Ogletree Deakins

Quick Hits Governor Gavin Newsom’s recent executive order directs several state agencies to conduct a comprehensive review of AI’s impact on the labor market. The executive order’s mandates include potential revisions to existing worker protection laws and required notices with reductions in force. The order also emphasizes the need for transparency in AI-related employment data and highlights protections against automated decision-making discrimination. Governor Newsom’s Executive Order N-6-26 directs multiple California…

Quick Hits Fragmentation—not convergence—now defines the global restrictive covenant landscape. Remote work has weakened the logic of traditional geographic restrictions. Mandatory compensation regimes materially change enforcement economics in several jurisdictions. Trade secret litigation is rising as noncompetes narrow—and it is significantly more complex across borders. A single global template creates inconsistent leverage and strategic vulnerability. The global noncompete model is breaking down—not because restrictive covenants are disappearing everywhere, but because…

The Additional Instructions significantly curtail the reporting obligations that federal agencies have maintained for more than two decades under Management Directive 715 (MD-715), the Commission’s primary framework for overseeing federal agency employers’ equal employment opportunity (EEO) programs. The directive relieves agencies of the obligation to report on barrier analysis, diversity and inclusion principles, gender identity, and key demographic workforce data broken down by race, national origin, and gender, and grants…

Quick Hits OCR will be divided into three divisions: the Conscience and Religious Freedom Division, the Civil Rights Division, and the Health Information Privacy, Data, and Cybersecurity Division. HHS and plan sponsor Star Group (SG) reached an agreement to resolve alleged HIPAA violations related to Star Group’s health plan, imposing $245,000 in fines and an extensive corrective action plan. The two-year corrective action plan will require the health plan to…

Quick Hits A federal district court in New Jersey ruled that adult performers on an online streaming platform are independent contractors under the FLSA but qualify as employees under New Jersey’s stricter ABC test. The court found that the performers could not be classified as independent contractors under the ABC test because they operated within the operator’s usual course of business and not outside its places of business by providing…

Quick Hits The Third Circuit ruled that the FLSA does not recognize claims for “gap time,” which refers to unpaid hours that do not exceed overtime limits.  The court declined to rely on the DOL’s guidance suggesting gap time claims are cognizable, finding the FLSA to be unambiguous and the DOL’s guidance otherwise unpersuasive.  This decision eliminates certain gap time claims in the Third Circuit, an area of aggressive DOL…

Quick Hits Unless there is an individual or collective agreement in place, employees in Germany generally have no legal right to workation. Without an A1 Certificate, employers risk a double obligation to pay social security contributions. German law remains applicable during short-term workation within the EU, and mandatory foreign employee protection laws may also apply. A recent study by the Fraunhofer Institute for Industrial Engineering and Organization shows how popular…

Quick Hits Louisiana’s newly enacted workplace violence prevention law, the “Louisiana Behind the Counter Protection Act,” will take effect on August 1, 2026. The law gives employees in customer-facing roles, primarily in retail and hospitality establishments, stronger protection against violence at work. The new law increases criminal penalties against offenders for threats and acts of violence against covered employees. Louisiana’s ‘Behind the Counter Protection Act’ The “Louisiana Behind the Counter…

Quick Hits Virginia Governor Spanberger has signed legislation that expands paid sick leave to all public and private employees. The paid sick leave legislation mandates one hour of paid sick leave for every thirty hours worked, with an annual accrual and use cap of forty hours, and includes provisions that could create challenges for employers, including very loose requirements on the notice employees must give before taking leave. The paid…

Quick Hits Virginia has enacted laws prohibiting certain noncompete agreements for healthcare professionals and restricting the enforceability of noncompete agreements for discharged employees. HB1 and SB1 establish a multiyear schedule to increase Virginia’s minimum wage to $15 per hour by January 1, 2028, with further adjustments based on the Consumer Price Index starting in 2029. SB790 introduces health insurance coverage for menopause and perimenopause symptoms. Limitations on Noncompete Agreements for…

Quick Hits In Sanders v. The Levari Group, LLC, the Appellate Division found that CREAMMA provides an implied private right of action against employers that refuse to hire individuals based on positive cannabis tests. CREAMMA provides that “[n]o employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee … because that person does or does not … use…

Quick Hits The Supreme Court held that delivery drivers who deliver goods originating from out of state may fall under the FAA’s exemption for certain transportation workers “engaged in … interstate commerce,” even if they do not cross state lines or interact with vehicles that do. The decision is the latest in a series of Supreme Court rulings in recent years interpreting the transportation worker exemption in the FAA. While…

The pause in Chicago’s incremental tip credit phaseout is a victory for employers in the hospitality industry that rely on a “tip credit,” which allows an employer to pay an eligible tipped employee a lower direct cash wage than the standard minimum wage by using tips the employee earns to satisfy the employer’s minimum wage obligations. Chicago’s current minimum wage is $16.60 per hour, and the permissible maximum tip credit…

Quick Hits On May 22, 2026, Governor DeSantis signed HB 1407, which revises the procedural framework for civil actions and administrative remedies under the Florida Civil Rights Act (FCRA). HB 1407 aims to clarify timing issues and procedural ambiguities within the Florida Civil Rights Act, particularly regarding the commencement of civil rights claims and the role of administrative notices from federal and state agencies. The new law will take effect…

Quick Hits Businesses operating websites, online services, or applications primarily providing a forum for user-generated content may qualify as “covered platforms” subject to the TAKE IT DOWN Act’s notice-and-takedown requirements. The act’s platform obligations can carry significant civil fines of up to $53,088 per violation. Even employers that are not covered platforms may want to familiarize themselves with the act’s requirements in the event an employee reports that nonconsensual intimate…

Quick Hits New high school curriculum initiatives are integrating occupational safety and health concepts into CTE courses to build hazard awareness and prevention skills in students before they enter the workforce. Students who complete these courses gain practical knowledge of OSHA standards, PPE, hazard recognition, and workplace security while also earning credentials such as OSHA ten-hour or thirty-hour cards that provide a tangible professional advantage before graduation. Early occupational safety…

Quick Hits  On May 14, 2026, Colorado Governor Polis signed Senate Bill 26-189, which repeals and replaces the 2024 Colorado AI Act. The new law removes the 2024 act’s duty of care, risk management program, and impact assessment requirements in favor of a pre-use notice, a post-adverse-outcome disclosure, and a limited set of consumer rights tied to “covered ADMT.” “Consumer” expressly includes employees and Colorado resident job applicants, reaching workforce…

Quick Hits The Supreme Court will determine if employees at federally funded educational institutions can bring sex-discrimination in employment claims under Title IX. The petitioners asked the high court to review an Eleventh Circuit decision, holding that Title IX does not provide a private right of action for employment-related sex discrimination. Petitioners argued that there is a “lopsided” 8–3 circuit split on the issue. On May 18, 2026, the Supreme…

Quick Hits USCIS releases new policy memorandum stating adjustment of status (AOS) applications are a matter of discretion and administrative grace, directing USCIS offices to consider all factors and closely scrutinize applications from individuals who would otherwise obtain permanent residence through consular processing abroad. Applying for adjustment of status is not inherently inconsistent while maintaining nonimmigrant status in a dual-intent category, such as H-1B or L-1, but does not grant…

Quick Hits There are eleven federal holidays in 2026. Private employers are not legally obligated to provide paid holidays. Work performed by hourly, nonexempt employees on a holiday is compensable. Although federal law does not require private businesses to provide paid holidays, many companies voluntarily recognize certain federal holidays as paid holidays in order to boost recruiting, retention, and morale. Some companies choose to include paid holidays within their combined…

Quick Hits In M&K Employee Solutions v. Trustees of the IAM National Pension Fund, the Supreme Court recently concluded that actuaries for multiemployer pension funds can calculate the liability for employers withdrawing from the plan by using the assumptions that are in effect on or after the measurement date. Four employers that exited the IAM National Pension Fund sued over the way their unfunded vested benefits were valued. The Employee…

Quick Hits On May 7, 2026, Tennessee Governor Lee signed into law legislation that bans noncompete agreements for workers who earn less than $70,000 per year. The law will apply to agreements entered into, renewed, or amended on or after July 1, 2026. Noncompetes executed after July 1, 2026 for employees who do not meet the minimum annualized compensation will be void and unenforceable. Under House Bill (HB) 1034, total…

Quick Hits The Fifth Circuit rejected a plaintiff’s argument that the employer’s statement, “[Y]ou’re about to go on leave so … I can’t lose two people when you’re going to be taking leave soon,” constituted direct evidence of discrimination as it was too attenuated. The Fifth Circuit analyzed the plaintiff’s pregnancy discrimination claim under both the “but-for” and “mixed-motive” causation standards and found her evidence insufficient under either standard. The…

Quick Hits On May 8, 2026, the Fifth Circuit upheld a lower court’s decision to dismiss a disability discrimination claim because the plaintiff could not return to work in person, which was one of the essential functions of the job. The employer satisfied its obligation to provide a reasonable accommodation by offering telework two to three days a week, which the employee rejected. The employee’s inability to perform the essential…

Quick Hits MSHA’s FY 2027 budget justification seeks nearly a 10 percent funding cut while preserving core inspection duties and shifting resources toward training, regulation, data analytics, and technology. The proposal would reduce funded staffing through attrition, eliminate the Brookwood-Sago mine safety grants program, and pursue AI tools for inspectors. Mine operators can expect MSHA to maintain regular inspections despite fewer enforcement positions. Overall, MSHA is requesting nearly a 10…

Quick Hits Under German labor law, employees claiming unequal treatment in relation to a “comparator” must specifically demonstrate in court that they perform the same or equivalent work as the comparator. Anyone seeking to sue for “equal hourly wages” must specifically demonstrate the number of working hours on which their own monthly salary is based; without a verifiable gross hourly wage for the plaintiff, a comparison with the comparator’s gross…

Quick Hits A new proposed rule from the U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and U.S. Department of the Treasury would allow employers to provide coverage for fertility treatments as a limited excepted benefit. Employees would be able to enroll in excepted benefit fertility coverage without having to enroll in the employer’s group health plan. This excepted benefit coverage would apply only to…

Quick Hits In a unanimous decision, the Supreme Court ruled that federal courts that have stayed claims in pending actions under Section 3 of the FAA maintain jurisdiction to confirm or vacate the resulting arbitral awards under sections 9 and 10 of the FAA. In this case, the original employment discrimination claims were sufficient to establish the federal district court’s jurisdiction. The Court ruled that the original claims also established…

Quick Hits The Supreme Court recently found that freight brokers can be sued for negligent hiring after accidents involving motor carriers selected for interstate transport of goods. The FAAAA does not override state laws concerning negligent hiring of unsafe motor carriers. The FAAAA preempts state laws related to prices, routes, and services for commercial trucking companies and brokers. However, a safety exception allows states to maintain safety regulatory authority with…

Quick Hits Effective July 10, 2026, a new USCIS interim final rule gives adjudicators explicit regulatory authority to deny—rather than merely reject—immigration benefit requests with invalid signatures. Unlike a rejection, a denial means USCIS retains the filing fee, and the petitioner must file an entirely new petition to try again. Employers, HR professionals, and immigration practitioners may want to review signature workflows now, as USCIS will not permit petitioners to…

Quick Hits The California Court of Appeal, First Appellate District, affirmed the holding that an employer could not enforce an arbitration agreement since it was neither a signatory to the contract nor an “affiliate” of the staffing agency. The court further held that even if the employer was a third-party beneficiary of the arbitration agreement, the agreement did not cover claims arising after the employment with the staffing agency ended.…

Quick Hits On April 23, 2026, Florida Governor Ron DeSantis signed a bill (SB 1134) that prohibits counties and municipalities from funding or promoting DEI-related programs, training, and offices. The law requires recipients of county and municipal contracts and grants to confirm they do not promote DEI. The law will take effect on January 1, 2027. The new law defines DEI as any effort to: “[m]anipulate or otherwise influence the…

Quick Hits The ADA’s broad definition of “disability” expressly encompasses mental health conditions, which may include major depressive disorder, panic disorder, anxiety disorder, post-traumatic stress disorder (PTSD), attention deficit disorder, and autism spectrum disorder, among others. Employers have an obligation to provide reasonable accommodation(s) that enable employees with mental health disabilities to perform their essential job functions or enjoy the equal privileges and benefits of employment. Employees are not entitled…

Quick Hits Germany’s Federal Labor Court held that an employer’s failure to attempt contact with a vacationing employee for the purpose of a required hearing before issuing an extraordinary termination on suspicion rendered the termination invalid for exceeding the two-week notice period. An employer must make a reasonable attempt to reach an employee on vacation within one week of learning the relevant facts, and only such an attempt will suspend…

Quick Hits OSHA is making mental wellness a significant part of its modern safety framework. Employers may want to ensure that their safety and health management systems include worker input to ensure psychologically safe environments. Psychological risk prevention may include employee assistance programs, leaves of absence accommodations, and other accommodations to prevent and mitigate risk exposure. Psychological safety refers to the mental and emotional well-being of workers in the workplace,…

Quick Hits Maine Governor Janet Mills recently signed a bill that updates the state’s existing substance use testing law to prohibit arbitrary drug testing in the workplace. The new provisions permit drug testing based on reasonable suspicion of impairment, criteria-based testing, and random testing based on neutral selection methods. The law will take effect on July 29, 2026. The legislation updates Maine’s existing substance use testing law as follows: Employers…

Though neither Virginia nor Maine requires the disclosure of benefits information, both states’ laws require employers to disclose compensation information in job postings. Further, they continue the trend of the laws varying in nuanced and significant ways. For example, Maine imposes a ten-employee coverage threshold for purposes of its job posting requirements, and also incorporates recordkeeping and employee-request obligations; Virginia combines its posting requirements with a salary history ban, anti-retaliation…

Quick Hits EU member states Estonia, Malta, Lithuania, and Slovakia have released recent updates on their respective implementation of the EU Pay Transparency Directive. Delays are now expected for Estonia; meanwhile, Malta, Slovakia, and Lithuania are still on track to meet the 7 June 2026 deadline. The European Commission has previously stated that the date for implementation remains 7 June 2026. Estonia The Economic Affairs Minister for Estonia, Erkki Keldo,…

Quick Hits A lawful strike in Germany can supersede previously approved vacation, resulting in  an employee not receiving vacation pay for the strike period. Vacation from the previous year may expire if it is not taken during the carryover period; the employer’s special obligations to cooperate may be set aside if the vacation has already been requested and approved. The Case—Vacation Approved, Strike Underway: Who Pays? The employer, a recycling…

Quick Hits Oklahoma’s HB 3127 imposes a mandatory zero-tolerance drug and alcohol standard for safety-sensitive positions and replaces the previous broad employer-judgment standard with a specific list of qualifying duties. Employers now have expanded authority to act on positive marijuana tests under any compliant written drug and alcohol testing policy—not just for safety-sensitive roles. Employers still cannot take adverse action solely because someone holds a medical marijuana license. Zero Tolerance…