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Zachary Agudelo

Zach Agudelo is an associate in the firm’s Washington, DC office and is a member of the firm’s Employment, Employee Benefits and Executive Compensation, and Institutional Culture and Social Responsibility Practice Groups. He routinely advises clients on a range of labor, employment, and employee benefits related issues, including wage and hour compliance, job classifications, restrictive covenants, workplace policies, incentive plans, and executive compensation. His practice also includes employment- and employee benefits-related diligence and advise in corporate transactions.

In addition, Zach assists both private and non-profit clients with matters involving harassment, discrimination, retaliation, and other issues arising under state and federal employment laws, including Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Fair Labor Standards Act. He also has extensive experience conducting civil rights and racial equity assessments for corporations and advises clients on the lawful design of diversity, equity, and inclusion practices.

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On June 5, 2025, the U.S. Supreme Court altered the landscape for employers facing “reverse discrimination” Title VII lawsuits in the Sixth, Seventh, Eighth, Tenth, and DC Circuits, by striking down a rule that had required plaintiffs from “majority groups” to allege additional “background circumstances” to state a prima facie case of employment discrimination.  Examples of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” included statistical data that the employer had engaged in a pattern of discrimination against majority groups or a member of the relevant minority group made the employment decision that allegedly harmed the member of the majority group.   In the other circuits, no such additional pleading requirement was required in reverse discrimination lawsuits.  Justice Jackson authored the Court’s 9-0 opinion, Ames v. Ohio Dept. of Youth Servs., No. 23-1039, and Justice Thomas filed a concurring opinion, joined by Justice Gorsuch.

As a practical matter, more “reverse discrimination” lawsuits in the Sixth, Seventh, Eighth, Tenth, and DC Circuits may survive a motion to dismiss—or employers may elect not to move to dismiss if the complaint’s allegations satisfy a Title VII plaintiff’s prima facie burden.  That said, the opinion does not alter the liability framework—employers can still achieve summary judgment dismissals of Title VII employment discrimination lawsuits by demonstrating that the employment decision at issue was made for legitimate, non-discriminatory reasons. 

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In Ames, the plaintiff alleged that her employer discriminated against her because of her heterosexual orientation when she was denied a promotion that was given to a lesbian woman and then later demoted and her prior position filled by a gay man.  Slip Op. at 2.  Analyzing her claim under the long-standing McDonnell Douglas evidentiary framework, derived from McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), the District Court granted summary judgment for the employer, noting the plaintiff failed to make out a prima facie case of employment discrimination because she had not presented evidence of “background circumstances” that suggested her employer was the “rare employer who discriminates against members of a majority group.”  Slip Op. at 2.  The Sixth Circuit affirmed.Continue Reading Supreme Court Holds That All Employment Discrimination is Equal: Ames v. Ohio Dept. of Youth Servs.

National Labor Relations Board General Counsel (“GC”) Jennifer Abruzzo recently issued Memorandum GC 25-01 (“Memorandum”), suggesting new remedies for non-competes found to violate the National Labor Relations Act (“NLRA”) and proposing that the National Labor Relations Board (“NLRB”) presume “stay-or-pay” provisions to be unlawful.  Although the Memorandum is not binding law, employers should expect GC Abruzzo to direct the NLRB’s regional offices to bring complaints and seek remedies consistent with the Memorandum.  The NLRA generally only extends protections to nonsupervisory and nonmanagerial employees, and therefore the Memorandum is not applicable to non-compete or stay-or-pay provisions for employees who are supervisors or managers under the NLRA. 

Make-Whole Relief for Unlawful Non-Competes

Part I of the Memorandum expands upon a May 2023 memo in which GC Abruzzo outlined her position that, except in limited circumstances, non-compete provisions violate the NLRA.  In the new memo, GC Abruzzo asserts that the financial harms for employees subject to unlawful non-competes extend beyond costs associated with discipline or legal action and include “more pernicious harms” associated with attempted compliance, such as foregoing higher-paying job opportunities or incurring relocation costs.  Arguing that rescission—the typical remedy for offending non-compete provisions—fails to address these harms, GC Abruzzo proposes “make-whole relief” for employees impacted by unlawful non-competes.  Make-whole relief would include any wage and benefits differential caused by the non-compete restriction; costs of finding new employment that complied with the non-compete, such as lost wages due to being out of work longer or accepting a lower-paying job, or moving or retraining costs; and legal fees associated with defending against a claim regarding an unlawful non-compete. 

“Stay-or-Pay” Provisions Framework

Part II of the Memorandum proposes that the NLRB adopt a new framework for assessing so-called “stay-or-pay” provisions, to presume that any such provision is unlawful regardless of whether it was entered into voluntarily.  Stay-or-pay provisions are “any contract under which an employee must pay their employer if they separate from employment” and include training or educational repayment provisions, quit fees, damages clauses, and sign-on-bonuses or other types of cash payments tied to a mandatory stay period.Continue Reading NLRB General Counsel: “Make-Whole Relief” for Non-Competes and No More “Stay-or-Pay”

Since 2020, with the adoption of Washington state’s non-compete statute (Chapter 49.62 of the Revised Code of Washington (“RCW 49.62”)), Washington has imposed significant restrictions on employer use of non-compete agreements with employees and independent contractors, permitting such agreements only subject to certain statutory and common-law requirements, including without limitation, a minimum annual earnings threshold (the 2024 limits are $120,559.99 for employees and $301,399.98 for independent contractors), and a Washington forum for any disputes.

Now, Senate Bill 5935 (“SB 5935”) – which takes effect on June 6, 2024 – amends the non-compete statute to further restrict the use of non-compete provisions and expand the types of agreements that may be considered non-competes. As a result, employers will need to take quick action to review their employment agreements and hiring processes to ensure compliance with the new law.

However, as discussed in our Covington Alert, on April 23, 2024 the Federal Trade Commission issued a final rule purporting to ban the use of non-competes with most U.S. workers.  The FTC Rule – should it become effective – would supersede inconsistent state laws.  The earliest the FTC Rule would take effect is late August 2024, and pending legal challenges may result in court orders that could delay or stay enforcement of the FTC Rule. Accordingly, employers with workers in Washington State should take steps to comply with SB 5935 before it takes effect on June 6, 2024.  Employers should also consider consulting with employment and executive compensation counsel for assistance with navigating the evolving non-compete landscape.

Here is an overview of the key changes under SB 5935:Continue Reading Changes to WA’s Non-Compete Law Require Employers to Take Action

A new law signed by President Biden brings significant changes to employers’ ability to require arbitration of certain disputes with employees and could lead to an increase in sexual assault and sexual harassment claims against employers in court.  On March 3, 2022, President Biden signed into law the “Ending …
Continue Reading New Law Ends Mandatory Arbitration for Sexual Assault and Sexual Harassment Claims

In a development that will sound familiar to employers, California has reinstated the requirement, which had expired last fall, to make available to employees up to 80 hours of COVID-19 supplemental paid sick leave (“Supplemental Sick Leave”).  The new measure, Senate Bill (“SB”) 114, was signed by Governor Newsom on February 9, 2022, and the requirement to provide the new sick leave went into effect on February 19. Employees may use the new sick leave retroactive to January 1, 2022.

New Supplemental Sick Leave Requirements

Following is an overview of the new and more expansive requirements under SB 114, which applies to employers with more than 25 employees.

Hours of Leave.  Full-time employees are entitled to up to 80 total hours of Supplemental Sick Leave for specified reasons and divided into two 40-hour buckets, described below.  Part-time employees are entitled to prorated leave equivalent to either their typical hours worked in a week, or seven multiplied by the average number of hours they have worked each day in the last six months.

The two buckets of leave are as follows:

First, full-time employees may use up to 40 hours of Supplemental Sick Leave when they are unable to work or telework for any of these reasons:

The employee is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidelines of the California Department of Public Health, the U.S. Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace (if the employee is subject to more than one order/guideline, the employee may use Supplemental Sick Leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period);
Continue Reading California Reinstates and Updates COVID-19 Supplemental Paid Sick Leave for 2022