Quick Hits

• The federal government shutdown and resulting lapse in funding had caused E-Verify to be offline since October 1, 2025.
• Employers were still required to complete Form I-9s for new hires, but E-Verify participants were unable to access that system to confirm employment eligibility.
• Now that the system is back up, by a deadline of October 14, 2025, E-Verify participating employers must create an E-Verify case for each employee hired while the system was down.

What Is E-Verify?

E-Verify is a voluntary internet-based system operated by DHS in partnership with the Social Security Administration (SSA). It allows participating employers to electronically verify the employment eligibility of their newly hired employees. By comparing information from an employee’s I-9 to data from DHS and SSA records, E-Verify helps ensure that employees are legally authorized to work in the United States. While E- Verify is not mandatory for most employers, certain federal contractors are required to use E-Verify, and several states and localities have their own E-Verify mandates.

Next Steps

According to DHS guidance, E-Verify employers that participate in the program and have hired workers while the system was down must create an E-Verify case by Tuesday, October 14, 2025. When creating the case, employers will use the hire date from the employee’s Form I-9. If the employer was unable to create an E-Verify case within the usual three business days after the employee began work due to the system’s unavailability, E-Verify will prompt the employer to provide a reason for the delay. Employers will have the ability via a drop-down menu to explain that E-Verify was unavailable.

The days E-Verify was unavailable will not count toward the three business days employers typically have to create a case. Similarly, federal contractors that could not enroll or use E-Verify as required will not have any calendar day when E-Verify was unavailable count toward their federal contractor deadlines.

Information on Tentative Nonconfirmations (Mismatches)

An employer that has an employee facing a mismatch (a “tentative nonconfirmation” where the employee’s I-9 information does not match the DHS or SSA data) should carefully review the DHS guidance. Employers will need to take steps to revise the date when the employee must contact SSA or DHS to begin resolving the mismatch. If the unavailability of E-Verify prevented the employee from contesting or resolving a mismatch, additional time will be given to contact SSA or DHS.

DHS guidance explains that E-Verify support requests will likely increase, so employers should expect delays when contacting E-Verify customer support.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Government Contracting and Reporting, Governmental Affairs, and Immigration blogs as additional information becomes available.

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Quick Hits

• California Governor Newsom signed Senate Bill 617 on October 1, 2025, requiring employers to include additional information in their Cal-WARN notices for mass layoffs, terminations, and relocations.
• Starting January 1, 2026, Cal-WARN notices must disclose whether employers plan to coordinate services, such as a rapid response orientation, through the local workforce development board or another entity, and include specific contact information and descriptions of available services.
• Employers may want to update their Cal-WARN notice templates to ensure compliance with the new requirements to avoid potential legal issues.

Cal-WARN prohibits employers, with certain exceptions, from instituting mass layoffs, terminations, or relocations at covered establishments without giving prescribed written notice to affected employees, the state Employment Development Department, and other local agencies. Notices must include the elements required by the federal Worker Adjustment and Retraining Notification (WARN) Act as well as Cal-WARN-specific components.

Beginning January 1, 2026, Cal-WARN written notices also must include information on whether the employer plans to coordinate services, such as a rapid response orientation, through the local workforce development board or some other entity. If the employer does not plan to coordinate services with any entity, the employer must state so in the written notice.

Regardless of whether the employer chooses to coordinate services with the local workforce development board or another entity, employers must include the following information in the written notice:

• A “functioning email and telephone number” of the local workforce development board.
• The following description of the rapid response activities offered by the local workforce development board:

“Local Workforce Development Boards and their partners help laid off workers find new jobs. Visit an America’s Job Center of California location near you. You can get help with your resume, practice interviewing, search for jobs, and more. You can also learn about training programs to help start a new career.”

• A description of CalFresh, the statewide food assistance program, the “CalFresh benefits helpline, and a link to the CalFresh internet website.”

If an employer chooses to coordinate services with the local workforce development board or another entity, the employer must arrange such services within thirty days from the date of the written notice.

Employers facing potential mass layoffs, terminations, or relocations at covered establishments may want to review and update any prior written Cal-WARN notice templates to make sure they do not run afoul of the new legal requirements.

Ogletree Deakins’ California offices and RIF/WARN Practice Group will continue to monitor developments and will post updates on the California and Reductions in Force blogs as additional information becomes available.

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Quick Hits

• Summer is gone and the holiday season is upon us. With Halloween coming up soon, employers may want to take steps proactively to avoid situations that could lead to reputational damage or legal disputes over Halloween activities, costumes, and decorations.
• Employers might remind workers of workplace policies and expectations before Halloween to avoid negative consequences arising from Halloween festivities and inappropriate behavior.

While employees are often quick to claim the free speech protections in the U.S. Constitution, the First Amendment prohibits the government from enacting laws that inhibit free speech. It does not prohibit private employers from regulating speech and conduct in the workplace, particularly if an employee’s conduct could implicate concerns of discrimination or harassment of others. As the adage goes, freedom of speech does not mean freedom from consequences, especially within the private sector.

Generally, if a workplace policy is narrowly tailored for a specific business purpose, employers can enforce policies that govern employee conduct at work, including regulation of claimed “free speech.” For example, an employer can ask an employee to remove a costume that is perceived as racially insensitive, harassing, or overly sexual.

Generally, employers have broad discretion to create guidelines that promote a safe, respectful, and productive workplace. Halloween celebrations should not be viewed as providing employees an exemption from normal workplace policies that are intended to prevent negative consequences flowing from employees’ inappropriate behavior, such as displays of offensive messages related to politics, religion, social justice causes, or memorable events from the previous year. Depending on the employer’s response to a worker’s misconduct, the employer could end up facing a lawsuit claiming discrimination, harassment, or a hostile work environment.

Many employers have policies that address a scenario in which an employee wears an inappropriate costume or engages in questionable conduct while celebrating Halloween. For instance, typical workplace policies may:

• prohibit harassment, discrimination, and bullying in the workplace;
• prohibit conduct or clothing that creates a health or safety risk to others;
• prohibit clothing that is offensive, inflammatory, or contrary to the employer’s business model;
• prohibit conflicts of interest that could negatively impact the employer’s reputation;
• prohibit photos and videos to protect confidentiality in the workplace;
• prohibit recordings of workplace activities and conversations; and
• provide general guidelines for social media use.

Similarly, an employer’s code of conduct may provide specific examples of behavior and attire that is not tolerated in the workplace.

By addressing what is (and is not) appropriate in advance, employers may avoid some of the unintended consequences of an employee’s poor costume choices and inappropriate behavior at Halloween activities. For example, costumes related to mass shootings, natural disasters, and pandemics could be perceived as lacking empathy, in bad taste, and stoking division in the workforce. The same is true for costumes using blackface or making light of mental illness, eating disorders, sexual harassment, slavery, religious persecution, or stereotypes. Likewise, sexy and provocative costumes that violate the employer’s dress code and invoke sexual innuendos are not appropriate for the workplace, may not align with the employer’s image, and could provoke a sexual harassment lawsuit.

Inappropriate costumes may hurt workforce morale and productivity. Moreover, offensive Halloween costumes and decorations could be viewed as creating hostility and division in the workplace.

Halloween provides an opportunity for employers to remind employees of the vast and enduring reach of the internet. Photos and videos that may be intended as private can quickly go viral on social media sites. An employee’s offensive or inflammatory costume could damage an employer’s brand and negatively impact its reputation and goodwill with the public. As such, employers may want to avoid the appearance of endorsing distasteful or ill-advised costumes. If the employee’s conduct is connected back to the employer, the employee may face discipline or dismissal, even if the conduct occurred outside of work.

Additionally, applying all policies in a uniform and consistent manner means the policies are uniformly applied to all employees and consistently applied throughout the year (even at Halloween). Employers that allow policy deviations at Halloween (or for other special occasions) may unintentionally create precedent for future deviations from the same policy.

Finally, some employees do not celebrate Halloween due to their religious beliefs, and supervisors may need to address religious objections to Halloween-related activities. Employers that plan to host a Halloween party or invite workers to Halloween events hosted by clients or customers may want to make it clear that participation is voluntary. If optional activities occur during work hours, employers may want to consider whether the activities are accessible to everyone, including employees who are pregnant or have disabilities or medical conditions that would limit their ability to participate.

Next Steps

Prior to Halloween, employers may wish to consider sending these reminders to employees and supervisors:

• Company policies continue to apply during all Halloween activities. Costumes, games, and decorations should adhere to safety rules and corporate policies that prohibit discrimination and harassment in the workplace and require professional, ethical conduct. Employers may also want to remind employees that costumes should adhere to the company’s dress code, and provide specific examples of unacceptable attire.
• Policies requiring professional, ethical behavior may apply to onsite events, off-site events, and interactions with customers and clients.
• Employees could be disciplined or fired for conduct that damages the organization’s public reputation or violates rules outlined in the employee handbook.
• Consider these seven questions before disciplining a worker for social media posts.
• The dress code and other corporate policies are applied consistently to everyone to avoid claims of discrimination or retaliation.
• Complaints should be reported through proper channels, such as contacting a supervisor, contacting HR, or using an anonymous hotline.

With some foresight, Halloween won’t go down as a horror story in corporate history.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Engagement and Employment Law blogs as new information becomes available.

Stesha A. Emmanuel is a shareholder in Ogletree Deakins’ Boston office.

Melissa M. Pesce is a shareholder in Ogletree Deakins’ St. Louis office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• The EEOC announced that Catherine Eschbach had been sworn in as principal deputy general counsel.
• Eschbach had been serving as OFCCP director since March 2025.
• Her move brings contractor enforcement expertise to the EEOC’s litigation and legal strategy. Ashley Romanias will step in as OFCCP director with Eschbach’s departure.

The principal deputy general counsel position is a new role at the EEOC, and Eschbach’s appointment comes at a time of transition for the EEOC’s OGC. Indeed, current EEOC Acting General Counsel Andrew Rogers is expected to leave the Commission at any moment, as on October 7, 2025, the U.S. Senate confirmed him as administrator of the DOL’s Wage and Hour Division. With Rogers leaving for a new role at DOL, Eschbach will remain as the sole political appointee in the general counsel’s office. As such, she is expected to carry out the Commission’s enforcement agenda. The Trump administration has not publicly commented on a nomination to the general counsel role. Other key members of the EEOC’s litigation team include several associate general counsel and regional attorneys, but the top leadership structure may continue to shift pending new appointments.

OFCCP’s leadership is also shifting. While the agency has not officially announced a new director, Ashley Romanias’s LinkedIn profile now lists her as director. The future of OFCCP itself remains uncertain, as ongoing budget negotiations in Washington, D.C., have raised questions about the agency’s continued funding and existence.

Next Steps

Employers—especially federal contractors—should anticipate closer coordination between EEOC litigation priorities and contractor compliance issues and monitor for OFCCP leadership and policy updates.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, Leaves of Absence/Reasonable Accommodation, Pay Equity, and Workforce Analytics and Compliance Practice Groups will continue to track developments at the EEOC and provide updates as the Commission’s policy direction becomes clearer on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Reporting, Governmental Affairs, Leaves of Absence, Pay Equity, Technology, and Workforce Analytics and Compliance blogs.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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Quick Hits

• Pennsylvania’s high court ruled that Pittsburgh’s 3 percent tax on nonresident athletes, known as the “Jock Tax,” was unconstitutional due to its violation of the state constitution’s Uniformity Clause, which requires taxpayers to be treated similarly.
• The court found that the tax created an unfair burden on nonresident athletes compared to resident athletes without a valid justification, violating the state’s constitutional requirement for uniformity of taxation.
• This ruling could influence rulings on similar tax provisions in other states, as many have comparable uniformity provisions in their constitutions.

The Pennsylvania high court sided with a group of professional athletes and their unions, ruling that Pittsburgh’s “Jock Tax” was unconstitutional under the Uniformity Clause of the Pennsylvania Constitution because it imposed an unequal tax burden on nonresidents without a concrete justification.

Nonresident State Income Tax Withholding for Athletes and Entertainers

Athletes and entertainers are subject to income tax in each state where they perform or earn income, even if they do not reside in those states. States impose income tax on the portion of income earned while physically present, working, or performing in that state. This means the athlete or entertainer must file nonresident state income tax returns in each state where income is generated, which can result in multiple state tax filings and potential complexity.

States typically tax nonresident athletes and entertainers based on their “duty days,” a calculation that considers only the days they perform or play a game. This duty-day calculation can result in more of an athlete’s or entertainer’s taxable income being sourced to a nonresident state because a greater percentage of the athlete’s or entertainer’s income is earned on a per-game or per-performance basis as opposed to a calculation based on all potential workdays in a year, as is done for a typical nonresident worker.

In addition, some local jurisdictions, such as the City of Pittsburgh, have imposed similar duty day–based taxes (often called “Jock Taxes” because they impact professional athletes) on athletes and entertainers when they play or perform in those jurisdictions. Such taxes, while providing additional revenue for local municipalities, have a significant impact on athletes and performers, increasing their tax burden, complicating their tax compliance, and affecting their contracts and where they choose to live.

Pittsburgh’s ‘Jock Tax’

The City of Pittsburgh enacted the Nonresident Sports Facility Usage Fee under the Local Tax Enabling Act (LTEA), which allows cities with publicly funded sports stadiums to impose fees on nonresident individuals who use such facilities for athletic events or performances. Pittsburgh’s facility usage fee was set at 3 percent of the income earned at the stadiums, while Pittsburgh residents were subject to a 1 percent earned income tax and a 2 percent school district tax.

A group of professional baseball, football, and hockey athletes and their unions alleged that the tax was unconstitutional because it unlawfully discriminated between resident and nonresident athletes and performers.

The Supreme Court of Pennsylvania noted that while the tax was expected to pay for Pittsburgh’s three publicly funded professional sports stadiums, the state legislature had allowed such taxes to help relieve the city’s fiscal stress.

‘Jock Tax’ Lacks Uniformity

The Supreme Court of Pennsylvania affirmed two lower courts’ decisions, holding that Pittsburgh’s facility tax was unconstitutional under the Uniformity Clause. In summary, the court found that Pittsburgh’s “Jock Tax” unfairly discriminated against nonresidents by imposing a higher tax burden on them compared to residents, and therefore, was unconstitutional.

Despite the 2 percent disparity between resident and nonresident athletes, the city argued that the tax treated both groups equally since residents paid an additional 2 percent school district tax, meaning that both residents and nonresidents had effectively the same tax burden.

However, the Pennsylvania high court said that the school tax was not relevant since it, by its nature, only applies to residents and found that Pittsburgh did not provide a legitimate distinction to justify the disparate treatment of resident and nonresident athletes and entertainers.

“Because the two percent Pittsburgh School District tax cannot be used to justify the facility fee in our Uniformity Clause analysis, and because the City of Pittsburgh has not supplied a ‘concrete justification’ for treating resident athletes and entertainers differently from nonresident athletes and entertainers, we agree with the lower courts that the facility fee is unconstitutional,” the Pennsylvania high court unanimously ruled.

Next Steps

Pittsburgh’s facility usage fee is one of many “Jock Taxes” that have been enacted by municipalities across the country to collect tax revenue from athletes and entertainers who play games or perform in the municipalities for short periods of time. The Supreme Court of Pennsylvania’s ruling is significant since most state constitutions have constitutional requirements for uniformity similar to Pennsylvania’s, meaning the decision could be persuasive on courts in other states and spur further challenges to “Jock Taxes” across the country.

Ogletree Deakins’ Employment Tax Practice Group will continue to monitor developments and will provide updates on the Employment Tax, Pennsylvania, and Sports and Entertainment blogs as additional information becomes available.

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Quick Hits

• EU member states have until June 7, 2026, to implement the EU pay transparency directive (Directive (EU) 2023/970) into their own national laws.
• Member states can implement compliance requirements above and beyond the directive’s minimum requirements.
• Penalties for noncompliance may include fines, compensation, including recovery of wage underpayments, payments in kind, and interest on any arrears of pay.

While the directive sets a baseline for EU member states, local legislation is likely to introduce additional obligations. It is evident from the draft proposals released so far that member states will prioritise different areas of the directive in their national implementation, and this presents a challenge for employers as compliance requirements will not be consistent across all member states.

The key elements of the directive include:

• Pay transparency throughout the employment process is essential. Job applicants must be informed about the initial pay range for a position before the job interview, or at the latest during the interview.
• Pay structures should be gender-neutral and based on objective, gender-neutral criteria. Job evaluation and classification systems must be accessible and nondiscriminatory.
• Employees have a legal right to request information (in writing) about their pay level and the average pay levels, broken down by gender, of other workers doing the same or work of equal value. Employers must respond to these requests within two months.

Mandatory Gender Pay Reporting Obligations

In the first reporting period (commencing 2027), all employers with 150 or more employees will be required to carry out gender pay gap reporting using pay data from 2026. The frequency of reporting will depend on an organisation’s employee headcount. However, all employers meeting the headcount thresholds must report detailed information on gender pay gaps, both at the organisational level and within specific categories of workers. Reports must include the following:

• mean and median pay gaps,
• mean and median gaps calculated from “complementary and variable” components of pay (e.g., bonuses and allowances);
• the proportion of men and women receiving complementary or variable components of pay; and
• the proportion of men and women within each quartile pay band.

If a pay gap of 5 percent or more is identified that cannot be justified by objective, gender-neutral criteria, the employer must take remedial action. If not resolved within six months, a joint pay assessment with employee representatives of the whole workforce is required. Reports must be submitted to the relevant national authority and made publicly available (e.g., on the company website or another accessible platform).

Employers must group employees into categories of workers performing the same work or work of equal value. Categories are defined using objective, gender-neutral criteria such as skills, effort, responsibility, and working conditions. The aim is to ensure comparability and to identify pay gaps not just across the whole workforce, but within comparable roles.

Some member states, such as Belgium, Finland, Ireland, Lithuania, Malta, Poland, Slovakia, and Sweden are moving faster toward implementation and leveraging existing equality laws; others are still early in the process or signalling delays in implementation, e.g., the Netherlands.

Employers are encouraged to stay informed about the implementation process in their respective jurisdictions. Information and updates on the progress of the directive’s implementation across the EU can be found using Ogletree Deakins’ Member State Implementation Tracker.

For more on the EU’s pay transparency directive, see our previous articles, “EU Pay Transparency Directive: Updates on Implementation Across Member States,” “Preparing for the EU’s Pay Transparency Directive,” “EU Pay Transparency Directive: ‘Equal Pay for Equal Work or Work of Equal Value,” “Implementing the EU Pay Transparency Directive in Malta—New Obligations Effective From 27 August 2025,” and “Netherlands Announces Delay in Implementation of the EU Pay Transparency Directive.”

Further information can also be found by listening to our podcast “Understanding the EU Pay Transparency Directive: What Employers Need to Know.”

Ogletree Deakins’ London office and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Cross-Border, Pay Equity, and Workforce Analytics and Compliance blogs as additional information becomes available.

Daniella McGuigan is a partner in the London office of Ogletree Deakins and co-chair of the firm’s Pay Equity Practice Group.

Lorraine Matthews, a practice assistant in the London office of Ogletree Deakins, contributed to this article.

Emilia Mobius, a paralegal in the London office of Ogletree Deakins, contributed to this article.

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The National Labor Relations Act (NLRA) is, after all, ninety years old. It was born amid significant labor unrest that often led to clashes between employees and their employers. And it was enacted at a time when most affected workers were engaged in the kind of manual labor or factory work that predominated in the early twentieth century. Moreover, there was no comprehensive overlay of state, local, and federal law that governed wages, hours, working conditions, health and safety, and retirement programs. Such hallmarks of early turn-of-the-century employment seem almost alien today.

Today, the nature of work itself is rapidly evolving with large swaths of the employment landscape becoming more skilled, technical, and entrepreneurial every day. Today’s employees are more mobile, and their relationship with their employers is often transactional. Most employers now recognize that employees are their most valuable asset and that recruiting and retaining them simply makes good business sense. The classic tension between labor and management is being replaced by a growing realization that the relationship is far more symbiotic than it is antagonistic. Add to this the fact that both state and federal governments have assumed a major role in regulating the workplace.

Given this reality, some are questioning if the NLRA is fast becoming an anachronism, a relic of a very different industrial economy. Perhaps. But response always lags behind realization, and that is particularly true where legislation is involved. So, it is unlikely that the revolution is here, but it is undeniable that there is something in the air.

We hope you will enjoy this issue of the Practical NLRB Advisor on the latest developments at the NLRB. We will issue the next edition in the coming months. Please let us know if you have any questions.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Traditional Labor Relations blog.

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Quick Hits

• The U.S. Senate confirmed Brittany Bull Panuccio as EEOC commissioner, giving Republicans a majority and the ability to realign the agency’s enforcement and policy priorities.
• The new Commission is expected to shift focus by scrutinizing diversity, equity, and inclusion (DEI) initiatives, religious liberty, and discrimination, narrowing disparate impact enforcement, revisiting LGBTQ+ guidance, and scaling back algorithmic bias initiatives.
• Employers may want to prepare for increased attention to claims of majority and religious discrimination, review DEI and accommodation policies, and monitor for changes in federal guidance and enforcement.

The confirmation of Panuccio to the EEOC for a term ending in 2029 establishes a Republican majority that is expected to steer the Commission’s direction for the next several years. Commissioner Panuccio’s background includes service as an assistant U.S. attorney in the U.S. Department of Justice’s Appellate Division, clerkships on the U.S. Courts of Appeals for the Fifth and D.C. Circuits, prior work at the U.S. Department of Education involving Title IX of the Education Amendments of 1972 guidance, and an undergraduate and law degree from Northwestern University.

With this confirmation, the Commission’s current composition includes Acting Chair Andrea Lucas, whose second term was confirmed in August and runs to 2030, and Commissioner Kalpana Kotagal, now the sole remaining Democrat following the January 2025 dismissal of former chair Charlotte Burrows and former vice chair Jocelyn Samuels. Former vice chair Samuels has challenged her removal in the U.S. District Court for the District of Columbia, and one Commission seat remains vacant. The January 2025 removals temporarily left the agency without a quorum, constraining rulemaking and certain litigation until confirmations restored functionality.

The Commission is poised to prioritize investigations of diversity, equity, and inclusion (DEI) practices alleged to result in unlawful race- or sex-based decision-making, with an emphasis on individual merit and equal opportunity principles. Disparate impact enforcement will likely be curtailed or narrowed, with a corresponding pivot toward intentional discrimination theories and job-related justifications. Prior EEOC guidance addressing LGBTQ+ protections is likely to be revisited, with anticipated emphasis on biological sex distinctions, single-sex facilities, and changes to intake formal markers and honorifics despite holdings from the Supreme Court of the United States inBostock v. Clayton County, Georgia and Muldrow v. City of St. Louis.

The agency may devote greater attention to perceived majority discrimination, including national origin matters framed as favoring foreign nationals, and recalibrate the Pregnant Workers Fairness Act (PWFA) rule, including interpretations related to abortion-related leave. Earlier algorithmic bias initiatives may be scaled back, with less reliance on disparate impact theories in artificial intelligence (AI) matters and greater scrutiny on intentional discrimination and validation of tools. We expect to see enforcement relating to anti-Christian bias and religious liberty in the workplace. Time will tell if the EEOC will revise the current strategic enforcement plan. Of course, amid the current federal government shutdown, only four staff members will remain to support the work of the Commissioners. This could impact the speed at which the new Republican majority is able to implement its regulatory and enforcement agenda.

Next Steps

As the newly configured Commission advances the president’s America First agenda, employers may wish to reevaluate DEI programming to ensure initiatives are grounded in individualized, job-related criteria; review policies that address gender identity, facilities access, and pronouns that comport with current federal, state and local law; reassess selection procedures, testing, and AI tools for validation and defensibility; and audit accommodation and leave policies for alignment with potential PWFA revisions. Employers may also want to prepare for increased attention to claims alleging religious discrimination, majority discrimination or national origin discrimination, and ensure that documentation and training support nondiscriminatory decision-making.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, Leaves of Absence/Reasonable Accommodation, Technology, and Workforce Analytics and Compliance Practice Groups will continue to track developments at the EEOC and provide updates as the Commission’s policy direction becomes clearer on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Reporting, Governmental Affairs, Leaves of Absence, Technology, and Workforce Analytics and Compliance blogs.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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Quick Hits

• Two cases before the Tenth Circuit Court of Appeals could limit OSHA’s ability to cite employers for failing to prevent workplace violence, particularly in psychiatric hospitals where staff have reported patient assaults.
• OSHRC has consistently affirmed General Duty Clause citations in workplace violence cases, contrasting with its rulings in heat-stress cases, where feasible abatement measures were harder to establish.
• Employers are closely watching the Tenth Circuit’s upcoming decisions in cases involving workplace violence cases, which could either uphold OSHRC’s precedent or impose stricter requirements with respect to OSHA’s burden of proof, influencing future workplace safety enforcement.

This stands in contrast to how OSHA has fared in General Duty Clause citations involving heat stress/heat-related illness. In Secretary of Labor v. United States Postal Service, decided in 2023, OSHRC vacated citations, finding that the secretary had failed to establish that feasible and effective means existed to abate the hazard.

In Secretary of Labor v. A.H. Sturgill Roofing Inc., decided in 2019, OSHRC vacated a citation, concluding that simply defining a hazard as “excessive heat” was impermissibly vague to provide sufficient notice to the employer. The lack of a clear hazardous threshold for all workers, given the many variables, such as humidity, wind, workload, personal protective equipment (PPE), and acclimatization, as well as the physical attributes of each employee, made heat a difficult hazard to define under the General Duty Clause. (OSHA does provide guidance on exposure to outdoor and indoor heat-related hazards for employers with temporary workers.)

The contrast between workplace violence prevention and heat-related cases with regard to the General Duty Clause lies in workplace violence being seen by the Commission as a broadly recognized hazard in certain industries, such as healthcare, with abatement measures that are feasible, concrete, and well-evidenced. Heat is far more complicated, and the feasibility of abatement measures are highly context-specific (as detailed above), often making these cases harder for the secretary to prove.

The recent decisions in workplace violence prevention enforcement in patient violence cases offer important lessons for how federal OSHA may approach General Duty Clause cases involving heat. In workplace violence cases, OSHA’s success has hinged on its ability to clearly establish each of the General Duty Clause’s four required elements:

• Hazard Recognition: In workplace violence cases, OSHA has prevailed when it demonstrated that the risk of violence was well-recognized in the industry and foreseeable based on things such as prior incidents, employee reports, or industry guidance. For heat stress, OSHA must similarly show that the employer or industry recognizes the specific heat hazard under the actual working conditions, not just that heat can be generally hazardous.
• Employee Exposure: OSHA must prove that employees were actually exposed to the recognized hazard. In workplace violence cases, this often involves evidence that employees worked in settings with a history of violence. For heat, OSHA must show that employees were exposed to hazardous heat levels for a sufficient time and intensity, considering a variety of factors, including the workload, PPE, and acclimatization.
• Likelihood of Death or Serious Physical Harm: In both workplace violence and heat-related cases, OSHA must demonstrate that the hazard was likely to cause death or serious physical harm. In workplace violence cases, this is often supported by evidence of prior incidents or threats. In heat-related cases, OSHA must provide evidence such as medical records or expert testimony that the conditions present a real risk of heat illness or death.
• Feasible and Effective Abatement: In workplace violence cases, OSHRC has found that a process-based approach to feasible methods of abatement includes written prevention programs, training, communication and reporting protocols, and staffing adjustments. For heat-related cases, OSHA must propose controls such as rest breaks, hydration, shade, or acclimatization that are practical for the specific worksite and proven to reduce risk.

Next Steps

Employers are awaiting the Tenth Circuit’s rulings and analyses of the recent cases appealed by the healthcare facilities. Will it uphold OSHRC precedent—finding that OSHA met its burden of proof under the General Duty Clause, or will it follow OSHRC’s trend in heat-related cases, questioning the feasibility of abatement measures and heightening OSHA’s burden when litigating these cases? Either outcome will assist employers in their defenses of such cases and in their workplace violence prevention efforts.

Ogletree Deakins Workplace Safety and Health Practice Group and Workplace Violence Prevention Practice Group will continue to monitor developments and will provide updates on the Healthcare, State Developments, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

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Quick Hits

• Starting October 11, 2025, Gambian nationals must post a bond for $5,000–$15,000 to obtain a B-1/B-2 visa, per the State Department’s temporary final rule and visa bond pilot program.
• The Gambia is the third country to be included in the pilot program, after Malawi and Zambia were included in the original list that took effect on August 20, 2025. B-1/B-2 visa applicants from these countries must meet bond requirements to qualify for U.S. visitor visas.
• If eligible, nationals of these countries will be directed to submit Form I-532, submit payment through Pay.gov, and enter and depart through specific U.S. international airports.

Applicants determined eligible for a B-1/B-2 visa must agree to the terms of the bond and will be directed to submit Form I-352 by a consular officer. The applicant must post a visa bond for $5,000, $10,000, or $15,000, with the specific amount being determined during the applicant’s visa interview. The bond payment must be submitted through the U.S. Department of Treasury’s online payment platform, Pay.gov, but only after being directed by the consular officer. Unauthorized payments or payments through third-party platforms will not be refunded. In its announcement, the State Department noted that a bond payment does not guarantee that a visa will be issued.

Notably, visa holders who are subject to the bond requirement must enter and depart the United States through one of three designated airports: Boston Logan International Airport (BOS), John F. Kennedy International Airport (JFK), or Washington Dulles International Airport (IAD). Using these airports is a condition of the bond, and failure to comply with these arrival and departure requirements may result in denied entry or inaccurate departure records, which could adversely impact future travel or result in a determination that the bond terms were not upheld.

The visa bond is refundable if the visa holder complies with all terms of the holder’s nonimmigrant visa status and the visa bond. The bond will be cancelled and automatically refunded under specific circumstances: the visa holder departs the United States on or before the end of the authorized stay; the visa holder does not travel to the United States before the B-1/B-2 visa expires; or the visa holder is denied admission into the United States at a port of entry.

Compliance with these conditions, as well as the terms of the nonimmigrant visa status and bond, are important to ensure eligibility for a bond refund. In its announcement, the State Department indicated cases will be sent to U.S. Citizenship and Immigration Services (USCIS) for review where a visa holder may have failed to adhere to the visa bond terms.

Next Steps

Employers may want to note these new requirements and the associated processes when assisting nationals from the countries in the State Department’s visa bond pilot program. Compliance with the terms of the nonimmigrant visa status, bond, and associated processes is critical, as breaches—such as incorrect entry or departure airport, overstays, or status adjustments—may be referred to USCIS for further review. Employers may want to advise affected employees to carefully follow consular instructions and ensure travel plans align with designated ports of entry.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.

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