Six New DOL Opinion Letters Shed Light on Pay Practices and FMLA Leave Administration
The U.S. Department of Labor's (DOL) Wage and Hour Division recently published six new Opinion Letters (or Letters) addressing the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Although Opinion Letters are not binding statements of law, they provide insight into the DOL's enforcement priorities and compliance expectations. When faced with certain federal claims, employers may also rely on these Letters to establish a "good faith defense." Below is a brief summary of the new Letters.
DEI Under the Microscope: DOJ Targets DEI Practices Under the False Claims Act
The U.S. Department of Justice (DOJ) has reportedly begun investigating diversity, equity, and inclusion (DEI) programs of federal contractors and other recipients of federal funds under the False Claims Act (FCA), as we previously described here. These investigations, if pursued beyond the investigative stage, could represent a meaningful expansion in FCA enforcement, as historically the FCA has been used primarily to combat billing fraud and other financial misconduct involving government funds. The DOJ's initiative, however, suggests a willingness to apply the FCA to companies' DEI-related policies through alleged false certifications of compliance with anti-discrimination requirements that are often embedded in federal contracts, grants, and related funding agreements.
Workplace Recordings in the Digital Age: Balancing Employee Rights and Employer Protections
From virtual meetings to security cameras and smartphones, or even AI glasses and recordings, employees are finding new and novel ways to capture workplace discussions and settings more easily. While recording technology can serve legitimate business purposes, it also raises significant legal and practical risks for employers, particularly as federal and state consent laws, privacy expectations, confidentiality, and employee-relations concerns continue to evolve. This article highlights key legal considerations surrounding workplace recording, including when recording may be permitted, where employers most often run into trouble, and steps employers can take to reduce risk while maintaining compliance.
In Case You Missed It
IRS Provides Initial Guidance Regarding Trump Accounts
The IRS recently issued guidance in anticipation of the rollout of Trump Accounts in 2026. Trump Accounts are investment accounts for individuals under the age of 18 that function similarly to Individual Retirement Accounts (IRAs). No contributions can be made to Trump Accounts until July 4, 2026. Employer-based Trump Accounts will need to be established at the specific financial institution or institutions designated by the Treasury Department. The IRS announced that it intends to issue regulations consistent with the guidance. This client alert discusses the portions of the guidance that are relevant to employers.
The Department of Justice Is Expanding Its Definition of "Illegal DEI"—What Federal Contractors and Grant Recipients Need to Know
Decisions by the U.S. Supreme Court from the 1970s and 1980s recognized a narrow exception to Title VII of the Civil Rights Act of 1964 under which employers may, in limited circumstances, consider legally protected characteristics (e.g., race or sex) as part of a voluntary affirmative action program designed to remedy the effects of past discrimination. Under this precedent, affirmative action programs that satisfy these stringent criteria are not unlawful employment practices under Title VII.
Attorney Spotlight
Robin Burroughs: Employers without unions often assume the National Labor Relations Act (NLRA) does not apply to them, but non-unionized workplaces frequently face unfair labor practice charges before the NLRB. The NLRA protects employees who act together—with or without a union—to discuss or address terms and conditions of employment, including wages, schedules, workload, and workplace safety. These protections may apply even when concerns are raised informally, directed to management, discussed on social media, or raised by only one employee. Employers should exercise caution before disciplining employees for such activity, as routine actions can trigger unfair labor practice claims if they interfere with employees' Section 7 rights. Regular manager training and periodic review of disciplinary decisions and workplace policies can help reduce NLRA-related risk.
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About the Labor and Employment Group
The national, 40-person Labor and Employment team at Venable provides guidance and support across the full spectrum of workplace dynamics – helping employers control costs, avoid disputes, and defend themselves when litigation arises. Allison Gotfried, editor of this newsletter, invites you to share the content with your colleagues and reach out with any questions.