Ogletree Deakins

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…

Quick Hits In FY 2025, union election petitions filed by employees decreased to 2,100, marking the lowest number since 2022, yet still surpassing the first two years of the Biden administration. Unions achieved a high win percentage of 81.9 percent in representation elections, though the percentage reflected a slight decline from the previous year. Employer petitions dropped to 237, but employer petitions have been significantly higher since the NLRB’s 2023…

Quick Hits The Maine Department of Labor recently confirmed that benefit distributions will begin on May 1, 2026, for the PFML program. Both employers and employees contribute to the paid family and medical leave fund. Covered workers will be entitled to take twelve weeks of paid time off for family leave, medical leave, leave to deal with the transition of a family member’s military deployment, or leave to stay safe…

Quick Hits Maine recently enacted a law requiring employers to notify employees and job applicants about employee surveillance. The law does not apply to cameras used in the workplace for safety and security purposes. The law took effect immediately without the governor’s signature. In recent years, more employers have begun using technology to track employee movements and actions. This may include cameras in the workplace, GPS tracking on phones and…

Quick Hits A jury in federal court recently awarded a former employee $5.5 million in her sexual harassment and retaliation case. A female security guard alleged that her boss sexually harassed and assaulted her, and that the company ended her employment after she complained to the company’s owner. Anti-harassment provisions in federal, state, and local laws may vary in scope and application. Background A former security guard sued C&M Defense…

Quick Hits The NLRB has implemented new case intake procedures requiring charging parties to submit evidence before their unfair labor practice cases are docketed. Under the new procedure, a failure to provide documentation and information supporting a charge within two weeks may lead to the dismissal of the charge. Designed to enhance efficiency in case handling and reduce the existing case backlog, the updated process may result in quicker resolutions…

Quick Hits Identifying Impacted Contracts: Review contract terms and engage your contracting officer to determine if contracts are affected by the shutdown. Responding to Stop-Work Orders: Stop-work orders typically require immediate compliance. When complying, be sure to document all related communications and actions. Proactive Communication: If no stop-work order is issued, seek written confirmation from your contracting officer on whether to continue work. Mitigation Strategies: Manage financial exposure, communicate with…

Quick Hits When an employee is required to be on duty for more than twenty-four hours, the FLSA allows employers to exclude up to eight hours of sleep time from compensable hours. This exclusion applies where: (1) there is an implied or express agreement to the exclusion; (2) the employer provides adequate sleeping facilities; and (3) the employee gets at least five hours of uninterrupted sleep. Nonexempt employees who are…

Quick Hits To avoid a partial government shutdown, a funding package for the departments of Defense, Homeland Security, Transportation, Housing and Urban Development, Health and Human Services, Labor, Education, Treasury, State, and other agencies must pass the U.S. Senate before January 30, 2026. A government shutdown of these departments would suspend critical immigration functions, including PERM processing, prevailing wage determinations, and Labor Condition Applications. E-Verify would also likely be unavailable, and…

Quick Hits OFCCP issued an Information Collection Request on January 2, 2026, seeking to revise questions on its complaint and pre-complaint inquiry forms to align with Executive Order 14173. OFCCP issued a renewed Information Collection Request on January 7, 2026, seeking to extend existing recordkeeping requirements under VEVRAA. On January 20, 2026, an appropriation bill was introduced that proposed to fund OFCCP at $100,976,000 for fiscal year 2026. This appropriation…

Quick Hits Effective January 21, 2026, the State Department will pause issuance of immigrant visas to applicants from seventy-five designated countries. Nonimmigrant visas (e.g., H-1B, L-1, TN, and B-1/B-2) will continue to be processed and are not impacted by this directive. Scope and Designated Countries The seventy-five countries impacted by the announcement include: Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma,…

Quick Hits The EEOC voted 2–1 along party lines to rescind the 2024 anti-harassment guidance that recognized harassment based on sexual orientation and gender identity as unlawful under Title VII. The reversal aligns with the Trump administration and EEOC Chair Andrea Lucas’s federal policy shift to define sex as immutable and binary. This rescission follows a federal court ruling that the EEOC had overstepped its authority with the original guidance,…

Quick Hits On January 17, 2026, outgoing New Jersey governor Phil Murphy signed into law a bill that will expand the reach and protections of the NJFLA. The new law also appears to greatly expand state law, including new job-protection provisions for employees taking medical leave. The new law takes effect on July 17, 2026, six months following its enactment. Smaller Employers Affected and Newer Employees Eligible The new law…

Quick Hits USCIS will continue to accept adjustment of status filings based on the Dates for Filing Chart in February 2026. All EB-3 categories advance, except India and China-mainland. EB-4 Certain Religious Workers (SR) is Unavailable (U) in February 2026 due to the program’s sunset on January 30, 2026. Final Action Dates The final action dates in the EB-3 category advance for all countries except for China-mainland and India in…

Quick Hits The U.S. Court of Appeals for the Fourth Circuit provided guidance in a recent unpublished opinion on leave and remote work as reasonable accommodations under the ADA and West Virginia Human Rights Act. Indefinite leave is not a reasonable accommodation as a matter of law. Remote work is not a reasonable accommodation for an employee who is receiving short-term disability insurance benefits, which typically are awarded only when…

Quick Hits On December 19, 2025, Governor Hochul signed into law legislation amending New York’s General Business Law to restrict the use of an applicant’s/employee’s credit history in employment decisions, effective April 28, 2026. The new law prohibits employers from requesting or using credit reports for employees or job applicants unless they fall into specific exceptions, such as certain positions that will have regular access to trade secrets, and positions…

Quick Hits Workers in certain certified professions in Canada can now more easily obtain authorization to work in other jurisdictions. Labour mobility between the provinces and territories, and at the federal level, has reduced red-tape barriers to help qualified professionals work outside the province where they are licensed or regulated. These changes make it easier for employers to reach a larger labour pool while reducing delays and paperwork. Federal—Free Trade…

Quick Hits The California Civil Rights Department’s preliminary pay data reporting templates for the 2025 pay reporting cycle show three new columns on both the payroll employee and the labor contractor employee reports: (1) Exemption Status; (2) Employment Type; and (3) Total Annual Weeks Worked. The preliminary templates show that these new columns are not required fields for the 2025 pay data reporting. The preliminary templates and FAQs are subject…

Quick Hits The legal landscape of employment arbitration continues to evolve as plaintiffs’ attorneys mount new challenges, particularly in light of laws like the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). Employers can avoid pitfalls by staying informed on the latest issues and carefully crafting and regularly evaluating their arbitration agreements to maintain effectiveness and enforceability. The Federal Arbitration Act (FAA) promotes the use of arbitration…

Quick Hits Employees may use FMLA leave to attend medical appointments related to serious health conditions for themselves or for a qualifying family member. FMLA leave also covers reasonable travel to and from such appointments. Medical certifications need not include an estimate of travel time to be complete and sufficient. Using FMLA Leave for Medical Appointments The FMLA entitles eligible employees of covered employers to take up to twelve work…

Quick Hits CBP recently proposed changes to its Visa Waiver Program and Electronic System for Travel Authorization and invited public comment through February 9, 2026. Proposed changes include moving to a mobile-only application (the ESTA mobile app) and requiring extensive new data, including social media information and family member details. Enhanced vetting and security changes include adding required applicant biometric uploads (i.e., a photograph of the applicant’s face or a…

Quick Hits New York Assembly Bill A9452 seeks to amend the newly enacted Trapped at Work Act, which prohibits stay or pay agreements that require employees to repay training expenses if they leave their job. The proposed chapter amendments would narrow the scope of the original law to apply specifically to employees, excluding independent contractors and other workers from the prohibitions on reimbursement agreements. The amendments would also allow employers…

Quick Hits Employers must submit separation information through the NJDOL’s Employer Access portal. Previously, employers provided separation information to the NJDOL via a designated email address. Employers may want to register now for portal access and use it to make all timely separation submissions, despite some ambiguity about what separation-related information the NJDOL requires employers to provide. What the 2022 UCL Amendments Require The 2022 amendments to New Jersey’s Unemployment…

Quick Hits USCIS will place a hold on all pending benefit requests filed by or for foreign nationals who are citizens of or were born in countries listed in Presidential Proclamation 10998, issued in December 2025. USCIS will also re-review approved benefit requests of foreign nationals impacted by Presidential Procalamation 10998 who were approved on or after January 20, 2021, an expansion of scope from its December 2, 2025, memorandum.…