Labor News & Commentary October 21 Eighth Circuit revived a Minnesota bank employee's First Amendment retaliation claims

https://onlabor.org/october-21-2025/

By Miriam Li

Miriam Li is a student at Harvard Law School and a member of the Labor and Employment Lab.

In today’s news and commentary, USCIS clarified that some workers are exempt from Trump’s $100,000 H1-B visa fee, an Amazon driver alleges the EEOC violated its mandate by dropping a disparate-impact investigation of the company, and the Eighth Circuit revived a Minnesota bank employee’s First Amendment retaliation claims over a school mask-mandate.

Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced that some workers are exempt from President Trump’s new $100,000 H-1B visa fee. While most new H-1B petitions will still trigger the charge, USCIS clarified that the Proclamation “does not apply to a petition . . . requesting an amendment, change of status, or extension of stay for an alien inside the United States where USCIS grants such amendment, change, or extension.” This exemption likely covers many recent college graduates in the United States on F-1 status. However, if an applicant leaves the country before USCIS adjudicates the change-of-status request, the $100,000 fee will still apply. Following Trump’s September proclamation announcing the fee, The US Chamber of Commerce, as well as coalitions of unions, health-care providers, religious organizations, and schools filed lawsuits to block the fee. One coalition challenging the fee said that the recent guidance shows that the administration “recognizes the immediate harm to workers.” Still, it noted that the guidance is “limited” and “doesn’t fix the core problem.”

Meanwhile, an Amazon driver has filed a lawsuit challenging the Equal Employment Opportunity Commission’s decision to close investigations into disparate-impact claims. The plaintiff, Leah Cross, previously filed an EEOC charge alleging that Amazon’s policy of denying drivers bathroom breaks had a disparate impact on female drivers. According to the complaint, the EEOC said it was “very interested in moving forward” with the case in December 2024 and interviewed Cross in January 2025. After President Trump’s April executive order directing agencies to stop using disparate-impact liability, however, the EEOC instructed staff to drop probes based solely on disparate-impact claims—which cover challenges to facially neutral policies that disproportionately impact protected groups. Cross alleges that an EEOC investigator contacted her in September to notify her that her charge would be closed pursuant to this directive and that the agency issued her a right-to-sue letter. The lawsuit contends that dropping disparate-impact investigations violates the EEOC’s mandate under Title VII and that the agency is statutorily required to investigate discrimination complaints, including disparate-impact claims.

Finally, the Eighth Circuit revived free-speech claims by a bank employee who was fired after objecting to a COVID-19 mask mandate. Tara McNeally, who worked at a bank housed in a Minnesota public school, alleged she was fired after confronting the Shakopee Public School board chair over a mask mandate, subsequently suing the bank, its vice president, and the school superintendent. On Monday, the Eighth Circuit partially reversed a lower court’s dismissal of McNeally’s claims, finding that the superintendent’s decision to ban McNeally from school property “as a bank employee” could chill free speech, despite a carve-out allowing her on the property “in the role of a parent.” The three-judge panel was divided over whether McNeally’s claims should be analyzed under the Pickering test for public employees and government contractors, or under the ordinary sovereign-to-citizen First Amendment retaliation test, which imposes a lower bar for plaintiffs. The two-judge majority held that the sovereign-to-citizen test applied because McNeally was a bank employee, not a public employee, while Judge Jane Kelly, concurring, argued that Pickering should govern because McNeally’s relationship with the district resembled an employer-employee relationship. On remand, a jury will decide whether the superintendent’s ban and any coordination with the bank were motivated by McNeally’s protected speech, as well as try McNeally’s tortious interference claim against the superintendent.