Hunton Retail Law Resource

Although supply chain labor has long been a primary focus for unions, the COVID pandemic changed how labor viewed supply chain leverage, especially in retail. Years of planning during COVID produced new approaches to creating co-employer liability for lead firms—companies that sit at the top of supply chains, franchise systems, subcontracting networks, and other business arrangements in which work integral to their business is performed by workers whose legal employer is another entity.  Initial steps are now maturing into a comprehensive approach aimed at the commercial heart of the retail model. By 2027, retail's central labor challenge will be a sophisticated, top-down strategy to force lead firms into binding agreements.

Recently, the Colorado legislature sent a bill, HB 26-1210, to Governor Jared Polis’ desk that would place limitations on the use of artificial intelligence to either 1) set prices for consumers; or 2) set wages for employees.  Governor Polis vetoed the bill, citing vague and overly broad definitions in the bill’s text.  But the conduct prohibited in the bill has been the subject of numerous bills in legislatures all across the country. Retailers should take note and proceed with caution if using AI to set wages. 

Retail employers are navigating an immigration compliance environment that is becoming more complex at both the operational and strategic levels. Recent policy changes require employers to respond to shifting humanitarian-based work authorization categories, while proposed wage changes could reshape the economics of hiring and retaining professional foreign national talent. 

The U.S. Department of Labor recently proposed a rule that would create a uniform standard for determining joint employer status under the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act.  The proposed rule has significant implications for employers who share workers or rely on contractors, because a joint-employment finding may expand liability to multiple employers for wage-and-hour violations, leave obligations, and other statutory compliance issues.  The agency has said the proposed rule is intended to “reduce compliance and litigation costs, improve the Department’s ability to enforce the law, and help workers to better understand their rights and available remedies” while also promoting “greater uniformity in the analysis applied by courts.”

The results are in: attorneys are filing more employment law cases in court.  Indeed, year-end reporting from legal databases like LexMachina confirm that the pace of filing new employment discrimination cases reached its highest level in 2025, surpassing 20,000 new filings nationwide.  Though overtime and minimum wage lawsuits under the Fair Labor Standards Act (FLSA) have continued to decline since 2015, discrimination cases under laws like Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act are on the rise.

Pay transparency laws, which require employers to include pay information in job postings, have been on the rise. Colorado and California enacted such laws in 2021 and 2023 respectively.  In 2025, several states have decided to join California and Colorado by enacting or expanding pay transparency laws.

In June, the U.S. Department of Labor (DOL) announced that it has relaunched its opinion letter program.

The U.S. Department of Labor (“DOL”) has relaunched a program that allows employers to resolve potential wage and hour violations through a self-audit. 

On May 5, 2025, an Administrative Law Judge (“ALJ”) for the National Labor Relations Board (“NLRB” or the “Board”) ruled that retailer Costco Wholesale Corp. (“Costco”) violated the National Labor Relations Act (“NLRA” or the “Act”) when it asked employees involved in an internal investigation regarding sexual harassment allegations to sign a confidentiality agreement prohibiting them from discussing details concerning the investigation. The ALJ’s decision highlights considerations employers ought to take into account when balancing their interests in maintaining the integrity of internal investigations and complying with the NLRA.

Effective July 1, 2025, Virginia has amended its non-compete law to prohibit employers from entering into non-competition agreements with non-exempt employees.

On March 10, 2025, the U.S. Supreme Court denied a request by F.W. Webb (“Webb”), a nationwide wholesale plumbing and HVAC supply company, to review a First Circuit decision upholding a ruling that Webb’s Inside Sales Representatives (“ISRs”) were not exempt “administrative” employees under the Fair Labor Standards Act (“FLSA”), and thus were entitled to overtime compensation. 

The landscape of immigration enforcement is undergoing a dramatic transformation in 2025. With President Trump's recent executive orders signaling a renewed focus on worksite enforcement, employers across industries must prepare for what many experts anticipate will be the most aggressive immigration enforcement environment in recent history.

Read our full coverage published on Hunton’s Business Immigration blog: Immigration Worksite Enforcement in 2025: What Employers Need to Know Now.

The use of Artificial Intelligence (“AI”) in the workplace has spread rapidly since President Trump left the White House in early 2021.  In recent years, retail employers have started using AI technology in a variety of ways from automating tasks, to implementing data-driven decision making, to enhancing customer experience.  Though the Biden administration started to grapple with the use of AI in the workplace, the second Trump administration could mark a dramatic shift in the federal government’s response to these issues.

On June 17, 2024, the U.S. Supreme Court agreed to take up a wage and hour case, E.M.D. Sales, Inc. v. Carrera, to address a circuit split regarding the standard of proof that employers must satisfy to show that employees are exempt from the minimum wage and overtime requirements under the Fair Labor Standards Act (“FLSA”).

In January 2023, the FTC announced a proposed rule that would ban employers from imposing noncompetes on employees. After collecting over 26,000 public comments during the 90-day notice and comment period, the FTC announced a special Open Commission Meeting set to take place on Tuesday, April 23, 2024 to discuss the implications of the proposed rule. While closed to public comment, the public is still able to view the meeting via webcast. 

On April 1, 2024, California’s Assembly Bill No.1228 (“AB 1228”) took effect, making the state’s fast food workers the highest paid in the United States. However, uncertainty regarding precisely who is covered under the new law has left some employers reeling, as the stakes for complying with California’s Labor Code remain as high as ever.