Quick Hits

• Colorado’s proposed AI regulations require employers to disclose the use of automated decision-making technology when making significant employment decisions starting January 1, 2027.
• Employers would need to explain how AI influenced decisions and provide detailed information about the data sources used if an adverse outcome occurs.
• The proposed rules emphasize transparency and consumer rights and would mandate clear disclosures and technical requirements for request mechanisms for affected employees.
• The rules would further expand what constitutes an affected employee or job applicant’s right to a meaningful human review, reinforcing independence of the review process and authority to override AI-driven adverse outcomes.

On August 11, 2026, the Colorado attorney general’s Office Department of Law filed the proposed “Automated Decision-Making Technology and Conversational Artificial Intelligence Service rules” with the Colorado secretary of state. The proposed draft rules seek to implement and clarify two new Colorado laws regulating AI signed into law by Governor Jared Polis in May 2026: the Automated Decision-Making Technology in Consequential Decisions (ADMT) Act, Senate Bill (SB) 26-189, and the Chatbot Safety Act, House Bill (HB) 26-1263. Both laws are set to take effect on January 1, 2027.

The proposed rules, which would also take effect January 1, 2027, are an initial set of draft rules released for comment and are part of the evolving rulemaking process. While the rules are not final, they highlight potential new compliance obligations for employers seeking to use AI-powered tools to make employment decisions.

Of particular concern to employers, the proposed rules clarify and would expand the requirements under SB 26-189, which repealed and replaced the state’s landmark 2024 AI law. SB 26-189 mandates that “deployers,” including employers, disclose the use of ADMT before making a “consequential decision,” such as hiring or termination, affecting a “consumer,” including employees and job applicants. When an ADMT results in an “adverse outcome,” the law allows affected consumers to request that their personal data be corrected and that the decision be subjected to meaningful human review and reconsideration.

Adverse Outcome Disclosure

When notifying an affected employee or applicant of an adverse outcome from an ADMT-driven decision, Rule 6.4 of the proposed rules would require employers to describe the “specific purpose” for which they used a covered ADMT, “the role” the ADMT played in making a consequential decision, and “the role of any human reviewer(s) and other ADMT or similar systems.” In addition, employers must describe the principal reasons for the adverse outcome “with specificity” and in a manner that avoids language “that is overly broad or vague.” The proposed rules specify an example of an employer disclosing to an “unsuccessful candidate for employment” that it used an “automated system to produce a score, and that score is equally weighed along with the scores created by company employees that interviewed the unsuccessful candidate.”

Of note, the proposed rules explicitly state that a deployer would not comply if it cannot explain how the ADMT materially influenced the decision or how the ADMT used a consumer’s personal data in connection with a decision or if it cannot accurately explain the principal reasons for the adverse outcome. Colorado employers that are currently using ADMTs may wish to ensure that they have the necessary understanding of how these tools are used in order to be prepared to provide compliant notifications to employees and job applicants once the law takes effect.

Responding to Consumer Requests for ADMT Information

If an affected employee or job applicant requests additional information about a covered ADMT, Rule 6.6 of the proposed rules would require employers to describe the “types and categories” of information sufficiently so that the employee or job applicant can meaningfully understand the information the ADMT considered, such as “credit score,” “medical or health information,” and “criminal history.” Second, and more demanding, each source of personal data must be identified by name—specific data brokers, databases, social media companies, schools, and employers.

If the employer obtained personal data through a third-party aggregator, the disclosure would need to trace the chain back to the original source and identify every intermediary. This could require employers that rely on third-party assessment platforms, background check providers, or data aggregators to ensure that vendor contracts include access to such information.

Submitting Rights Requests Post-Adverse Outcome

The ADMT law requires that deployers provide an explanation of ADMT consumer rights and how to exercise them. Rule 7.2 of the proposed rules would specify that an outcome disclosure must include a clearly labeled link that leads directly to the request mechanism, as well as a mailing address or toll-free number.

Employers would be required to offer two or more designated methods for submitting requests, taking into account how they typically interact with employees and job applicants. Those methods would need to be regularly monitored by someone with the knowledge and ability to process the request. Affected consumers would also need to be able to submit requests at any time—not just during business hours—and the process must require as few steps as possible.

Clarifying Rights to Request Personal Data and Make Corrections

Rule 7.3 of the proposed rules would entitle employees and applicants to specific pieces of personal data used in the consequential decision in a concise, transparent, and intelligible form. The proposed rules define this information broadly, including not just raw inputs but also the final rank, score, classification, recommendation, prediction, or other inferences about the individual.

Moreover, Rule 7.4 of the proposed rules would require employers to correct any incorrect information in their “existing system[s].” While employers would be entitled to request supporting documentation for a correction request, employers would need to give the employee or job applicant requesting the correction “a meaningful understanding of why the documentation is necessary.” . Where possible, the adverse outcome would need to be stayed pending correction of incorrect personal data.

Right to Independent Human Review

A central part of the ADMT law is that consumers (i.e., employees and job applicants) have a right to request “meaningful human review and reconsideration” of an adverse outcome in a “consequential decision, to the extent commercially reasonable.” (Emphasis added). Rule 7.7 of the proposed rules would further clarify the procedures for such requests, requiring employers to confirm receipt within ten days and complete a review within forty-five days, mandate that reviews be independent, and establish a multifactor test for determining commercial reasonableness.

The proposed rules clarify that meaningful human review requires that the review “be conducted by an independent reviewer” who has authority to approve, modify, or override the decision. The reviewer should, “whenever feasible,” not be the individual who made the original decision or a subordinate of that decisionmaker. Further, the reviewer would need to “have a level of subject matter understanding that is commensurate with the nature of, and negative consequences” of the adverse outcome and be properly trained on the ADMT.

In light of the possibility that the final rules will incorporate many, if not all of these elements, employers doing business in Colorado that use or plan to use ADMTs may wish to begin considering how they will operationalize the requirements, including identifying and training the individuals who will conduct a meaningful human review and developing a process for documenting any such reviews in the manner required by the rules.

Commercial Reasonableness for Human Review

Further, the proposed rules would clarify what constitutes “to the extent commercially reasonable,” establishing a multifactor test that balances the type of review required, the magnitude and reversibility of the harm, the value of evidence review, the deployer’s size and capacity, the marginal cost and technical feasibility, and the availability of qualified reviewers.

The proposed rules would create a rebuttable presumption of commercial reasonableness when an adverse outcome results in a “severe and irreversible denial of a basic human need.” Employers would bear the burden of rebutting that presumption by showing technical or financial impossibility, or that the review could not change the outcome. This presumption could likely be triggered by employer decisions that affect an individual’s livelihood—particularly terminations of employment or nonrenewals of essential positions.

Types of Meaningful Human Review

The proposed rules contemplate two types of human reviews. First, when an employee or applicant suggests that an ADMT may have “functioned incorrectly” or not as intended, “including with respect to accuracy, output, transcription, and glitches, or errors in configuration, instruction, or other technical failures,” then the review may include correcting the ADMT tool and rerunning the decision-making process.

Second, if the employee or job applicant suggests that “the ADMT itself was problematic,” such as it considered the wrong factors, did not have access to relevant information, or was not meant to make the decision at issue, then a meaningful human review “would likely include the review of additional relevant evidence” provided by the employee or job applicant and a consideration of whether such evidence changes the adverse outcome. A decision to override the original decision and reverse the adverse outcome would be sufficient to indicate that “human review was meaningful.”

Next Steps

For employers using AI-driven tools in hiring, promotions, employment terminations, or other workforce decisions, the proposed rules would impose new technical requirements and substantially increase compliance obligations from the new statutory framework. Employers and other stakeholders may wish to stay informed about further developments in the rulemaking and begin considering how to operationalize requirements that may be incorporated into the final rules.

Ogletree Deakins’ Artificial Intelligence and Innovation Practice Group will continue to monitor developments and will provide updates on the Colorado, Cybersecurity and Privacy, Employment Law, and Artificial Intelligence and Innovation blogs as additional information becomes available.

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Quick Hits

• On August 25, 2026, Canada announced new support programs to help employers impacted by the latest round of U.S. tariffs retain workers, fund training, and avoid layoffs.
• Extended Employment Insurance (EI) measures allow laid-off or separated employees to access benefits sooner and alongside severance payments.
• Employers may want to assess eligibility for workforce, EI, and financial support programs when planning staffing or separation decisions.

Here is a summary of what matters most.

The New Workforce Retention and Retraining Program

The government is consolidating the existing Employment Insurance (EI) Work-Sharing program and the Worker Retention Grant into a single, streamlined Workforce Retention and Retraining Program (WRRP). This is significant for employers looking to avoid layoffs while managing reduced business activity. Key features include:

• Work-Sharing flexibilities continue. Employers experiencing a decline in business activity attributable to tariffs can reduce employee hours rather than resorting to layoffs, with affected employees receiving EI benefits for hours not worked.
• Training funding. Employers participating in the program will be eligible for up to $1,000 per participant to cover training and administrative costs during reduced work periods.
• Broader eligibility. The program now extends to nonprofit and charitable organizations experiencing revenue declines as a direct or indirect result of tariffs, not just private-sector employers.

Since Work-Sharing applications roughly doubled in 2025, with approximately 80 percent citing tariffs, this expanded program signals the government’s expectation that workforce disruptions will continue.

Extended Employment Insurance Flexibilities

The government is extending three temporary EI measures that directly affect how employees transition off an employer’s payroll:

• Waived one-week EI waiting period. This was extended by one additional year, allowing separated or laid-off employees to receive benefits from day one of their claim.
• Separation pay treatment. The usual requirement for workers to exhaust severance and other separation payments before accessing EI remains suspended for another year, meaning employees who receive severance packages can access EI benefits concurrently.
• Additional twenty weeks for long-tenured workers. This measure, which provides extra regular EI benefits for workers with extended employment histories, has been extended by eight months.

These measures are relevant for employers structuring severance and separation packages, as employees now face fewer gaps between employment and benefits.

Financial Support for Employers

• Small and Medium-Sized Enterprises (SMEs): The Regional Tariff Response Initiative is receiving an additional $1.5 billion, with the cap on nonrepayable contributions increasing to $3 million.
• Large Employers: The $10 billion Large Enterprise Tariff Loan facility now offers up to thirty-six months of liquidity support with loan terms extended to fifteen years.

What Can Employers Do Now?

Employers affected by the U.S. tariffs may want to consider the following steps:

Assessing whether Work-Sharing applies to one’s workforce. For employers whose operations have been directly or indirectly affected by tariffs and are contemplating layoffs, the new WRRP may provide a viable alternative that lets them retain skilled employees while accessing government-funded training support.

Reviewing separation and severance practices. The extended EI flexibilities change the calculus for employees receiving severance. Employers may want to ensure their HR teams are aware of how these measures interact with existing separation packages.

Exploring available financial supports. Both SMEs and large enterprises now have access to enhanced funding. Employers may want to review their eligibility early, as demand for these programs has been high.

Ogletree Deakins’ Canada offices will continue to monitor developments as the government has indicated it will assess programs and expand supports to newly impacted sectors. Updates will be posted on the firm’s Canada, Cross-Border, and Reductions in Force blogs as additional information becomes available.

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

• AI-generated employee complaints can be lengthy and persuasive but may obscure the key facts and issues.
• Employers could consider word limits for internal complaints while allowing exceptions and supporting evidence.
• Focusing on main issues, allowing reasonable response times, and using AI carefully will help employers manage lengthy employee complaint submissions.

AI can make a complaint long, fluent, and superficially persuasive while obscuring relevant facts. It can be very difficult to see the wood for the trees and a feeling of not understanding what a complaint may be about, despite having read twenty pages, is not uncommon. In the United Kingdom, AI often advises employees to throw in a Data Subject Access Request (DSAR) as well for good measure.

AI has a natural bias towards the user and is only fed the user’s side of a dispute. The resulting employee-favourable output gives false encouragement to employees who feel emboldened and confident to pursue their complaint as far as possible, with their AI free solicitor at their side for the journey.

So how do employers respond? It is time to consider whether employers should be amending policies to impose a word limit. Word limits are an accepted measure in courts and tribunals to ensure the time and resources spent dealing with a case is proportionate. Surely that same principle should apply to internal processes, although there do not yet appear to be any court decisions on this in the UK.

There should however be some safeguards to ensure employees are able to properly convey detail where appropriate. One thought would be to limit the length of the complaint, but not any accompanying evidence or chronology.

Opponents may cite a word limit as an unreasonable barrier to justice, but all disputes can be sufficiently summarised within 2,000 words, at least at a high level. This would help justice to be served as it would enable the employer to understand the big picture and main issue(s) without getting bogged down. It would also allow an employer to respond more swiftly as delays caused by the need to understand twenty pages of detail do not serve justice. Employers may want to seek further detail in appropriate cases and that obligation could be set out in the applicable company policy.

Policies could also stipulate that employees can request an extension to the word limit in appropriate cases such as when relying on disability-related reasonable adjustments, or where English is not the employee’s first language.

The approach is legally untested in the UK but it is time to start the conversation. In the meantime, some tips for dealing with lengthy complaints:

• Consider focusing on the key issues (assuming they can be worked out!).
• AI can be responsibly used to summarise the complaint.
• It is acceptable to inform an employee who has submitted a lengthy complaint that more time will be needed to handle it than the time period specified in the applicable policy, whether or not the policy time period is expressed as merely a target with provision to disapply. The legal standard is that responses should be sent “within a reasonable period” and this can be weeks or months in appropriate cases.
• Finally, slowing down the pace of communications may be helpful. AI enables employees to respond to the latest email within minutes—perhaps with another lengthy document. Where applicable consider just acknowledging receipt and then taking a week or longer to send a substantive response.

Ogletree Deakins’ Artificial Intelligence and Innovation Practice Group and London office will continue to monitor developments and will post updates on the Artificial Intelligence and Innovation and United Kingdom blogs as additional information becomes available.

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Quick Hits

• On July 9, 2026, Governor Mike Kehoe signed a law extending legal protections under USERRA to Missouri National Guard members and Missouri employees of other states’ National Guards.
• The law extends the Servicemembers Civil Relief Act (SCRA) to Missouri National Guard members and Missouri employees of other states’ National Guards called to active state duty for more than thirty consecutive days.
• National Guard members who are public employees may take up to 160 hours per year of paid military leave under the new law.
• The law will take effect on August 28, 2026.

Missouri House Bill (HB) 2593 extends the Uniformed Services Employment and Reemployment Rights Act’s (USERRA) protections to members of the Missouri National Guard and Missouri employees who are members of another state’s National Guard, granting them the same reemployment rights that USERRA provides.

HB 2593 also extends SCRA’s protections to members of the Missouri National Guard who are called to active state duty by the governor or adjutant general for a period of more than thirty consecutive days and any Missouri employees who are members of the National Guard of another state and are called to active state duty by the governor or adjutant general of that state for a period of more than thirty consecutive days.

The new law also allows National Guard members who are public employees to take up to 160 hours per federal fiscal year of paid military leave without loss of regular time, pay, regular leave, or efficiency ratings. Previously, the limit was 120 hours.

Members of the Missouri National Guard who are on state active-duty orders for more than thirty days will receive an allowance from the federal government for any premiums for TRICARE or other government-sponsored health insurance programs during the period of active duty.

The Missouri law permits individuals to bring lawsuits for alleged violations. In addition, the Missouri Attorney General’s Office can bring suit against employers.

Under USERRA and the Missouri military leave law, employers are prohibited from discriminating or retaliating against servicemembers for taking military leave. Servicemembers can take a cumulative total of five years of unpaid military leave with a single employer, with certain service types being exempt from this time limit. After military leave ends, employers must permit servicemembers to return to a job with the same level of pay, benefits, and seniority they would have if they did not take leave.

Next Steps

Now is a good time for Missouri employers to consider reviewing their policies and practices regarding military leave and reemployment to ensure compliance with state and federal military leave laws and obligations. Training managers and human resource officers on compliance with USERRA and HB 2593 may help minimize legal risk under state and federal military leave laws.

An Ogletree Deakins podcast titled “The Top 5 USERRA Traps and How to Avoid Them” with Amy Quick Glenos and James A. Patton, Jr., is available here.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments and will post updates on the Leaves of Absence, Military Workforce, and Missouri blogs as additional information becomes available.

Sarah Smith Kuehnel is a shareholder in Ogletree Deakins’ St. Louis and Tampa offices.

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

• In Hillsborough County v. Giambrone, a Florida appellate court overturned a lower court’s unprecedented ruling that required a county to accommodate a firefighter-paramedic’s off-duty medical marijuana use after a positive random drug test.
• The court emphasized that the language in the parties’ collective bargaining agreement (CBA) and drug-free workplace policies must be carefully considered.
• The court also held that Florida’s medical marijuana framework does not: 1) create a private cause of action against an employer for wrongful discharge or discrimination; 2) by itself, create an affirmative accommodation mandate; or 3) prohibit an employer from enforcing stringent fitness-for-duty standards in a safety-sensitive setting.
• Forty states and Washington, D.C., have legalized medical marijuana, but state laws vary on workplace accommodations and restrictions on drug testing.

Recreational marijuana use remains illegal in Florida, but medical marijuana use is lawful for adults ages twenty-one and older with a valid Medical Marijuana Use Registry card for a qualifying medical condition. Increasingly, employees have sought to utilize the Americans with Disabilities Act (ADA) or the Florida Civil Rights Act (FCRA) to claim that their personal symptoms or limitations qualify as disabilities for which employers must accommodate medical marijuana usage.

Background

In February 2019, Angelo Giambrone, a firefighter-paramedic for Hillsborough County’s fire department, tested positive for marijuana during a random drug test. He presented his employer with a valid medical marijuana card. He argued that his union contract permitted employees like him to present a medical marijuana card as evidence of a prescription medication authorized under state law, thereby providing a defense to an adverse employment action.

The county placed him on unpaid administrative leave and reported him to the Paramedic and EMT licensing board, which dropped its investigation based on his status as a medical marijuana cardholder.

Giambrone then sued, raising four claims: failure-to-accommodate under the FCRA, wrongful termination, failure to update the county’s drug-free workplace policy to comply with Florida’s constitutional amendment allowing medical marijuana, and breach of contract claim under the CBA. The county argued that a medical marijuana card does not exempt employees from complying with the CBA, the county’s drug-free workplace policy, and federal law, which bans marijuana use.

In December 2024, the trial court sided with Giambrone on every count. The Thirteenth Judicial Circuit Court of Florida ruled that the Florida Constitution requires a public employer to accommodate an employee’s off-duty, off-site medical marijuana use to treat a disability. This was in part because Giambrone’s EMT license was controlled by the state.

The opinion further pointed to the CBA’s language allowing employees to report the use of prescription medications authorized under both federal and state law upon testing positive on a drug test, finding that medical marijuana is akin to a prescription medication despite being illegal under federal law. It also entered a broad, forward-looking order that required the county to accommodate any employee who presented a medical marijuana card after a positive test, so long as there was no proof of on-duty use or impairment on the job.

Appellate Court Ruling

The Second DCA reversed in full, concluding that the trial court committed legal error on several important issues, and it remanded with instructions to enter judgment for the county on all counts.

The heart of the case turned on one key question. Was medical marijuana a “prescription” or “nonprescription medication” under the county’s drug-free workplace policy and CBA? The court said the medical marijuana was a nonprescription medication on both counts.

The CBA prohibited using, possessing, or being under the influence of a “drug” while at work, on county property, in a county vehicle, or while displaying a county logo. The appellate court noted that the CBA defined prohibited “drugs” to include substances that extended well beyond criminally prohibited substances. Importantly, the CBA specifically provided that medications detected on a positive drug test could be excused if they were either a medication prescribed under Florida’s pharmacy laws or an over-the-counter medication authorized for general distribution without a prescription.

The Second DCA noted a “prescription” required dispensing by a licensed pharmacist under Florida’s pharmacy laws, but medical marijuana does not move through that system. Rather, it is authorized by physician certification and dispensed only through licensed dispensaries under a different statute. Moreover, medical marijuana is not an over-the-counter medication because it is not available for general public use. Federal law criminalizes marijuana possession, and Florida law limits it to being dispensed from licensed dispensaries.

The court also addressed the recent federal move to reschedule marijuana from Schedule I to Schedule III, effective April 28, 2026. Because this case was governed by the law in place when the claims arose in 2019 and 2020, that development did not affect its analysis. The court indicated that Schedule III status would not help the employee because reclassification would not make Florida medical marijuana equivalent to an over-the-counter medication. It would still be limited to medical purposes, limited to users authorized by state law, and dispensed through licensed entities under a controlled regulatory framework.

The court contrasted that regime with drugs made available for general public distribution and use without individualized medical authorization. It also noted that Schedule III drugs generally remain subject to prescription-based dispensing rules under federal law. So, even if marijuana is Schedule III, it still would not be a medication authorized for general distribution and use without a prescription.

The court’s prescription analysis depended on Florida’s statutory structure. Medical marijuana is authorized by physician certification and dispensed through licensed dispensaries. Unless Florida’s medical marijuana system changed to make marijuana dispensed through pharmacists, Schedule III status alone would likely not make a medical marijuana card a “prescription” under the CBA at issue.

Finally, the appellate court rejected the trial court’s reading of Florida’s constitutional medical marijuana amendment. It found that nothing in Florida’s medical marijuana amendment requires an employer to accommodate on-site medical marijuana use in a place of employment. The trial court reasoned that, because the amendment only disclaims a duty to accommodate on-site use, employers must therefore accommodate off-site use. The Second DCA rejected that notion, concluding that the amendment’s language is a limitation clause, not a grant of employee rights against employers. It tells courts what the amendment does not require; it does not say what employers must do. Employers retain the ability to “establish, continue, or enforce” a drug-free workplace program or policy.

The Second DCA confirmed that Florida’s medical marijuana framework preserves employer discretion, rather than creating a new accommodation mandate. It found the medical marijuana statute does not require an employer to accommodate the medical use of marijuana in any workplace or an employee working while under the influence of marijuana.

The concurring opinion observed that Giambrone was a firefighter-paramedic who was subject to the statutory requirement of not being a convicted felon and maintaining good moral character. Thus, he could not maintain his firefighter certification while continuing to use medical marijuana, since such use was a federal felony. In addition, the essential functions of the job, which is a safety-sensitive position, indicated that his requested accommodation—off-duty medical marijuana usage—was not necessarily a reasonable request.

Practical Takeaways

Several questions remain open. The majority opinion stressed that its holding is narrow, tied to this specific CBA and policy. Other employers with different contract language may see different results. It is also unclear whether the Florida Supreme Court will take up this issue, or whether the legislature will revisit the statutes in light of continued litigation.

The federal rescheduling of marijuana to Schedule III may eventually reshape how courts analyze disability accommodation claims under the FCRA and ADA, even though it did not affect this case. Notably, the majority opinion in this case did not fully resolve the underlying FCRA claims, including whether Giambrone qualified as an individual with a disability entitled to accommodation. Florida employers should expect this area of law to keep developing, and may want to monitor both appellate decisions and any legislative action closely.

Even though the county ultimately won, the case shows where employer policies can be misread or challenged. Florida employers may want to review drug-free workplace policies along with CBA definitions to determine whether they utilize the terms “prescriptions” and “nonprescription medication” so that they track the proper statutory language, rather than looser terms that could be stretched to cover medical marijuana. Clear, consistently enforced policy language may help employers defend decisions involving medical marijuana use.

While a Florida medical marijuana card does not automatically make continued off-duty marijuana use a required workplace accommodation, Florida employers still may wish to engage in an interactive process to determine a reasonable accommodation, if any, when an employee is a medical marijuana cardholder.

Ogletree Deakins’ Drug Testing Practice Group and Florida offices will continue to monitor developments and will post updates on the Drug Testing and Florida blogs as additional information becomes available.

Information on state and federal marijuana laws, as well as drug testing requirements, is available on the Ogletree Deakins Client Portal. As new laws are enacted, the Client Portal will provide updates on the Florida Medical Marijuana Law Summary, the Florida Recreational Marijuana Law Summary, the Florida Drug Testing Marijuana Law Summary, and the Florida Lawful Off-Duty Conduct Law Summary. Template policies and full law summaries are available for Premium and Advanced subscribers. Snapshots and updates are available for all registered client users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Dee Anna D. Hays is a shareholder in Ogletree Deakins’ Tampa office.

Karen M. Morinelli is a shareholder in Ogletree Deakins’ Tampa office.

John C. Getty is of counsel in Ogletree Deakins’ Tampa 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

• DHS is proposing a $103,265 fee for every new fiscal year (FY) 2028 H-1B cap-subject petition on top of all existing fees.
• The fee would apply to all cap-subject employers, regardless of size.
• The fee would not apply to cap-exempt petitions (i.e., those filed by universities, nonprofit research organizations, and government research organizations) or to petitions to extend or amend existing H-1B status or to change an existing H-1B to a different employer.
• Public comments are due in late September 2026. If the rule is finalized, the fee will apply to cap-subject petitions filed in 2027. Significant legal challenges to the rule are anticipated.

Background

The proposed rule describes DHS’s authority to establish and collect fees sufficient to recover the costs of providing immigration services. Historically, U.S. Citizenship and Immigration Services (USCIS) fee rules generally recovered only USCIS’s costs. The proposal would adopt a novel interagency cost-recovery approach, using the fee to recover approximately $8.78 billion in identified costs across six federal agencies, including USCIS, the U.S. Department of Labor, U.S. Immigration and Customs Enforcement, the U.S Department of State, and others. Divided among 85,000 projected cap-subject petitions, those costs equal approximately $103,265 per petition. The proposed rule states that cap-subject H-1B employers are best suited to bear these added costs, rather than spreading them among all applicants or petitioners.

Analysis

The proposed fee would not affect existing H-1B petitions or beneficiaries already in H-1B status. It would apply prospectively to H-1B cap-subject petitions for fiscal year 2028 (calendar year 2027), including petitions filed on behalf of beneficiaries already in the United States, and would apply to quota-subject employers of all sizes.

Cap-exempt H-1B petitions, including those filed by nonprofit research organizations, governmental research organizations, and educational institutions, would not be subject to the fee. The fee would be separate from the prior $100,000 H-1B fee, which applied to certain petitions filed on or after September 21, 2025. The presidential proclamation establishing the $100,000 fee is set to expire on September 21, 2026, one year after its issuance, unless extended. A federal court in Massachusetts struck down the fee as an unlawful tax and vacated its implementing guidance on June 8, 2026. The administration’s appeal to the U.S. Court of Appeals for the First Circuit remains pending.

Next Steps

The proposed rule is not yet in effect. DHS published it on August 25, 2026, with a thirty-day window for public comments closing on September 24, 2026. After reviewing comments, DHS will decide whether to finalize, revise, or withdraw the rule. If the rule is finalized, the fee could apply to H-1B cap-selected petitions as early as April 1, 2027, unless litigation blocks its implementation. Given the recent vacatur of a similar $100,000 H-1B payment as an unlawful tax, the proposed fee is likely to face significant legal challenges.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Higher Education and Immigration blogs as additional information becomes available.

For additional insight into the critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

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

• Spain published its draft Royal Decree on 4 August 2026, and Portugal published its draft proposal on 5 August 2026.
• Consultation for both drafts closed recently—24 August for Spain and 25 August for Portugal.
• Further legislation is expected to provide greater clarity on unaddressed provisions.

Despite being published within days of each other, the approaches taken by the two governments vary considerably. Both drafts have been open for relatively short consultation periods; however, that is not to say that they do not offer a helpful insight into how the respective governments plan to transpose the Directive.

Pre-Employment Obligations

As the legislation currently stands, Spain has not yet addressed starting pay or pay-range disclosure at the recruitment stage. This is deliberate and is likely to be the subject of a further consultation and/or draft legislation in due course.

Conversely, Portugal has been clear that applicants must receive their pay or pay range, based on objective gender-neutral criteria, before the employment contract is entered into, closely aligning with the Directive.

Transparency Obligations During Employment and the Right to Request Information

Proactive Disclosure of Pay Criteria

All employers in Spain must provide their staff, in a comprehensible and easily accessible manner, with information on the criteria used to determine pay and the pay levels applicable to different jobs or professional categories. Those criteria must be objective and gender-neutral. Employers with 50 or more workers must additionally provide information on the criteria for pay progression. This information must be kept up to date and be made available to workers whenever the criteria are amended.

In Portugal, employers must display in customary locations, or on their intranet, the criteria used to determine pay, pay levels, and pay progression. Companies with fewer than 50 employees are exempt from the obligation regarding pay progression information.

Both countries, therefore, require proactive disclosure of pay criteria and levels without the need for an employee request.

Right to Request Individual Pay Information

In both Spain and Portugal, workers may request pay information once per year and can expect a response within two months of receipt of the request. In Spain, workers have the right to receive written information on their individual pay and the average pay, expressed in annual and hourly terms and broken down by sex, for workers performing equal work or work of equal value. In Portugal, employees may also receive both individual and average pay level information, broken down by sex, for comparable groups.

The channels through which right-to-information requests are made also vary. In Spain, employees may request such information directly, through workers’ representatives where present, or through the Women’s Institute. While the first two options remain available for employees in Portugal, they may also bring requests through the Commission for Equality in Labour and Employment (CITE).

Pay Register and Pay Audit (Spain)

Under the existing (now amended) Royal Decree 902/2020, all employers in Spain, regardless of size, must maintain a pay register showing the arithmetic mean and median pay, broken down by sex, by each pay component, and by professional classification. Where the arithmetic mean or median of the total pay of one sex exceeds the other by 25 percent, the register must include a written justification. This is a separate and distinct threshold from the Directive’s 5 percent trigger if an employer meets the employee threshold for gender pay gap reporting (see below).

Spain also requires mandatory pay audits for employers with 50 or more workers. These audits must include job evaluation; identification and analysis of pay differences using at least three years of historical data; and preparation of an action plan to remedy any unjustified pay inequality, with a maximum implementation deadline of six months.

Ultimately, Spain is more prescriptive regarding job evaluation; the legislation details specific soft skills and factors to be considered by employers, including hardship, dexterity, thoroughness, isolation, financial responsibility, responsibility for the well-being of others, versatility, interpersonal skills, care skills, conflict-resolution skills, and organisational skills. Conversely, Portugal’s legislation aligns closely with the Directive’s broader language, which assesses four key factors: responsibility, effort, skills, and working conditions.

Gender Pay Gap Reporting

Both countries will require employers with 50 or more workers to report on the gender pay gap—a much lower threshold than the Directive requires. Pursuant to the Directive, employers with 250 or more workers must report annually, and those with between 50 and 249 workers must report every three years. The first reports are due by 7 June 2027 for employers with 150 or more workers and by 7 June 2031 for employers with between 50 and 149 workers.

In Spain, reports are submitted to the newly established Commission for Monitoring Pay Transparency, an interministerial tripartite body that will publish data in an easily accessible format and retain it for at least four years. In Portugal, reports are submitted to the designated data-processing authority, which will similarly publish data and keep it accessible for at least four years.

Enforcement of Unjustified Pay Gaps

Portugal has adopted a more active enforcement model than the Directive requires. Where an unjustified pay gap of 5 percent or more persists within a category of worker, the labour inspectorate notifies the employer to submit a joint pay assessment (involving employee representatives) within forty-five days, with corrective measures to be implemented within ninety days. Pay differences that the employer fails to justify are presumed to be discriminatory.

In Spain, unjustified pay gaps are addressed through the pay audit framework. Where inequality is identified, the employer must prepare an action plan with a maximum six-month remedy deadline. The Commission for Monitoring Pay Transparency collects and analyses the data, but it does not directly initiate enforcement in the manner of Portugal’s labour inspectorate.

Additionally, Spain retains its unique 25 percent register justification threshold for the arithmetic mean or median total pay gap between the sexes, sitting alongside the Directive’s 5 percent reporting trigger. The Portuguese legislation aligns solely with the Directive’s 5 percent joint pay assessment trigger.

Sanctions

Portugal’s draft legislation provides tiered sanctions for noncompliance (“very serious,” “serious,” or “minor,” depending on the obligation breached). For repeated infringement, ancillary sanctions include withdrawal of tax and financial incentives, loss of public benefits, disqualification from public procurement for up to two years, and mandatory training. Spain’s draft relies on its existing labour inspection and sanctions framework and does not introduce any new specific penalties.

Current Status and Next Steps

Neither piece of legislation has a confirmed implementation date, as both are subject to the parliamentary process. Following the closure of the consultation periods, there may be more changes and, one hopes, more clarity on timing.

Information and updates on the progress of the Directive’s implementation across the European Union can be found using the Ogletree Deakins’ EU Pay Transparency Directive Member State Implementation Tracker.

Ogletree Deakins’ London office, Cross-Border Practice Group, Pay Equity Practice Group, 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.

Mai Barry, a paralegal in Ogletree Deakins’ London office, contributed to this article.

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Quick Hits

• A California appellate court reinstated a $13.1 million jury verdict in a gender discrimination case, rejecting trial court limits on noneconomic damages.
• The court found the trial court had erroneously found a cap on damages for noneconomic damages, even when limiting claims to “usual” distress.
• The court further held that witnesses are competent to testify to their own retirement plans to support future economic damages.

In Glick v. City of Los Angeles, the California Court of Appeals, Second Appellate District, found the “trial court abused its discretion by capping a jury’s damages for what the trial court called “garden-variety emotional distress,” and “erroneously” rejected the plaintiff’s own testimony about future economic damages.

Background

The case involved an internal investigation of police officers stemming from allegations made by an individual arrested on suspicion of driving under the influence of alcohol (DUI). The suspect had alleged mistreatment and that officers failed to request medical attention in a timely manner. Two male police officers who were investigated and disciplined, Stephen Glick and Alfred Garcia, alleged that the department treated them differently from female officers involved in the arrest. They filed a lawsuit alleging gender discrimination and retaliation under California’s Fair Employment and Housing Act (FEHA).

A jury awarded Glick $8,621,358 (including $5 million in past noneconomic damages, $3 million in future noneconomic damages, and $621,358 in future economic damages) and Garcia $4.5 million (including $3 million in past and $1.5 million in future noneconomic damages). The trial court conditionally granted a new trial unless Glick accepted a reduction to $250,000 and Garcia to $125,000. Both plaintiffs rejected the remittitur.

Decision

The Second Appellate District reversed and reinstated the original jury verdicts in full. First, the court held that the trial court improperly set a fixed standard or judicial cap for noneconomic damages. Even when plaintiffs stipulate under Code of Civil Procedure section 2032.320 “that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed,” damages are not limited to “usual” mental and emotional distress without expert testimony.

The appellate court said the trial court had effectively treated such a stipulation as a ceiling on damages. Further, the appellate court emphasized that emotional distress within jurors’ common experience requires no expert testimony, and a jury’s assessment of the severity and duration of that distress is entitled to deference.

Second, the court held that Glick was competent to testify about how the city’s allegedly discriminatory actions changed his plans to retire at fifty years of age rather than fifty-five. This testimony, combined with a forensic economist’s analysis, substantially supported the $621,358 future economic damages award. The trial court erred in considering such testimony inadmissible, “confusing” credibility with admissibility. Even the possibility of Glick changing his mind and receiving “‘a windfall’ or ‘double recovery’ did not render his testimony inadmissible.”

Key Takeaways

This decision may prompt employers to reassess their potential exposure to damages in FEHA litigation. The Glick decision indicates that “garden-variety” emotional distress claims are not subject to a cap on damages. Employees who forego a mental health expert and limit their claims to the “usual” emotional distress experienced by someone subjected to discrimination are not, as a matter of law, limited to modest damages. Employers defending these cases may no longer be able to rely on a section 2032.320 stipulation as a practical damages ceiling, and early assessments may want to account for the possibility that a jury may find plaintiffs sympathetic enough, even without supporting medical evidence.

At the outset of any litigation, employers may want to build up affirmative evidence to challenge a plaintiff’s claimed emotional distress. Evidence regarding the causation of any such distress and the presence of any alternative stressors, as well as the plaintiff’s overall credibility, is key. Additional means of discovery, including targeted interrogatories, depositions of percipient witnesses to the plaintiff’s claimed emotional distress, and subpoenas to any relevant healthcare providers are also vital, and may help lay the foundation to compel a mental examination notwithstanding any proposed stipulation.

Additionally, when considering a section 2032.320 stipulation, it may be worthwhile to negotiate additional terms designed to constrain the scope of emotional distress claims at trial. Such negotiations can help narrow the scope of the claimed emotional distress and further establish a record that may support motions in limine, jury instructions, or even appellate challenges.

Further, with the appellate court accepting the officer’s testimony to his retirement plans as evidence of future economic damages, employees may feel emboldened to testify about how discrimination disrupted their career and retirement plans without corroborating documentary evidence. Employers may not be able to rely on admissibility objections to such testimony.

Finally, the underlying facts underscore the litigation risk created by inconsistent internal investigations. The jury found that the alleged differential treatment of male and female officers provided compelling evidence of discriminatory animus. Employers may wish to ensure that workplace investigations apply consistent standards regardless of the protected characteristics of the employees involved.

Ogletree Deakins’ California offices and Workplace Investigations and Organizational Assessments Practice Group will continue to monitor developments and will provide updates on the California, Employment Law, and Workplace Investigations and Organizational Assessments blogs as additional information becomes available.

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Quick Hits

• A federal court in Rhode Island vacated grant conditions imposed on nonprofit organizations serving unhoused individuals and survivors of domestic violence and sexual assault that required certification of compliance with executive orders targeting DEI and gender ideology.
• The court ruled the government-imposed grant conditions were arbitrary and capricious, finding the agencies had failed to provide a reasoned explanation for and consider the grantees’ reliance interests on contradictory compliance obligations.
• The ruling has implications for similar agency actions to enforce the Trump administration’s executive orders and policy priorities. The decision is the latest in a series of federal court rulings scrutinizing agency implementation of the administration’s anti-DEI policies.

In Rhode Island Coalition Against Domestic Violence v. Kennedy, U.S. District Judge Melissa R. DuBose found that the grant conditions restricting DEI initiatives were arbitrary and capricious in violation of the Administrative Procedure Act (APA). The judge granted summary judgment in favor of nearly two dozen organizations serving unhoused individuals and survivors of domestic violence and sexual assault that challenged the conditions under the APA.

The conditions required grant recipients to certify compliance with Trump administration executive orders aimed at eliminating unlawful DEI, including Executive Order (EO) 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” and forbade recipients from using federal funds to promote “gender ideology” as defined under the EO. HHS specifically required recipients to certify that “complying with [federal antidiscrimination] laws is a material condition of receiving federal funding streams” and that “[r]ecipients are responsible for ensuring subrecipients, contractors, and partners also comply.”

The plaintiff groups alleged the conditions and certification requirements were unlawful and required them to certify to vague, “ill-defined” terms in the face of severe legal consequences, including the threat of False Claims Act (FCA) liability, if the government later deemed them noncompliant. They argued the conditions would thus force them to dismantle staff training, inclusive hiring practices, culturally specific programming, and other DEI-related activities.

‘Arbitrary and Capricious’ Conditions

Judge DuBose ruled that the grant conditions were arbitrary and capricious for three reasons. First, Judge DuBose found that the administrative record from HUD and HHS offered “no explanation” as to why the new conditions were imposed “beyond statements suggesting they were executed for the purpose of aligning with the executive branch’s E.O.’s.” Second, she found that the agencies had entirely failed to consider the serious reliance interests of grant recipients that had built programs around preexisting grant terms. Third, she found the agencies had neglected “important aspects of the problem,” including how grantees could simultaneously comply with contradictory obligations—such as a directive to avoid “gender ideology”—while HUD’s own regulations required them to serve individuals in accordance with their gender identity.

Importantly, the judge granted summary judgment to the organizations and vacated the conditions nationwide, not limiting her ruling to the named plaintiffs. However, the judge declined to grant the organizations’ request for a permanent injunction to block such conditions from being imposed going forward.

What It Means for Employers

The ruling has implications for similar agency actions to enforce Trump administration executive orders targeting unlawful DEI and seeking to define sex as binary and immutable, and requirements that private employers certify compliance under penalty of the FCA. Specifically, the judge found that the agencies “failed to reasonably support their decision to enact them beyond citing the various implicated E.O.s.,” suggesting that agencies’ desires to execute the president’s policy priorities are, alone, insufficient under the APA to justify grant conditions.

However, the judge did not find that the grant conditions, particularly the certification requirements, were categorically unlawful. The ruling indicates that agencies must provide reasoned explanations, consider reliance interests, and address practical compliance challenges before imposing them. The agencies could seek to impose the same or similar restrictions by conducting a more deliberative process and with a more robust administrative record, particularly one that more adequately considers the recipients’ reliance interests.

In addition, the ruling highlights how some courts have viewed the FCA certification requirements and arguably vague terms in the EOs are problematic for compliance. The court found that the recipients could not reasonably understand their obligations.

Outside of grants, this ruling may have implications for Executive Order 14398 (issued March 26, 2026), which, among other things, established a contractual compliance and monitoring framework for federal contractors—specifically prohibiting “racially discriminatory DEI activities” in contracting and requiring a new Federal Acquisition Regulation (FAR) contract clause. The Federal Acquisition Regulatory (FAR) Council issued implementation guidance on April 17, 2026, directing agencies to insert the clause in new and existing contracts. However, a group of nineteen states and the District of Columbia filed a lawsuit in June 2026 challenging the federal government’s rollout of EO 14398.

Analogous to the Rhode Island Coalition Against Domestic Violence case, that complaint asks that the FAR Council and other agency implementing actions be set aside because, “If the defendants had followed the required procedures, the plaintiff States could have alerted the FAR Council and other agencies to the myriad problems with the FAR Council memorandum and agency actions as currently formulated, and the FAR Council and other agencies could have addressed those problems.” It will also be interesting to monitor any future litigation challenging regulatory processes as agencies, including the Office of Federal Contract Compliance Programs OFCCP and the U.S. Equal Employment Opportunity Commission (EEOC), seek to quickly implement executive orders and administration priorities.

Next Steps

Employers may want to take the opportunity to audit their DEI programs for legal defensibility. Rather than a permanent reprieve, this decision may serve to guide agencies toward better-supported processes and rationales as they engage in rulemaking in accordance with the Trump administration’s priorities. Indeed, the next round of agency action, if it comes with reasoned analysis and proper process, could survive judicial review where this one did not. Further, as mentioned, employers may want to monitor parallel developments, especially if they are federal contractors or subcontractors or receive federal funds.

Ogletree Deakins’ Diversity, Equity, and Inclusion Practice Group, Government Contracting and Compliance Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Ethics / Whistleblower, Government Contracting and Compliance, and Workforce Analytics and Compliance blogs as additional information becomes available.

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

• USCIS has revised its policy manual section on the public charge standard ahead of the September 18, 2026, effective date.
• The new policy asks whether an adjustment of status applicant is likely, at any time, to depend on the government for basic needs such as shelter, food, or healthcare, meaning likely to rely on any means-tested public benefit.
• The guidance applies only to adjustment of status applications, covering both employment-based and family-based applicants subject to the public charge ground of inadmissibility.

Under the Immigration and Nationality Act (INA), an applicant for a visa, admission, or adjustment of status is inadmissible if the reviewing officer believes an individual is likely at any time to become a public charge. The public charge ground of inadmissibility applies to any noncitizen applying for a visa to travel to the United States (temporarily or permanently), for admission at a port of entry, or for adjustment of status to that of a lawful permanent resident. However, USCIS clarifies that the new policy manual guidance applies only to those applying for Application to Register Permanent Residence or Adjust Status (Form I-485). The policy manual guidance does not apply to applicants for admission at ports of entry adjudicated by U.S. Customs and Border Protection (CBP), or noncitizens applying for nonimmigrant and immigrant visas through the U.S. Department of State. Additionally, it does not apply to the adjudication of adjustment of status applications by the Executive Office of Immigration Review (EOIR) of the U.S. Department of Justice (DOJ).

The public charge ground of inadmissibility is based on the longstanding policy that noncitizens should not be dependent on public benefits to meet their basic needs (i.e., shelter, food, or healthcare). The INA does not define “public charge,” and this has historically been defined through policy guidance and rules. As previously reported, under the Biden-era 2022 rule, officers were limited to seven enumerated factors when determining if an applicant is more likely than not to become a public charge: age, health, family status, financial status, education/skills, affidavit of support, and receipt of specified benefits. The new guidance builds on the Biden-era rule and allows officers to consider a broader variety of factors, including:

• factors considered under the 2022 rule, including age, health, family status, financial status, education/skills, affidavit of support, and receipt of specified benefits;
• receipt of and dependence on any means-tested public benefit, including both cash and noncash benefits (examples include, but are not limited to cash assistance, public or assisted housing, financial aid for postsecondary education, food assistance, government-funded health coverage, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit); and
• any factors the officer determines are relevant to public charge (e.g., the noncitizen’s willingness and ability to work, the noncitizen serves as a primary caregiver within his or her household, the noncitizen is an active-duty servicemember or spouse of an active-duty servicemember, or the noncitizen was the victim of a crime, domestic violence, or other adverse circumstances).

The new guidance considerably broadens an officer’s discretion in determining if a noncitizen is considered a public charge. Newly relevant noncash, means-tested benefits include:

• Medicaid;
• the Children’s Health Insurance Program (CHIP),
• Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and
• the Supplemental Nutrition Assistance Program (SNAP).

Earned benefits indicated in a noncitizen’s household income are not considered means-tested public benefits, such as:

• Title II Social Security benefits,
• government pension benefits,
• unemployment insurance payments, and
• veterans’ benefits.

Officers will review public charge factors based on a “totality of the circumstances” analysis. The new policy guidance grants officers wide latitude, which USCIS acknowledges may result in divergent outcomes from one adjudicator to the next, including inconsistent requests for evidence issued on similar facts.

USCIS maintains that no single factor controls the outcome, with the exception that an insufficient Form I-864 Affidavit of Support, where required, can be dispositive on its own. The affidavit of support is generally required for family-based adjustment of status applications. When officers decide in their discretion to consider sufficiency of a Form I-864, they should give it weight based on the likelihood that the sponsor will actually provide the mandated financial support to the sponsored noncitizen. In assessing that likelihood, officers may consider:

• the sponsor’s relationship to the sponsored noncitizen, including whether the sponsor lives with or intends to live with the sponsored noncitizen;
• whether the sponsor has provided the statutorily required amount of support to any noncitizen(s) he or she has sponsored in the past or is currently sponsoring;
• the degree to which the sponsor’s annual income, assets, and resources exceed the minimum level required by the statute;
• whether the sponsor is currently receiving means-tested public benefits;
• whether the sponsor has received a fee waiver from USCIS for an immigration benefit request; and
• the sponsor’s financial history, including a history of bankruptcy or failure to meet his or her financial responsibilities.

Next Steps

The new guidance applies only to Form I-485 Application to Register Permanent Residence or Adjust Status filed on or after September 18, 2026. Any means-tested public benefit sought or received on or after September 18, 2026, may be weighed in a public charge determination and may impact the outcome of the Form I-485 application. Benefits sought or received before that date remain governed by the 2022 rule’s narrower cash-assistance and institutionalization standard.

To learn more about this development and other critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

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

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