Ogletree Deakins

Quick Hits Beginning in January 2027, the IDOL will no longer allow employers to use “prefers not to identify” for reported employees’ race/ethnicity. The IDOL notes an academic study that suggests ways to examine EPRC filings and possibly take stronger action based on statistical differences. The IDOL has updated its process for handling overdue/unmade EPRC filings from three (3) steps to two (2) steps, meaning filers have less time to…

Quick Hits Volunteering may trigger certain duties of consideration (Rücksichtnahmepflichten) for employers. The specific activity is decisive, however, so each case must be assessed individually. As a general rule, volunteering remains a private matter. What Is Volunteering? Volunteering (Ehrenamt) generally means a voluntary activity that is not aimed at generating profit and benefits the public good. An expense allowance may be paid in the form of money, provided there is…

Quick Hits The IRS and Treasury Department confirmed that most employer-sponsored retirement plans generally have until December 31, 2026, to adopt discretionary amendments implementing SECURE and SECURE 2.0 provisions, with later deadlines for collectively bargained, governmental, and public school 403(b) plans. Required amendments, and future guidance relating to discretionary amendments that have already been adopted, may have later deadlines tied to future IRS Required Amendments (RA) lists. The IRS and…

On September 23, 2026, the New York State Department of Labor published, on page 9 of the New York State Register, a proposed rule, “Opioid Antagonists in the Workplace,” clarifying how employers must comply. The rule addresses how many opioid antagonists employers must keep on-site, where to store them, and how to train employees. This proposed rule is open for public comment until November 22, 2026. Quick Hits Covered employers…

Quick Hits The Allegheny County Board of Health is reviewing amendments to a proposed paid parental leave ordinance issued in May 2026 that would shorten the length of paid leave from eighteen to twelve weeks and revise employer eligibility from all employers to those with fifteen or more employees. The Board will vote on whether to approve the paid parental leave policy as amended on September 28, 2026. In May…

Quick Hits In Joyner v. Frontier Airlines, the Tenth Circuit reversed a district court’s ruling that customer service agents at a Denver airport were transportation workers exempt from federal arbitration law. The Tenth Circuit found the lower court had improperly relied on the work the named plaintiffs had actually performed, rather than what a typical class member did. The case hinged on whether the employees regularly handled passengers’ bags and…

Quick Hits An employer may request that the employee disclose which job offers the employee received from Germany’s Federal Employment Agency (Bundesagentur für Arbeit) or Jobcenter. The employer does not have an independently enforceable right to information about applications and their outcomes. The right to information under Section 242 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)) extends only as far as the employer needs information to trigger the employee’s…

Quick Hits On August 11, 2026, the Missouri Court of Appeals for the Western District granted mandamus relief in State of Missouri ex rel. Waddell v. Atkins and ordered a trial court to vacate an order compelling arbitration. The court held that a case relates to a sexual misconduct dispute when the asserted causes of action arise from alleged sexual assault or harassment, and that the EFAA invalidates a predispute…

Quick Hits Noncompliance with the DEI anti-discrimination clause at FAR 52.222-90 can result in debarment or suspension, a sanction on par with fraud, bribery, and antitrust violations as grounds for a governmentwide exclusion from federal contracting. The FAR Council proposed a rule on September 18, 2026, that would stamp the three-tier enforcement structure of the DEI clause into the FAR: contract-level remedies (cancellation, termination, or ineligibility), governmentwide exclusion (debarment or…

Quick Hits The executive order directs the secretaries of state, labor, and homeland security to consider whether an employer conducted layoffs within the prior year or plans future layoffs affecting similarly situated U.S. workers when adjudicating H-1B-related filings. Employers could see additional scrutiny at multiple points in the H-1B process, including DOL Labor Condition Application (LCA) review, U.S. Citizenship and Immigration Services (USCIS) petition adjudication, consular visa issuance, and admission…

Quick Hits The Second Circuit amended its July 2026 decision, clarifying that the decision was not meant to establish that a heightened motive requirement exists for failure-to-accommodate cases. The court clarified that employees need not prove discriminatory animus against religion to substantiate their claims, but they must show that the denial was motivated by a desire to avoid the accommodation. The case, Bergin v. New York State Unified Court System,…

Quick Hits On 8 September 2026, the Court of Appeal held that TUPE Regulation 4(2)(a) must be read in light of the EU Acquired Rights Directive, whose purpose is to protect and ensure the continuity of employee rights upon a change of employer. TUPE is legislation that exists to benefit employees. It does not enable third parties to pursue transferees (in this case, Active Young People Limited) for the transferors’…

Quick Hits The average UK employment tribunal claim now takes nearly sixty weeks from receipt to disposal, with some hearings listed for 2029. Explosion of AI useage is likely a key factor. Even though hearings may be delayed for a year or more, employers may want to gather and preserve key documents and other evidence up front. The AI Effect Many commentators in the United Kingdom cite the recent widespread…

Quick Hits On September 14, 2026, Cal/OSHA released a discussion draft of a proposed rule that would require covered hospitals to screen individuals and their personal items at all unrestricted entrances, not just the specific entrances identified in AB 2975, with an exception for the ambulance entrance. Screening personnel would need at least eight hours of initial training covering an expanded curriculum, annual refresher training, and additional training when specified…

A “quiet promotion” typically involves an employee performing higher-level duties, such as leading projects, supervising others, making budget decisions, or handling strategic work, without an official promotion or pay adjustment. The gap can persist for months or even years, becoming normalized with hiring stalls or shifting staffing plans. While stretch roles can be positive when intentionally designed and limited in duration, they may become problematic when an employer derives ongoing…

Quick Hits In Ding v. Structure Therapeutics, Inc., the Ninth Circuit held that a plaintiff’s right to proceed in court under the EFAA is not categorically foreclosed by the earlier filing of an arbitration demand asserting non–sexual-harassment claims. The court held that where a plaintiff discovers a basis to pursue claims covered by the EFAA during arbitration, the plaintiff may elect to end arbitration and proceed in court. The court…

Quick Hits On July 17, 2026, DHS published a final rule—scheduled to take effect on September 15, 2026—that would end the longstanding duration of status framework for F, J, and I visa holders. A U.S. district court found that the government’s national security justification for the rule was arbitrary and capricious. The duration of status framework remains in effect as litigation continues. On July 17, 2026, DHS published a final…

Quick Hits New York Governor Kathy Hochul signed Senate Bill S3460 on September 9, 2026, adding new Section 210-b to the New York Labor Law. The law takes effect sixty days after signing, or November 8, 2026. Employers must provide employees with a copy of their personnel record, at no cost, within five business days of a written request. Employers must notify employees within ten days of placing negative information…

Quick Hits The European Commission issued guidance in August 2026 that clarifies some aspects of the EU Pay Transparency Directive, but leaves many questions unanswered. The guidance confirms that the directive applies to public- and private-sector employers, and that pay information does not have to be provided in job advertisements, but must be provided before a job interview. The guidance outlines the four key characteristics to determine equal value, and…

Quick Hits Washington State’s Immigrant Worker Protection Act requires employers to provide workers with notice of federal Form I-9 inspections and inspection results and to post a workplace rights notice. All Washington employers with at least one worker, including state and local government entities, are covered and must provide each notice within five business days of receiving the relevant federal notice and post the attorney general’s workplace poster. The rules…

Quick Hits Massachusetts’s PROTECT Act, effective August 5, 2026, requires employers that receive an I-9 notice of inspection from DHS/ICE to deliver written notice in each affected employee’s primary language within forty-eight hours of receipt. Employers in Massachusetts may want to prepare now by assigning responsibility for the notice process, pre-translating notice templates, mapping individual distribution methods for all employees, and proactively auditing I-9 files. Beyond the I-9 notice requirement,…

Quick Hits Female retail employees in the UK sued Next Retail Limited for paying them less than male warehouse workers for work of equal value. The Employment Appeal Tribunal (EAT) determined that recruiting and retention needs at warehouses were legitimate reasons for the pay differential. The EAT found the pay differential was a proportionate response to a legitimate aim. The UK’s Equality Act 2010 prohibits employment discrimination based on sex,…

Quick Hits SkillBridge provides employers with access to talented military members who are in the process of becoming civilians. These individuals continue to be paid by the military while placed with SkillBridge employers. To participate, employers can either register to serve as SkillBridge employers or work through approved intermediaries. For employers, human resource (HR) leaders, and talent acquisition teams, SkillBridge can be a practical way to connect with military talent…

Quick Hits The 9/11 Notice Act and regulations require employers to notify “where practicable” current and former employees who worked in affected areas of Lower Manhattan and Brooklyn of potential eligibility for federal compensation funds. The funds are not limited to first responders but apply to those helped with the clean-up and construction or lived, worked, or went to school in the affected areas during and after the attacks. A…

Quick Hits On September 8, 2026, the Mexican Institute of Social Security (IMSS) published an agreement in the Official Gazette of the Federation that approved the mandatory generation of the digital employers registration identification card (Digital TIP), which will supersede any previously issued physical TIPs. The agreement enters into force on September 23, 2026, and employers must enable access to the IMSS electronic notification portal, called Buzón IMSS, to generate…

Quick Hits The NLRB upheld an arbitration confidentiality provision to the extent it protected the confidentiality of the proceedings and the outcome, while found that the provision’s blanket prohibition on disclosing the existence of arbitration was unlawful. The NLRB also upheld an arbitration provision covering “any and all” employment-related claims, finding a prominent savings clause reasonably informed employees of their rights to file a charge with the NLRB. On August…

Quick Hits The Home Office is introducing mandatory Multi-Factor Authentication for all Sponsor Management System (SMS) users beginning 3 September 2026, requiring a one-time passcode in addition to existing login credentials to protect against unauthorised access. The Level 2 user role will be discontinued from 9 September 2026, and sponsors must upgrade eligible Level 2 users to Level 1 status or deactivate their accounts by 8 March 2027. Because sponsors…

Quick Hits Whether live, in-person teaching was an “essential function” was a fact question for the jury, particularly given that the job description did not distinguish live from virtual instruction and the college had used virtual classrooms during COVID-19 and inclement weather. Failing to communicate a decision on a requested accommodation, even while considering it internally, may constitute a denial sufficient to establish a prima facie failure-to-accommodate claim. Both parties…

Quick Hits NOM-035, published in 2018, established Mexico’s first explicit regulatory framework addressing psychosocial risk factors and employer obligations related to employees’ physical and mental well-being in the workplace. The standard catalyzed a series of labor reforms including expanded vacation entitlements, remote work regulations, recognition of mental health disorders as occupational diseases, the Chair Law requiring workplace seating, and the gradual reduction of the workweek to forty hours by 2030.…

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Summer 2026 issue of the Practical NLRB Advisor. This issue discusses the latest news from the National Labor Relations Board (NLRB) in the wake of a year-long period that the five-member Board lacked the statutorily required three-member quorum due to unfilled vacancies. Even following this extended period when the Board did not have the authority…

Quick Hits SEVP issued Broadcast Message 2608-01 on August 12, 2026, signaling heightened scrutiny of CPT authorizations that may not satisfy regulatory requirements. Broadcast Message 2608-02, issued August 24, 2026, provides additional Q&A guidance on when practical training is considered “integral” to an established curriculum. Both messages are directed at DSOs and SEVP-certified schools rather than employers, and they do not create new regulations or alter existing CPT requirements. On…

Quick Hits On June 5, 2026, FinCEN and several other federal agencies issued a joint advisory highlighting fraud typologies and suspicious activity linked to unlawful employment and employers, including immigration-related schemes. The Treasury Department is expected to propose revisions to the Bank Secrecy Act related to customer due diligence requirements, as well as updates to customer identification program rules to address foreign consular identification cards. On June 8, 2026, the…

Quick Hits The IRS unveiled a new set of detailed FAQs on August 6, 2026, that supersede FAQs that were posted on January 23, 2026, regarding taxation of tips and overtime pay under 2025’s omnibus spending bill. The new FAQs provide information concerning the definition of qualified overtime, eligibility for the deduction, tax withholding obligations, and reporting and correcting qualified overtime on year-end tax forms.   The “no tax on tips…

Quick Hits Because FAMLI allows an employer to choose to cover an employee’s portion of the contribution, a unionized employer that implements FAMLI’s default 50/50 contribution split without first providing the union with advance notice and an opportunity to request bargaining may risk an unfair labor practice charge. Since employers must already bargain over the contribution split, they could include notice of whether they will implement an Equivalent Private Insurance…

Quick Hits The State Department has paused immigrant visa interview appointments at consulates and embassies worldwide so that its officers can undergo training on new public charge screening guidance. Nonimmigrant visa categories—including tourist, student, and temporary work visas—are currently not impacted by the pause. The pause in appointments appears temporary, though a specific timeline has not been announced. The postponement of immigrant visa interviews comes after DHS policy changes affecting…

Quick Hits The State Department is coordinating with the U.S. Department of Homeland Security (DHS) to review and revoke B-1 and B-2 visas issued to foreign nationals between 2016 and 2026 who applied for asylum following their entry into the United States as visitors. Visa revocation generally does not affect the immigration status of an individual currently in the United States, but it will typically prevent reentry into the country…

Quick Hits USCIS will require employment-based adjustment of status (“green card”) applicants to use the Visa Bulletin’s Final Action Dates chart in September 2026. Final action dates for EB-1, EB-2, EB-3, and EB-5 remain unchanged from August 2026; EB-2 India continues to be unavailable. The State Department warns that EB-1 India, EB-2 (all countries), and EB-5 Unreserved categories may retrogress or become unavailable before the fiscal year closes on September…

Quick Hits Colorado’s proposed AI regulations require employers to disclose the use of automated decision-making technology when making significant employment decisions starting January 1, 2027. Employers would need to explain how AI influenced decisions and provide detailed information about the data sources used if an adverse outcome occurs. The proposed rules emphasize transparency and consumer rights and would mandate clear disclosures and technical requirements for request mechanisms for affected employees.…

Quick Hits On August 25, 2026, Canada announced new support programs to help employers impacted by the latest round of U.S. tariffs retain workers, fund training, and avoid layoffs. Extended Employment Insurance (EI) measures allow laid-off or separated employees to access benefits sooner and alongside severance payments. Employers may want to assess eligibility for workforce, EI, and financial support programs when planning staffing or separation decisions. Here is a summary…

Quick Hits Spain published its draft Royal Decree on 4 August 2026, and Portugal published its draft proposal on 5 August 2026. Consultation for both drafts closed recently—24 August for Spain and 25 August for Portugal. Further legislation is expected to provide greater clarity on unaddressed provisions. Despite being published within days of each other, the approaches taken by the two governments vary considerably. Both drafts have been open for…