Quick Hits

• Businesses operating websites, online services, or applications primarily providing a forum for user-generated content may qualify as “covered platforms” subject to the TAKE IT DOWN Act’s notice-and-takedown requirements.
• The act’s platform obligations can carry significant civil fines of up to $53,088 per violation.
• Even employers that are not covered platforms may want to familiarize themselves with the act’s requirements in the event an employee reports that nonconsensual intimate images—whether authentic or AI-generated—have been posted online.

The TAKE IT DOWN Act raises two distinct questions for employers: first, whether their business qualifies as a “covered platform” that must comply with the act’s notice-and-takedown obligations, and second, if not, what they should do if an employee reports that nonconsensual intimate images (NCII) of them have been posted online.

TAKE IT DOWN Act Provisions: NCII Bans and Takedown Requests

The TAKE IT DOWN Act contains two main provisions. First, the act prohibits using in interstate or foreign commerce an “interactive computer service to knowingly publish an intimate visual depiction of an identifiable individual,” if:

• the depiction was obtained or created under circumstances in which the person knew or should have known the identifiable individual had a reasonable expectation of privacy;
• what is depicted was not voluntarily exposed by the identifiable individual in a public or commercial setting;
• what is depicted is not of public concern; and
• publication of the depiction is either intended to cause harm or actually causes harm to the identifiable individual, including psychological, financial, or reputational harm.

Critically, the act applies to visual depictions of an individual, whether the material is real, AI-generated, or another computer-generated recreation of a person’s likeness. Additional rules apply if the individual depicted is a minor.

Second, the TAKE IT DOWN Act requires covered platforms to establish a process whereby an identifiable individual (or the individual’s authorized agent) may submit a notification to the covered platform of the existence of an intimate visual depiction and request removal. A covered platform must provide clear and conspicuous notice of its notice-and-removal process that is easy to read and in plain language, and that provides information regarding the responsibilities of the covered platform under the act.

A valid notice and request for removal must include, in writing, (i) the identifiable individual’s physical or electronic signature; (ii) identification of, and information reasonably sufficient for the covered platform to locate, the intimate visual depiction of the identifiable individual; (iii) a brief statement that the identifiable individual has a good faith belief that the depiction is nonconsensual; and (iv) information sufficient to enable the covered platform to contact the identifiable individual. Upon receiving a valid request, a covered platform must remove the intimate visual depiction and make reasonable efforts to identify and remove any known copies of such depiction as soon as possible, but not later than forty-eight hours after receiving such a request. If the depiction is not removed, the identifiable individual may make a complaint to the FTC.

Covered Platforms

The TAKE IT DOWN Act defines a “covered platform” broadly as any website, online service, online application, or mobile application that serves the public and either primarily provides a forum for user-generated content—such as messages, videos, images, games, and audio files—or regularly publishes, curates, hosts, or makes available nonconsensual intimate visual depictions.

This definition clearly covers social media platforms but may also extend to other businesses that host messaging, image or video sharing, gaming, cloud computing, and other online service functionalities with user-generated content features. Due to the act’s broad definition of a covered platform, businesses that operate customer-facing digital platforms where users can post content may want to evaluate whether their platforms meet the act’s definition.

Statutory Exclusions and Safe Harbor

Certain categories of businesses are excluded, however, including broadband internet access providers, email services, and online services that consist primarily of content preselected by the provider, where any interactive functionality is incidental to that content. Excluded platforms may also lose their statutory exclusion if they make nonconsensual intimate visual depictions available in the ordinary course of business.

Notably, the act also provides a safe harbor for platforms that remove content in good faith, even if the content is ultimately determined not to be unlawful. There is no corresponding safe harbor for refusing to honor a removal request on the grounds that the content may not be unlawful, so platforms may want to take a conservative approach that favors early content removal. Additionally, to take advantage of the safe harbor, covered platforms may want to implement internal processes that document good-faith compliance efforts, including a record of all takedown actions.

What the TAKE IT DOWN Act Means for Employers

Businesses that qualify as covered platforms will need to establish notice-and-takedown processes and be prepared to process and honor valid requests according to the act’s strict timelines. But even businesses that are not covered platforms may want to note how the act can implicate workplace anti-harassment policies, particularly if a victim’s coworker is responsible for the publication or threats to publish the nonconsensual intimate images. If an employee reports that authentic nonconsensual intimate images or AI-generated deepfakes of them have been posted online without their consent, employers should take the complaint seriously and be aware of the tools available to remove the content. The act thus reinforces the need for employers to maintain clear policies addressing workplace harassment and acceptable use of AI tools and digital technologies. The FTC has also advised that businesses can help stop intimate images shared without consent from spreading further by using technologies such as hashing to prevent the reappearance of intimate content that has previously been identified and removed.

Additionally, employers may want to familiarize themselves with similar notice-and-takedown procedures for nonconsensual intimate imagery under state laws, which the TAKE IT DOWN Act does not preempt.

FTC Enforcement Priority

The FTC signaled its intent to enforce the act when, on May 11, 2026, it sent letters to major platforms reminding them of their obligation to comply fully with the TAKE IT DOWN Act. The FTC also launched TakeItDown.ftc.gov, a website where victims can submit complaints about platforms that have failed to act on valid requests for the removal of nonconsensual intimate images, or that have failed to create a process for people to request the removal of these images altogether.

Underscoring this warning, at the International Association of Privacy Professionals Global Privacy Summit 2026, FTC officials, including Commissioner Mark R. Meador, made clear that the commission views the TAKE IT DOWN Act as a priority for 2026. This should come as no surprise, given that the FTC has long focused on the heightened risks presented by AI deepfakes in the context of phishing scams and other forms of consumer deception.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group will continue to monitor developments and will provide updates on the Cybersecurity and Privacy, Technology, and Workplace Violence Prevention blogs as new 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 

• On May 14, 2026, Colorado Governor Polis signed Senate Bill 26-189, which repeals and replaces the 2024 Colorado AI Act.
• The new law removes the 2024 act’s duty of care, risk management program, and impact assessment requirements in favor of a pre-use notice, a post-adverse-outcome disclosure, and a limited set of consumer rights tied to “covered ADMT.”
• “Consumer” expressly includes employees and Colorado resident job applicants, reaching workforce decisions the Colorado Privacy Act largely excludes (apart from its biometric data provisions).
• Contract terms that indemnify a developer or deployer against liability for its own antidiscrimination violations involving covered ADMT are void as against public policy.
• The law takes effect January 1, 2027.

The Colorado General Assembly’s passage of Senate Bill (SB) 26-189 closes two years of legislative wrangling over a law that had not yet taken effect. Governor Jared Polis signed the 2024 Colorado Artificial Intelligence (AI) Act in May 2024 only after publicly asking the legislature to revisit it during stakeholder review. After repeated session-long deadlocks and an interim Working Group convened by the governor in fall 2025, the legislature adopted the Working Group’s framework largely intact. Governor Polis signed the bill on May 14, 2026, and the law takes effect January 1, 2027.

For employers, SB 26-189 is both narrower in scope and broader in reach than the law it replaces. It eliminates the 2024 act’s most demanding compliance obligations, but it pulls employees and job applicants into a notice-and-rights regime that the Colorado Privacy Act expressly excludes.

Narrowing Scope and Covered Technology

SB 26-189 imposes compliance obligations on both “developers” (creators) and “deployers” (users, including employers) of AI, but it abandons the 2024 act’s broad reach over “high-risk artificial intelligence systems.” In its place is a broadly defined automated decision-making technology (ADMT) concept narrowed to “covered ADMT,” meaning ADMT used to materially influence a “consequential decision” in one of seven defined domains: education, employment, housing, financial or lending services, insurance, healthcare services, and essential government services.

The ADMT definition itself excludes a list of baseline technologies, including web hosting, firewalls, anti-virus and anti-malware software, spell-check, calculators, and spreadsheets that require human analysis and do not use machine learning, foundation models, or large language models. General purpose large language models are also excluded, but only where they are not specifically configured or marketed for use in consequential decisions and are subject to acceptable use policies that prohibit such use.

Specifying Covered Uses 

Obligations attach only when a covered ADMT is used to “materially influence” a “consequential decision” concerning a consumer, employee, or job applicant. “Materially influences” requires that the ADMT output (1) be a “non-de minimis factor” in the decision and (2) “affect the outcome of the decision, including by constraining, ranking, scoring, recommending, classifying, or otherwise meaningfully altering how the decision is made.” That standard is higher than the 2024 act’s “substantial factor” threshold, and the definition expressly excludes “incidental, trivial, or clerical uses.”

The new framework also expands the carve-outs from “consequential decision.” Out of scope are low-stakes or routine decisions; advertising and marketing, including content moderation and product recommendations; narrow procedural tasks; cybersecurity and fraud prevention activities; and routine academic administration. The definition further excludes use of an ADMT to “summarize, organize, or present information for human review” where the system does not produce a score, ranking, recommendation, classification, prediction, or other inference that materially affects the outcome. That last carve-out matters for the many employer use cases in which AI prepares materials but a human ultimately decides.

From Duties to Disclosures

SB 26-189 discards the 2024 act’s central machinery. There is no duty of reasonable care, no algorithmic discrimination notice to the attorney general, no risk management program requirement, no impact assessment, and no standalone obligation to tell consumers they are interacting with AI. What remains is a documentation, notice, and disclosure regime structured around three points of obligation.

First, developers of covered ADMT must provide each deployer with documentation describing intended and known harmful uses, categories of training data, known limitations, and instructions for appropriate use and meaningful human review, along with notice of material updates. Second, deployers must provide a clear-and-conspicuous pre-use notice. A prominent posting reasonably proximate to the consumer interaction (such as a link or notice at the point of engagement) will satisfy the requirement. Third, when a consequential decision results in an adverse outcome, deployers must provide a plain language post-adverse-outcome disclosure within thirty calendar days. On request following an adverse outcome, deployers must give instructions for accessing and correcting inaccurate personal data used in the decision and provide an opportunity for meaningful human review and reconsideration, “to the extent commercially reasonable.”

“Meaningful human review” has its own five-part definition. The reviewer must (1) have authority to approve, modify, or override the decision; (2) consider relevant available primary evidence; (3) be trained for the review function; (4) not default to the system output; and (5) have access to sufficient information to understand the output’s intended use, material limitations, and categories of inputs and principal factors, without disclosure of trade secrets, model weights, or proprietary source code. The “commercially reasonable” qualifier on reconsideration is significant for high-volume decisioning and is likely to be a focus of attorney general rulemaking.

Both developers and deployers must retain compliance records for at least three years. Coordination provisions allow Equal Credit Opportunity Act/Fair Credit Reporting Act (ECOA/FCRA)-compliant adverse action notices and Family Educational Rights and Privacy Act (FERPA)-compliant processes to satisfy overlapping requirements where applicable.

Employees and Applicants Are Covered

The provision employers should focus on is the definition of “consumer.” It incorporates the Colorado Privacy Act’s definition (a Colorado resident acting in an individual or household context) and then adds three further categories: employees; job applicants who are Colorado residents; and any individual whose access to, eligibility for, or opportunity in Colorado is evaluated in a consequential decision by a business operating in Colorado.

The Colorado Privacy Act does the opposite, generally excluding individuals acting in a commercial or employment context (subject to its biometric data provisions, which do apply to employee data). SB 26-189 closes that gap for AI-influenced employment decisions more broadly. An employer using a covered ADMT to materially influence a hiring, compensation, promotion, or similar decision about a current or prospective employee will owe the new notices and, after an adverse outcome, a right to correct inaccurate personal data and an opportunity for human review, none of which the Colorado Privacy Act provides to employees outside the biometric context. National employers running centralized recruiting for Colorado-based roles should note that the third category reaches out-of-state applicants evaluated for Colorado opportunities.

Enforcement, Liability, and Contracts

The attorney general retains exclusive enforcement authority. SB 26-189 replaces the 2024 act’s affirmative defenses with a sixty-day cure period: developers and deployers may cure within sixty days of a notice of violation to avoid civil penalties, and a timely cure completed during an enforcement action may still be considered as a mitigating factor in the court’s penalty determination. The attorney general may bypass the cure period for knowing violations or repeat offenders, and may seek injunctive relief regardless of the cure to prevent future violations.

SB 26-189 creates no private right of action. It also expressly preserves existing rights and remedies under state and federal law, including the Colorado Anti-Discrimination Act, the Colorado Consumer Protection Act, product liability law, and other applicable statutes. The use of an ADMT does not excuse any obligation or liability under existing antidiscrimination law; compliance with the new notice-and-disclosure regime is not a shield against claims under Title VII of the Civil Rights Act of 1964, the Colorado Anti-Discrimination Act, or analogous state statutes.

Liability between developers and deployers is several, not joint, with fault allocated based on relative responsibility. That allocation mechanism is a deliberate departure from the 2024 act, which imposed separate duties on each but did not specify how fault would be apportioned between them. (A proposal for joint and several liability did not survive the August 2025 special session.) A developer may face liability for an ADMT that “materially influences” a decision, but only to the extent the deployer used the ADMT in a manner consistent with its intended use, and the attorney general is authorized to issue regulations on the “materially influences” standard.

The provision with the most immediate practical impact is the bar on contractual liability shifting. Any contract term that indemnifies, defends, or holds a developer or deployer harmless against liability for its own antidiscrimination violations involving covered ADMT is declared contrary to public policy and void. Many enterprise AI vendor agreements contain mutual indemnities that are now partially unenforceable in Colorado as applied to these claims. The bill preserves the ability to obtain and recover under applicable insurance.

Sectoral Exemptions, With a Workforce Carve-out

Insurers subject to Colorado’s existing algorithmic discrimination insurance statute, and covered entities and their business associates subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), are largely exempt from the operative requirements. The carve-out does not extend to consequential decisions related to employment. Health systems and carriers using AI in hiring or other workforce decisions remain fully subject to the new law. The bill also addresses medical devices regulated by the Food and Drug Administration (FDA) and provides that nothing in the act requires disclosure of nonpublic personal information in violation of the Gramm-Leach-Bliley Act.

What It Means for Employers

Compared to the 2024 act, SB 26-189 should offer employers materially greater clarity. The framework eliminates the impact assessment and risk management program obligations, introduces a fault allocation regime, and requires the attorney general to give a sixty-day cure window in most circumstances. The narrower definitions of “covered ADMT” and “consequential decision” will keep many routine business uses outside the law’s operative reach.

Two caveats matter. First, bias audits are no longer required, but they remain important compliance tools. Discrimination liability under Title VII, the Colorado Anti-Discrimination Act, and analogous state laws exists regardless of whether a tool qualifies as a covered ADMT, and bias-testing evidence is explicitly relevant under California’s recently finalized Fair Employment and Housing Act (FEHA) regulations addressing AI in employment. Litigation involving AI tools in hiring continues to increase whether or not those tools fall within state AI statutes. Second, the indemnification ban means vendor contracts written on the assumption that the developer would absorb discrimination liability are now exposed.

Employers may want to consider taking the following steps before the January 1, 2027, effective date:

• inventorying current AI tools to identify which qualify as “covered ADMT” under the new definitions, with particular attention to hiring, compensation, and other workforce decision tools;
• reviewing AI vendor contracts for indemnification provisions that may be void under the new framework;
• evaluating whether existing human review processes satisfy the five-part “meaningful human review” standard, including override authority and required training;
• assessing post-adverse-disclosure infrastructure, particularly for high-volume hiring processes; and
• continuing or initiating bias auditing given that discrimination liability remains under existing law.

Federal Developments to Watch

Federal preemption pressure on state AI laws has increased over the past six months. President Donald Trump’s December 2025 executive order established a U.S. Department of Justice AI Litigation Task Force, and the White House’s National Policy Framework for Artificial Intelligence urges the U.S. Congress to broadly preempt state AI laws. Whether federal preemption legislation advances will significantly affect the Colorado framework’s longevity and practical reach. The attorney general’s rulemaking process began on May 14, 2026, with rules on post-adverse-outcome disclosures and consumer rights required by January 1, 2027; further rules clarifying the “materially influences” standard are permitted but not required.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group, Technology Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Colorado, Cybersecurity and Privacy, Diversity, Equity, and Inclusion Compliance, Employment Law, Technology, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• New high school curriculum initiatives are integrating occupational safety and health concepts into CTE courses to build hazard awareness and prevention skills in students before they enter the workforce.
• Students who complete these courses gain practical knowledge of OSHA standards, PPE, hazard recognition, and workplace security while also earning credentials such as OSHA ten-hour or thirty-hour cards that provide a tangible professional advantage before graduation.
• Early occupational safety education represents a promising investment in workforce readiness.

The primary goal of integrating occupational safety into high school curricula is to provide students with an opportunity to develop safety awareness in conjunction with occupation-specific coursework, building a strong foundation in the concepts that are critical to protecting individuals in the workplace, increasing safety and health, and reducing the occurrence of job-related injuries and fatalities. When students learn these principles before entering the workforce, they carry a mindset of hazard awareness and prevention with them throughout their careers.

Students who complete these courses gain practical knowledge of the Occupational Safety and Health Administration (OSHA) and its mission to ensure employers provide workplaces free from recognized hazards. They learn to identify types and explain appropriate use of personal protective equipment (PPE); recognize chemical, biological, ergonomic, and physical hazards; and understand the importance of emergency action plans and safety data sheets. These are not abstract academic exercises—they are skills that translate directly into safer behavior on job sites, in laboratories, and in offices.

Beyond immediate safety knowledge, early exposure opens doors to professional advancement. Students explore career options in occupational safety and compliance at various organizational levels and learn about credentials such as the Certified Safety Professional (CSP) and Associate Safety Professional (ASP) designations. Successful completion of the curriculum may even lead to students earning a ten-hour or thirty-hour general industry OSHA card, giving them a tangible credential before graduation.

One particularly noteworthy element of these curricula is the inclusion of workplace security and violence prevention concepts. Students are expected to identify and describe potential types of workplace security events, strategies to enhance workplace security, and strategies to prevent workplace violence. Teaching these sensitive topics to teenagers is both valuable and potentially challenging. On the one hand, equipping young people with the language and frameworks to recognize warning signs and de-escalation strategies empowers them as future employees and leaders. On the other hand, educators may want to ensure that lessons are thoughtful about age-appropriate delivery and the emotional impact of discussing violence in a school setting that may already be grappling with safety concerns of its own.

The Texas curriculum is extensive and addresses complex regulatory frameworks spanning OSHA standards and U.S. Environmental Protection Agency (EPA) regulations. Learning units cover everything from hazardous materials handling, fire suppression systems, to accident investigation phases—and school districts must ensure that instruction does not become superficial. Because the course must be taken concurrently with a Level 2 or Level 3 career and technical education (CTE) course and cannot be taken as a stand-alone course, scheduling logistics may present barriers for smaller school districts with limited resources.

The trend toward early occupational safety education represents a promising investment in workforce readiness. By meeting students where they are—in high school hallways and CTE labs—employers and educators can cultivate a generation of workers who view safety not as a regulatory burden, but as a professional value. The result, over time, should be fewer workplace injuries, stronger compliance cultures, and young professionals who are prepared to lead from day one.

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

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Quick Hits

• On May 22, 2026, Governor DeSantis signed HB 1407, which revises the procedural framework for civil actions and administrative remedies under the Florida Civil Rights Act (FCRA).
• HB 1407 aims to clarify timing issues and procedural ambiguities within the Florida Civil Rights Act, particularly regarding the commencement of civil rights claims and the role of administrative notices from federal and state agencies.
• The new law will take effect on July 1, 2026.

The new law clarifies a long-standing ambiguity within the FCRA. For years, litigants and courts have grappled with timing issues surrounding civil rights claims, particularly disputes over when a claim “commences,” and whether administrative notice from the U.S. Equal Employment Opportunity Commission (EEOC) tolls the filing deadlines under state claims.

FCRA Background and Confusion Before HB 1407

The FCRA prohibits discrimination in employment based on an individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. The FCRA applies to employers with at least fifteen employees. As with actions under Title VII of the Civil Rights Act of 1964, before filing a civil action under the FCRA, an aggrieved person must exhaust administrative remedies. In Florida, a workshare agreement between the EEOC and the Florida Commission on Human Relations (FCHR) allows a person to file a charge of discrimination with either agency, known as “dual filing.” Generally, the agency that directly receives the charge will investigate the claims, though under the workshare agreement, dual-filed charges preserve rights under both state and federal law.

If the charge is initially filed with the FCHR, the agency must investigate and determine whether there is reasonable cause to believe a discriminatory practice has occurred within 180 days of filing. If the FCHR determines there is reasonable cause, the aggrieved person may file a civil suit within one year of the determination or may seek an administrative hearing.

If the FCHR fails to make a determination within 180 days, the aggrieved person may file a suit in court. In these circumstances, the aggrieved person is required to file a lawsuit within one year of the date the FCHR certifies that it has notified the aggrieved person by mail of its failure to make a timely determination. However, despite earlier legislative attempts in 2020 to clarify the process, the FCHR does not always issue the certification after the expiration of 180 days, leaving the parties to litigate how long an aggrieved person has to file suit.

Adding to the confusion, if a charge is filed initially with the EEOC, the EEOC generally takes the lead in the investigation. Once the EEOC concludes its investigation, it will issue a notice of right to sue, which gives the aggrieved person ninety days to file suit in federal court. Historically, under the FCRA, a notice of right to sue has not been treated as a dismissal of the state claims and, without an independent certification from the FCHR, parties have been left confused as to when the FCRA’s one-year statute of limitations begins.

State courts have grappled with the uncertainty for years and have ruled inconsistently, creating even more confusion. For example, Florida’s Fourth District Court of Appeal has held that a notice of right to sue issued by the EEOC is sufficient to trigger the one-year statute of limitations under the FCRA. In contrast, the First District Court of Appeal recently ruled that the EEOC’s notice does not satisfy the FCRA’s notice requirement.

Why This Law Matters

HB 1407 reflects a legislative effort to streamline and clarify the FCRA’s procedural rules. By eliminating the registered‑mail requirement for certain FCHR communications, the legislature appears to be modernizing the administrative process and reducing technical disputes over service and notice. At the same time, the law makes it clear that claims brought under the FCRA would have to be commenced no later than one year after the date of determination of reasonable cause by the FCHR or the issuance of a notice of right to sue letter by the EEOC, whichever is earlier. In cases where neither agency makes a determination within 180 days, the law sets a strict filing deadline of eighteen months after the filing of the complaint.

Impact on Florida Civil Rights Act Claims

For employers, HB 1407 brings greater predictability—but also underscores the importance of compliance discipline. HB 1407 does not change what conduct is prohibited under Florida’s civil rights laws—but it does change how quickly disputes may reach the courthouse.

The law takes effect July 1, 2026, and will apply to actions filed on or after that date. Employers that proactively adjust their compliance and litigation‑readiness strategies will be better positioned to manage risk under the new framework.

Ogletree Deakins’ Miami and Tampa offices will continue to monitor developments and will provide updates on the Florida blog as additional information becomes available.

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Quick Hits

• USCIS releases new policy memorandum stating adjustment of status (AOS) applications are a matter of discretion and administrative grace, directing USCIS offices to consider all factors and closely scrutinize applications from individuals who would otherwise obtain permanent residence through consular processing abroad.
• Applying for adjustment of status is not inherently inconsistent while maintaining nonimmigrant status in a dual-intent category, such as H-1B or L-1, but does not grant a favorable exercise of discretion.
• AOS applications are to be reviewed by officers considering all relevant factors and information in the totality of the circumstances, including the possibility of consular processing abroad.

The memo directs USCIS officers to consider all relevant factors on a case-by-case basis, signaling that the agency will more closely scrutinize applications from individuals who could otherwise obtain permanent residence through consular processing abroad. The memo does not prohibit AOS applications and specifically reminds officers that adjustment of status is not inconsistent with dual-intent nonimmigrant visa status (such as H-1B/H-4 and L-1/L-2).

The new policy memorandum reviews how courts and the U.S. Congress have treated adjustment of status as an extraordinary act of administrative grace, allowing applicants to apply for permanent residency from within the United States rather than through consular processing of an immigrant visa at a U.S. embassy or consulate abroad. The policy memorandum reminds officers they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion.

Specifically, the policy memorandum directs officers when exercising their discretion to consider false testimony to government agencies, violations in applications for admission or parole, conduct of the applicant after admission as a nonimmigrant or parolee inconsistent with the purposes of that nonimmigrant status or parole or with representations to consular officers or U.S. Department of Homeland Security (DHS) officers, in determining whether extraordinary relief is warranted. Other factors to be considered in this discretion include family ties, immigration status and history, the applicant’s moral character, and any other relevant factors.

The policy memorandum further provides that applying for adjustment of status in a dual intent category, such as H-1B or L-1, is not inherently inconsistent while maintaining a nonimmigrant status. However, maintaining dual-intent status alone is not sufficient to warrant a favorable exercise of discretion.

If adjustment of status is denied on the basis of unfavorable discretion, officers must issue a denial notice containing an analysis of the positive and negative factors considered, along with an explanation as to why the negative factors outweigh the positive factors.

Key Takeaways

This policy represents a meaningful shift in how USCIS will evaluate AOS applications and may directly affect employer-sponsored green card cases. AOS applicants can anticipate increased scrutiny on their applications, with consular processing (or processing of the visa abroad at the consulate) as the preferred pathway for processing for individuals who do not warrant a favorable exercise of discretion. USCIS emphasizes that each decision remains individualized. Strong equities—such as long-term U.S. residence and family ties—remain relevant positive factors that officers must weigh against any adverse considerations.

Additionally, the policy remains unclear on a number of items and additional guidance is required, specifically:

• The memo does not indicate when AOS applicants will no longer be able to apply within the United States.
• The memo does not indicate the stance, or impact, if any, on the AOS applications that are already in progress.
• The memo does not clarify what AOS pathways will be available, and whether they will be restricting certain groups from applying for AOS.
• The memo does not address whether any specific factors will weigh more than others in this totality of circumstances test when adjudicating an AOS application.
• The memo also does not address what positive factors are enough to approve an AOS application within the United States and not require consular processing.

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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Quick Hits

• The Supreme Court will determine if employees at federally funded educational institutions can bring sex-discrimination in employment claims under Title IX.
• The petitioners asked the high court to review an Eleventh Circuit decision, holding that Title IX does not provide a private right of action for employment-related sex discrimination.
• Petitioners argued that there is a “lopsided” 8–3 circuit split on the issue.

On May 18, 2026, the Supreme Court granted a joint petition for a writ of certiorari in Crowther v. Board of Regents of the University System of Georgia, No. 25–183. The case could answer whether employees of colleges, universities, and other federally funded educational institutions can use Title IX as a vehicle for workplace claims of sex discrimination, or whether such claims may only be brought under Title VII of the Civil Rights Act of 1964.

The question is significant because Title IX, which generally prohibits sex-based discrimination in the educational setting, and Title VII, which generally prohibits sex discrimination in the employment setting, address discrimination in different ways and offer different remedies. Specifically, Title VII imposes administrative exhaustion requirements requiring claimants to first submit a charge with the U.S. Equal Employment Opportunity Commission (EEOC), shorter limitations periods, and caps on compensatory damages.

Petitioners’ Alleged Sex-Based Discrimination Under Title IX

Petitioner MaChelle Joseph, the women’s basketball coach at the Georgia Institute of Technology (“Georgia Tech”) from 2003 until 2019, sued the university, alleging she was discharged after raising concerns about disparities in resources between the men’s and women’s basketball programs. She filed a lawsuit alleging claims under both Title IX and Title VII.

Petitioner Thomas Crowther filed a lawsuit against the Board of Regents of the University System of Georgia under Title IX, alleging he was treated differently based on sex during a Title IX investigation. The investigation was prompted by two student complaints and ultimately found violations of the university’s sexual harassment policy.

Eleventh Circuit Finds No Private Right of Action

The Eleventh Circuit consolidated both cases on appeal and held that Title IX does not create an implied private right of action for sex discrimination in the employment context and dismissed Joseph’s related Title VII claims. The Eleventh Circuit stated that “[a]lthough [Title IX] also provides an implied right of action for students—who would otherwise have no statutory remedy to enforce their substantive right under Title IX—the terms of the statute do not embrace a private right of action for employees.”

The Eleventh Circuit further noted that “Title VII’s express remedial scheme” made it “anomalous to conclude that the implied right of action under Title IX would allow employees of educational institutions immediate access to judicial remedies unburdened by administrative procedures.”

Arguments on Whether to Review

The petitioners pointed to the Supreme Court’s 2005 decision in Jackson v. Birmingham Board of Education, in which the Court allowed an employee to bring a Title IX retaliation claim after complaining about sex discrimination. The petitioners argued that, since Jackson, five circuits addressed the issue and found an implied right of action under Title IX for employees to sue for sex discrimination in employment. Arguably, a total of eight circuits have interpreted Title IX to permit private claims for sex discrimination in employment.

With the Eleventh Circuit’s joining the Fifth and Seventh Circuits in holding that Title IX does not provide such an implied right of action, the petitioners argued, there is now a “lopsided” 8–3 circuit split that the high court should address. In particular, the Eleventh Circuit decision means that employees within the circuit will have different rules than employees of other schools in the same collegiate athletic conferences, they argued.

However, the respondents disputed that the circuit split was as clear as the petitioners contended, particularly on whether Title VII is the proper path for employment discrimination claims. They contended that the cases were not a good vehicle for addressing the issues, particularly because Joseph raised parallel Title VII claims that were dismissed.

Notably, the federal government filed an amicus brief, contending that the Eleventh Circuit was likely correct that Title IX does not provide a private right of action for employment-based sex discrimination but urged the Supreme Court to review the case because resolving the alleged circuit split would have significant consequences for litigants, courts, and federal enforcement.

Next Steps

The grant of certiorari means the Supreme Court will hear the case during its October 2026 Term, though oral arguments have not yet been scheduled. Educational institutions may want to monitor the case closely, as it has the potential to reshape the avenues and claims available to employees alleging workplace sex discrimination.

A decision in favor of the petitioners could reinforce Title IX as a parallel path alongside Title VII for employees of federally funded educational institutions to bring employment-based sex discrimination claims and could increase the potential liability for such institutions. A decision for the respondents could limit Title IX as a workaround for employment discrimination claims. More broadly, the federal government suggested that the case could address the question of whether courts may extend implied rights of action.

Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Higher Education, and Sports and Entertainment blogs as additional information becomes available.

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‘Faster Labor Contracts Act’ Advances in the House. In recent weeks, the Buzz has reported on the effort by proponents of the Faster Labor Contracts Act to force a floor vote on the bill in the U.S. House of Representatives. This week, that effort—a process called a “discharge petition”—garnered the necessary 218 votes to force a vote on the bill in the House. Seven Republicans joined Democrats in signing the petition. Now the bill must jump through a series of arcane procedures in the House before a vote is scheduled, likely sometime in early June.

EEOC Begins Process to Eliminate EEO-1 Report. The U.S. Equal Employment Opportunity Commission (EEOC) is initiating a rulemaking process to eliminate its Employer Information Report (EEO-1). The EEO-1, which is filed annually, requires private-sector employers with one hundred or more employees to report employee data by job category and by sex, race, and national origin. (Other similar forms are required of public-sector employers.) This week, the EEOC sent to the Office of Information and Regulatory Affairs (OIRA) a proposed rule, titled, “Rescission of EEO-1, EEO-2, EEO-3, EEO-4. EEO-5, And Reporting Requirement Under Title VII, the ADA, GINA, and the PWFA.” While the contents of the proposal are not yet public, its title indicates that the Commission plans to rescind its regulation that compels the production and filing of the EEO-1 and similar reports. After OIRA completes its review, the proposal will be released, and the public will have an opportunity to comment. After reviewing the comments, EEOC will issue a final rule.

The EEOC has not yet opened this year’s EEO-1 portal for employer reporting, though the portal usually opens around this time of year. At this time, we do not know whether the EEOC’s proposal will impact this year’s collection.

USCIS to Move to Mandatory Electronic Filing? On May 19, 2026, U.S. Citizenship and Immigration Services (USCIS) submitted an interim final rule (IFR), “Mandatory Electronic Filing (e-Filing),” to OIRA. It is unclear what the IFR would entail and which aspects of the immigration processing life cycle it would cover. However, the “IFR” designation means that stakeholders will not have an opportunity to comment before the final rule is issued. Instead, the rule will be finalized, and then there will be an opportunity for comment. It also means that the rule will likely shortcut the monthslong comment review process and be issued more quickly. The IFR follows on the heels of another recent policy change—relating to invalid signatures on benefit requests—that was effectuated with an IFR.

Congressional Democrats Introduce Overtime Bill. Senate and House Democrats have introduced the Restoring Overtime Pay Act of 2026 (S.4551). The bill—previous versions of which have been introduced in past Congresses—would prescribe the salary basis threshold for establishing the Fair Labor Standards Act exemption from overtime requirements for bona fide executive, administrative, and professional employees. For 2026, the salary basis would be set at $45,000 per year (the current threshold is $35,568 per year), and it would increase by $10,000 each year. After topping out at $75,000 in 2029, the threshold would then be indexed to at least the 55th percentile of weekly earnings of full-time salaried workers, beginning in 2030. The bill would allow the secretary of labor to establish higher thresholds via notice-and-comment rulemaking. Republicans in the Senate and House are unlikely to move the bill, in part because the Trump administration recently clarified the current threshold as established by the 2019 rule promulgated during the first Trump administration.

Proponents of the SCORE Act Strike Out. Again. As the Buzz discussed last week, the House was scheduled to vote on the SCORE Act this week. However, Republican leaders changed course and removed the bill from consideration after it became clear it would not have the votes to pass. This is the second time a vote on the SCORE Act has been scrapped. Legislating is hard.

Memorial Day. This weekend, the Buzz will reflect on the sacrifice of the courageous men and women who lost their lives serving our nation. Five years ago, we took a closer look at the cultural and legislative history behind Memorial Day here.

Quick Hits

• Colorado, Indiana, New Jersey, and New York have each updated their child labor laws, with effective dates ranging from December 2025 through May 2027.
• The updates affect hazardous-occupation restrictions, recordkeeping, registration requirements, hours of work, and the process for issuing employment certificates to minors under the age of eighteen.

Colorado

Colorado adopted new regulations that took effect on February 1, 2026, implementing the Colorado Youth Employment Opportunity Act (CYEOA), which regulates the employment of minors under the age of eighteen. The regulations clarify restrictions under the CYEOA that prohibit individuals under the age of eighteen from certain hazardous jobs, exemptions, and restrictions on jobs involving the use of certain “power-driven” machines. The regulations further clarify that minors are prohibited from certain jobs, including jobs in liquor stores, marijuana dispensaries, tobacco and nicotine stores, and casinos. The regulations also expand employers’ recordkeeping obligations, requiring employers to keep certain documents related to a minor’s eligibility for employment for three years after the minor’s eighteenth birthday or three years after the termination of employment, whichever is sooner.

Indiana

House Bill (H.B.) 1302 will repeal provisions of the state’s child labor law that required employers that employ at least five minors between the ages of fourteen and seventeen to register certain information with the Indiana Department of Labor. H.B. 1302 takes effect July 1, 2026. The changes come after Indiana, in 2025, expanded the hours that minors can work, allowing sixteen- and seventeen-year-olds to work the same hours and days as adults and allowing fourteen- and fifteen-year-olds to work until 9:00 p.m. on any day during the summer (from June 1 to Labor Day).

New Jersey

Senate Bill (S) 4400 amends New Jersey’s child labor laws to add an exemption from the restriction on the number of hours minors may work for minors age fourteen or older who are professional athletes. The change took effect on December 19, 2025. New Jersey restricts the number of hours minors aged fourteen and fifteen may work during school weeks and school days, allowing up to eighteen nonschool hours in any school week and up to eight hours on any nonschool day and up to three nonschool hours on school days. Minors aged thirteen and younger are generally prohibited from work except in certain agricultural jobs, newspaper delivery, and shoe shining.

New York

Under changes made by New York Senate Bill (SB) 3006 that take effect on May 9, 2027, the New York State Department of Labor (NYSDOL), rather than school officials, will issue employment certificates electronically via the state’s new child labor database. Prospective minor employees will need to apply for the certificates using a form prescribed by NYSDOL. SB 3006, which largely took effect in May 2025, revamped the certification process for employing minors, establishing the child labor database and requiring.

Key Takeaways

The updates in Colorado, Indiana, New Jersey, and New York are among the latest changes to state child labor laws in recent years, as many state have sought to refine their restrictions on hiring minors to adapt to labor-market changes. Employers looking to hire minors this year may want to review job duties against updated hazardous-occupation lists, confirm recordkeeping practices meet the longest applicable retention period, register with state child labor databases where required, and monitor effective dates to ensure timely compliance.

Ogletree Deakins will continue to monitor developments and will provide updates on the Multistate Compliance, State Developments, Wage and Hour, Workplace Safety and Health, Colorado, Indiana, New Jersey, and New York blogs as additional information becomes available.

The Ogletree Deakins Client Portal contains additional information and tracks developments on child labor laws. (Full law summaries are available for Premium and Advanced subscribers. Snapshots and Updates are available for all registered clients.) For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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Quick Hits

• Cal/OSHA bears the burden of proving it cited the correct employer entity, and citations may be dismissed entirely if it cannot independently establish that the named entity is the proper one.
• Successor liability in the workplace safety context turns on whether a new entity has “substantial continuity” with the predecessor’s operations, considering factors such as acquisition of assets, retention of the same workforce, and uninterrupted use of the same facilities and equipment.
• A corporation is a legally distinct person from its shareholders, and even where an individual’s name overlaps with a corporate employer’s name, Cal/OSHA must cite the correct legal entity or risk having the citation reversed on appeal.

The answer lies in the doctrine of “successor liability” and it is not as clear as one might think.

When Cal/OSHA issues a citation, one of the most fundamental requirements is that it names the correct employer. Getting it wrong can mean the difference between a valid citation and a complete dismissal.

What Is Successor Liability in the Workplace Safety Context?

The test for successor liability turns on whether the new entity has “a substantial continuity” with the operations of the predecessor, after considering the “totality of the circumstances.” This standard is articulated by the federal Occupational Safety and Health Administration (OSHA) in a January 11, 2017, letter of interpretation to the National Aeronautics and Space Administration’s (NASA) Kennedy Space Center relying on the Supreme Court of the United States’ decision in Fall River Dyeing and Finishing Corp. v. NLRB. While not necessarily binding on Cal/OSHA, it is persuasive authority on the California Occupational Safety and Health Appeals Board, especially where there are no decisions after reconsideration that directly contradict the federal interpretation. The analysis focuses on two key factors: (1) whether the new company has acquired substantial assets of the predecessor; and (2) whether it continued, without interruption or substantial change, the predecessor’s business operations.

The Division of Occupational Safety and Health Bears the Burden at Trial

Cal/OSHA carries the burden of proof and persuasion in demonstrating that it cited the proper entity. As demonstrated in Capco/Jovian Energy, a 2007 Appeals Board decision after reconsideration, this burden exists regardless of whether the cited entity failed to volunteer the correct information about its employer status.

In other words, Cal/OSHA cannot shift the blame to the employer for not correcting a misidentification. The division must independently establish that it cited the right entity.

Citing the proper entity is an element of a violation—not a matter of jurisdiction. This is important because many employers frequently stipulate to jurisdiction at the outset of the appeal. For example, in Cher Xuechuan Ma dba Paradise Island Spa, a 2015 decision after reconsideration, the Appeals Board referred to this issue as “a potential defense” to be “contested at hearing.”

Lessons From the Field

Several key decisions illustrate how these principles play out in practice.

In Alfredo Annino, Cal/OSHA cited “Alfredo Annino” as the employer, but evidence at the hearing revealed that the actual employing entity was “Alfredo Annino Construction, Inc.” After the hearing, the administrative law judge (ALJ) unilaterally amended the citation to add the corporate name, but the Appeals Board reversed, holding that the ALJ lacked authority to do so without notice to the parties. The Appeals Board emphasized that a corporation is a legal person with an existence separate from its shareholders, and the two entities had significant legal differences notwithstanding the fact that the individual named Alfredo Annino used his own name on the appeal and stationery.

Takeaway: A corporation is a legal person with an existence separate from its shareholders, even in the Cal/OSHA context.

In Capco/Jovian Energy, Cal/OSHA cited “Capco/Jovian Energy” after a fatal accident, but the record could not establish what that entity was—a joint venture, two separate companies, or a single company with a fictitious business name. The Appeals Board found that the division did not meet its burden, and the citations were dismissed and penalties set aside.

Takeaway: While an employer must be honest and forthright throughout the appeals process, the burden is on the division to prove it cited the correct entity, and the employer is not required to elaborate beyond what the division asks.

In the 2017 letter of interpretation to NASA, OSHA addressed successor liability with regard to hearing conservation. NASA had awarded a new contract to new contractors, but contracted employees retained their same work roles, duties, and work environments. Some of the new contractors claimed they were not “successor employers” because they had not purchased the business. OSHA disagreed, relying on Fall River Dyeing and Finishing Corp. v. NLRB. OSHA concluded that because the new contractor used the same facilities and equipment and employed the same workforce performing the same duties, there was no interruption or substantial change in business operations, and the new contractor qualified as a successor employer for purposes of the Occupational Safety and Health (OSH) Act.

Takeaway: A completely new employer could be liable for a prior employer’s workplace safety actions if it uses the same facilities and equipment, employs the same employees performing the same duties, and there is no interruption or substantial change in business operations.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will post updates on the California and Workplace Safety and Health blogs as additional information becomes available.

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Quick Hits

• In M&K Employee Solutions v. Trustees of the IAM National Pension Fund, the Supreme Court recently concluded that actuaries for multiemployer pension funds can calculate the liability for employers withdrawing from the plan by using the assumptions that are in effect on or after the measurement date.
• Four employers that exited the IAM National Pension Fund sued over the way their unfunded vested benefits were valued.
• The Employee Retirement Income Security Act (ERISA) stipulates that an employer’s share of unfunded vested benefits shall be measured as of the end of the plan year prior to the withdrawal (the “measurement date”).

Employers that contribute to multiemployer pension plans have been monitoring this case because small changes in actuarial assumptions can cause a huge difference in an employer’s financial liability when leaving a pension plan.

Factual Background

In 2018, M&K Employee Solutions withdrew from its multiemployer pension plan with IAM National Pension Fund, which primarily covers unionized machinists and aerospace workers. To calculate the plan’s underfunding, the pension fund’s actuary applied a 6.5 percent interest rate, adopted in January 2018, resulting in an amount exceeding $3 billion for the 2017 plan year. This figure was six times higher than it would have been had the actuary used the 7.5 percent interest rate that was in effect at the end of 2017. Consequently, M&K incurred an additional charge of $4,360,701. Three other employers in a similar situation joined the lawsuit.

M&K argued that the fund should have used the figures effective at the end of the 2017 plan year, not new ones adopted in 2018 after the beginning of the new year, when M&K withdrew from the plan. It contended that Employee Retirement Income Security Act (ERISA) mandates the use of actuarial assumptions in effect on the measurement date, not those adopted later and applied retroactively after that date.

The trustees of the IAM National Pension Fund countered that ERISA imposes only two requirements for actuarial assumptions: they must be “‘reasonable,’” and they must represent the “‘actuary’s best estimate of anticipated experience under the plan.’” The trustees argued that the law does not impose any explicit timing requirement for when assumptions must be selected. They contended that actuaries should be permitted to use the most current and complete information available, even if that means selecting assumptions after the measurement date.

The value of the unfunded vested benefits depends on certain predictions about the future and data about the plan, such as the number of beneficiaries and the value of the plan’s assets.

Supreme Court’s Ruling

Justice Ketanji Brown Jackson, writing for the Supreme Court, found that plan actuaries may select new demographic and economic assumptions adopted after the measurement date, as long as those assumptions are based only on data and conditions that existed on or before the measurement date. The court reasoned that “ … the relevant information about the plan’s performance or macroeconomic conditions, as it stood on the measurement date, may not become available until after the measurement date” and that ERISA did not in fact mandate a hard deadline for adoption of actuarial assumptions.

“The statute requires that actuarial assumptions be ‘reasonable’ and reflect actuaries’ ‘best estimate,’” the Court stated. “ERISA does not require pension plans to assess withdrawal liability based on actuarial assumptions adopted before the measurement date.”

Next Steps

Employers planning to exit a multiemployer pension fund may wish to carefully consider the timing of the withdrawal. The measurement date for withdrawal liability will be the end of the plan’s fiscal year prior to withdrawal, but the actuarial assumptions may be tied to a later date. The timing of the withdrawal certainly may not prevent manipulation and inflated withdrawal liability assessments by the fund due to later adoption of actuarial assumptions, but employers will still have the benefit of knowing the data and conditions that existed before the measurement date.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group and ERISA Litigation Practice Group will continue to monitor developments and will provide updates on the Employee Benefits and Executive Compensation blog as additional information becomes available.

Russell S. Buhite is a shareholder in Ogletree Deakins’ Seattle 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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