Ogletree Deakins

Quick Hits Parts of Florida, Georgia, and South Carolina are experiencing unhealthy air quality due to wildfire smoke. Employers may need to take safety precautions against wildfire smoke to comply with the federal Occupational Safety and Health (OSH) Act and certain state-level laws. Some workers have disabilities that require reasonable accommodations when air quality is poor. With heavy wildfire smoke, harmful particles, gases, and ash can seep into workplaces and…

Quick Hits The federal Fair Labor Standards Act (FLSA) requires for-profit employers to pay all employees for all hours worked. Some interns and students are not considered employees if they meet the criteria of the “primary beneficiary” test. Some states have laws governing unpaid internships that are stricter than the FLSA. Unpaid internships remain fairly common in certain industries, including restaurants, publishing, television and filmmaking, music, and fashion. This designation…

Quick Hits In Sonderling v. Ikes Artisan Pizza LLC, the DOL argued that the FLSA’s anti-retaliation provision grants courts broad authority to award punitive damages against employers. The case implicates an unresolved circuit split and could significantly increase financial exposure under the FLSA retaliation. Background The Ikes Artisan Pizza case centers on a complaint filed by the DOL in 2022 alleging that the employer retaliated against an employee for communicating…

Quick Hits California Senate Bill 951 would require employers to provide at least ninety days’ advance written notice before eliminating positions due to AI or automation affecting twenty-five or more workers or twenty-five percent of the workforce, and to separately notify state agencies when they permanently stop hiring for roles replaced by AI. The bill would protect affected workers at companies with more than one hundred employees by prohibiting discharge…

Quick Hits Several federal laws may require businesses to provide reasonable accommodations for employees seeking infertility treatments. A growing number of states have passed laws requiring health plans to cover infertility diagnosis and treatments. Fertility medications and procedures are not always covered by health insurance. Leave Benefits The Family and Medical Leave Act (FMLA) may apply to fertility treatments if they are needed to address a serious health condition requiring…

Quick Hits Life science employers face a rapidly evolving 2026 legal landscape spanning noncompete enforcement shifts, expanding pay transparency mandates, AI bias audit requirements, immigration overhauls, DEI program legal exposure, NLRB policy reversals, OSHA heat standards, new leave and accommodation obligations, and workforce development imperatives. State and federal developments are moving in different and sometimes opposing directions, with the Trump administration pulling back on certain enforcement priorities while states accelerate…

Quick Hits The DOL’s AI Literacy Framework defines essential skills for effectively using and evaluating generative AI technologies in the workplace. The framework encourages employers to provide hands-on training to ensure all employees possess baseline AI literacy skills to engage with AI tools responsibly and effectively. The framework outlines foundational content areas and key principles for effective training, including experiential learning and the integration of complementary human skills alongside AI…

Quick Hits California’s AB 2064 would add “criminal history” as a new protected characteristic under both the Unruh Civil Rights Act and FEHA. Employers would retain the ability to consider criminal history through an individualized assessment under the Fair Chance Act, but would be required to demonstrate that the conviction directly and adversely relates to specific job duties before denying employment. The bill builds on California’s existing Fair Chance Act…

Quick Hits The California Court of Appeal held that an arbitrator’s finding of no Labor Code violations has issue-preclusive effect on an employee’s PAGA standing. The decision barred an employee from pursuing representative PAGA claims in court after losing on individual claims in arbitration. The ruling confirms a powerful strategy for employers: compel individual claims to arbitration, secure a favorable ruling, and then move to dismiss the representative PAGA action.…

Quick Hits The IRS has issued new guidance reflecting that the tax exclusion for educational assistance programs under Section 127 will be adjusted for inflation starting in 2027, while maintaining a flat cap of $5,250 for 2026. The guidance clarifies the permanent extension for tax-free employer contributions toward qualified education loans and clarifies that educator expenses can be claimed as itemized deductions starting in 2026. The IRS updated its frequently…

Quick Hits Beginning no later than January 3, 2028, eligible Maryland employees will be entitled to up to twenty-four weeks of paid family and medical leave for certain specified reasons. The MDOL’s FAMLI Division has significantly overhauled its website to provide new and expanded guidance to employers and employees in advance of the start of the paid family and medical leave insurance (FAMLI) program. The FAMLI Division’s employer-focused resources include…

Quick Hits The California Court of Appeal, Second Appellate District, held that ambiguities in three arbitration documents did not defeat the parties’ mutual intent to arbitrate. The ambiguities involved Federal Arbitration Act (FAA) applicability, arbitrator selection, and Private Attorneys General Act (PAGA) waivers. The court found only a low level of procedural unconscionability, typical of adhesive employment agreements, and no substantive unconscionability. The agreement’s severability clause allowed the court to…

Quick Hits A Massachusetts federal court extended its preliminary injunction blocking the ACTS survey mandate for twelve intervenor-plaintiffs, representing approximately 178 additional institutions of higher education. The court found that the intervenor-plaintiffs were likely to succeed on the merits of their claim that the ACTS survey was adopted in an arbitrary and capricious manner in violation of the Administrative Procedure Act (APA). The court concluded it had the statutory authority…

Quick Hits The DOJ ordered the reclassification of certain marijuana and marijuana-containing products from Schedule I to Schedule III controlled substances, potentially reshaping medical research and employer policies around its use.  Reclassification could lead to more medical research on marijuana and other non-employment-related impacts. Reclassification could also have implications for employers, including the handling of employees who are medical marijuana cardholders, analysis of workplace accommodation requests, and maintaining drug testing…

Quick Hits The D.C. Circuit held that an off-site repair facility located near a mine and used primarily to service coal haul trucks qualified as a “mine” under the Mine Act but avoided addressing broader MSHA jurisdictional questions. After the Supreme Court returned the case following Loper Bright, the D.C. Circuit adopted a fact-intensive test asking whether a facility is “necessarily connected with the use and operation of extracting, milling,…

Quick Hits Starting no later than January 3, 2028, the FAMLI program will provide most Maryland employees with up to twelve weeks of paid leave for certain family and medical reasons, with a possible additional twelve weeks of leave for parental bonding, per application year. The program is funded through employer and employee payroll contributions, which will commence on January 1, 2027, and be administered by the MDOL’s FAMLI Division.…

Quick Hits A coalition of higher education/academic and minority trade associations has filed a lawsuit against President Trump’s executive order on DEI initiatives that imposes contractual consequences on federal contractors and subcontractors. The lawsuit alleges that Executive Order (EO) 14398 unlawfully equates DEI with racial discrimination and violates the First Amendment by chilling speech and association on matters of race and diversity. The plaintiffs contend EO 14398 is overly broad…

Quick Hits New clause FAR 52.222-90 declares contractor compliance “material” to the government’s payment decisions, creating direct False Claims Act liability for contractors who maintain prohibited programs. Agencies must bilaterally modify existing contracts to include the new clause by July 24, 2026, and if a contractor refuses, agencies are told to consider whether the contract should be terminated for convenience. Prime contractors must flow the clause down to all tiers…

Quick Hits The minimum wage in the U.S. Virgin Islands will increase to $12.00 per hour starting April 24, 2026, The increase is part of recent amendments enacted in January 2026 that call for annual increases to the minimum wage rate each year until 2028 and call for potential future adjustments by the Virgin Islands Wage Board after 2029.  Employers may want to review and update their wage schedules and…

Quick Hits The WHO and several other organizations have jointly developed “Framework Guidelines for Addressing Workplace Violence in the Health Sector,” signaling a unified global commitment to ending workplace violence in healthcare. Despite the absence of a federal OSHA standard, the agency is actively investigating and citing employers that fail to protect healthcare workers from workplace violence. Several states have also taken the initiative to provide workplace violence prevention requirements…

Quick Hits Starting no later than January 3, 2028, the FAMLI program will provide most Maryland employees with up to twelve weeks of paid leave for certain family and medical reasons, with a possible additional twelve weeks of leave for parental bonding, per application year. The program is funded through employer and employee payroll contributions, which will commence on January 1, 2027, and be administered by the MDOL’s FAMLI Division.…

Quick Hits The U.S. Department of Education’s Office of Civil Rights has rescinded agreements protecting transgender and LGBTQ+ students across several school districts and one community college, reflecting a policy shift under the Trump administration. The office explained these agreements incorrectly interpreted Title IX, stating that protections apply only to sex and not gender identity. Such changes to Title IX enforcement and antidiscrimination obligations have significant implications for educational institutions…

Quick Hits Starting no later than January 3, 2028, the FAMLI program will provide most Maryland employees with up to twelve weeks of paid leave for certain family and medical reasons, with a possible additional twelve weeks of leave for parental bonding, per application year. The program is funded through employer and employee payroll contributions, which will commence on January 1, 2027, and be administered by the MDOL’s FAMLI Division.…

Quick Hits Under Section 45c of the Residence Act, companies with operations in Germany must provide written information to new employees no later than their first day of work and include reference to the free labor and social law advice service “Faire Integration” plus contact details of the nearest advice center. The new requirement, which took effect on January 1, 2026, applies only to new hires from third countries whose…

Quick Hits Slovakia remains further ahead than the Czech Republic with transposing the EU Pay Transparency Directive into national law, with a dedicated draft law already in the legislative process. The Czech Republic published a draft Labour Code amendment and has explicitly opted for a “minimalist transposition” mirroring the directive’s minimum requirements. In both countries, employers may want to begin reviewing pay structures, transparency practices, and internal governance now. Slovakia…

Quick Hits Washington State Governor Ferguson recently signed a wide range of labor and employment legislation into law, including bills that address reductions in force, pregnancy accommodations, noncompete agreements, traditional labor relations, behavioral health in the construction industry, and wage and hour claims. HB 1155, which bans noncompetition agreements with employees and independent contractors, will take effect on June 30, 2026; the other laws will take effect on June 11,…

Quick Hits Oregon enacted HB 4089, which expands criminal penalties for wage theft offenses and increases penalties for hiring unlicensed construction labor contractors or misusing contractor license numbers, with violations ranging from Class A misdemeanors to Class C felonies. Several measures (HB 4111, HB 4079, and SB 1570) strengthen protections related to immigration status—restricting its use in civil lawsuits, prohibiting employer retaliation for updating work authorization, requiring schools and healthcare…

Quick Hits A federal court in Massachusetts has temporarily halted the Education Department’s ACTS survey for a group of higher education institutions that intervened in a legal challenge brought by seventeen states. The latest temporary restraining order extends the compliance deadline for intervening institutions to April 24, 2026, while prohibiting enforcement of previous deadlines. The order follows a preliminary injunction blocking the ACTS survey as likely “arbitrary and capricious,” limited…

Quick Hits The DOJ and a New Jersey-based IT staffing firm reached a $313,420 settlement over allegations that the firm’s job postings discriminated against U.S. citizens. Federal law protects applicants and employees from discrimination and harassment based on race, ethnicity, citizenship status, and national origin, including U.S. nationality. This settlement reflects the Trump administration’s emphasis on anti-American bias and addressing discrimination against majority groups. Title VII of the Civil Rights…

Quick Hits The Supreme Court of California ruled that the formatting of an arbitration agreement does not influence its substantive unconscionability, but courts must still evaluate the agreement’s legibility and context for potential unfairness. The court emphasized the sliding scale analysis of unconscionability, stating that excessive procedural unconscionability can render even minimally substantively unconscionable agreements unenforceable. The court said the appellate court had erred in applying a presumption in favor…

Quick Hits The DOJ will not prosecute companies when they voluntarily self-disclose misconduct, fully cooperate with the DOJ’s investigation, and correct the misconduct in a timely and appropriate manner. Companies will be eligible for a declination even if a whistleblower reports to the DOJ first, if the company self-reports to DOJ within 120 days of receiving an internal report. The new policy became effective immediately. The DOJ investigates a wide…

Quick Hits OSHA’s heat-related illness and injury prevention NEP is set to expire on April 8, 2026, with no public indication that the current administration intends to extend or replace it. OSHA’s proposed permanent heat illness prevention rule has stalled with no target date for finalization and appears unlikely to advance in the near term. OSHA retains citation authority under the OSH Act’s General Duty Clause and multiple states already…

Quick Hits The Illinois Supreme Court held that Illinois’s Minimum Wage Law does not adopt federal exclusions for preliminary and postliminary activities. The ruling came in a certified question from the U.S. Court of Appeals for the Seventh Circuit and revived a class of employees’ state wage-and-hour claims over mandatory pre-shift COVID-19 screenings. The ruling highlights a trend of state courts holding that their states’ wage-and-hour laws do not necessarily…

Quick Hits Assembly Bill (AB) 2095, introduced in the California Assembly, proposes significant amendments to California’s ban-the-box law, the Fair Chance Act. The bill’s provisions, among others, would require employers to provide a list of specific job duties that may be relevant to the employer’s subsequent assessment of conviction history and establish a rebuttable presumption regarding conviction-to-job relationships. AB 2095 would also require employers to document their assessments in writing…

Quick Hits The Massachusetts Superior Court held that the PFMLA’s anti-retaliation protections impose obligations only on “employers” as defined in the unemployment insurance statute, and do not extend liability to a corporate employer’s officers, agents, investors, or board members. The court distinguished the PFMLA from the Massachusetts Wage Act, which expressly deems corporate officers and agents to be “employers” of the corporation’s employees, language that is absent from the PFMLA.…

Quick Hits A Massachusetts federal court granted a preliminary injunction halting enforcement of the ACTS survey against public institutions in seventeen plaintiff states, finding plaintiffs are likely to succeed on their claim that the promulgation and adoption of the survey was arbitrary and capricious. The court rejected plaintiffs’ arguments that the ACTS survey exceeds NCES’s statutory authority and that it violates the Paperwork Reduction Act, affirming that NCES has broad…

Quick Hits The German Federal Labor Court held that blanket release clauses in employment contracts that entitle the employer to grant a release upon termination constitute an unreasonable disadvantage and are invalid. An employee’s interest in continuing employment until the termination of the employment relationship generally outweighs an employer’s interest in granting the employee a leave of absence in a terminated employment relationship until the expiration of the notice period.…

Quick Hits USCIS has received enough H-1B registrations for unique beneficiaries to meet the annual cap. Petitioners will have ninety days, beginning on April 1, 2026, to file a completed H-1B petition for each selected beneficiary. Employment in H-1B status can begin no earlier than October 1, 2026. The FY 2027 lottery is the first to use the new weighted, wage-level-based selection process established under a DHS rule that took…

Quick Hits ViaQuest Residential Services recently agreed to pay $975,000 to settle claims it misclassified program managers as exempt from overtime under the Fair Labor Standards Act (FLSA) and Ohio’s wage laws. The case, Simmons v. ViaQuest Residential Services LLC, No. 2:23-00201 (S.D. Ohio), centered on whether program managers’ “primary duty” was management or direct patient care. One hundred-six plaintiffs opted in after conditional certification, illustrating how quickly liability can…

Quick Hits As of January 1, 2026, Connecticut employers with eleven or more employees must provide paid sick leave to all nonseasonal workers, with full expansion to employers of any size expected by January 1, 2027. Connecticut’s Paid Family and Medical Leave maximum weekly benefit rose to $1,016.40 in 2026 while the employee contribution rate remains unchanged at 0.5 percent of wages. Connecticut employers may want to audit exempt employee…