Ogletree Deakins

Quick Hits An Ontario labour arbitrator accepted eyewitness evidence of an employee’s cannabis use based on the distinct smell of marijuana, finding this constituted “clear and cogent evidence” even without formal drug recognition training. The employee’s dismissal was reduced to a three-month suspension because the employer did not prove observable impairment—only that cannabis was consumed during working hours. The employer’s delayed response—waiting until the next day to escalate the concern—eliminated…

Quick Hits The State Department updated the Foreign Affairs Manual (FAM) to broaden B-1 visa eligibility for foreign nationals involved in installing, servicing, and training related to commercial or industrial equipment purchased from foreign companies. A new “Specialized Trainers” category has been added to the FAM, allowing foreign nationals to enter the United States on a B-1 visa to train U.S. workers on specialized or proprietary techniques, skills, or know-how…

Quick Hits Trucking employers must pay Washington-based drivers 1.5 times the regular rate for hours worked over forty per week, or the “reasonable equivalent” of overtime. In Bostain v. Food Express, Inc., Washington’s Supreme Court held that the MWA applies to interstate drivers regardless of where the drivers are performing the work. Noncompliance can be very costly, and violations can result in double damages under Washington law. Employers with Washington…

Quick Hits Multinational employers planning workforce reductions must complete required consultations before making any global announcements or cutting system access. Many countries require mandatory government notifications even for single terminations, not just mass layoffs. A global reduction in force is not a single event—it is a coordinated series of local processes, each with its own rules, timelines, and execution formalities. This U.S.-centric approach, when implemented outside the United States, routinely…

Quick Hits The FTC said in a policy statement that it will take a relaxed COPPA enforcement position for certain website and online service operators that collect personal information solely for determining a user’s age without first obtaining parental consent if specific conditions are met. The FTC’s policy statement applies only to “general” and “mixed” audience operators of websites and online services, not operators that target children as their primary…

On February 18, 2026, the U.S. General Services Administration (GSA) released a draft revised Supporting Statement providing the text of this proposed certification, which would be added to the registration process for the System for Award Management (SAM.gov), the federal database where entities must register to receive federal funding. The certification requirement implements Executive Order (EO) No. 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and the U.S. attorney general’s…

Quick Hits The NLRB issued a final rule that reinstates the 2020 standard for joint employer status, formally withdrawing a broader 2023 rule struck down in federal court.  The rule narrows the meaning of “essential terms and conditions of employment” for joint employer status purposes to wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction. The return to the 2020 rule provides greater clarity and predictability for employers,…

Quick Hits Sleeping malware delays the cyber attack making it difficult for organisations to pinpoint where the threat has come from, and often can remain undetected making it too late to stop the attack. Attacks can result in business disruption, loss of personal data, and reputational damage. Organisations cannot entirely eliminate risk, but they can take precautions to reduce exposure and increase the likelihood of early detection and effective response.…

Quick Hits New Jersey Senate Bill S3452 aims to enhance employment protections for registered medical marijuana patients by preventing employers from taking adverse employment action against them based solely on their status as medical marijuana cardholders or their having tested positive for cannabis. If enacted as proposed, the bill would prevent an employer from taking adverse employment action against such an employee unless the employer can establish by a preponderance…

Quick Hits On January 29, 2026, the First Circuit reversed the dismissal of plaintiffs’ religious discrimination and retaliation claims arising from their employer’s COVID-19 vaccination policy. In doing so, the First Circuit made clear that “my-body-is-my-temple arguments rooted in a plaintiff’s religious beliefs are sufficient to plead the existence of a bona fide religious belief.” Additionally, although the employees resigned their employment, the court concluded that allegations regarding the investigation…

Quick Hits The Department of Education found that San José State University’s policies allowing student-athletes assigned male at birth to compete in women’s sports and access the corresponding facilities “deny women equal educational opportunities and benefits.” This finding follows a directed investigation pursuant to President Donald Trump’s February 2025 executive order barring transgender athletes from competing in women’s sports. The executive order—which takes the position that allowing transgender student-athletes’ participation…

Quick Hits EB-1 advances for China and India. All EB-2 categories advance, except China. EB-3 advances except China and India. Final Action Dates The final action dates chart show the following movement in the March 2026 Visa Bulletin: EB-1: Advances one month for China and India; all other countries continue to be current. EB-2: No movement for China, India advances two months to September 15, 2013; all other countries advance…

Quick Hits The U.S. District Court for the Western District of Washington recently granted summary judgment to an employer, holding that the plaintiff’s FLSA and Washington state wage claims were barred by a valid separation agreement and release. The court rejected the argument that FLSA rights can never be waived by contract, finding no binding authority or statutory text to support a categorical prohibition on waiver. The court also held…

Quick Hits The USPS recently changed a rule so that postmarks may reflect the processing date, rather than the date a post office obtained a letter or package. The new rule could lead to fines for employers if mandatory notices concerning employee benefit plans are deemed late. Electronically sending mandatory notices can help to meet a legal deadline, if the recipient has agreed to electronic communications. Under federal laws like…

Quick Hits The DCWP has released proposed rules to implement the recent amendments to New York City’s ESSTA. The ESSTA amendments included the addition of thirty-two unpaid leave hours, expansion of ESSTA reasons, new pay statement documentation requirements, and modification of potential penalties. Employers and other stakeholders may submit comments to the DCWP. A public hearing on the proposed rules is scheduled for March 2, 2026, at 11:00 a.m. EST.…

Quick Hits On December 19, 2025, the FTC announced an enforcement action against business-to-business no-poach practices and issued a proposed order that would require building services contractor Adamas Amenity Services LLC and its affiliated businesses (Adamas) to cease enforcement of their anticompetitive no-hire agreements. The order was finalized on February 12, 2026. This latest action, which mirrors two prior enforcement actions of the same type against Planned Building Services and…

Quick Hits The OECD’s November 2025 update to the Model Tax Convention introduces a new two-part framework for assessing permanent establishment (PE) risks from cross-border remote work, including a 50 percent working time safe harbor and a “commercial reason” test. No automatic PE arises from mere employee-driven remote work in another country, providing relief for multinational employers managing hybrid and distributed teams. Employers may want to track working time splits…

Quick Hits Despite repeated requests from multiple courts, the administration has yet to articulate what distinguishes lawful DEI programs from those that the federal government believes violate antidiscrimination laws, leaving employers without clear compliance guidance. Federal contractors and money recipients that cannot certify compliance face potential False Claims Act liability, including treble damages, civil investigative demands, and possible criminal exposure—consequences far exceeding traditional antidiscrimination enforcement. The Seventh Circuit panel signaled…

Quick Hits On February 6, 2026, the Fourth Circuit held that the plaintiffs’ facial challenges in National Association of Diversity Officers in Higher Education v. Trump to President Trump’s anti-DEI executive orders (EOs) were unlikely to succeed, but the court did not validate the administration’s enforcement practices, did not endorse its interpretation of anti-discrimination law, and did not define what constitutes “unlawful DEI.” The certification provision in EO 14173 applicable…

Quick Hits Federal contractors must distinguish between contracts entered into before January 30, 2022 (subject to Executive Order (EO) 13658 and DOL’s annual indexed increases), and those entered into on or after that date, which were governed by EO 14026 prior to its revocation. Even though DOL is no longer enforcing EO 14026, contractors remain bound by existing contract clauses unless modified by the contracting officer and must comply with…

Quick Hits The EEOC issued FAQs to assist federal agencies in implementing President Trump’s return-to-office order in compliance with the Rehabilitation Act of 1973, the federal sector analog to the ADA. As private employers implement return-to-office policies, the EEOC’s FAQs provide useful guidance for managing telework accommodation requests under the ADA. Employers may re-evaluate existing telework arrangements for individual employees and modify or rescind them, depending on the availability and…

Quick Hits On February 13, 2026, Cal/OSHA issued a notice of proposed rulemaking to implement the “walkaround rule,” which would allow additional employee and employer representatives during inspections. The proposed regulation introduces a framework for involving employer and employee representatives, including third parties, during inspections, raising concerns about potential contentious and adversarial environments. The draft regulation follows the federal OSHA walkaround rule and includes provisions for additional representatives, inspector authority,…

Quick Hits Governor Abbott has directed Texas public institutions of higher education and state agencies to freeze the initiation or filing of any “new” H-1B petitions for foreign employees until May 31, 2027. Governor Abbott has also directed the impacted state agencies and university institutions to provide H-1B sponsorship data to the Texas Workforce Commission. This directive appears to impact “new” H-1B visas sought by state government agencies and public…

Quick Hits The Third Circuit explained that challenges to diversity efforts must prove both a discriminatory purpose and impact to trigger strict scrutiny and found sufficient evidence that the district’s policy aimed to alter the racial makeup of its selective high schools. The court emphasized that it is unconstitutional for schools to seek specific racial percentages or racial balancing, and that even race-neutral criteria like zip codes can be scrutinized…

Quick Hits A proposed class action alleges that a widely-used AI-powered tool violates the federal FCRA and California’s ICRAA by compiling sensitive, individualized personal information on job applicants without their consent.  The complaint contends that by evaluating applicants based on extensive data sources—such as LinkedIn profiles, publications, and job application history—the tool generates consumer reports subject to the disclosure, authorization, notification, and certification requirements of both statutes. The lawsuit could…

Quick Hits The FTC negotiated a ten-year consent order with an employer to end the employer’s enforcement of blanket noncompete agreements against nearly 1,800 employees. The consent order mandates that the employer notify employees and former employees that the company’s noncompete agreements are no longer effective, cease enforcement of those agreements, and provide ongoing compliance reporting to the FTC for a decade. The consent order comes after the Trump administration…

Quick Hits Nevada’s Senate Bill (SB) 260, effective January 1, 2026, mandates comprehensive requirements for employers to protect outdoor workers from wildfire smoke hazards. Employers must implement written programs to mitigate exposure, monitor air quality, provide employee training, and establish communication systems for reporting air quality and health symptoms. SB 260 includes specific measures for air quality index levels and exemptions for certain employers, with further regulatory measures to be…

Quick Hits Relying heavily on the Supreme Court of the United States’ June 2023 Students for Fair Admissions decision, the attorneys general assert that strict scrutiny applies to all race-based government action and that most DEI programs cannot survive that standard. The Texas opinion identifies specific private-sector DEI practices—including “diverse slate” policies, demographic hiring goals, DEI-linked compensation, and restricted fellowship or other pipeline-type programs—as potential violations of Title VII of…

Quick Hits An employee who cannot perform essential job functions, even with a reasonable accommodation, is not a “qualified individual” under the ADA. The ADA does not require an employer to provide wholly remote work as a reasonable accommodation if a position requires in-person attendance to perform some essential functions. Employers need not extend additional accommodation offers after an employee rejects an initial reasonable accommodation. Background After an accounting assistant…

Quick Hits New York Governor Kathy Hochul has announced a new AI agenda, including the establishment of an Office of Digital Innovation, Governance, Integrity and Trust (DIGIT) to oversee digital safety and technology governance. The governor also announced plans to advance legislation aimed at regulating AI-generated content and enhancing consumer privacy, including proposals to mandate labeling of provenance data and require data broker registration. This initiative builds on a series…

Quick Hits Crypto payments, especially via stablecoins, enable lightning-fast, low-cost cross-border transfers that reduce fees and delays compared to traditional banking. Offering crypto options can signal innovation and help attract tech-savvy talent, particularly in web3 and global remote teams. Key risks include price volatility (unless using stablecoins), complex U.S. tax treatment as property, and the challenge of meeting local minimum wage requirements when compensation fluctuates or is not denominated in…

In this article, we address how employers can respond in the immediate aftermath of discovering a fraudulent employee and their considerations moving forward. Quick Hits Employers may want to take immediate action to terminate an individual’s access and privileges as soon as they determine the individual is a fraudulent employee. Employers may also want to promptly involve trusted IT and legal personnel to conduct a forensic evaluation of the employee’s…

Quick Hits On December 30, 2025, HHS’s OIG issued Advisory Opinion No. 25-12, determining that home care agencies’ proposed sign-on bonuses for prospective caregivers, who are often family members of Medicaid participants, constituted impermissible remuneration under the federal Anti-Kickback Statute and potentially violated the Beneficiary Inducements Civil Monetary Penalty provision. The OIG found that the proposed sign-on bonuses, advertised without eligibility criteria, created an “inextricable link” between caregivers and client…

Quick Hits For the election of a separate works council in Germany, a certain territorial unit belonging to a company must either constitute an establishment with unified management or an independent part of an establishment with a minimum degree of organizational autonomy. Mere delivery zones (“remote cities”) of a platform-based delivery service, where only delivery drivers are employed, do not constitute organizational units eligible to elect a works council. The…

Quick Hits California’s transition to electric vehicles is causing a decline in gas tax revenue, prompting the state to consider a mileage tax to fund transportation infrastructure. The proposed mileage tax would likely trigger existing state labor laws, requiring employers to reimburse employees for the tax as a necessary business expense. Employers may face significant financial impacts from increased reimbursements, potentially leading to higher prices for customers, reduced employee travel,…

Quick Hits On February 2, 2026, the California Legislature declined to pass legislation (SB 310) that would have allowed employees to directly sue for unpaid wages under section 210, maintaining the current enforcement avenues through the labor commissioner or PAGA. SB 310 aimed to address delays and limited recoveries in existing processes by proposing a new civil action route for employees, but it failed to pass, leaving the current penalty…

Quick Hits Noncompliance with New Jersey’s Earned Sick Leave Law’s recordkeeping requirements creates a presumption that an employer failed to provide the earned sick leave required by the law. Vacation/PTO policies relied upon by employers to comply with the ESLL must provide paid leave for all purposes required by the ESLL. Failure to provide earned sick leave constitutes failure to pay wages under NJWHL, subjecting employers to claims for liquidated…

Quick Hits The U.S. Court of Appeals for the Fourth Circuit reiterated that a low bar exists for asserting a religious discrimination claim at the pleading stage of a Title VII case. The court held it was not a violation of the ADA for an employer to ask about an employee’s vaccination status. An employee’s vaccination status does not support a “regarded as” disabled claim under the ADA in the…

Quick Hits Washington’s Division of Occupational Safety and Health has moved to amend excavation, trenching, and shoring rules, with a focus on general protection requirements. The proposal would require employers to complete a written work plan for any trench excavation that requires a protective system and require a “competent person” to remain onsite any time trenching and evacuation work is being performed. Washington Department of Labor & Industries is holding…

Quick Hits Germany’s Federal Labor Court (BAG) ruled that third-division soccer referees are not employees, reversing the Cologne Regional Labor Court’s decision and determining that the legal dispute should be heard in civil courts. The BAG found that the framework agreement and actual constraints on referees did not establish an employer’s right to issue instructions typical of an employment contract, emphasizing the freelance nature of the referees’ work. The decision…