This article is an extract from Lexology In-Depth: Employment Law - Edition 16. Click here for the full guide.
In this episode of The Lexology Podcast, Brian Cousin, editor of Lexology In-Depth: Employment Law, and Partner and Co-Chair of the Life, Health, Disability & ERISA Litigation Practice at Fox Rothschild LLP takes a deep dive into the latest trends in employment law. He discusses the gig economy and employee classification, the risks of using AI in hiring practices, and new directions for DEI initiatives.
Click here to listen to the audio or read the episode transcript below.
Hi, my name is Brian Cousin, and I'm a partner with Fox Rothschild LLP. I'm also the editor of Lexology In-Depth: Employment Law.
A lot of the time, people ask me: what is international employment law? Is there really such a thing at all? When you have different local laws, country by country, region by region, city by city, how can there be such a thing? To me, international employment law - which I consider that I've practiced for about 35 years - means a few different things. It often involves advising multinational employers on how to address a particular issue or solve a problem in multiple jurisdictions. It also involves advising employers on how they can best implement a uniform set of employee standards in multiple countries that have vastly different employment laws and cultures. Finally, there are employment litigation and arbitration matters that may involve the application of laws of different countries or may implicate more than one forum.
Hot topics and trends in employment law
When we look at global trends from the last 12 months or so, there are a number of themes that continuously come through. One is the gig economy and worker classification issues, and I list those together because the question is whether or not individuals who participate in the gig economy are going to be given access to certain benefits and rights. For example, are they going to be treated as employees when it comes to minimum wage and other types of benefits? And there's a tension there.
We've seen some Asia-Pacific countries, like India, Singapore, South Korea and New Zealand, where the courts and legislatures are pushing towards a recognition of platform or gig workers as employees, or as a new category of worker with similar protections as employees. Whereas in other countries in Europe and Latin America, like Argentina, Switzerland, Bermuda and Chile, the courts are more strictly enforcing laws and regulations intended to protect against the misuse of contractors and staff leasing models. Some countries are passing new legislation or having new court-driven initiatives along these lines. I would say there's a fracture, country by country, but I do see that more countries in Asia-Pacific are opening themselves up to the idea that gig workers should be treated more like employees.
The gig economy and worker classification
In the United States in particular, you see a huge difference between the way some states are handling gig workers. In the last few months, we've seen a sea change in which the federal government has changed the standard that was being used in the Biden Administration. Now, the second Trump Administration has wanted to go back to a system where employers have more flexibility with regard to classification of workers as either independent contractors or employees.
Under the Biden Administration, there was a kind of totality-of-circumstances test, with many different factors being looked at to try to determine whether or not a particular worker should be deemed an employee for minimum wage protections and other benefits. Now, a mandate was issued in May 2025 that basically got rid of this approach and went back to prior analysis, which is more focused on the worker's ability to control when they work and their own profit opportunities. So, I think certainly in the United States, there's been a dramatic change that gives the employers more flexibility in terms of classification. As a result, some states have gone out on a limb and said that they’re going to make it even easier for employers to have flexibility in classification. For example, Florida and Alabama are going in that direction, whereas Washington and California are attempting to either treat gig workers as employees or provide them with the same kinds of rights and benefits.
So you have this tension, which is symptomatic of the federal government backpedalling and going back to years prior to the Biden administration, and the states trying to figure out what to do with that. Some states are being more pro-employee and others more pro-employer, because there's not really a uniform federal law that treats gig workers the same way, no matter where you live in in the country. That's the crazy disparity that I see. You could live in Florida and have a particular gig-type profession and be treated differently in terms of whether you're covered by minimum wage, whether you're entitled to various benefits that employees would typically be entitled to, versus if you live in Washington, New York or California, where you would be entitled to potentially completely different rights and benefits. I find that to be problematic and very confusing.
I think we're probably going to see - at least in the short term - a stronger preference from gig workers to migrate and live in jurisdictions that are leading the way in protecting gig workers' rights. I'm not exactly sure how that's going to wind up. Gig workers are everywhere in all different types of jobs. Anytime you have an individual who wants to work on a temporary or project basis, that's really a gig worker. So I think you're going to see more and more people who want to have that kind of flexibility, but that also want to have protections and rights and benefits. They're going to be moving to states that recognise and protect these rights of gig workers. It'll also be very interesting to see whether gig workers are going to move countries because that particular country doesn't recognise those rights and benefits. In the European Union, they might be able to more easily move between EU nations to countries that have more protections for gig workers, and that'll be an interesting thing to monitor.
AI in employment and hiring practices
In the AI space, I think the biggest use for employers is being able to use it to screen applicants, which raises the issue of whether or not the use of this technology is going to result in an increase in discrimination cases. So, for example, if you have a group of individuals who are in a protected class that can say that, as a result of the application AI, their group or protected class is disproportionately suffering in terms of being able to pass screening or being hired for new positions, then this could absolutely open up the possibility of class action litigation.
There has been a push in a number of US states to pass legislation restricting the use of AI insofar as the application of AI has this type of disproportionate, negative effect on protected groups of individuals. So that's kind of the battleground right now in the employment space when it comes to the use of AI, which can make human resources teams jobs easier, or in fact get rid of a lot of human resources jobs to begin with. And so, these statutes, these new laws that are being passed are essentially saying to employers: ‘if you are going to replace a human resources individual with a technology that's going to do screening, you have to follow certain rules and make certain disclosures about the use of that technology, and you have to constantly audit in terms of the results that you're seeing to make sure that the net effect is not to discriminate against a particular protected class.’ So that's really the way that I see this developing. Some US states are definitely ahead of the curve on this, others are probably following suit. New York, for example, has a very strong statute in this area, and I see other states and localities using that type of model to follow suit.
DEI initiatives in the United States and elsewhere
I think there is a growing trend across all nations to relook at DEI initiatives. Now, I want to say that there's a movement towards the expansion of anti-discrimination and anti-harassment frameworks. What I mean by that is I think there has been a trend in that direction for many years, for many decades in fact, and as an employment lawyer, I would like to see more countries - all countries - having that kind of philosophy. However, in the employment realm, there has been a growing movement to ease off on these types of equality initiatives. And it's interesting because, under Donald Trump, what the current administration has done is completely scale back federal government requirements, goals and objectives to have more diversity, equity and inclusion in the workforce, but the Administration is saying that it's a return to real, equal opportunity and merit-based opportunity. So, what the Administration is trying to address is this issue of giving individuals a benefit or an opportunity that would not merit it, compared to somebody else who is more qualified for the position. The Trump Administration would actually take the position that they are facilitating more equity.
What does ‘equity’ mean? Does ‘equity’ mean that you're focusing on a goal to achieve a particular percentage of a particular protected class being offered jobs or given opportunities? Or are you looking at equity as merit-based entirely? I think part of the issue is a difference in the definition. The Trump Administration would say that they're actually facilitating more equity by getting rid of quotas, getting rid of requirements and goals for percentages of workers to fit within a certain category, and instead saying that this has to be 100% merit-based hiring and merit-based promotion. I think that the United States is absolutely a leader in this particular issue. It's probably the most diverse workforce of any country in the world, so the issue is more prevalent and starker because the United States looks at itself as sort of the melting pot of the world, where there are people from all different cultures and backgrounds and so there is tremendous diversity in the workforce. Other countries, while they're becoming more diverse in their workforce, are still much more homogenous. So that's why I think the United States is such an interesting model or case in point that other countries are really taking notice of and paying attention to in this area.
Trump has signed a couple of key executive orders, and even by what they're called you can see this tension and this change that I'm referring to. For example, one is called ‘Ending Radical and Wasteful DEI Programs and Preferencing’. Another executive order is called ‘Ending Illegal Discrimination and Restoring Merit-based Opportunity’. So you can see that the tension is specifically referenced and addressed in the titles of these executive orders. If you go on the websites for all the agencies of the US federal government, you'll see that they have been getting rid of all language that refers to diversity, equity and inclusion, and focusing on equal opportunity and merit-based hiring for federal positions. Trump is not stopping there and is pressuring private sector employers to adopt the same kind of hiring and promotion practices. This is playing out in a big way, not just in government jobs, but all across the private industry in the United States, and is absolutely being paid attention to across the world.
This episode was recorded 22 September 2025.
