would be the Cemex case in which an employer could be ordered to bargain with a union based on a card check, just because it committed and unfair labor practice, not multiple, not serious and unfair labor practice. That was considered an extreme case. I think that'll be one of the first to go. As a matter of fact, the general counsel issued a complaint against an employer asserting that theory, just to give the board an opportunity to reverse that case. So that would be the first to go once the board gets into new cases as opposed to its backlog. A second case that's gonna go would be the captive audience case, that the previous general counsel tried to outlaw the best employer responses to a union organizing campaign, small group meetings, and one-on-ones with individual employees. The previous general counsel backed by the board said, you can't do that unless it's entirely voluntary on the part of the employees to attend. That decision will go quite quickly as well.

Les A. Schneider (06:37):
Okay. So let's leave this area and go to the area of immigration. Obviously anybody who reads the headlines and listens to our president feels that the borders are much more sealed than they were during the previous administration. What does all that do, and how do you evaluate the immigration situation right now and the immigration law?

James W. Wimberly, Jr. (07:00):
Well, first of all, we have successfully sealed the board, and that's quite interesting because the illegal entrance across the border have dropped something like 95%. So now I will say it's a great cost. We have actually the US military on the border and, and, and many divisions, several divisions to seal the border, but we have successfully sealed the border, which is part of it. The second area to address is deportations. Actually, the president that deported the most was Obama by far. And Trump has not reached that level, even though the deportations in the Trump era seemed to be more publicized, they were not heavily publicized during the Obama area. Of greatest concern, though, to many is reductions in legal immigration. We, we had hundreds of thousands of people working legally in this country under the temporary protection concept, TPS, under the parole concept, under the daca, the, the children concept who came into this country as children. And in many cases, or actually most cases, the new administration is stopping the TPS program is, is stopping the parole program, which is similar to TPS and is even cutting back in an area that most employers feel are quite helpful temporary workers brought in this country.

Les A. Schneider (08:41):
And there is no real expansion at this point to the guest worker program because the law still states that it's the federal government who decides how many guest workers should enter the country in the various states.

James W. Wimberly, Jr. (08:56):
States. That's right. That's right. Now, let, let me also say this. I, I wanna give you a teaching point here. I believe every company should have an immigration policy. The simplest policy we have is a couple of pages long. All supervisors and managers sign it, and it basically lets 'em know what the company policy is, which is consistent with federal law and tells them if they have knowledge of the legals in their workforce they should not say and do anything, but should report it to a certain individual and upper management, like human resources. But also, it's a good idea to have a, a, a longer policy, maybe 10 pages long, that addresses things like what you do, if you get tips that you have illegals in your workforce, or people are identified and address the whole lot of other things that would otherwise be confusing for management to implement.

Les A. Schneider (09:52):
And I assume you also would want companies to make sure that all their policies on completing I nines and all the other related documentation is done correctly and should be audited to make sure that it's done properly.

James W. Wimberly, Jr. (10:07):
I don't see any other way that a company can operate without doing regular audits of their I nines mm-hmm <affirmative>. We have been in, we do a lot of that. I don't personally so much, but I'm familiar with 'em. And we've actually been in facilities that had zero compliance, right. <Laugh>

Les A. Schneider (10:26):
That,

James W. Wimberly, Jr. (10:26):
And so many of the things whoever's handling the, the function is just not knowledgeable about all of the requirements. And you know, a lot of issues also come up. First of all, the rules are changing weekly or monthly as to what had been lawful in immigration. So we have to keep up with those changes. Secondly the rules are changing whether you have to implement those changes immediately, or you're given a little grace period to allow people to gain legal status through other means that they might otherwise be eligible for. So we really have to follow the developments in, in immigration and how adjustments have to be made other than just terminating the person who seems to no longer be legally employed.

Les A. Schneider (11:19):
Okay. So we don't really see on the horizon within Congress any real proposals or plans or to actually have some immigration reform that will truly address the issue of bringing in more lawful workers to the country at this point.

James W. Wimberly, Jr. (11:41):
Unfortunately, we don't, it seems to be a hot potato.

Les A. Schneider (11:44):
Right. <laugh>. Okay. Well, this moves us to our next topic. And, you know, the, the word, the, the phrase DEI, diversity, equity, and inclusion was the rave over the last couple of years. And that certainly has changed dramatically this year. Jim, you want to explain that change?

James W. Wimberly, Jr. (12:02):
Yeah. up until the last year or two DEI diversity, equity and inclusion had been something that many companies considered legally required, or if it wasn't legally required, it was highly desirable. But actually the concept had expanded so much in the management community, actually, that it had gone beyond the original intent. The original intent was set forth in the government contracting rules for government contractors that have existed for 30 years. And those rules basically said that an employer can set goals or even take affirmative action to try to hire people to be more representative of the community, but couldn't make an individual employment decision based on race, sex, or any of the other things. In other words, the concept originally was intended to be that the employer had to practice equal employment in each individual employment decision, not just as applied to groups, but that had been expanded a little bit.

James W. Wimberly, Jr. (13:10):
And a couple of years ago, the Supreme Court rules, in the case of the Harvard case, that you couldn't prefer underrepresented school applicants just to have a more balanced temps. And so it was natural that that Supreme Court ruling would filter down to employment, and it has. So right now, the term DEI is so controversial that most employers have removed that term and used other terminology to refer to equal employment directives. And let me read something that's gonna cover three of the changes that I'm discussing today. This is a quote from the new chairperson of the Equal Employment Opportunity Commission. I'm gonna quote this, listen, consistent with the President's executive orders and priorities, my priorities will include rooting out unlawful DEI, motivated race and sex discrimination, protecting American workers from anti-American national origin discrimination, defending the biological and binary reality of sex and related rights, including women's rights to single sex spaces at work, and protecting workers from religious bias and harassment, including antisemitism. So this is where our government enforcement is headed. And notice the top of the list was DEI motivated race and sex discrimination. And I heard this chairperson speak at a recent conference, and she explained it very simply, much as I explained it. She says, equal

Les A. Schneider (14:59):
Employment

James W. Wimberly, Jr. (14:59):
Applies to each employment decision. And just because a group is underrepresented somewhere doesn't mean you can discriminate in the selection of an individual employee for higher demotion, promotion, whatever e each decision needs to be based on equal employment considerations. So this is just something that is perhaps foreseen because of Supreme Court ruling. It was actually suggested in the original efforts that affirmative action that just because you wanted more equal representation didn't mean we discriminated against any individual, but now it's definitely the rule of law and a priority, a top priority for EEOC enforcement and

Les A. Schneider (15:45):
Hasn't Did. Would you say that, that this change on this has had certain has certain problems with it in terms of how various groups are gonna feel like, well, they're, they're being protected, but then there's other groups of things they're being cast to the side. I mean, th this concept, I assume, of completely neutral evaluation of a candidate. Some people will perceive it as well, this is a way for them to decide who they want to favor and who they not want to favor. Well,

James W. Wimberly, Jr. (16:21):
I don't know how to answer that. I don't think the concept of removing the DEI preferences is difficult to apply, but you are getting closer into another topic. We're gonna discuss how that affects the legal rules on having an employment policy or practice that has the effect of keeping out, for example, women or minorities. And notice I said, women and minorities, that's really not the law. Every individual is protected from discrimination whatever their race, sex, or national origin is,

Les A. Schneider (17:01):
Or religion

James W. Wimberly, Jr. (17:02):
Or religion. The rules supply equally to each group and each person.

Les A. Schneider (17:07):
So having a polar blind approach, are we down to that? We are just going to be to, for a company to stay fully outta trouble there, allegedly supposed to try to evaluate somebody solely on their merits compared to the other applicants that are being considered for the job?

James W. Wimberly, Jr. (17:29):
Well, that's true. Solely on their merits or the law would say non-discriminatory basis, which is generally merits. But that doesn't mean there can't be litigation over the legality of a company's selection procedure. You know, the first case that came out on this dealt with a requirement of a high school education that was deemed to discriminate against certain minorities that didn't have as much portion having high school education. It often applied to arrest records and conviction records sometimes, and

Les A. Schneider (18:04):
Also the relevance to the job

James W. Wimberly, Jr. (18:07):
And the relevance to the job. So those issues still remain the, the, the selection procedures, although neutral still have to be lawful, which is complicated. And we're gonna talk about that in just a minute. Okay. But in any event, the DEI concept is totally changed. And there are even plaintiff's groups running around looking at company websites to see if the websites are discriminatory on their face and thereby warranted investigation and possible litigation.

Les A. Schneider (18:38):
Okay. Let's go to our next topic, which is as you have just referenced the concept of adverse impact. Why don't we explain to our listeners today what the adverse impact on a protected group is and how that has changed somewhat in, in the recent year?

James W. Wimberly, Jr. (18:57):
Alright, I'm gonna explain this in a very short and a hopefully simplistic fashion. Over the years there have been two types of discrimination that have developed. The original law, which was passed, apparently was directed only to what we call intentional discrimination. That's when it can be shown that an employer is applying, for example, different standards intentionally to men and women blacks and whites, people of different national origins or religion. It had to be the same standard because otherwise the employer was intentionally favoring one group over the other. That evolved into a second concept that an employment practice might not be discriminatory in intent. The employer might have every good purpose for having it, like requiring certain educational requirements, but the effect might be to keep out various groups. Let, let's talk about a lifting requirement, how that might affect a female applicant.

James W. Wimberly, Jr. (20:07):
The employer might have a perfectly valid reason for wanting some kinda lifting requirement, but if the effect was to keep out females, it had to meet certain tests, it had to be, quote, a job related business necessity or a valid selection procedure by valid, it accurately predicts successful performance on the job. And so if something didn't meet that standard, it was considered to have an adverse impact on the excluded group and therefore be illegal Absenting employer's proof of a job related business reason for it. So the current administration has made the announcement, including in an executive board, that the government will no longer bring cases on any adverse impact theory. The explanation is the adverse impact theory has caused employers to discriminate in their hiring and promotion processes because it doesn't allow necessarily mirror in every case. So they are no longer, the government is no longer enforcing adverse impact. However, that didn't change the law to the extent there's case law out there applying the adverse impact theory that will still be followed,

Les A. Schneider (21:32):
So therefore can file a lawsuit blaming adverse impact. But as far as government enforcement policy that they're not gonna be utilizing,

James W. Wimberly, Jr. (21:42):
That's right. If somebody files a charge with the EEOC alleging that I was intentionally discriminated against because I didn't get a job because I was a female that will be enforced because it's intentional discrimination. But if the theory is the employer's policy adversely affects women, even though it's neutral, that Aris everybody across the board, that theory will not be prosecuted by the government. So what the government will do will be dismiss the portion of the charge related to adverse impact, but investigate and enforce the portion of the charge related to intentional discrimination. But that does not apply to private lawsuits. It only applies to government enforcement. Now, let me give you one lesson point here. One thing this leads to so far and my teaching point, which those of you that keep applicant flow logs, take another look at that I don't like as a defense attorney, applicant flow logs an applicant flow log lists the sex, race, and national origin of each applicant. Now, first of all, it's very subjective as to how you determine <laugh> the race, sex, and national origin of each applicant. So it's a difficult standard to meet. Secondly, it's difficult for employers to keep up with 'em. And many employers put down a reason for a person not being hired what have, but it's this type data that allows the plaintiff to bring an adverse impact case suing an employer saying, look, 50% of our applicants were female, but you only hired 20% of the female applicants, whereas you hired 60% of the male applicants.

Les A. Schneider (23:30):
So is your answer, Jim, that you believe overall that employers should not keep this data at all?

James W. Wimberly, Jr. (23:39):
Yes, I, there's no longer a government requirement to keep applicant flow logs unless there's some state that requires it.

Les A. Schneider (23:47):
And this was all tied into the whole affirmative action law at one point in time.

James W. Wimberly, Jr. (23:52):
It, it is tied into yes, the affirmative action law. So I don't see any reason to keep affirmative action logs. I think it gets you in more trouble than not,

Les A. Schneider (24:02):
Then it's worth

James W. Wimberly, Jr. (24:03):
Now, in, in other words a plaintiff can't bring an adverse impact case unless it on hiring, unless they show it statistically adversely affects the protected group. Without the applicant full log, they have no way of showing that. So you improve your defense opportunities by not having race and sex information on apples. Now, you still have to keep it on employees. You still have to do the EEO one report. Standard form 100 has to be filed by employees of 104 a hundred employees once a year. But I'm talking about job applicants, not employees. Okay.

Les A. Schneider (24:44):
All right. Let's move on to our next topic. Jim, there was a Supreme Court ruling in the case of Bosek versus Clayton County, and it relates to Title vii prohibition on sex discrimination extended to bias based on gender identity. What has that done and effect that that's having on government enforcement actions?

James W. Wimberly, Jr. (25:06):
Well, the law has struggled for years with whether sexual preference and more recently, sexual identity comes under the civil rights laws. That's why this Georgia case, AOC versus Clayton County, that's Clayton County Georgia, by the way which seems to say that title VII's prohibition on sex discrimination does extend to bias based on gender identity and of course, sexual preference. However, there was language in that case that says, we ain't touching the question about common bathrooms here. We are not touching the situation about locker rooms here. And I want to give you this example. One of the first cases I ever handled in this area, I'll be brief, A male who had transgendered to female was in the lady's bathroom. The ladies complained to management. There is a man in our bathroom, get him out. The company without legal advice it naturally felt some kind of sexual harassment situation here.

James W. Wimberly, Jr. (26:20):
Told the employee who had transgendered to female that he'd have to use the men's bathroom, did not offer him a neutral bathroom or anything like that. He said, no, I'm going to use the women's bathroom because I'm that woman. Say, Marty lawsuit was filed. I told the client, I said, look, we're gonna gonna be litigating this issue a long, long time. You wanna litigate it or you wanna settle. And plus, I wasn't sure where the end, what the end result was gonna be. So we settled it. And, but that's the issue right now. The Trump administration came out with an executive order that says there are only two sexist male and female. They also said that we are no longer going to consider that this Supreme Court case applies to many forms of transgender identity. So that's the government's position. I'll also say it's even more complex than what I just stated, because number one, there are often religious considerations involved, and you gotta give religious time to, I believe the Bible says that God recognizes men and women, therefore I can't recognize transgender people.

James W. Wimberly, Jr. (27:37):
So you, you get the issues. There's all kind of con confusing. So this is one issue. If it comes up in your company, it needs special handling. It even extends to pronouns. There are a lot of cases now where you call a transgender to woman or female status by male name or Mr are you violating the law? So what I'm saying right now is literally the government executive order says it's just men. There's just women, there's nothing in between. But in practice, it's a lot more complicated. You have that issue come up in your company. It needs special ham.

Les A. Schneider (28:19):
Okay. All right. Let's move on to our next topic, which is one area of the law where obviously the, it seems as if there is greater protection or greater emphasis on protection, and that would be on religious discrimination and accommodation. We all know that the standard used to be that you provide you know, you, you, you preclude religious discrimination unless it's an undue hardship on the employer. How has that changed, Jim?

James W. Wimberly, Jr. (28:53):
Well, it has changed in two ways significantly. One is by US Supreme Court ruling. The Supreme Court has addressed more than once the exception to having to accommodate a religious practice because of ue the hardship to the employer. There was the decision a number of years ago that was interpreted as saying that if it u unless, or if it cost the employer anything more than a de minimis amount, it was an undue hardship on the company. The new test, the new Supreme Court decision says not to accommodate. It has to be shown by substantial harm to the business as a whole. Let me tell you how this plays out. We've handled numerous cases over the years where an employee is required to work on Saturday. Maybe they're, they're Jewish and recognize that as their SA or an employee has been required to work on some of the numerous religious holidays, they are, and they ask to be off.

James W. Wimberly, Jr. (29:59):
They say, I want to be off on my religious holiday, my Sabbath, to attend Bible study, or whatever it is I would want to do. That's religious practice. Up until this recent Supreme Court case, if I had to bring in somebody else and pay 'em overtime, that was an undue hardship. The, the, because the person who wanted the time off, I was paying straight time to, but if I had to pay somebody else to come in on overtime, that was an undue hardship and I didn't have to make the accommodation. That's changed. Now once the sincerity religious request is shown it's a very heavy burden on the employer not to accommodate it in some way. Now, they don't have to accommodate it, only in the way the employer requests. There may be another way to accommodate it. As a matter of fact, if you can't accommodate it the way the employer warrants, the employee wants, try to find some other way that would work for you.

James W. Wimberly, Jr. (30:58):
So this is gonna be a big area of, of litigation. Now, here's my teaching point on this, though, knowing that it is now a, a much stronger law because of the new Supreme Court decision saying that accommodations must be made unless there's a hardship to the business as a whole, a substantial harm to the business as a whole. You need to have good procedures in place. And those procedures, I would say number one is to have a posted policy that at least in, in brief, summarizes your support of religious non-discrimination and willingness to engage in reasonable accommodations of religious practices subject to the undue hardship problem for the employer, and telling 'em how to seek that accommodation. So I don't believe a first line supervisor is able to make that decision. And you don't want your first line supervisor being the lead person on this issue, because that person may not know the law and may say the wrong thing. So you need it to come to HR or somebody central that knows what they're doing, and that has to be in your policy. So,

Les A. Schneider (32:07):
Jim, how do you contrast the concern with religious discrimination and, and accommodation as opposed to the laws that are protecting pregnancy, childbirth, or related conditions? Are they gonna have that heightened sense, or do you feel that has been reduced somewhat based on that? Well,

James W. Wimberly, Jr. (32:27):
I'm just embarrassed to answer this question because <laugh>, there are slight differences in the hardship under each of these three

Les A. Schneider (32:37):
Laws, right? So it's not, it certainly is not the same.

James W. Wimberly, Jr. (32:41):
It is not the same. There's slight differences. And, but the same recommendation exists that I would advise every employer to have at least a brief statement of your policy and following the law for accommodations, for disabilities, for religion, and for pregnancy related matters, and have a procedure they go through to request such an accommodation. Otherwise, you're gonna be stuck with what your first line supervisor said.

Les A. Schneider (33:11):
Right? So you, I

James W. Wimberly, Jr. (33:12):
I just had a case that we had to settle where a worker's comp claimant was caused, called all kind of horrendous names by coworkers for not doing his full share of work. I mean, horrible stuff. It was continued to be a hostile environment. So he goes to a lead person and makes a complaint, doesn't do anything about it, said, oh, that's just Ray, you can live with it. Is that what you wanna have to live with as a company? No. You want that person to be required to go to a central source of somebody that knows what to do to ask for the accommodation. And under the Supreme Court ruling in such harassment case, such a published company, policies enforce, they don't go to the central person. You aren't bound with that by that first line, what that first line supervisor says it does.

Les A. Schneider (34:02):
Right. Well, going to our next topic the whole issue of national origin discrimination seems to be more in the forefront today. And you referenced it a little bit earlier, and of course in that quote that was given, I believe, by the new Secretary of Labor, it appears as if we are trying to better protect American workers. So therefore, the national origin discrimination seems to be coming to the forefront. Some folks view this as a positive, some a negative. Do you want to comment on that?

James W. Wimberly, Jr. (34:41):
We do. Let, let me say this in background. In, in, in the past most national origin cases have come from, well, for example, we've had some cases where Hispanics or immigrants from other companies, countries were deemed discriminated against. We've had cases where such people were being considered to be favor. The same company was in two plants, one for favoring Hispanics, one for discriminating against Hispanics. So we've always had that, we've always had issues associated with English language requirements. Is that really necessary? Is it just keep out immigrant? And we've all sometimes had cases involving accents. Well, that person you know, it's got such an accent, I don't like it, customers don't like it. I can't understand it. So that's been on the board for a long time. But now the change is the protection of American workers. The thought is that some companies are bringing in immigrants for jobs and through either temporary workers visas or some other means, and using them in preference to American workers. So there's gonna be a big emphasis on that. Mm-Hmm

Les A. Schneider (35:57):
<Affirmative>. And as a result that goes back again to the whole issue you talked about with immigration and the lack of a solution there. Another area, obviously that has affected employment is the whole concept of ai, artificial intelligence. And we, we see it in the law practice in terms of people doing research using AI instead of lawyers. And sometimes it works out well and sometimes not so well. But you want to talk a little bit about what this whole AI movement has unemployment issues today?

James W. Wimberly, Jr. (36:33):
I think it is, it is really big. And let me give you examples. AI is not being used for some companies in making un earned decisions, promotion decisions, performance appraisals research of answers to questions and in litigation we use AI here as a sounding board, not as an answer to any either chat GPT or the Alphabet Gemini. And it's coming. Let me, let me just tell you, 15 years ago, approximately I heard a presentation by Fortune two 50 Company. In other words, big company. They had implemented an earlier version of AI to select their production workers. They said that the use of this methodology had been shown to significantly reduce theum, and they were pleased with it. They commented that they had to go through all kind of a hull of glue to validate it, to see that it was effective to determine if it, they thought it was legal and all those things.

James W. Wimberly, Jr. (37:40):
So that just gives you a flavor of what some companies started doing many years ago and how it's increasing now. What are are, are the dangers? Well, let me just say one thing. That the current administration is trying to minimize legal impediments to the use of ai. They don't wanna even have an executive order that they say would preempt state laws to the contrary. Whether they can get away with that, I don't know. But they, they see AI as something helpful to the country, something other countries are gonna do and use against us. So we might as well be ahead of the, of the eight ball. And it whether it is proven helpful, there are a lot of studies out on it. University of Chicago came out with a study I found very interesting. These studies are all within the last year that said AI significantly improved higher. And they were specifically talking about AI and interviewing mm-hmm <affirmative>. And they found interviews could be done quicker and much more effective through ai. And surprisingly, 70% of the applicants like the AI method of being interviewed, although 5% said we weren't gonna participate and hung up the phone or shut down their computer.

Les A. Schneider (39:00):
And people today clearly are getting so many calls through AI and not talking to a live human being. Yeah, it becomes a very irritable situation for the consumer. But as you say, it appears as if, from a cost point of view and an effectiveness point of view, it certainly has a place in the business world and there'll be a balance of when does the actual human being be necessary to get whatever it is they're trying to achieve.

James W. Wimberly, Jr. (39:29):
So I wanna get, get Matt now to my, my teaching point here. And, and this is a a such a short summary. I don't do justice to the issue. Number one, there are legal issues that arise in part over the adverse impact theory that we just talked about. If we have an AI mechanism related to hiring, promotion, et cetera, and it re, re results in excluding disproportionately females or one group or the other, or, or males for that matter. 'cause We're all equally protected. It can have legal repercussions under the adverse impact theory. The government won't care, but private plaintiffs may bring lawsuits. That's one issue. Second issue, and this is more of a popular opinion everyone seems to feel commentators, if you will, so-called expert, that having some human input is necessary. If you rely a hundred percent on AI to make decisions for you.

James W. Wimberly, Jr. (40:32):
They feel that that's a mistake. You consider this a part of fairness, equity or whatever, but there needs to be some review by human of results. Second well, I've discussed the, the the last point I wanna make on ai, other than it's, it's not only coming, it's here and it's gonna grow. I would have a company policy on when a company's gonna use AI because they're all kind of repercussions in using AI in an unauthorized fashion. And I just want to give you a hint of it, <laugh>, and this is all controversial, but you probably never thought of it. You may be giving up some kind of copyright protections. You may be giving up some kind of trade secret protections. You may be giving up some sort of attorney-client privilege by feeding too too much information into ai because the AI methodology or sources I'm familiar with, that in essence becomes a form of public information in the sense that it's used in giving answers to other questions. So all those are issues to be resolved in the future. So I, I would have, and also the ai, at least chat GPT and Gemini are not a hundred percent accurate. Most people say it's 80% accurate. I'd say it's closer to 70%, but it is healthy. But we check everything. We always ask for the sources and we check the sources,

Les A. Schneider (42:04):
Especially the example of the judge who used AI in writing his decision and got admonished by the appellate court because some of the cases that he cited never existed. So obviously somebody in his office didn't bother to do the sites. Let's go on to the next topic, which is kind of interesting, and that is this whole social media posts and the effect it has in the workplace. I think you all have read various, various articles about conduct in the workplace. We see a lot of heads of companies get engaged in relationships with some of their subordinates, and that results in certain hirings because the conduct of the parties was not what the company needed as to those relationships. But in addition to that human contact, we have all these things going on on social media and how that affects things at the workplace. So Jim, why don't you chat a little bit about that and show that through the National Labor Relations Act and other laws, how this can have a serious effect in your business.

James W. Wimberly, Jr. (43:14):
Well, everything I've said now is simple compared to this issue. The reason this is not simple is 'cause there's no simple solution. You know, when you get to all kind of accommodation issues or even immigration issues or whatever, you know, you can have a plan that to handle those issues. But you fir first of all, you know, we, we've had comments about the Palestinians, about the Israelis, about Charles Kirk, Charlie Kirk about BLS, black Lives Matter, bbl MI mean, black Lives Matter and other such things union matters saying your supervisor's a jerk. And worse the, the company's cheating. Determining what media posts or intranet internal posts are legal and protected from what's called legally protective speech is extremely common. Lawyers have to be concerned about. So secondly, it's not easy to address in our policy <laugh>, as a matter of fact.

James W. Wimberly, Jr. (44:25):
The policy part can complicate things. I read lots of articles that say, oh, provide training. Have a policy. Be consistent and you'll be okay. I say baloney to that. I think it's more complicated than that. First of all, your policy has to be an incredibly carefully drafted legal. And I want to tell you my favorite story on this. The only social media policy that I've ever seen validated by the NLRB was one of, I believe it was Walmart. But when you read the Walmart policy, it was so short and simple, you almost form the conclusion, gee, this is practically worthless. So I hope you see the extent of the problem. If, if your policy is too detailed, somebody will say it chills legitimate speech and therefore it's illegal. And if you apply an illegal policy, your termination or reprimand or whatever you do is illegal.

James W. Wimberly, Jr. (45:25):
So I'm dubious that a policy is, don't solve all your problems here, but if you have a policy on it, it's gotta be incredibly carefully worded. Now, I do have a short way of getting around some of these problems that may not always work, but I write in the policy that it will not be implemented in a manner to interfere with any speech protected under the National Labor Relations Act, equal diploma obligations, et cetera. Now, that may not always work, but I want you to be aware of the promise. All I gotta say is this issue requires special handling. It's gonna take 10 Philadelphia lawyers to figure out whether the speech was protected, whether your policy's lawful. I probably still believe in a policy, but I fear that too many policies are gonna be poorly written and complicate the legal issue. But

Les A. Schneider (46:21):
At the end of the day, it's clear that a company has to make a very, very informed and thoughtful cons decision if they are going to take employment action against their one of, of their employees because of something they print on social media. Yeah,

James W. Wimberly, Jr. (46:40):
They, you need a protocol on this. First of all, if you're gonna complain about something on sodium, so be social media, get a screenshot or something of it, you may not be able to find it again. Right? and so I, I wish I could be more optimistic on this, but if you have a policy, it's gotta be carefully worded. I gave you some examples of some what I call weasel words. And if the speech is protected, there may not be much you can do about it. So what do you do if the speech is protected? There's an old saying they used to use on inflation, it was jawboning, right? You can jaw bone, I think with it without much risk, <laugh>, bring the person in, explain the problem it's caused and ask him for their cooperation. That'll work a majority of the times,

Les A. Schneider (47:30):
Right? But at the end of the day, again, companies have to be thoughtful and really analyze the situation and not just shoot from the hip and decide that they've read something on social media that this employer allegedly has printed or stated, and then you take immediate employment action against him or her for what they did. Our final topic is talking about what relates to federal administrative agencies and what can be done there and what's the di difficulty. Last year, of course, there was a whole other topic relating to administrative agencies on how they overreached in their enforcement powers and went beyond what the law said to it what the law said about it. But now we have a, another area that relates to administrative agencies that Jim will address for us. Alright?

James W. Wimberly, Jr. (48:24):
I'm gonna be brief on this because these are more lawyer issues than they are client or employer issue. But the beginning point is there have been more attacks on the legality of federal administrative agency enforcement over the last year or two than they've been in the 50 years previous. Some of them are successful, as a matter of fact, no less than the president of the United States and its administration has admitted portions of the National Labor Relations Act or unlawful. They've admitted that now they take a different view than some groups as to what the fact of that is. Specifically the provisions that seem to limit the president's right to fire administrative law judges and heads of agencies. They had admitted court that those limitations make those portions of the Labor Act unlawful. But plaintiff's groups are saying that makes the law unlawful. So the whole thing goes away and you can't prosecute me <laugh>, the same or similar arguments are being made on right to jury trials. Hey you, you can't have have the NLRB sue me for back wages and lost interest and extra taxes I have to pay to and things like that, losing my mortgage because I have a, a right to a jury trial under the United States Constitution to defend those issues. And,

Les A. Schneider (50:03):
And lawyers are having a field day with this because as you say, it's fermenting a great deal of litigation. And again, it ties into that there is is there tyranny of administrative agencies, basically largely unelected officials imposing it. And it's not just the federal level. We have this happening on the state level, also in, in state government. So those, that is a a difficulty. Yeah.

James W. Wimberly, Jr. (50:29):
The final, the final one, and it actually ain't the final one, but it's number three on the list. I could, there are several more that I'm not even gonna list, is that the Labor Act at least is unlawful. 'cause The NLRB is the investigator, the prosecutor and the judge <laugh> not a lot of separate, they don't, they don't win that because these functions are carefully separated and there's no case supporting that. But in any event, it's more of a, now, now we lawyers, we raise them as potential defenses. Why would we do that? Number one, we, we want our clients to think we're smart. And gee, my lawyer thought of that, put it in the defense. Number two, we might use it as leverage to settle a case. But number three, I think it has to be a, a, you know, before anybody runs off the court trying to stop a prosecution, I think twice about that. 'cause That's a big investment of time, money, and reputation. And is it really worth it? That's about all I'm gonna say on that issue. But

Les A. Schneider (51:31):
All right, well, we've gone through our 10 issues and we hope it's help been helpful to you. Well if you come up with some and you want to ask it down the road, please let us know. Obviously Jim's email is

James W. Wimberly, Jr. (51:49):
J ww at WIM law WIMA w.com

Les A. Schneider (51:53):
And mine is LA s@wimlaw.com. So we'll look forward to getting those questions and any comments you have about the session itself today, the webinar, we'd very much appreciate the feedback. A lot of our other webinars are available for you to listen to the ones we've done in the past and we've enjoyed addressing this topic with you today and look forward to you joining our other webinars in the future. Again, if you have any questions about any services that you would like performed, we'll be more than happy to speak with you. Have a good weekend. Bye-Bye.