From recruiting and retention to company culture and the latest in HR tech, HR Brew delivers up-to-date industry news and tips to help HR pros stay nimble in today’s fast-changing business environment.

HR Brew

Courtney Vinopal

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Legislative Lowdown recurring feature illustration

DOL’s independent contractor rule takes effect 

The rule takes aim at worker misclassification, and is expected to make it more difficult for companies to categorize workers as independent contractors, rather than employees. 

Legislative lowdown: Independent contractor rule takes effect 

Adam DeRose

Outside of the US Supreme Court building surrounded by the Christian cross, symbol of Islam, and Star of David

More religious accommodation requests following the Groff v DeJoy Supreme Court decision

HR Brew speaks with an employment attorney about best practices under the clarified standard.

Following the Supreme Court’s decision on religious accommodations, more requests have found their way into the courts

Kristen Parisi

The top of a globe with a phone, notebook, laptop, glasses, iPad and coffee cup floating above it

Right to disconnect from work in Australia

Employers who violate the law could face financial penalties.

World of HR: Australia passes right to disconnect law

A clipboard with a checkmark icon denoting HR compliance

Compliance

An illustration of reporter Courtney Vinopal's headshot.

The US Chamber of Commerce recently sued President Donald Trump’s administration over its decision to impose a $100,000 fee on new H-1B visa petitions.

 on Oct. 16, the Chamber of Commerce alleged the president exceeded his lawful authority when he issued a Sept. 19 proclamation announcing the fee.

Congress established the H-1B visa program through the Immigration Act of 1990; the proclamation “blatantly contravenes the fees Congress has set for the H-1B program and countermands Congress’s judgment that the program should provide a pathway for up to 85,000 people annually” to work in the US, the Chamber wrote.

An official with the Chamber argued that the fee, which will expire in Sept. 2026 unless extended, will hinder smaller employers’ ability to recruit talent from outside the US. Up until this proclamation, most H-1B petitions cost less than $3,600, the Chamber estimated.

“The new $100,000 visa fee will make it cost-prohibitive for US employers, especially startups and small and midsize businesses, to utilize the H-1B program, which was created by Congress expressly to ensure that American businesses of all sizes can access the global talent they need to grow their operations here in the US,” Neil Bradley, the Chamber’s EVP and and chief policy officer, said in a 

This is the first time the Chamber, which counts about 300,000 direct members, has taken legal action against the administration during Trump’s second term. A number of organizations, including the United Auto Workers union, also 

 challenging the H-1B visa fee earlier this month.

How HR teams are handling H-1B strategy. 

The proclamation initially prompted confusion among employers with large numbers of H-1B workers, as it was unclear if the fee would apply to existing H-1B visa holders.

Even though the Trump administration clarified the policy only applies to H-1B visas issued after Sept. 21, it’s nevertheless prompted businesses to reconsider how they’ll approach hiring skilled talent in the near future. The $100,000 fee could have a particularly profound impact on early-stage companies, the 

“There is not a single company that I have invested in the last 10 years that could afford to pay this,” Alan Patricof, a venture capitalist and private equity investor, told the Times.

Tech, engineering, and healthcare are among the industries that have historically relied on the H-1B program to source talent. Though companies like Amazon, Microsoft, and Meta were some of the top sponsors of H-1B visas this year, these firms could potentially absorb the cost of the new fee, Henry Jeong, a TA strategist and consultant, 

. Those who can’t, though, will have to lean on developing internal talent in lieu of hiring foreign talent, he predicted.

“Companies that invested in L&D and internal mobility are in a better position. Those that relied heavily on H-1B hiring without a backup plan are now scrambling,” Jeong wrote.

Should plaintiffs be unsuccessful in blocking the visa fee, the impact for employers is likely to become more visible starting in March 2026, when businesses begin registering to sponsor individuals for the following fiscal year.

US Chamber of Commerce sues to block $100,000 H-1B visa fee 

Startups are among the employers that are expected to have a harder time recruiting foreign-born talent if the policy stands.

Legislative lowdown: US Chamber of Commerce seeks to block Trump’s $100,000 visa fee 

 on Sept. 30 explaining how federal labor law applies to specific workplace situations. Among the letters was a document addressing the issue of tip-pooling, which allows tipped service workers to share their tips with one another in a “pool.”

In this opinion letter, the DOL stated that front-of-house oyster shuckers, despite not regularly receiving tips directly from customers, can be included in a tip pool.

Why some front-of-house workers count as tipped employees. 

The DOL issued its letter in response to a question from a seafood restaurant that asks its servers to contribute to a tip pool that includes colleagues who aren’t usually tipped directly by customers, including the oyster shuckers in question.

Federal law allows employers to pay tipped workers as little as $2.13 an hour provided they earn at least $7.25 an hour—the federal minimum—when tips are included. They receive a tip credit of up to $5.12 an hour for doing so.

Under the Fair Labor Standards Act (FLSA), employers may also require these workers to contribute to a tip pool provided included members are “limited to employees who customarily and regularly receive tips,” James R. Macy, acting administrator for the DOL, wrote in the letter.

The DOL determined the oyster shuckers in question would fall under that category given they often interact with customers. Such interactions may include “sharing and detailing oyster offerings to customers, making suggestions to customers regarding the oyster offerings, and fielding questions about the different options,” the DOL said. It compared the position to that of a sommelier who explains wines to customers and offers wine pairings—another profession the agency has determined is “a customarily and regularly tipped occupation.”

A dishwasher who shucks oysters and peels shrimp from time to time in the restaurant’s kitchen, however, wouldn’t fall under this category, as the worker “lacks sufficient interaction with the customers who leave tips, a portion of which are subsequently contributed to a tip pool,” Macy wrote.

HR teams can take this letter into consideration when considering which of their organization’s employees may be included in a tip pool.

While the document aligns with previous DOL guidance regarding tipped occupations, attorneys with law firm Littler Mendelson 

 regulations will differ when determining which employees are eligible for the “No Tax on Tips” credit 

 of occupations that will be eligible to claim this credit, the Treasury Department said dishwashers and cooks would qualify, even though such workers have not historically been considered tipped employees by the DOL.

It’s worth noting that a number of states require workers to pay a higher tipped minimum wage than the federal government, and some jurisdictions 

 the tipped minimum wage altogether. HR teams should comply with the most restrictive statutes in such cases.

DOL troubleshoots tip pools in recent opinion letter 

Front-of-house oyster shuckers can be included in tip pools because they regularly interact with customers, an official with the agency said.

Legislative lowdown: DOL addresses tip-pooling in first batch of opinion letters

California Gov. Gavin Newsom made headlines Monday, signing landmark legislation into law to govern the development of frontier AI technology and mitigate risk. But the Golden State this week also began enforcing new AI regulations related to automated decision making systems (ADS) for all employers in the state.

Newsom signed the Frontier Artificial Intelligence Act, a first-of-its-kind law that oversees the development of major AI technology systems, requiring companies like OpenAI and Anthropic to disclose their safety measures and report any risks associated with their tech.

The measure also strengthens whistleblower protections for workers at these companies against retaliation for flagging issues of potential or apparent risk.

“California has proven that we can establish regulations to protect our communities while also ensuring that the growing AI industry continues to thrive. This legislation strikes that balance,” the governor said 

 While the signature new law in California doesn’t touch on the work of HR pros like yourself, other regs do. The new law isn’t the only major AI regulation in the state addressing the burgeoning technology as it’s deployed in homes and businesses across Cali and the rest of the country.

Taking effect Oct. 1, the state’s amended Fair Employment and Housing Act (FEHA) now also prohibits businesses in California from using ADS that discriminate against their applicants or employees based on protected statuses.

The changes require employers to conduct specific record-keeping practices related to uses of any ADS, systems that use “artificial intelligence, machine-learning, algorithms, statistics, and/or other data processing techniques” to aid in decisions.

“One of the things that I’m telling my clients, and really starting to get out there, is that you’re already using AI, and chances are you’re exposing yourself to risk,” said Wende Knapp, who leads the employment law practice group with the Rochester, NY-based firm Woods Oviatt Gillman. Knapp’s practice closely aligns with an in-house counsel role for clients.

Conducting bias audits can help businesses mitigate risk, and the measure outlines audits and record-keeping as possible affirmative defenses if properly executed.

“What this regulation does in a nutshell, it really forces employers to inventory all the AI tools that they’re using in HR. So take a deep look, understand what type of technology they’re using,” Knapp said.

The rule also outlines protections for those who require religious or disability accommodations.

 The California Privacy Protection Agency (CCPA) in August 

 a separate set of regs aimed at the same sorts of tools—this body refers to these AI-powered decision making platforms as automated decision-making tools (ADMT).

“They don’t call it ADS, they call it ADMT, but it’s the same thing. [CCPA board members] talk about the processing of personal information, and so that’s their entry point into this,” said Niloy Ray, a shareholder at employment and labor law firm Littler.

These regulations update the state’s consumer privacy law to make sure that these tools, when used in employment decisions, have a detailed risk assessment and notice of use, and that opt-out rights are observed, according to an 

“If both of these sets of regulations aren’t challenged, and I’m not sure that they will be,” Ray said. “Then California employers will have to look closely at CCPA to see if their particular AI tool or use falls within it, and if so, they’ll have to do these things.” These same employers will also need to make sure any of these systems adhere to the California’s Fair Employment and Housing Act revisions via bias auditing and records keeping.

California lawmakers are leading on AI legislation and regulation

 Newsom signs landmark law, but other statewide regulations will impact California employers.

Democratic lawmakers reintroduced a bill on Sept. 16 that would provide up to 12 weeks of paid family and medical leave to US workers.

The bill, known as Family and Medical Insurance Leave (FAMILY) Act, was first introduced by Sen. Kirsten Gillibrand and Rep. Rosa DeLauro in 2013, but never gained enough traction to see passage, regardless of the parties controlling Congress.

 comes at a time when mothers of young children are leaving the workforce at the highest level in four decades, according to a 

 from the University of Kansas of federal data. Guaranteeing paid leave to workers who need time off for a major life event could end the “devastating choices” Americans face “between their livelihood and the health of themselves or their families,” Sen. Gillibrand said 

Though the bill is unlikely to be passed in the current Republican-majority Congress, state-level paid family and medical leave programs have 

 some employers to enhance their benefits.

Most US workers would be eligible to take paid leave under this latest version of the bill, which would grant benefits on a sliding scale basis. This means a minimum-wage worker would see 85% of their average monthly earnings replaced, while those earning the median weekly US wage would receive 67% of their earnings while on leave.

Unlike previous versions of the legislation, the 2025 bill would create a dedicated trust fund to pay out benefits, rather than funding the program through payroll contributions.

Workers would be eligible to take leave for reasons covered by the 

, including caring for a new child following its birth, adoption, or placement from a foster agency, as well as caring for a serious health condition for oneself or a loved one.

The authors of the bill take an expansive view of caregiving, as workers would be able to take leave to care for a child of any age, a step-parent, a parent-in-law, and “any other individual who is related by blood or affinity whose association is the equivalent of a family relationship.” This latest bill also includes a provision that would cover “safe leave” for workers experiencing events such as domestic violence or sexual assault.

More than a dozen states now have their own paid family and medical leave programs in place, creating complexities for HR teams overseeing benefits for workers across multiple jurisdictions.

Enacting a federal program “would certainly make things a lot easier” for these employers, Ashley Brightwell, a partner in the labor and employment practice of Atlanta-based law firm Alston + Bird, told HR Brew. It’s unlikely the FAMILY Act will move past the introduction stage this time around, though, as it lacks support from Republicans who control both chambers of Congress.

In the meantime, “you’re going to see more and more states start filling in those gaps,” Brightwell predicted.

A number of employers, including Levi Strauss & Co., Patagonia, and Etsy, 

 to members of Congress in support of the FAMILY Act. In a 

, Levi Strauss & Co.’s chief human resources officer, Bernard Bedon, spoke to the link between paid leave and productivity.

“We have seen firsthand that providing access to paid leave is critical for supporting healthy and successful employees and their families, which in turn allows them to perform better at work,” he said of the company, which provides 20 weeks of paid leave to workers who give birth to a new child.

Sen. Kirsten Gillibrand speaks at a 2021 event outside the US CApitol.

Democratic lawmakers reintroduce paid family leave legislation

Though the bill is unlikely to be passed in the current Congress, state-level paid family and medical leave programs have already spurred some employers to enhance their benefits. 

Lawmakers push for paid family leave, again, with Levi’s and Patagonia on board

The Trump administration recently moved to curtail the H-1B visa program, which allows companies to employ highly-skilled workers from other countries when they can’t obtain such talent in the US.

As of Sept. 21, the administration is imposing a $100,000 fee on new H-1B visa petitions, according to a 

 issued on Sept. 19. The Department of Labor also launched a program to target companies that aren’t in compliance with laws regarding H-1B employment.

This crackdown seems likely to complicate the recruitment process for employers that rely heavily on foreign workers through the H-1B visa program.

What HR should know about H-1B visa fees. 

Under the new policy, any H-1B visa petitions submitted after 12:01 a.m. ET on Sept. 21 will require a one-time, $100,000 payment, according to 

 from US Citizenship and Immigration Services (USCIS). The fee requirement doesn’t apply to H-1B renewals or H-1B petitions that have already been filed, and doesn’t restrict current H-1B visa holders from traveling in or outside of the US.

In his proclamation, President Donald Trump argued that employers take advantage of the H-1B visa program to hire highly skilled workers at a lower cost than they would pay for American workers with a similar profile, though the H-1B program requires workers to be paid equally to their US colleagues in the same position, not less.

“It is therefore necessary to impose higher costs on companies seeking to use the H-1B program in order to address the abuse of that program while still permitting companies to hire the best of the best temporary foreign workers,” he wrote.

On the same day that the White House announced the new H-1B fee, the Department of Labor (DOL) 

 “Project Firewall,” a program aimed at investigating employers that are abusing the visa process.

Secretary of Labor Lori Chavez-DeRemer is expected to oversee investigations with the goal of ensuring “that highly skilled jobs go to Americans first,” she said in a statement.

 in order to participate in the H-1B program, including paying these workers a “required wage rate,” offering them working conditions and benefits that are similar to those US workers receive, and providing them a copy of the Labor Condition Application required to employ such nonimmigrant workers.

The DOL didn’t specify what types of violations it will be investigating, but said the discovery of H-1B violations could result in penalties such as being barred from using the H-1B program for a period of time.

The move seems likely to affect companies in industries like tech, engineering, and healthcare that have historically relied on the H-1B program to source talent. Prior to the imposition of the $100,000 fee, private employers 

 a $780 fee to sponsor an H-1B visa petition, 

 suggested early-stage startups may be hardest hit by the change, as they have fewer resources to absorb these new costs.

The H-1B visa shakeup is part of a broader effort by the administration to limit programs including 

, which applies to nonimmigrant workers in the agricultural sector, and 

, which previously allowed migrants from countries like Venezuela and Haiti to live and work legally in the US. Despite this crackdown, employers are still more willing to provide visa sponsorship to their workers than they were five years ago, HR Brew 

Everything HR should know about Trump’s H-1B visa shakeup 

The move seems likely to affect companies in industries like tech, engineering, and healthcare that have historically relied on the H-1B program to source highly-skilled talent. 

Legislative lowdown: Trump administration moves to curtail H-1B visa program 

The Department of Labor (DOL) recently announced its intention to roll back a number of Biden-era policies in a recently published 

Among the policies that the DOL is set to revisit are a 2024 rule for determining workers’ independent contractor status, regulations for determining joint-employer liability, and protections for nonimmigrant workers in the agricultural sector.

“This regulatory agenda reflects our steadfast commitment to restoring economic opportunity by fostering innovation and reducing unnecessary burdens on employers,” Keith Sonderling, deputy secretary of labor, said in a statement.

Here are three areas to keep an eye on as the DOL carries out its agenda.

The DOL said it intends to rescind a rule for determining independent contractor status that 

That rule restored a “multifactor economic reality test” for determining if an employee is an independent contractor, directing businesses to take into account a number of considerations, without any one factor taking precedence over another. It was expected to make it harder for companies to classify workers as independent contractors—a status that typically lacks benefits such as minimum wage, overtime, and unemployment insurance.

The DOL cited five legal challenges concerning the rule, and said it was “considering how it will proceed” with regard to this classification under the Fair Labor Standards Act going forward.

When Joe Biden was in office, the National Labor Relations Board (NLRB) tried unsuccessfully to 

 that would’ve made it easier for two businesses to be considered a joint-employer of a group of employees. It was expected to have a significant impact on franchisors and businesses that hire through staffing firms, with particular implications for union organizing efforts.

The NLRB ultimately dropped the rule after a federal judge in Texas 

Now, the DOL said it’s considering rulemaking to address circumstances when a business can be held liable as a joint employer, with an eye toward helping “promote greater uniformity among court decisions nationwide.”

 that seeks to rescind Biden-era regulations designed to enhance labor protections for agricultural workers who are employed under the H-2A visa program—typically “temporary foreign” workers under a nonimmigrant status.

The DOL is seeking to rescind a provision of a rule 

 that required employers to meet certain conditions in order to fire an H-2A worker “for cause,” as well as a section that broadened the types of workplace activities such workers may engage in without being retaliated against, among others.

In its statement, the DOL called such requirements “burdensome,” and noted that some have been blocked by the courts.

The comment period for this proposed rule ended on Sept. 2.

DOL looks to rescind Biden-era independent contractor rule 

The Department of Labor said it intends to overturn the Biden-era independent contractor rule, revisit joint-employer liability. 

Legislative lowdown: 3 areas to watch as DOL carries out its regulatory agenda 

The Federal Trade Commission (FTC) moved to 

 on Sept. 5 that it had filed in response to lawsuits challenging a proposed ban on most noncompete agreements. With the dismissal, the FTC signaled it will no longer go forward with the ban, 

 via a final rule in April 2024, when President Joe Biden was in office.

Andrew N. Ferguson, who President Donald Trump appointed to serve as FTC chairman in January, was among the commission members who dissented the ban in 2024, arguing the agency didn’t have the statutory authority to issue such a rule. In a 

 regarding the decision to withdraw one of its appeals, Ferguson said the Biden-era rule’s “illegality was patently obvious.”

Though the FTC’s decision puts an end to legal back-and-forth over a ban that never took effect, Ferguson said the agency will continue to target unlawful noncompete agreements.

The rule issued in 2024 would’ve had a significant impact on employers that rely on noncompete agreements, affecting some 30 million workers,

 last year. Noncompetes typically prevent workers from joining a competing firm for a certain period of time, and are common in industries like warehousing and medicine. In recent years, this practice drew criticism due to concerns it may limit workers’ salary potential and career mobility, as well as hamper competition.

The rule would have banned nearly all such contracts, and invalidated those currently in effect, except for noncompetes applying to certain senior executives. The US Chamber of Commerce immediately sued to block the ban, though, and it never took effect due to 

Though HR departments no longer have to prepare to comply with a federal noncompete ban, these contracts are already heavily regulated at the state level. Four states—California, North Dakota, Oklahoma, and Minnesota—fully 

, while others restrict the circumstances when employers can use them (i.e. only in contracts with highly compensated employees).

As such, it’s likely compliance pros already have this issue on their radars. The FTC is asking the public to submit information about the “scope, prevalence, and effects” of noncompetes as part of its efforts to investigate and enforce the law against “bad actors,” Ferguson said in his statement.

Employers may have legitimate reasons for using noncompetes, such as protecting trade secrets or client relationships, but they should be clear about why they’re asking workers to enter into such an agreement, HR Brew 

. Should a noncompete be potentially unlawful, they can consider including other types of restrictive covenants in employment contracts to ensure such protections.