Ogletree Deakins

Quick Hits California and New York are implementing stringent measures to curb “stay or pay” contracts. A Florida appellate court ruled the state’s open carry ban unconstitutional, allowing open carry throughout the state. Maryland issued final regulations for its mini-WARN Act, which includes provisions for remote employees. New pay transparency laws in New Jersey, California, Delaware, and Washington require employers to disclose pay and benefits information in job postings, with…

Quick Hits The European Union’s “Equal Treatment Framework Directive” (Directive 2000/78/EC) also protects employees, who are not themselves disabled, from discrimination by association on grounds of disability, such as parents who care for a child with a disability and are disadvantaged as a result. In such cases, employers must provide reasonable accommodation, such as adjustments to working hours or to the workplace, insofar as doing so would not cause a…

Quick Hits The California Court of Appeal upheld a ruling that a car dealership’s “flag bonus pay” system for service technicians complies with California’s “no borrowing” rule. The court distinguished this compensation structure from the previously unlawful “piece rate basis” system because it paid a guaranteed hourly rate for all clocked hours (independent of productivity) that fully satisfied minimum-wage and rest-break requirements, plus a true productivity bonus on top. The…

Quick Hits The NYDFS recently issued guidance that provides detailed best practices to mitigate risk throughout the TPSP life cycle: due diligence, contracting, ongoing monitoring, and termination. The guidance indicates that NYDFS will scrutinize policies and procedures related to TPSPs, especially where covered entities outsource cybersecurity compliance. Companies may want to revisit vendor management policies, contracts, and oversight procedures, including with respect to AI platforms. NYDFS has identified covered entities’…

Quick Hits Jurisdictions such as California, New York City, Colorado, Illinois, and the European Union (EU) variously require (or plan to require) and encourage bias testing, notices, transparency, and, in some cases, public summaries. AI involvement can create substantial legal risk, even when humans make the final decisions; AI-influenced scores, rankings, or screens can still be treated by regulatory authorities as decision-making, triggering validation, bias-testing, notice, and transparency duties—with “cutoff”…

Quick Hits Effective January 1, 2026, New York State will raise the minimum wage to $17.00 for downstate employees and $16.00 for upstate employees Along with the minimum wage increases, there will be adjustments to the cash wage and tip credits for tipped service employees, as well as revised meal and uniform credit rates to reflect the new wage structure. The minimum salary thresholds for the executive and administrative employee…

Quick Hits USCIS will continue to accept adjustment of status filings based on the Dates for Filing chart in the December 2025 Visa Bulletin. The December 2025 Visa Bulletin shows some advancement from last month’s bulletin for employment-based categories for the final action dates. All employment-based categories for dates for filing remain unchanged, except for fourth preference for Certain Religious Workers and fifth preference unreserved. The final action dates for…

Quick Hits The IRS and Treasury Department recently published guidance to clarify how employees may calculate their tax deduction for tips and overtime pay for the 2025 tax year when they have limited information. The guidance shows examples of common situations, such as a bartender with reported and unreported tips, a self-employed travel guide who received tips on digital payment apps, and a law enforcement employee who is paid overtime…

Quick Hits The EEOC issued a one‑page technical assistance document and updated its national origin landing page, both making clear that Title VII protects all workers—including Americans—and clearly stating potential business rationales do not justify national origin discrimination or anti-American bias. Job ads preferring visa statuses, disparate treatment in applications, assignments, or pay, and unlawful harassment or retaliation are identified as top risk and enforcement areas in the ongoing effort…

Quick Hits President Trump has nominated labor and employment M. Carter Crow as the new general counsel of the EEOC, a position that has been vacant since January 2025. Crow’s Senate confirmation process will likely take several weeks to months, but if confirmed, Crow would be positioned to carry out the Trump administration’s discrimination and harassment enforcement priorities. The nomination comes weeks after the U.S. Senate confirmed another commissioner, restoring…

Quick Hits The elective deferral limit for 401(k) and 403(b) plans will increase to $24,500 for 2026, and the catch-up contribution limit will increase to $8,000 for most employees but will remain at $11,250 for employees who achieve ages sixty to sixty-three during 2026. The limitation on compensation that can be taken into account under tax-qualified retirement plans will increase to $360,000 for 2026. The threshold for determining highly compensated…

Quick Hits On October 30, 2025, the Federal Labor Court of Germany ruled that probationary periods in fixed-term contracts must be proportionate to the duration and type of work, with no rigid limits. The Federal Labor Court upheld a four-month probationary period for a one-year fixed-term contract, considering it is proportionate due to a sixteen-week training plan. The Federal Labor Court clarified that even if a probationary period is deemed…

Quick Hits Starting no later than January 3, 2028, the FAMLI program will provide most Maryland employees up to twelve weeks of paid leave for certain family and medical reasons, with a possible additional twelve weeks for parental bonding, per benefit year. After several legislative delays to the program’s effective date, the MDOL has now reissued proposed regulations to implement the FAMLI program. The proposed Claims chapter offers additional key…

Quick Hits With the EEOC’s quorum restored, employers can expect more high-profile investigations, broad data requests, and pattern-or-practice litigation targeting hiring, promotion, compensation, DEI programming, and accommodations. Employers may want to consider conducting adverse impact and pay studies to identify and remove barriers to equal employment opportunity. Employment decisions that are made based on objective job-related criteria buttressed by ample documentation will likely be strongest and most defensible; it therefore…

Quick Hits The Delaware Supreme Court is reviewing a case on whether noncompete and nonsolicitation agreements remain enforceable after the forfeiture of equity units due to violations of the noncompete agreement by a former executive. The Delaware Court of Chancery ruled that because the executive’s equity units were automatically forfeited under the agreement when he was terminated for cause, the restrictive covenants lacked the necessary consideration at the time the…

Quick Hits Generally, employers aren’t required to cover weight loss drugs in their health plans. More employers are voluntarily covering weight loss medications to recruit and retain talent. Demand for weight loss drugs is growing among workers. The medications are expensive—typically about $617 to $766 per month, according to the Employee Benefits Research Institute. In most cases, employers are not legally required to cover GLP-1 drugs in their health plans.…

Quick Hits Workers who are Christian, Jewish, Hindu, and Buddhist will mark religious celebrations in December 2025. Employers must grant valid religious accommodation requests unless it would impose a substantial burden on the business. In considering time off requests, employers balance business demands with legal obligations. Employees might ask for time off or breaks for religious observances or to complete prayers at designated times. Typical religious accommodations during the holiday…

Quick Hits The comment period on the Education Department’s proposed Admissions and Consumer Transparency Supplement (ACTS) to IPEDS closed on October 14, 2025, drawing thousands of comments by universities, higher education associations, community and technical colleges, career schools, graduate and professional programs, civil rights and policy organizations, researchers, and individual citizens. Commenters recommended limiting ACTS to truly selective institutions and treating graduate/professional programs separately. Institutions anticipate risk-based reviews tied to…

Quick Hits A federal judge transferred a lawsuit by a former cancer center employee from a New Jersey federal court to a federal court in Pennsylvania, ruling that the case belonged in the employer’s home state rather than where the employee remotely worked.  The court determined that the employee’s claims under the ADA had minimal connection to New Jersey, emphasizing that key decisions about her employment were made in Pennsylvania.…

Quick Hits A new analysis indicated that October 2025 marked a significant increase in reductions in force, highlighting the legal complexities employers must navigate in compliance with federal and state regulations. As companies consider mass layoffs influenced mainly by the integration of AI, it is crucial to address potential discrimination claims and explore alternatives like voluntary separation plans to mitigate risks. Employers announced RIFs affecting more than 153,00 in October,…

Quick Hits On October 25, 2025, New York City adopted a measure that amends the ESSTA to incorporate the requirements under New York City’s Temporary Schedule Change Law. The law expands covered reasons to take ESSTA. The law adds a separate bank of thirty-two hours of unpaid ESSTA in addition to the forty or fifty-six hours already provided under the ESSTA. The law goes into effect on February 22, 2026.…

Quick Hits In an attempt to provide clarity to amendments to the National Housing Fund Institute for Workers issued in February 2025, INFONAVIT has issued criteria and extensions to employers’ obligations, but these criteria were neither mandatory nor obligatory to anyone. On November 4, 2025, Mexico’s Supreme Court of Justice of the Nation issued criteria interpreting the obligations imposed on employers under the latest amendment. INFONAVIT and Mexican Supreme Court…

Quick Hits On June 12, 2025, the New York Legislature passed the “Trapped at Work Act” to nullify promissory notes that require employees to repay employers for certain costs if they leave their jobs within a set time period. The bill has not been sent to Governor Kathy Hochul yet. If enacted, Assembly Bill A584C, known as the “Trapped at Work Act,” would generally prohibit promissory notes, which, as a…

Quick Hits The DOL is proposing modifications of the VEVRAA regulations to reflect the rescission of Executive Order 11246 while maintaining existing affirmative action obligations for federal contractors to support protected veterans. Despite these proposed changes in enforcement, federal contractors must continue to prepare affirmative action plans, engage in outreach and recruitment for protected veterans, and adhere to recordkeeping requirements. Employers may want to ensure that AAPs are up-to-date and…

Quick Hits OSHA has proposed changes to the General Duty Clause to limit its application in inherently risky professional activities. The proposal would clarify that the GDC does not require employers to eliminate hazards that are integral to certain professional activities if doing so would fundamentally alter or prohibit the activities. The proposed rule emphasizes that OSHA will focus on employers’ “reasonable efforts” and measures to reduce risks without changing…

Quick Hits Employers may want to prepare for 2026 by mapping exempt roles in Alaska, California, Maine, New York, and Washington to new salary thresholds and implementing adjustments aligned with effective dates. To avoid salary compression, employers may want to reconcile pay bands in the thirty-one states with higher minimum wages than federal law and ensure that any threshold multipliers are captured in exempt pay. Employers may also want to…

Quick Hits New guidance from the Treasury Department and IRS provides penalty relief to employers for tax year 2025 for failing to satisfy the new requirements for reporting cash tips and overtime compensation under 2025’s comprehensive budget bill. The guidance gives employers relief with respect to the transition period of the 2025 tax year to gather the correct information without penalty. The grace period does not extend beyond the 2025…

Quick Hits Beginning on January 1, 2026, employers and labor contractors will be required to separately collect and store any demographic information for California pay reporting so that the information is separate from employees’ personnel records. As of January 1, 2026, when requested by California’s Civil Rights Department, courts will be required to impose civil penalties of $100 per employee for the first failure and $200 per employee for a…

Quick Hits The ECJ issued two decisions finding dismissals are invalid if prior mass dismissal notification requirements under EU Directive 98/59/EC and national law are not met. In the two German cases involving collective redundancies, the ECJ found that insufficient or incomplete mass dismissal notifications to the competent public authority led to the invalidity of dismissals. The ECJ ruled that proper mass dismissal notifications and compliance with the consultation requirements…

Quick Hits On October 22, 2025, the Massachusetts Supreme Judicial Court concluded that a retention bonus is not a “wage” for purposes of the Massachusetts Wage Act, and that such bonuses are instead a form of additional, contingent compensation outside the ambit of the Wage Act. The court reasoned that the purpose of a retention agreement is to benefit the employer by securing the services of an employee through a…

Quick Hits The U.S. District Court for the Western District of Washington rejected federal agency positions that treat DEI-oriented, race-neutral, and transgender facility access as presumptively unlawful, noting that those interpretations conflicted with established precedent. The court criticized EO 14173’s “materiality” clause, which declared global compliance with all anti-discrimination laws per se material to False Claims Act payment, as boilerplate adopted without reasoned analysis, tailoring, or consideration of reliance interests.…

Quick Hits The legislative goal in Poland mirrors the European Union’s Pay Transparency Directive’s core objectives: reducing gender‑based pay discrimination by making pay systems more transparent and comparable. Further measures covering employee information rights and gender pay gap reporting are expected by 7 June 2026 in line with the Directive’s implementation deadline. While legislation is still to be finalised, it is likely that noncompliance will result in administrative fines. New…

Quick Hits The EU AI Act took effect on August 1, 2024, and carries extraterritorial reach. U.S. employers can be covered even without a physical EU presence if AI outputs are intended to be used in the EU—e.g., recruiting EU candidates, evaluating EU-based workers or contractors, or deploying global HR tools used by EU teams. Several obligations have begun to take effect, with more phasing in through 2026–27. The European…

Quick Hits The Federal Labor Court of Germany ruled on October 23, 2025, that gender-based discrimination is presumed if a woman earns less than a comparable male colleague, even if he is a top earner. The court clarified that the presumption of gender-based discrimination does not require a “preponderant probability” and that the size of the male comparator group and median pay levels are irrelevant; the employer must rebut the…

Quick Hits The partial government shutdown in 2025 has curtailed OSHA’s routine operations, but this is unlikely to cause a dramatic near-term deterioration in worker safety. During the shutdown, OSHA’s contingency plan focuses on preserving essential functions that protect human life and property, such as responding to reports of imminent danger, investigating fatalities, and maintaining a minimal supervisory structure. This ensures that the most severe hazards are still addressed, even…

Quick Hits USCIS will end its practice of automatically extending EADs for foreign nationals who file renewal applications—including for adjustments of status and H-4 EAD renewals—based on certain employment authorization categories. The new policy will not affect automatic extensions granted for EAD applications filed before October 30, 2025. If an EAD renewal application (Form I-765) was timely filed before the EAD expiration and before October 30, 2025, then it is…

Quick Hits In Galarza v. One Call Claims, LLC, No. 23-13205 (October 16, 2025), a three-judge panel of the Eleventh Circuit Court of Appeals unanimously reversed a federal district court’s 2023 ruling that insurance adjusters were independent contractors for One Call Claims and the Texas Windstorm Insurance Association. The court concluded that the employers managed the adjusters’ work schedules, controlled their pay rates, directed work tasks, and limited their ability…

Quick Hits Recent case law has indicated a gradual shift toward holding employers liable for employees’ sexual misconduct. To expand this liability for employers while acknowledging the risk of creating too much liability, the rule only applies to sexual assault that meets specific criteria, including only applying in circumstances where the victim is “particularly vulnerable.” This rule only applies to employer-employee relationships and does not create any liability for actions…

Quick Hits Discrimination claims often hinge on the motive behind employment decisions, leading to extensive scrutiny of the decision-maker’s comments, knowledge, and timing, with plaintiffs’ lawyers seeking to expand the field of scrutiny and defense lawyers aiming to limit it to a single, unbiased decision-maker. Involving multiple people in employment decisions can increase the risk of unhelpful evidence and bias claims, as seen in scenarios where delayed communication and additional…

Quick Hits Requests for personal information are increasing across Canada, and timelines are tight. HR teams that plan ahead can avoid last-minute scrambles and compliance headaches. Whether federal, provincial, public, or private, every regime expects careful handling of personal data and specific timelines and exemptions to consider. A clear playbook, trained staff, and mapped data make access requests manageable. The organizations that invest in readiness protect privacy, reduce risk, and…