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. 

By: Jacob J. Roes and Kyle D. Nelson

In the ever-evolving landscape of employment law, Washington employers find themselves at the crossroads of compliance and litigation, especially when it comes to handling wage complaints. The recent Washington State Supreme Court opinion involving Cannabis Green, LLC, sheds light on the intricate dance between employers and the Department of Labor and Industries (L&I).

A Tale of Informal Directives

Imagine you’re the captain of a ship, navigating through the stormy seas of wage and hour laws. Suddenly, you receive a message from the lighthouse—it’s L&I, signaling potential violations. But here’s the twist: the message isn’t a formal decree, nor does it specify the exact amount of treasure (wages) owed. Instead, it’s an informal directive to resolve the alleged wage violations for an unspecified amount.

In the case of Cannabis Green, LLC, an employee alleged that the company failed to pay her overtime wages for hours worked across all three of its stores. During its investigation, L&I uncovered potential wage and hour violations affecting other employees. According to L&I, Cannabis Green failed to fully comply with L&I’s demands for payroll records and work schedules. In August 2021, L&I proposed a settlement agreement, which Cannabis Green rejected. L&I then brought suit alleging various wage claims, including those uncovered in the investigation.

The Spokane County Superior Court ultimately dismissed L&I’s complaint, agreeing with Cannabis Green that L&I was required to first issue a formal order directing the employer to pay a specific amount before initiating legal action. The Court of Appeals affirmed the dismissal, holding that L&I must make a formal determination and order the payment of wages owed prior to filing suit.

However, the recent Washington Supreme Court’s decision revealed that such informal directives are not just whispers in the wind; they hold the power to fulfill statutory requirements, allowing L&I to initiate legal action without a formal order. At the heart of the Supreme Court’s order was its reasoning that L&I may not be able to calculate a specific sum if the employer withholds records during the investigation.

The Court’s Compass

The Supreme Court reversed the lower courts’ decisions, which had dismissed L&I’s complaint due to the absence of a formal order. This ruling underscores the importance of taking any informal signals from L&I seriously.

Implications for Employers: A Call to Action

For Washington employers, it’s a reminder that the absence of a formal order doesn’t equate to safety from litigation. Employers should ensure they have robust systems in place to address wage complaints promptly and thoroughly. If such complaints end up in an L&I investigation, the employer should be aware that its decision to defend itself against L&I’s informal directives could lead to full blown litigation. Finding a way to cooperate with L&I, which may include providing documents and information that the employer believes is burdensome or beyond the scope of the investigation, can be the difference between smooth sailing and a costly legal storm.

The Cost of Ignoring the Lighthouse

The opinion also highlights a crucial aspect: if L&I prevails in such cases, it is entitled to recover its attorneys’ fees. This adds another layer of urgency for employers to focus on wage and hour compliance, including addressing internal wage complaints before they ever get to L&I. e.

Conclusion: Steering Towards Compliance

As Washington employers navigate the complex waters of wage complaints, the Supreme Court’s opinion serves as both a map and a warning. It’s a story of informal directives wielding formal power, urging employers to steer their ships towards compliance and away from the rocky shores of litigation. So, as you chart your course, remember to keep an eye on the lighthouse and its compliance signals.

By: Lilah Wylde and Alison Silveira

On June 6, 2025, Judge Claudia Wilken of the Northern District of California granted final approval of the landmark House v. NCAA settlement, clearing the way for NCAA Division I schools to directly compensate student-athletes for the first time in history. While the headlines trumpet a $2.576 billion payout and the fall of amateurism’s last vestiges, what lies beneath for colleges and universities is a regulatory transformation as sweeping as it is uncertain.

The Basics: What the Settlement Does

At its core, the settlement achieves three things:

  1. Monetary Relief: The NCAA and the Power Five conferences will pay $2.576 billion over ten years to former and current Division I athletes across a wide range of sports, compensating them for past restrictions which prohibited college athletes from receiving compensation for use of their name, image, and likeness (NIL) and related antitrust claims.
  2. Future Compensation Structure: Starting in the 2025–26 academic year, Division I schools that opt into the settlement can share a capped amount of athletic revenue —initially estimated at $20 million per institution—directly with athletes.
  3. Rule Reforms: The settlement ushers in a new era of NCAA rules, including eliminating scholarship caps, implementing roster limits, and establishing a more structured system of NIL enforcement by including arbitration rights for student-athletes and narrowly tailored restrictions on payments from “Associated Entities and Individuals,” such as major donors or affiliated collectives.

What This Means for Schools

For university counsel and compliance officers, the changes are nothing short of tectonic. Here’s what matters now:

1. Compliance Is Now a Competitive Imperative

Under the terms of the settlement, the five Power Conferences—the ACC, Big Ten, Big 12, Pac-12, and SEC—are automatically bound by the new rules. All other Division I conferences and member institutions must choose whether to affirmatively opt in by June 15, 2025, to share in the settlement’s benefits and protections and to implement the new revenue sharing model.

For schools electing to join, institutions must design and implement:

  1. New revenue sharing policies for athletes, ensuring that all financial benefits provided to athletes fall within the designated cap and comply with NCAA reporting.
  2. Eligibility and roster management protocols must be updated in light of the settlement’s elimination of scholarship limits and the introduction of new roster limits. While schools now have more flexibility in awarding scholarships and providing athletes with other financial benefits during their tenure as students, they must comply with team-specific roster maximums (with limited exceptions specifically for athletes who were promised roster spots before the settlement was approved).

Cross-functional coordination—between the athletic departments, legal, finance, and enrollment offices—is essential. Failure to prepare now could create recruiting disadvantages, Title IX compliance risks, and administrative chaos come fall.

2. Title IX Uncertainty Looms Large

The settlement does not resolve whether athlete pay must be allocated in a gender-equitable manner under Title IX. This unresolved legal question poses enormous implications. A misstep here could open institutions to costly and high-profile lawsuits.

While Judge Wilken’s opinion explicitly carved out future Title IX claims as “unreleased” under the settlement, she did not offer a roadmap for compliance. Female athletes have already voiced concern about disproportionate payouts.

Action step: Institutions may want to consider modeling multiple Title IX-compliant allocation scenarios with legal counsel.

3. Challenge to Employment Status of Athletes Remains Outstanding.

Although Judge Wilken expressly declined to address whether student-athletes are employees under federal or state law, the question is far from settled—and the House settlement does not insulate institutions from that legal frontier.  

The leading case to watch is Johnson v. NCAA, currently on remand to the United States District Court for the Eastern District of Pennsylvania.  In that case, former Division I athletes allege that they were employees of the NCAA and the universities that they attended, under the Fair Labor Standards Act (FLSA) and related state laws, and are entitled to minimum wage and overtime pay. While the NCAA and university defendants have moved to dismiss the Complaint, if the court denies that motion and ultimately rules in favor of the athletes, it could significantly expand wage-and-hour exposure for Division I schools.

In this post-House landscape, and with Johnson pending, schools should proceed cautiously, and:

  1. Review the structure of any revenue provided by the university to its athletes, to ensure that such revenue is not compensation for services under traditional employment tests;
  2. Avoid conditioning revenue payments on performance or hours worked; and
  3. Coordinate messaging and documentation to distinguish revenue payments from wages—emphasizing educational and participation-based rationales, where appropriate.

The Litigation Shield—and What It Doesn’t Cover

The settlement insulates the NCAA and participating schools from future damages claims involving NIL or athlete services compensation through 2024. But this is not a litigation armistice. As Judge Wilken noted, claims under labor law, tax law, and Title IX remain viable.

Rule Reforms: Redefining NIL Enforcement and Institutional Risk

Going forward, the NCAA may only prohibit athletes from receiving direct compensation from “Associated Entities” and “Associated Individuals”—i.e., major donors or affiliates tied to a school’s athletics program. Even then, restrictions apply only if the payment lacks a valid business purpose (i.e., is pay for play) and/or is not at fair market value relative to similarly situated endorsement deals with individuals who are not college athletes.

These standards introduce a new compliance burden, requiring schools to evaluate NIL arrangements through a commercial lens.  For a deeper breakdown of what “valid business purpose” and “fair market value” mean under the settlement—and how institutions should prepare to document them—see our previous article on the new NIL oversight regime.

Practical Takeaways for Schools

  1. Structure Contracts to Avoid Unintentional Triggers of Employment Status. With Johnson v. NCAA pending and the FLSA’s “economic realities test” in potentially in play, institutions must ensure that revenue sharing arrangements with athletes do not resemble wages for services.  Work with legal counsel to carefully structure revenue sharing agreements, to avoid:
    • Tying revenue sharing to athletic performance or hours logged;
    • Referring to benefits as “salary,” “pay,” or “compensation”;
    • Failing to distinguish the educational or participation-based rationale behind benefit delivery.
  2. Budget for Multi-Year Compensation Obligations. The new revenue sharing structure is not optional for Power Five schools, or any other school that opts into House. Schools must model how to generate – and then allocate – potentially significant revenue – initially capped at $20M – to athletes, over the long term. Careful financial planning and revenue generation plans should address both cash flow and long-term competitive parity. 
  3. Prepare for Rigorous Title IX Scrutiny. Even though the settlement does not require revenue sharing arrangements to be equitably distributed across genders, it explicitly preserves future Title IX claims. Schools must proactively model and assess whether revenue sharing arrangements create disparate impacts across male and female athletes. Legal counsel should be involved early to align revenue sharing structures with existing participation and benefit equity obligations.
  4. Implement the Required NIL Compliance Framework. Schools opting into the Injunctive Relief Settlement are required to implement the 12-step compliance process developed by Deloitte.
  5. Update Roster Management and Financial Aid Systems. The removal of scholarship caps and addition of roster limits demand realignment of eligibility, roster, and aid tracking systems. Athletes displaced by these changes—“Designated Student-Athletes”—must retain eligibility and roster status for the remainder of their careers.
  6. Formalize Internal Oversight and Documentation Protocols. The settlement’s enforcement mechanisms—especially neutral arbitration and required reporting—mean schools need robust paper trails. Key components include:
    • Written athlete review sharing and NIL policies;
    • Internal audit checkpoints and compliance signoffs;
    • Arbitration response protocols and case tracking systems.

The final approval of the House settlement is not the end of the amateurism debate—it’s the beginning of a new compliance-driven chapter in college sports. The schools that treat this not just as a legal development but as an operational pivot will be best positioned to compete—on the field and in the courtroom.

By: Leon Rodriguez and Matthew Parker

Seyfarth Synopsis: On May 29, 2025, the U.S. Court of Appeals for the Third Circuit held in Oldham v. Pennsylvania State Univ., No. 22-2056 (3d Cir. May 29, 2025) that Title IX may allow for claims by non-students and non-employees. In the Title IX context, as the court found, the “zone of interests” test requires the recipient of Title IX funds to (1) exercise substantial control over the individual who mistreats the plaintiff based on sex, and (2) have substantial control over the context in which the mistreatment occurred or manifested. With these requirements in mind, the Third Circuit ruled that a fencing coach, unaffiliated with Penn State, could sue the University for the misconduct of its employees in certain contexts.

Factual Background

In December 2017, Jennifer Oldham, a fencing coach from North Carolina, was sexually harassed by George Abashidze, an assistant fencing coach at Penn State, on a flight following a USA Fencing competition. Ms. Oldham reported the incident to her mentor, who informed Penn State’s head fencing coach, Wieslaw Glon. Despite several meetings with Ms. Oldham, Mr. Glon refused to report the harassment to Penn State’s Athletic Department and discouraged her from contacting SafeSport, an independent organization tasked with investigating sexual misconduct for USA Fencing.

Ms. Oldham chose not to report the incident, but unbeknownst to Ms. Oldham, the incident was later reported in 2018 to both Penn State and SafeSport. Both investigations substantiated her claims, but although SafeSport temporarily suspended Mr. Abashidze, Penn State found no violation of its policy. Subsequently, Ms. Oldham faced retaliation from Mr. Glon and Mr. Abashidze who sought to discredit her within the fencing community. This led to professional setbacks, including being ostracized by the fencing community and denied coaching positions at other universities.

Frustrated by the lack of disciplinary action and ongoing retaliation, Ms. Oldham filed a Title IX complaint and later sued Penn State, Mr. Abashidze, and Mr. Glon. After the case was transferred to the Middle District of Pennsylvania, Ms. Oldham amended her complaint to include two Title IX claims. The district court then dismissed both claims against all defendants. Notably, with respect to Penn State, the district court ruled that Ms. Oldham, as neither a student nor employee of Penn State, was outside Title IX’s protected zone of interests. Ms. Oldham appealed, prompting this review by the Third Circuit.

The Third Circuit Expands Title IX’s Zone of Interests

In finding Ms. Oldham’s claims within Title IX’s protected zone of interests, the Third Circuit relied on Title IX’s language and Supreme Court precedent. Title IX states: “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” Though initially interpreted narrowly, the Civil Rights Restoration Act of 1987 expanded “program or activity” to include “all of the operations of . . . a college, university, or other postsecondary institution.” In line with its own precedent in Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545 (3d Cir. 2017), the Third Circuit interpreted Title IX’s scope as covering “operations of colleges and universities that may be reasonably considered, at least in part, educational.”

Yet, the court recognized that the clear-statement rule requires further limitations. Because the clear-statement rule mandates that recipients of federal funds must be on notice of any conditions of the funding, including exposure to civil liability, the court followed Supreme Court precedent, Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), in requiring two conditions for Title IX liability: the college or university must “exercise substantial control” over (1) the individual who discriminates on the basis of sex and (2) the “context” in which the misconduct occurs or manifests.

The Third Circuit found Ms. Oldham’s claims plausibly met both criteria. First, Mr. Abashidze and Mr. Glon were both Penn State employees representing the university at fencing events where the alleged sexual harassment and retaliation occurred, supporting a finding that Penn State exercised substantial control over the defendants.

Second, although the sexual harassment did not occur on campus, the court found non-campus contexts may still fall within Penn State’s substantial control. While Ms. Oldham’s complaint lacked a clear basis for inferring Penn State’s substantial control over the flight where the sexual harassment occurred, the court highlighted, in dicta, the possibility of substantial control on a chartered flight with university-affiliated students and staff.

Moreover, the court emphasized that Ms. Oldham’s retaliation claims featured conduct occurring or manifesting on campus and at university-hosted events. Notably, the court recognized that not only could Mr. Glon’s and Mr. Abashidze’s conversations that occurred on campus as part of the discrediting campaign infer Penn State’s substantial control, but Ms. Oldham’s retaliatory exclusion from fencing events that manifested at Penn State-hosted events could also reasonably infer substantial control. Although several of Ms. Oldham’s allegations likely do not infer any substantial control by Penn State, such as the hiring decisions of other universities, the court held that Ms. Oldham had plausibly plead that her claims fell within Title IX’s zone of interests. Accordingly, the Third Circuit vacated the district court’s dismissal of Ms. Oldham’s Title IX claims against Penn State and remanded for further proceedings.

Future Impact

Ultimately, Oldham stands to broaden the scope of Title IX liability, suggesting that even individuals unaffiliated with the institution may bring claims for sex-based discrimination committed by university students or employees and related to university activities. As of now, it is unclear whether other jurisdictions may follow the Third Circuit’s lead, or how the Department of Education, Office of Civil Rights (OCR) may seek to adjust, if at all, its enforcement posture of Title IX complaints. In the meantime, educational institutions may wish to ensure their Title IX policies feature comprehensive measures that protect all individuals who interact with their programs, fostering an environment free from sex-based harassment and retaliation.

By: Charlotte Hodde and Josh Goldberg

Some Washington healthcare employers will be subject to new rules for meal and rest break starting next year. Moving forward, under RCW 49.12.480, there are new hoops employers must jump through in order to secure waivers for certain meal and break time requirements, which means updates to handbook policies and the waiver form.

Under the current law, non-exempt hospital employees who are directly involved in patient care or clinic services may waive any meal break as long as it is voluntary and the waiver is provided in advance of the meal break. Effective January 1, 2026, meal breaks may be waived for any healthcare employee with a shift of less than eight hours.  Employees with longer shifts may also waive their second or third meal break, but only if they already take at least one meal break during their shift.

The amendments preserve employees’ ability to skip their meal and rest breaks in the event of an unforeseeable emergent circumstance, or clinical circumstance that may lead to a significant adverse effect on the patient, regardless of their shift length.

An employer and employee may also agree to relax the timing requirements of their meal and rest breaks.  In these cases, the new meal break must still occur no earlier than the third hour worked and no later than the second to last hour scheduled.

The amendments provide some new flexibility that permits employees to combine any number of meal breaks with any number of rest breaks, provided the shift is eight hours or longer. When this occurs, the rest break portion will remain paid and meal break may remain unpaid in accordance with an employer’s policies and/or collective bargaining agreement.

Waiver forms must satisfy several requirements and must:

  • Be in writing or kept in a retrievable electronic recordkeeping format;
  • Expressly state waivers are voluntary, may be revoked at any time, and cite the Washington Labor and Industries’ rule governing meal and rest breaks;
  • Cite any other rights employees may have under any applicable collective bargaining agreement provision;
  • Be on a form agreed to by any applicable collective bargaining organization; and
  • Be agreed to before the first shift that the employer and employee wish to rely on the waiver.

Since employees may also rescind their waivers at any time, employers should provide clear guidance on how employees should revoke their waiver.

Currently, covered hospitals must provide quarterly reports regarding the number of missed meal and rest breaks. The amendments add on to the quarterly reporting requirement, requiring covered hospitals to also track and report the number of waived meal and rest breaks (rest breaks cannot be waived entirely, only the timing of such breaks).

Seyfarth Shaw LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from their professional advisers.