By: Alison Silveira, Lilah Wylde, and Milo Young

Since the House v. NCAA settlement went into effect in July 2025, the federal government has proposed three regulatory responses to concerns surrounding the future of college sports: the SCORE Act, the newly introduced SAFE Act, and President Trump’s “Saving College Sports” Executive Order.  Each seeks to define the future of athlete compensation, protect non-revenue sports, and establish the role of federal oversight. Yet, despite their ambitious aims, none of these measures has made meaningful progress, leaving universities without the clarity and stability they urgently need to navigate this post-House landscape.

Current Status of the House Settlement

Since July, universities across the country have raced to implement the requirements of the House settlement (discussed in more detail here). Those efforts, however, have faced significant obstacles – including legal challenges to roster limits, uncertainty over how revenue sharing complies with Title IX, the looming unresolved question of student-athlete employment status pending in Johnson v. NCAA, and the logistical complexity of managing direct athlete compensation. 

Implementation has been further complicated by the settlement’s mandate that all athlete deals be disclosed to – and approved by – the newly formed College Sports Commission (CSC)(discussed here). The CSC has struggled to keep pace with the sheer volume of submissions. Between June 11, 2025 and August 31, 2025, universities submitted 8,539 deals (valued at approximately $80 million; as of September only 6,090 (valued at $35.42 million) had been approved[1]. Approvals have been reported as taking several weeks or more.  With college football season in full swing, and basketball season approaching, delayed deal approval can mean lost opportunity for both universities and athletes. Several news outlets have reported that some collectives have begun circumventing the approval process entirely, paying athletes before their deals have cleared the system.  

The SCORE Act

In July 2025, anticipating the challenges and unresolved legal issues following House, a bipartisan group of U.S. House Representatives introduced the Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act.  Despite initially passing through committee in the House of Representatives, the SCORE Act is currently stalled. A full House vote has been repeatedly delayed.

The SCORE Act seeks to bring uniformity and legal clarity to the chaotic and rapidly evolving world of college sports. It addresses three major concerns that have plagued the NCAA and its member institutions:

  1. Antitrust Protection: Grants the NCAA and athletic conferences a limited exemption from antitrust suits, shielding them from the wave of lawsuits that have challenged their authority and practices.
  2. Federal Preemption of State Laws: Overrides the patchwork of state NIL (Name, Image, and Likeness) laws, which have created inconsistent rules across the country.
  3. Preserving Amateur Status: Bars college athletes from being classified as employees, thereby excluding them from labor protections and collective bargaining rights.

While the bill has bipartisan support, it has also drawn criticism from both ends of the political spectrum.  Key figures like Rep. Michael Baumgartner (R-Wash.) and Sen. Maria Cantwell (D-Wash.) argue that the bill disproportionately benefits the Power Five conferences and fails to protect smaller schools, Olympic sports, and women’s athletics. Athletes.org, a players association representing thousands of college athletes, has condemned the bill as a “grave step in the wrong direction,”[2] pointing to provisions that:

  • Limit athletes’ ability to monetize their NIL by imposing subjective restrictions;
  • Cap school payments without athlete input;
  • Restrict transfer rights, contrary to recent court rulings; and
  • Prohibit athletes from being classified as employees, denying them labor protections.

In a joint statement, Athletes.org and other players associations warned that the bill entrenches institutional power while silencing athlete voices. They argue that legislation governing college sports should be developed in partnership with athletes—not imposed unilaterally from the top down.[3]

The SAFE Act

On September 29, 2025, while the SCORE Act is currently stalled, Senate Democrats introduced the Student Athlete Fairness and Enforcement (“SAFE”) Act. The bill seeks to stabilize college athletics by prioritizing athlete welfare and protecting nonrevenue sports. Its notable provisions include:

  • Media Rights Consolidation: Amends the Sports Broadcasting Act to allow conferences to pool broadcasting rights, enabling collective media deals that boost revenue and sustain Olympic and nonrevenue sports.
  • Protection for Olympic Sports: Requires schools to maintain scholarship and roster spots for Olympic sports at 2023–24 levels, safeguarding programs often cut during budget shortfalls.
  • Athlete Mobility and Support: Permits athletes to transfer twice without penalty, guarantees scholarships and medical coverage post-eligibility, and allows international athletes to be compensated without jeopardizing their visa status.
  • Agent Regulation: Creates a registry for athlete agents and caps agent fees to reduce exploitation.
  • Revenue Distribution Oversight: Established a new committee to pool and distribute media rights and revenues to schools, enforced by the Federal Trade Commission and state attorneys general.

SAFE Act vs. SCORE Act: Key Differences

The SAFE Act stands in stark contrast to the SCORE Act in several areas:

  • Athlete Protections: The SAFE Act offers stronger protections for athletes, including post-eligibility benefits and transfer flexibility.  The SCORE Act imposes tighter restrictions on NIL and transfers.
  • Support for Nonrevenue Sports: The SAFE Act explicitly protects Olympic and women’s sports, while critics argue the SCORE Act risks cutting them due to funding constraints.
  • No Antitrust Shield: The SAFE Act does not offer an antitrust shield for the NCAA or conferences, while the SCORE Act does.
  • No Employment Classification Clause: The SAFE Act avoids addressing whether athletes should be considered employees, leaving the door open to future legal and legislative developments. The SCORE Act expressly bars athletes from being classified as employees.

Initial feedback on the SAFE Act reveals support from athlete advocacy groups and smaller schools, while the NCAA and Power Five conferences remain skeptical. The NCAA and major conferences are likely to oppose the bill because it omits their top priorities: antitrust protection and an explicit bar on athlete employee status. Leaders in the SEC and Big Ten have also criticized the proposal to consolidate media rights, warning it could weaken their individual bargaining power and revenue streams.  

The “Saving College Sports” Executive Order

In July 2025, President Trump issued the “Saving College Sports” executive order, calling for a national solution to protect collegiate athletics – especially women’s and non-revenue sports vulnerable to cuts. The order:

  • Requires revenue-sharing models to preserve or expand scholarships and opportunities in women’s and non-revenue sports.
  • Prohibits third-party pay-for-play payments.
  • Sets scholarship and roster requirements for the 2025–26 season, tied to athletic department revenues.

It also established agency deadlines:

  • August 23, 2025: The Secretary of Education, with the Attorney General, the Secretary of Health and Human Services (HHS), and the Chairman of the Federal Trade Commission (FTC), was tasked with developing a regulatory and enforcement plan.
  • September 22, 2025: The Attorney General and FTC were directed to propose litigation strategies and policy guidelines.
  • Ongoing: The Department of Labor (DOL) and the National Labor Relations Board (NLRB) were instructed to clarify athlete employment status.

As of the date of this article, no federal guidance has been published.  The DOL and NLRB, in particular, remain silent – the latter unable to act since January 27, 2025 when it lost quorum  and could no longer issue decisions.

Steps In The Right Direction

While the executive order lacks the force of legislation like the SAFE or SCORE Acts, it signals the White House’s policy priorities. Its focus on preserving women’s and non-revenue sports and opposing third-party pay-for-play aligns more closely with the SAFE Act than with the SCORE Act’s institutional protections. If federal agencies follow through with consistent guidance,  universities may gain some near-term clarity on House compliance and the evolving legal landscape governing college sports. 

More broadly, legislative reform efforts in this space are not new, but the SAFE Act has made more progress towards gaining necessary support than other previously proposed legislation, and current publicized response to the SCORE Act suggests that it, too, may receive bipartisan support. If implemented, any of these post-House measures would provide the critical direction to universities and other stakeholders navigating the future of college athlete compensation.

Seyfarth will continue to monitor this space for updates.

[1] Updated NIL Deal Flow Report, dated Sept. 5, 2025, available at https://assets.tina.io/29b83311-e587-42b1-861e-87ebde9aa253/NIL%20Deal%20Flow%20Report%209.5.25.pdf

[2] https://www.athletes.org/news/college-athletes-speak-out-against-the-score-act-unite-as-athletes-org-executive-committee/

[3] https://www.athletes.org/news/the-score-act-is-detrimental-to-all-college-athletes-and-all-college-sports-athletes-org-details-why/

By Christina Meddin and Shannon Cherney

Seyfarth Synopsis: The Eleventh Circuit’s decision in Mullin v. U.S. Department of Veteran Affairs clarifies that confidentiality protections around medical certifications are robust and enforceable, even absent viable accommodation or disability discrimination claims. The Court affirmed that under the Rehabilitation Act, which is analyzed using the same standard as Title I of the Americans with Disabilities Act, Mullin’s discrimination, failure to accommodate, and retaliation claims could not survive summary judgment. The Court found, however, that when an employer conditions access to protected leave on submission of medical documentation, the medical certification constitutes an “inquiry” triggering confidentiality protection of the ADA and the Rehabilitation Act. Despite dismissing the remaining claims, the Court determined an issue of fact existed as to the employee’s unlawful disclosure of medical information claim.   

In Mullin v. U.S. Department of Veterans Affairs, the Eleventh Circuit addressed a complex set of claims brought by a VA employee alleging disability discrimination, failure to accommodate, unlawful disclosure of medical information, and retaliation (and/or a retaliatory hostile work environment). The case stems from Mullin’s respiratory issues and breast cancer diagnosis, resulting in several requests for workplace accommodations. The District Court initially granted summary judgment in favor of the VA as to all counts. On appeal, the Eleventh Circuit affirmed the dismissal of the disability discrimination, accommodation, and retaliation claims, but, notably, reversed and remanded the District Court’s grant of summary judgment as to the unlawful-disclosure claim, serving as a strong reminder of confidentiality obligations around employer handling of medical information.

The Court’s refusal to overturn summary judgment as to the discrimination and accommodation claims rested on a detailed factual record showing no adverse employment action because of a disability and a reasonable accommodation process that included workstation moves, air purifiers, and incremental telework, culminating in full-time telework. Similarly, the retaliation and hostile work environment claims were rejected as either repackaged accommodation disputes and/or lacking evidence of severity. The Court applied established legal standards under the Rehabilitation Act, which incorporates ADA employment provisions, to dismiss these claims.

In analyzing the unlawful disclosure claim, the Court determined, as a threshold matter, that a private right of action does exist under the ADA for such claim, irrespective of disability status. The Court indicated that the elements of such claim include whether the employer “made a proper inquiry into [the employee’s] medical condition, whether the [employer] disclosed the results of that inquiry to persons in violation of [the law], and whether [the employee] suffered a tangible injury because of the unlawful disclosure.” Mullin v. Sec’y, U.S. Dep’t of Veterans Affs., No. 22-12354, 2025 WL 2267816, at *9 (11th Cir. Aug. 8, 2025). Contrary to the VA’s argument, the Court held for the first time that an employer’s request for a FMLA medical certification constitutes a statutory “inquiry” under the ADA’s confidentiality provisions, incorporated into the Rehabilitation Act. It follows that medical information obtained through such required certifications is protected, and unauthorized disclosures can give rise to liability. The Court further found an issue of fact as to whether human resources unlawfully disclosed Mullin’s medical information to a union steward, and further, found that Mullin’s testimony with regard to her emotional distress stemming from the disclosure was sufficient to create an issue of fact as to whether the disclosure created harm. In light of these factual disputes about the disclosure of Mullin’s cancer diagnosis and resulting harm, the Court remanded for further proceedings.

Practically, this decision signals to employers that FMLA medical certifications are not mere formalities but can trigger statutory confidentiality obligations under the ADA and Rehabilitation Act. Moreover, the risk associated with improperly disclosing confidential information is not merely theoretical; employers must carefully limit internal dissemination of such medical information, restrict access to a need-to-know basis, and rigorously document and train HR personnel to avoid liability. Employers should be aware that unauthorized disclosures of medical information—even absent a successful discrimination claim—pose litigation risks. The Mullin decision highlights that emotional distress and other harms from confidentiality breaches can sustain claims.

Contact a member of the Seyfarth team to learn more about how employers can better navigate the ADA, FMLA, and other leave and disability discrimination laws, reduce litigation risk, and foster a compliant, respectful workplace environment.

By: Martha Michael Gates, Patricia Chock, and Lisa Loesel

Benefits and Beyond: What Happens to PTO, Health Insurance, Retirement Plans, and other Benefits?

When an employee passes away, their benefits don’t just vanish into the HR ether. There’s a surprising amount of paperwork, plan rules, and tax codes that come into play—and yes, you’ll probably need to call your benefits administrator (and maybe your benefits lawyer). The general rule applies – if there is a designated beneficiary, then any benefits go directly to that designated beneficiary – end of story.  If not, well then, those benefits typically belong to the estate and should not be distributed until you receive direction from the personal representative of the estate.  Also, if you have a beneficiary designation for a plan that is NOT subject to the Employee Retirement Income Security Act (ERISA) (e.g., a bonus plan or an equity plan), please understand that there is always a possibility that underlying state law may conflict with the beneficiary designation and state law typically controls.  If you have a potentially contentious situation, consider consulting with a benefits attorney before you process payments.

Accrued Vacation/PTO: Pay It Out or Let It Go?

In California and many other states, accrued vacation and PTO are considered wages—which means they must be paid out just like final wages. Sick leave, on the other hand, is usually not payable unless your policy or local laws says otherwise.

Pro tip: If your policy is silent, don’t assume silence is golden. Check your handbook before you cut that check, and follow the process required for final wages after death in your state.

Health Insurance: COBRA to the Rescue

When an employee dies, if the employee was carrying their spouse and dependents on their employer-sponsored healthcare policy, their spouse and dependents may be eligible for COBRA continuation coverage for up to 36 months.  Employers should:

  • Notify the plan and/or COBRA administrators promptly,
  • Avoid promising “we’ll keep the cost the same”—unless you really mean it (and can actually do it—the administrative processes and IRS rules applicable to subsidized COBRA premiums can be very complex).

Life Insurance: The One Benefit Everyone Remembers

If your company offers group life insurance, now’s the time to dust off those beneficiary forms. The insurer will handle the payout, but you’ll need to:

  • Notify the carrier,
  • Provide a death certificate,
  • Confirm the beneficiary on file (and hope it’s not the ex-spouse from 2009)
  • If an ex-spouse from 2009 is, in fact, named as the beneficiary (this happens all the time!), review the plan document to see if it includes any specific provisions regarding the validity of that election.  If not, the ex-spouse is likely entitled to the benefit.  Time to call your benefits attorney!

Bonus tip: Encourage employees to update their beneficiaries regularly. It’s awkward when the payout goes to someone they unfriended years ago.

Retirement Plans: Let the Plan Do the Talking

401(k) and pension plans are governed by plan documents and federal law. Your job is to:

  • Notify the third-party plan administrator,
  • Provide necessary documentation,
  • Stay out of the way unless and until you receive a request for further direction from the third-party plan administrator.

The third-party administrator will often engage directly with the family members and handle distributions to the designated beneficiary, and you’ll avoid the risk of misdirecting funds.  However, in more complex or potentially contentious cases, the third-party administrator may request direction from you before proceeding with a distribution.  With these potentially contentious cases, don’t rush to authorize the payout.  If you rush, you may ultimately find out the plan paid the wrong person with no way to recover the funds, leaving you on the (financial) hook to process the same payment to the correct person.  If your third-party administrator is asking you for direction, that’s often a sign that it is a potentially contentious situation and a discussion with your benefits attorney might be warranted. 

Extra Support: The Generous Employer’s Dilemma

Sometimes, doing the right thing feels obvious—like covering funeral costs, offering a death benefit, or continuing health coverage for a grieving family at the active employee rate. But in the world of employment law and tax codes, good intentions can come with unintended consequences (and IRS forms).

“We Want to Help” — That’s Great! But…

Employers often want to go above and beyond when an employee passes away. Common gestures include:

  • Paying out unused sick leave (even if not required),
  • Offering a lump-sum death benefit,
  • Continuing salary for a period of time,
  • Covering funeral or memorial expenses,
  • Subsidizing COBRA coverage.

All of these are generous—and potentially taxable, reportable, or legally complex.

Tax Traps to Avoid

  • Posthumous wages are still considered compensation and must be reported on a Form 1099-MISC (not a W-2) if paid after the year of death.
  • Death benefits may be treated as taxable income to the recipient unless structured through a qualified plan or insurance.
  • Gifts from the company (e.g., funeral contributions) may be taxable unless they meet narrow IRS exceptions.
  • Subsidizing COBRA may inadvertently result in taxable income to the covered family members if not structured correctly.

Translation: If you’re writing a check out of kindness, make sure it doesn’t come with a surprise tax bill for the grieving spouse.

ERISA and Benefit Plan Pitfalls

If you offer a death benefit that looks like a retirement or welfare plan (e.g., continued salary or life insurance), you might accidentally trigger ERISA obligations. That means:

  • Plan documents,
  • Fiduciary duties,
  • Annual filings,
  • And possibly a call to your ERISA counsel.

How to Be Generous—Safely

  • Be proactive and review your existing death benefit policies for clarity and legal compliance before an employee passes away. 
  • Coordinate with legal and tax advisors before offering anything outside your standard policies.
  • Document the intent and structure of any payments.
  • Communicate clearly with the family about what’s being offered, advise them to consult with their own tax professionals to determine how it will be taxed, and when to expect it.

Pro Tip:

If you want to offer ongoing support, consider setting up a formal employee assistance fund or life insurance benefit in advance. It’s cleaner, clearer, and far less likely to trigger a call from the Department of Labor.

Final Checklist: Don’t Let Grief Lead to Legal Trouble

When an employee passes away, emotions run high—and so can legal risk if you miss a step. Best to develop a formal process/checklist based on your employee population to help HR and payroll teams stay compliant, compassionate, and clear-headed.[1]

Conclusion: A Final Act of Respect

Losing an employee is never just a policy issue—it’s a human one. But in the midst of grief and logistics, employers have a unique opportunity: to handle the final details with care, clarity, and compassion. Whether it’s issuing a final paycheck, navigating benefits, or offering extra support to a grieving family, every step you take sends a message about your values.

Yes, the rules are complex. Yes, the paperwork is real. But getting it right isn’t just about compliance—it’s about honoring someone’s contributions in a way that’s both lawful and meaningful.

So, take a breath, follow your processes, and don’t be afraid to ask for help. Because when it comes to final pay and benefits, doing the right thing matters—both on paper and in people’s hearts.

[1] This article does not deal with extremely rare circumstances which should be discussed with counsel, such as the application of a “slayer statute” (slayer statutes exist in most states and operate to bar a person responsible for the death of another from receiving any financial benefit.)The application of slayer statutes can be complex and varies by state, and a full discussion is beyond the scope of this article. Employers facing such circumstances should consult legal counsel to ensure compliance with applicable laws.

By: Martha Michael Gates, Patricia Chock, and Lisa Loesel

Let’s face it—no one wants to think about what happens when an employee dies. It’s a deeply human moment, and yet, somewhere between the condolences and the memorial service, someone in Human Resources is quietly asking: “So… what do we do about their final pay?”

It’s not cold-hearted—it’s compliance. When an employee passes away, employers are suddenly faced with a tangle of legal, tax, and benefits questions that don’t come up in your average HR handbook. Who gets the final wages? What about that bonus they were about to earn? Can we offer extra support to the family without triggering a tax nightmare?

This article is here to help you navigate those questions with clarity, compassion, and just enough levity to keep you from crying over these potentially complex issues. We’ll walk through the general rules, the risks, and the right way to honor your employee’s legacy—and hopefully without running afoul of state laws or those pesky tax entities (think IRS, state income tax and probate laws).[1]

Let’s get into it.

Final Wages: Payroll’s Most Morbid Deadline (now with Probate!)

When an employee passes away, employers often want to act quickly and compassionately. But before you cut that final paycheck, take a breath—because generally, final wages are considered the property of the deceased employee’s estate, not something you can simply hand over to the nearest grieving relative.

Who Gets Paid? (Hint: It’s Not Always the Spouse)

Unless your state has a statute that allows for direct payment to a surviving spouse or beneficiary, final wages are subject to general estate or probate laws and must be paid to the employee’s estate. That means:

  • You may need to wait for a court-appointed personal representative to step forward.
  • You’ll likely need a death certificate and legal documentation (e.g., letters testamentary or a small estate affidavit).
  • The payee on the check will depend on the legal documents provided and may be the Estate of the Deceased, one or more individuals, or the trustee(s) of a trust.
  • Risks? If you pay the wrong person, you could face a claim from the estate, beneficiaries, or even creditors at some point later that the funds were given to the wrong person.

Approximately 35 states have statutes that allow private employers to pay some or all of the final wage payments directly to a surviving spouse or other beneficiary. Some states (like California) allow for simplified procedures—for example, paying wages up to a certain amount directly to a surviving spouse or next of kin outside of full probate.[2] But these exceptions are state-specific. Bottom line – it would be wise to know this ahead of time because the process for private employers to pay out final wages is governed by state-specific laws.

Common requirements in these statutes include verifying the claimant’s entitlement through an affidavit or declaration, adhering to an order of preference among heirs (e.g., spouse, children, parents), and observing payment limits that vary by state. (For example, Colorado imposes no such limit, but Rhode Island limits the amount the employer can pay to the beneficiary to $150.00!) Many states impose caps on the amount of final wages that can be paid without formal estate administration, and employers are generally protected from liability if payments are made in compliance with these laws. Finally, some states may have a “small estate” exception to probate, thus allowing the payment of the final wages if the total estate value is within the specified amounts.

Timing: It Depends on the State

While many states require prompt payment of final wages after separation, the rules change when the separation is due to death. Some states impose specific deadlines if they allow for payment to the surviving spouse, estate or authorized recipient, while others defer to probate timelines. Specified timeframes range from 30 to 45 days in some states.

Pro tip: Don’t assume your usual final paycheck rules apply. Check your state’s labor code and/or probate statutes—or better yet, consult counsel.

Avoid These Common Mistakes

  • Automated Payment in Accordance with Old Direct Deposit Information: Banks may freeze accounts upon death, or someone may have access to the account who is not entitled to the funds.
  • Paying a family member without legal authority: Even if they mean well, they may not be the rightful recipient.
  • Skipping tax considerations: Post-death wages are still taxable income, but how you report them (W-2 vs. 1099-MISC) depends on timing. The IRS has very specific rules concerning such payments. (see IRS Publication 15 (Circular E), Employer’s Tax Guide.)

Pro Tip:

If you’re tempted to just direct deposit the final wages and call it a day, pause. Once an employee dies, their bank account may be frozen. A paper check made payable to the correct legal recipient is often the safer route.

Bonuses and Commissions: The Ghosts of Compensation Past

Ah, bonuses and commissions—the glittering promise of future reward. But what happens when the employee who earned that bonus or commission is no longer around to collect it? Is this part of “final wages”? Can you still pay it? Should you? And who gets it?

Earned vs. Discretionary: The Great Divide

The key question is whether the bonus or commission was earned before the employee’s death, often governed by a written plan or policy.   If it was, it generally must be paid along with the final wages (or at the later time specified by the plan or policy)—yes, even if the employee didn’t live to see the check hit their account.

Bonuses:  It Pays (Pun Intended) to Have a Plan

Commissions: The Plot Thickens

As a first step for bonuses, check the written plan document or policy.  It will often specify how the bonus payment should be handled upon an employee’s death.  For example, is the company still obligated to pay the bonus even if the employee passed before the end of the performance period or the bonus payment date?  Who is entitled to the bonus upon the employee’s death?  Is payment accelerated or made at the same time as all other bonus payments?  How is the bonus calculated if the employees passes away in the middle of the performance period?   A well-drafted bonus plan or policy will provide answers to all of the questions.  And if there is no plan or policy (or the plan or policy is silent on these questions), we generally recommend deferring to applicable state wage and hour laws based on the state where the employee performed the work.

Commissions often fall into a gray area. If the sale closed and the commission was due before death, it’s typically owed and would also be part of the final wages. But if the deal was still in the pipeline, or the commission required continued employment, you may have more flexibility.

Tip: Check your commission agreements. If they say, “must be employed at time of payout,” courts may still find that language unenforceable if the employee died after earning the commission. (Because, well, they didn’t exactly quit.) Better yet, consider addressing this issue in the Plan itself to avoid any ambiguity!

Who Gets the Bonus or Commission?

Just like final wages, these payments don’t go to the office snack fund. They’re typically treated as part of the final wages and follow the same rules we discussed above.

Avoid the “Surprise Bonus” Trap

If you’re feeling generous and want to pay a bonus posthumously that wasn’t earned or promised, that’s lovely—but it may be treated as a gift or death benefit, with different tax consequences. (Spoiler: the IRS doesn’t do sentimentality.)

This blog is part one of a two-part series. Stay tuned for Part 2, coming Thursday, August 21st.

[1] This Article summarizes the requirements for private employers. Public employers are often subject to different rules.

[2] Check out Seyfarth’s March 16, 2026, California Peculiarities Blog that focused on obligations for final wages to the surviving spouse after death for California employees: Till Death Do You Part—Wages Of The Dearly Departed.

In Part 3 of our series, we’ll look at the standard of proof, the conduct of interviews, how each country aims to protect confidentiality and whistleblowers, and privacy. (Part 1 covers the definition of ‘workplace’ harassment, investigation scoping and legal privilege. Part 2 covers who forms part of an investigation team, how location affects which laws apply to an investigation, notification and timing requirements).

#7 – What standard of proof is used in investigations?

The standard of proof used in workplace investigations is crucial for determining the outcome of allegations.

The civil standard of proof is consistent across Australia, Hong Kong, Singapore and PRC – if this is applied, then the evidence must show that it is ‘more likely than not’ that the conduct occurred.

Unless policies, workplace-specific laws or contracts require a different approach, cross-border investigations in these countries can use the same standard when making findings based on the evidence.

#8 – How should interviews be conducted during investigations?

The interview process is a critical component of any investigation. It allows the investigator to uncover details and firsthand accounts in order to understand what occurred.

Witness selection should be based on whether they can be expected to provide relevant evidence. It is best practice to limit the interview list where possible, in order to reduce the risk of the accused’s ongoing employment becoming untenable by virtue of too many people knowing about the allegations. In some investigations, it will be necessary to interview a large number of people, given the nature of the allegations, but that is not always the case and careful thought should be given to keeping control of the interview list.

In Australia, for wellbeing reasons, it is best practice to allow a support person to accompany the witness and (in some cases) employers may permit union or legal representation. This is not the case in Hong Kong, Singapore and the PRC, where witnesses are not legally permitted to be accompanied to the interview, neither is it common practice to allow this for wellbeing reasons. Recorded interviews require consent under some laws, ensuring that all parties are aware of and agree to the recording. Where recording is not consented to, it is important in all jurisdictions to take detailed notes of the interview. In the PRC, secret recordings of investigation interviews may be admissible in court (unless carried out in a private space such as a witness’s home), which is something to be mindful of when conducting investigations in the PRC.

#9 – How are confidentiality and whistleblower protections ensured?

Confidentiality and whistleblower protections are essential components of workplace investigations because when employees know their identity and information will be kept confidential, they are more likely to participate without fear of retaliation.

Australia has strict whistleblower protections. If a complaint includes ‘whistleblowing’ as defined under law, onerous confidentiality obligations limit both disclosure of the whistleblower’s identity and information that could lead to whistleblower identification. Investigation processes in Australia must be adapted to ensure that the investigation itself does not inadvertently breach whistleblower confidentiality protections, which can be a criminal offence. Australian law also protects people from victimisation or ‘adverse action’ in their employment.

In Hong Kong, there is no express protection for whistleblowers. In the anti-discrimination ordinances of Hong Kong, there is, however, protection against victimisation where an employee raises a complaint or claim related to a protected characteristic (which is limited to gender (including marital status, pregnancy and breastfeeding), race, disability and family status in Hong Kong. Similarly, in Singapore, there are no general whistleblower protection laws. However, the Workplace Fairness Act 2025 prohibits employers from retaliation against employees who have raised a discrimination or harassment-related grievance.

The PRC implements safeguards for whistleblowers and witnesses under confidentiality laws to protect their legitimate rights and interests, prevent retaliation and ensure their psychological and professional wellbeing.

#10 – How are data privacy and cross-border transfers managed?

Data privacy and cross-border transfers are critical considerations in workplace investigations.

In Australia, there are restrictions on use, disclosure and handling of data, including both ‘personal information’ under federal law and certain categories of ‘health information’ under federal and state laws. There are also restrictions on the transfer of data offshore and/or disclosure to third parties.

In Hong Kong, employers should check whether their existing Personal Information Collection Statement (PICS) is broad enough to cover the use, collection and transfer or employees’ personal data for the purpose of the investigation and also whether the witnesses (including the complainant and the accused) have been issued with the PICS. If not, employers could issue a new PICS for the purpose of the investigation, or could expressly seek the witnesses’ consent to the use of their personal data in this way (although consent is not required under the Personal Data (Privacy) Ordinance (PDPO) where a PICS has met all the necessary notification requirements, unless existing personal data will be used in a new way). The PDPO does not currently prevent or restrict the transfer of personal data overseas.

In Singapore, the requirements on the use, collection and disclosure of personal data fall under personal data protection legislation. In respect of cross-border transfer of personal data outside Singapore, the general rule is that personal data shall not be transferred outside Singapore except in accordance with the personal data protection legislation or if exempted by the Privacy Commission upon application.

In the PRC, the processing of personal data must meet specific conditions, including in relation to consent, security assessments and data protection agreements. The PRC framework is the strictest data transfer regulation in Asia Pacific.

Are there other measures that should be considered during investigations?

In Australia, suspension during an investigation can be considered, however any changes to complainants’ work conditions must be carefully managed to avoid unlawful adverse action. Providing wellbeing support is also essential to ensure that all affected employees receive the necessary assistance to prevent risks to work health and safety.

In Hong Kong and Singapore, suspension during an investigation is also contemplated where there are concerns around the integrity of the investigation being jeopardised by having the accused (and perhaps others) continuing to work during the investigation process, and also if there are concerns around personal safety/retaliation. Employers should be aware of the laws regarding suspension in these jurisdictions though, as these can affect how long the individual can be suspended for and what they are paid during the suspension. In the PRC, suspension is permitted as long as the employee continues to receive his/her normal salary during it.

We hope that our series of breaking down ten key aspects of cross border workplace investigations in APAC has been insightful. Our authors would be pleased to address any follow-up queries you may have.

In Part 2 of our series, we’ll look at who forms part of an investigation team, how location affects which laws apply to an investigation, notification and timing requirements. (Part 1 covers the definition of ‘workplace’ harassment, investigation scoping and legal privilege).

#4 – Who should be part of the investigation team?

The composition of the investigation team can significantly impact the effectiveness and credibility of the investigation.

In Australia, some states restrict who can conduct investigations. Subject to this restriction, the investigation team should be experienced in local requirements and standards for investigations.

In the PRC, there is no legal requirement for the composition of the team, but typically an investigation would involve legal counsel and HR from the client, and/or external advisors (e.g., law firms such as Seyfarth). Gender diversity may be considered for sensitive cases (such as sexual harassment) to ensure witnesses feel comfortable.

In Hong Kong and Singapore, investigations are often carried out internally by legal counsel, the ER/investigations team and/or HR, or they are carried out externally by a third-party provider such as a law firm or HR consultancy firm.  The guiding principle is to keep the team who is carrying out the investigation small and of close proximity, to maintain the confidentiality and integrity of the investigation. The size and composition of the investigation team will also depend on the jurisdictions involved, logistics and the nature or sensitivity of the matter.

#5 – Which laws governs a particular workplace investigation?

In Australia, the governing law depends on factors such as the employment contract, incident location, location in which the investigation occurs or the location of the company or parties. For cross-border matters, there is the possibility of multiple laws applying.

The way in which an investigation is conducted is not prescribed by law in the PRC, Hong Kong and Singapore and those investigations that focus on fact-finding only do not necessarily have to consider what laws may apply to the situation (other than in respect of legal privilege and data privacy).

What is considered, in Hong Kong and Singapore, are any processes and procedures set out in relevant employee handbooks, policies, code of conduct or contracts in relation to investigations, whistleblowing, grievances and disciplinaries, etc. For cross-border matters, it can be the case that the grievance procedure relevant to one jurisdiction will need to be considered alongside the disciplinary procedure for another. The employer’s duties under local law may also need to be taken into account, such as the duty of care towards employees, the rules on vicarious liability, and preventing harassment and victimisation.

In the PRC, governing law is determined by the location of the company or the incident, rather than the terms of the contract or policy.

#6 – How should parties be notified about an investigation?

In Australia, it is best practice to provide some context in advance of an investigation interview and explain the ground rules for the interviewee in accordance with any relevant policies. It is not necessary to provide advance notice of questions (unless the company has committed to do this). Employers must also consider how best to support work health and safety during an investigation, for example, it is best practice to allow an interviewee a reasonable opportunity to bring a support person with them, without breaching confidentiality or compromising the investigation.

In Hong Kong and Singapore, there are no strict legal requirements regarding notification of investigation. In Hong Kong, where summary dismissal may be a possible outcome flowing from the investigation, it is advisable that the investigation be carried out in a full and thorough manner, which would include giving the accused notice of the investigation and allowing him/her a fair opportunity to put forward his/her side of the story. In Hong Kong and Singapore, where notification is given to parties regarding the investigation, care should be taken to emphasise the confidentiality of the investigation process.

In the PRC, there is no standard practice for notifying parties involved in an internal investigation. However, notifications should include the purpose and scope of the investigation, as well as the rights and obligations of the parties concerned. The language of the notice should be clear and concise.

The timing of an investigation can significantly impact its effectiveness and the perception of fairness.

Though Australia, Hong Kong, Singapore, and the PRC have differed slightly in their key considerations, the jurisdictions align on the matter of timing. There is unlikely to be a prescribed timeframe (unless stated in an internal policy), but action should be taken promptly to avoid delay and in turn, the credibility of an investigation. This is especially the case where one or more individuals have been suspended pending the outcome of the investigation.

In the third and final part of our series, we’ll look at the standard of proof, the conduct of interviews, and how each country aims to protect confidentiality and whistleblowers.

By: Dena Moghtader and John Phillips

Seyfarth Synopsis: In a recent decision, the U.S. Court of Appeals for the Fifth Circuit held that a factfinder could conclude that an employer’s six-month delay during the ADA interactive process could amount to a failure to accommodate—without the employee having to prove any other independent injury or harm. The decision makes clear the problem was not that the interactive process took six months per se, but that the six month delay could be evidence of bad faith. Thus, although employers do not have per se deadlines to resolve accommodation requests, employers should always act promptly during the interactive process and also consider potential interim accommodations.

The Americans with Disabilities Act (“ADA”) requires employers to grant accommodations to qualified individuals with a disability, provided those accommodations are reasonable and do not impose an undue hardship on the employer, and provided the employee does not pose a direct threat to herself or others. To accomplish this, employers and employees must engage in the interactive process in good faith. And while there is no fixed deadline by which employers must complete that process, a recent decision from the Fifth Circuit Court of Appeals reinforces the need to move the process along in a timely fashion.  

Case Background

In Strife v. Aldine Independent School District, a school district Human Resources employee alleged that the employer school district failed to reasonably accommodate her disability, in violation of the ADA and Texas state law.

The plaintiff, a veteran, was diagnosed with service-connected PTSD and physical conditions that affected her balance, gait, and mobility. She relied on her service dog at home and requested an accommodation to allow her to bring her service dog to work.

The plaintiff provided multiple documents from healthcare providers to justify her need for her service dog at work. However, her employer deemed these documents insufficient for various reasons and asked the plaintiff to undergo a medical examination by the employer’s physician to determine possible alternative accommodations. The plaintiff refused. Ultimately, the school district granted the accommodation, but only after approximately six months of back and forth and after the plaintiff filed a lawsuit.

District Court’s Decision

The district court granted the employer’s motion to dismiss on the plaintiff’s failure to accommodate claim, reasoning that the plaintiff had been working for the employer for ten years before she requested an accommodation for the disability she has had for at least five years. And, during the six months that the employer took to evaluate her accommodation request, her work conditions remained the same. The district court held that the plaintiff did not sufficiently allege that the employer failed to make reasonable accommodations because the accommodation was eventually granted.

The Fifth Circuit’s Decision

In reversing the district court, the Fifth Circuit held that the question is not whether the plaintiff experienced an independent injury or harm while waiting for her accommodation, but rather whether the employer “failed to make reasonable accommodations” after being informed of the plaintiff’s limitations. The Fifth Circuit found that under the facts presented in this case and contrary to the district court’s decision the plaintiff had made out a potential claim for failure to accommodate to survive the more liberal pleading standards of a motion to dismiss that require only needing to allege facts sufficient to state a claim for relief on its face.

As the Fifth Circuit explained, although employers are not required to “move with maximum speed to complete” the interactive process, delay during the interactive process can be evidence of bad faith on the employer’s part and essentially result in a failure to accommodate. In this case, the employer insisted that the plaintiff undergo a medical examination, which the plaintiff refused to do. Under the ADA, an employer may insist on an independent physical examination “if the individual provides insufficient information . . . to substantiate that s/he has an ADA disability and needs a reasonable accommodation.” But here, the plaintiff sufficiently alleged that she had provided the employer with ample evidence from numerous doctors confirming her disability and the need for accommodation. Accordingly, the Fifth Circuit found that the plaintiff had sufficiently pled facts that could support a finding that the employer’s insistence on a medical examination was unreasonable and that the six-month delay was evidence of bad faith.

Now that the plaintiff’s failure to accommodate claim has been remanded back to district court, it may ultimately meet the same fate as her other claims, which did not survive the more stringent standard of summary judgment.

Takeaways

Even though the employer ultimately granted the accommodation and even though it was the plaintiff who refused to undergo an independent medical examination, the Fifth Circuit found that the six-month delay could be evidence of bad faith during the interactive process and support a failure to accommodate claim—especially where the employee provided substantial evidence to support the need for the specific accommodation requested. The outcome may have been different if there were legitimate questions about whether other reasonable accommodations existed.

Thus, not only is it important to act reasonably during the interactive process, but it is also important to move the interactive process forward in an efficient manner.  Considering and providing interim accommodations during the interactive process will also go a long way to showing diligence and good faith on the employer’s part.

And although this decision does not directly address the significance of documenting the interactive process, it serves as a valuable reminder to thoroughly record all accommodation requests and meetings to prevent potential costly disputes. Thorough documentation ensures consistency and accountability across the board, regardless of your organization’s size.

By: Madeline Remish and Sara Eber Fowler

Seyfarth Synopsis: Effective July 1, 2025, updates to several key Chicago employment laws go into effect, including (1) updates to the Chicago Fair Workweek employee coverage thresholds; (2) updates to the City’s minimum wage; and (3) new enforcement mechanisms and payout obligations for Chicago Paid Leave. In addition, the City’s employment posters have been updated for their July 1, 2025 effective date.

It’s that time of year again for Chicago employers – with July 1 bringing updates to Chicago’s key employment laws. Below, we break down what employers need to know and do to be ready for these changes.

1. Chicago Fair Workweek Ordinance: Update Employee Eligibility and Postings

  • The Chicago Fair Workweek Ordinance requires Covered Employers to provide Covered Employees with advanced notice of their work schedules and additional payment (“predictability pay”) for certain changes to their work schedule after the advance notice period, among other requirements. (For more details on the Chicago Fair Workweek Ordinance generally, see Seyfarth’s prior alerts here and here).
  • Covered Employees are individuals working primarily in Chicago in a Covered Industry who earn less than a defined wage threshold, which is adjusted annually – each July 1 – based on the CPI. As of July 1, 2025, the wage threshold for a Covered Employee will increase to $32.60 per hour for hourly employees and $62,561.90 per year for salaried employees. The updated amounts are reflected on the City’s updated Fair Workweek Notice.
  • Employers covered by the Fair Workweek Ordinance should review their employee roster to ensure that employees earning at or under these new wage thresholds will receive advance notice of their work schedules and predictability pay for schedule changes. In addition, Covered Employers should make sure to post the updated Fair Workweek Notice, and distribute the updated notice to new hires with their first paycheck.

2. Updates To Chicago Minimum Wage and Phaseout of Tipped Wage Credit

  • In accordance with the 2022 amendments to the Chicago Minimum Wage Ordinance, the City’s minimum wage increases on July 1 each year based on the CPI. Effective July 1, 2025, the new minimum wage will be $16.60 per hour for standard employers, and $12.62 for tipped workers.
  • Chicago employers should take care to ensure wages are adjusted for employees earning the minimum wage.

3. Chicago Paid Leave: New Pay Out Requirements for Medium Employers and Private Right of Action Begins

  • When the Chicago Paid Leave Ordinance went into effect last July, it limited the requirement for “Medium Employers – those with 51-100 Covered Employees – to pay out accrued and unused paid leave upon termination of employment. Beginning July 1, 2025, “Medium Employers” are now required to pay out up to 56 hours of accrued and unused paid leave upon termination of employment, just like “Large Employers.” This payout requirement still does not apply to “Small Employers” (those with 1-50 Covered Employees), except as otherwise required under Illinois state law.
  • Many employers already provided for payment of unused paid leave (or vacation/PTO) upon separation from employment pursuant to Illinois law. Now, any Medium Employers that limited payout to 16 hours under the Paid Leave Ordinance’s original terms should ensure to adjust their practices and pay out all unused Paid Leave for separations after July 1.
  • Per the Chicago Paid Leave Ordinance’s original terms, as of July 1, 2025, employees may file suit to enforce their rights under the Ordinance.
  • However, for one year only  – July 1, 2025 – June 30, 2026 – there is a 16 Day Cure Period before an employee can file suit.
  • Accordingly, employees can only file suit for violations of Chicago Paid Leave after either (i) the payday for the next regular payroll period; or (ii) 16 days after the alleged violation occurred, whichever is shorter.

4. OLS Required Posting

  • Employers with operations in Chicago should ensure that the updated Office of Labor Standards Notices are posted as of July 1.
  • In addition, employers must distribute the updated Chicago Labor Laws Poster (Minimum Wage, Paid Leave and Paid Sick Leave, and Wage Theft) to Covered Employees by July 30, 2025. The new notices should also be updated in hiring and onboarding materials, and provided to new hires with their first paycheck. The updated notices can be found here.

As always, please feel free to contact the authors or your favorite Seyfarth attorney if you would like to discuss the changes of this Ordinance and any questions you might have.

By: Sam Schwartz-Fenwick

In a widely awaited for decision, the Supreme Court in a 6-3 opinion authored by Justice Roberts held that a Tennessee law which prohibits certain medical treatments (puberty blockers and hormones) for transgender minors, does not violate the Equal Protection Clause of the Fourteenth Amendment. (Justice Alito concurred in part and joined in part with the Majority)

Justice Roberts analyzed the law under a rational basis review, not the heightened scrutiny called for by the transgender plaintiffs in the case.  The Majority found the law was constitutional under this standard due to the legitimate interest of the Tennessee legislature in preventing harm associated with using puberty blockers to treat gender dysphoria in minors.  The Court reached this holding while acknowledging that under Tennessee law puberty blockers remain a legal treatment of minors for conditions other than gender dysphoria. The Court found this distinction did not create an unlawful sex-based distinction. “The law does not prohibit conduct for one sex that it permits for the other. Under SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purpose.” The Court noted that this reasoning was in accord with Bostock, as even if that decision based in Title VII applied to a constitutional analysis, the fact would remain in the Majority’s view that neither sex nor transgender status were the but-for-cause of the prohibition on treatment.

In a searing dissent, Justice Sotomayor wrote the law at issue was unconstitutional as it targets transgender minors by denying them treatments available to others. The dissent noted that heightened scrutiny was required in cases like this that treat people differently based on sex. In her framing of the statute “Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.” She rejected the medical uncertainty referenced by the Majority, and noted “the American Academy of Pediatrics, American Medical Association, American Psychiatric Association, American Psychological Association, and American Academy of Child Adolescent Psychiatry all agree that hormones and puberty blockers are appropriate and medically necessary to treat gender dysphoria when clinically indicated.” (Justice Kagan agreed that analysis of the law required heightened scrutiny but did not opine as to whether or not the law met this test).

This decision will have significant consequences as over 20 states have enacted bans similar to the law in Tennessee in that it will preclude children in these jurisdictions from medically treating gender dysphoria. It is uncertain what impact these statutes will have on the ability of employee benefit plans to continue to offer gender dysphoria coverage to minors. It is possible that employers and their plans that offer such benefits may be targeted for aiding a crime under some state statutes. In addition, it is possible that the DOJ’s recent initiative under Attorney General Bondi to investigate and aid criminal prosecutions related to gender affirming care will target parents of transgender children (i.e. employees) and benefit plans.  Whether or not this transpires is unknown, and it is recommended that in light of this decision benefit plans review their benefit offerings in close contact with legal counsel.

In this premiere episode, host Karla Grossenbacher is joined by Seyfarth litigator Paul Yovanic for a timely conversation on biometric privacy in the workplace. They discuss the shifting regulatory landscape, including Colorado’s new biometric privacy law going into effect July 1, 2025, and how employers can prepare for evolving compliance obligations, even in states without private rights of action.

The conversation dives deep into emerging litigation trends under Illinois’ Biometric Information Privacy Act (BIPA), from the sufficiency of consent to overlooked biometric technologies like driver-facing cameras and voice-activated tools. Whether you’re advising on policy or facing potential exposure, this episode is packed with insights for staying ahead of biometric privacy risk.

Point Two L&E Nation · Workplace Privacy Podcast Series: Biometric Privacy Risks in the Modern Workplace

Read the full transcript here.