Quick Hits

• The U.S. Court of Appeals for the Fourth Circuit reiterated that a low bar exists for asserting a religious discrimination claim at the pleading stage of a Title VII case.
• The court held it was not a violation of the ADA for an employer to ask about an employee’s vaccination status.
• An employee’s vaccination status does not support a “regarded as” disabled claim under the ADA in the Fourth Circuit.

Background

Like many employers in the midst of the COVID-19 pandemic, the Humane Society of the United States implemented a company-wide vaccine mandate applicable to all employees, including those working remotely. Employees were discharged from employment for noncompliance with the mandate unless they were approved for a medical or religious exemption. Two remote employees sought religious exemptions but were denied, and subsequently, their employment was terminated. They then filed suit, alleging religious discrimination under Title VII and violations of their rights under the ADA.

The U.S. District Court for the District of Maryland dismissed the employees’ claims, finding that they had not sufficiently articulated their religious beliefs and that the ADA did not offer any protections based on vaccination status. This appeal followed.

Legal Framework Under Title VII and the ADA

Title VII prohibits an employer from discharging or otherwise discriminating against an employee because of religion, which includes all aspects of religious observance, practice, and belief, unless the employer demonstrates that accommodating the employee’s religious observance or practice will result in undue hardship to the conduct of the employer’s business.

The Fourth Circuit has held that a plaintiff asserting a claim for denial of a religious exemption from vaccination must sufficiently allege that (1) the plaintiff’s belief is an essential part of a religious faith, and (2) the belief is plausibly connected to the plaintiff’s refusal to be vaccinated. In a prior case, the court emphasized that a religious belief need not be tied to a particular religion or tenet, and that courts should avoid second-guessing the plausibility or sincerity of a religious belief at the pleading stage.

The ADA prohibits discrimination by an employer against an employee “on the basis of disability,” which includes “a physical or mental impairment that substantially limits one or more major life activities of [the] individual,” as well as the employee’s “being regarded as” disabled by the employer. “Major life activities” are defined by the ADA’s regulations to include major bodily functions, as well as activities such as “[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.” The ADA further bars disability-related inquiries unless such inquiries are “job-related and consistent with business necessity.”

The Court’s Opinion

The Fourth Circuit Court of Appeals vacated the dismissal of the employees’ Title VII religious discrimination claims, but it upheld the dismissal of their ADA claims. In its opinion, the court made the following key rulings:

• A broad standard applies to religious discrimination claims at the pleading stage. The court agreed with its sister circuit courts of appeals that at the pleading stage, a plaintiff/former employee “needn’t explain ‘how any particular tenet or principle of her religion prohibited vaccination’”; rather, the plaintiff must “plausibly allege that her refusal to be vaccinated derives from an aspect of her religious practices or beliefs.” Because the complaint plausibly alleged that the plaintiffs’ refusal to be vaccinated stemmed from some aspect of their religious beliefs, their claims survived dismissal—at this stage of proceedings. The court noted that whether the asserted religious beliefs were sincere and whether an accommodation would “create an ‘undue hardship on the conduct of the employer’s business’” were arguments to be addressed at a later stage of the case.
• “[A]n employer’s inquiry into an employee’s vaccination status isn’t a disability-related inquiry.” In making this statement, the court explained that “[w]hether a person is vaccinated has no bearing on her ability to engage in major life activities,” such as those identified in the ADA regulations.
• “[B]eing unvaccinated isn’t a physical or mental impairment,” the court reiterated. Accordingly, the plaintiffs’ vaccination status could not support a “regarded as” disabled claim under the ADA.

Takeaways for Employers

This case offers several key considerations for employers in the Fourth Circuit.

• In the context of vaccination mandates, courts will allow Title VII religious accommodation claims to proceed past the pleading stage when employees allege that their religious beliefs are plausibly connected to their refusal to be vaccinated, even without citation to specific religious tenets prohibiting vaccination.
• An employer’s inquiry about an employee’s vaccination status is not considered a medical inquiry under the ADA, and the ADA does not prohibit an employer from asking that question.
• The Finn court found that vaccination status was not a disability under the ADA.

In addition, to reduce the risk of vaccination-mandate–related claims, employers should consider implementing robust interactive process protocols to receive and consider medical or religious exemption requests. Engaging in the interactive process requires an employer to make an individualized assessment of an employee’s request(s) for accommodation, and to meaningfully engage with the employee to determine whether an accommodation—but not necessarily the employee’s requested accommodation—can be made.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the COVID-19/Coronavirus, Employment Law, Leaves of Absence, and State Developments blogs as additional information becomes available.

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Quick Hits

• Noncompliance with New Jersey’s Earned Sick Leave Law’s recordkeeping requirements creates a presumption that an employer failed to provide the earned sick leave required by the law.
• Vacation/PTO policies relied upon by employers to comply with the ESLL must provide paid leave for all purposes required by the ESLL.
• Failure to provide earned sick leave constitutes failure to pay wages under NJWHL, subjecting employers to claims for liquidated damages at 200 percent.

Under the ESLL, no formal class certification or collective action procedure is required to bring a claim on behalf of “other similarly situated workers.”

The Appellate Division affirmed that a concrete supplier’s paid leave policy violated several sections of the ESLL, including notice and recordkeeping requirements and providing paid sick leave, and that the company did not fall within the ESLL’s “construction industry” exemption. It also affirmed the standards required to assert an ESLL claim on behalf of other employees similarly situated without class certification or collective action procedures. This decision clarifies important questions for employers about the ESLL exemptions, the financial risks of noncompliance, and how groups of workers can assert their rights under the statute without the need for a class action.

The New Jersey Superior Court recently held that a concrete supplier’s vacation/paid time off (PTO) policies violated the ESLL, entitling the two plaintiffs and 133 similarly-situated unnamed employees to a total of $1.37 million in damages, including 200 percent liquidated damages—underscoring the financial risks of noncompliance with the ESLL’s accrual, use, notice, and recordkeeping requirements.

The appellate court also held that the company did not qualify for the ESLL’s construction industry exemption because its core business—producing and delivering sand, gravel, and ready-mix concrete—was classified as manufacturing, not construction of “houses, schools, or other structures.”

In 2018, New Jersey passed the ESLL, which grants all employees one hour of paid sick leave per every thirty hours worked, up to forty hours of paid sick leave per year. It applies to employers of any size, but it does not cover employees in the construction industry who are under a collective bargaining agreement (CBA).

Employers may be deemed compliant with the ESLL by offering paid time off, if such leave is usable for all purposes under the ESLL, and it accrues at or above the statutory rate. The ESLL permits workers to use leave for preventive care, diagnosis, and treatment for a mental or physical illness or injury, to care for a sick family member, to obtain services when the worker or a family member is a victim of domestic or sexual violence, to address circumstances arising from a public health emergency, or to attend a school-related meeting or event with regard to the worker’s child.

Background on the Case

The two plaintiffs, William Cano and Raymond Bonelli, worked for County Concrete Corporation as hourly drivers. They and other workers were represented by several unions with CBAs that allowed three days bereavement leave, six paid holidays, and between zero and fifteen paid vacation days, depending on tenure. Following the expiration of the CBAs, Cano and Bonelli sued the company on behalf of themselves and “other similarly situated employees,” alleging it did not provide paid sick leave as required by the ESLL.

Following a three-day bench trial, the trial court found that the company did not fall within the ESLL’s construction industry exemption because it does not construct houses or other buildings. The trial court then found that the company failed to provide ESLL-required notices, to meet ESLL recordkeeping requirements, and to provide plaintiffs required ESLL benefits. After awarding $8,880 and $9,120 to Cano and Bonelli, respectfully, the court established procedures to identify the “unnamed similarly situated plaintiffs” to determine their damages. The plaintiffs obtained certifications from 133 employees, and a judgment was entered awarding them $758,898.38 in damages. This included a 200 percent liquidated damages component.

County Concrete Corporation appealed, arguing that its vacation day policy was a compliant PTO policy under the ESLL, and that the trial court erred by finding that the company did not qualify for the construction industry exemption. It also argued that the unnamed plaintiffs did not have standing to pursue collective claims at trial or obtain damages without class certification.

The Appellate Division first confirmed that, as a manufacturer and supplier of concrete, sand, and gravel, County Concrete Corporation was in the manufacturing industry, not the construction industry. As such, the company did not qualify for the construction industry exemption.

Next, the Appellate Division determined that the company violated the ESLL by not providing paid leave for all purposes required by the ESLL. “Instead, paid leave was restricted to limited categories of vacation, bereavement, and holidays,” but did not include leave to care for a sick family member, attend school meetings, or seek help after domestic violence. The company also “required a doctor’s note for any illness-related absence, even for absences less than three days, which was not compliant with” the ESLL.

The Appellate Division affirmed the trial court’s finding that “there was no adequate, conspicuous posting of ESLL rights as required by section N.J.S.A. 34:11D-6,” noting that the only evidence of posting was at one worksite where the “notices allegedly posted were in an obscure location, not accessible to all employees.”

It similarly affirmed the trial court’s finding that the company “failed to maintain proper records as to its employees’ available leave and leave used for ESLL-covered purposes.” Specifically, it found that the company’s payroll company did not document the hours worked by employees and the sick leave earned and used by the employees. “Pay records, including paystubs, time detail reports, and summary reports did not reveal the employees use of ESLL sick leave,” the court noted. Where an employer fails to meet such recordkeeping requirements, “the ESLL presumes an employer has failed to provide the earned sick leave required,” the court stated.

Finally, the Appellate Division rejected the company’s arguments that the unnamed plaintiffs were not entitled to damages because there had been no class certification or collective action certification in the case. The court explained that the ESLL stipulates that a violation of the ESLL “‘shall be regarded as a failure to meet the wage payment requirements’” of the New Jersey Wage and Hour Law (NJWHL), and that the remedies, penalties, and other measures available under the NJWHL are applicable to the ESLL, including the right to bring an action on behalf of oneself or other similarly situated employees.

The court further concluded that neither the ESLL nor the NJWHL “specifically requires class certification or collective action procedures,” and that “[t]here is no other requirement that affirmatively necessitates or requires plaintiffs to file or notify a defendant of the identity of the similarly situated employees by way of class certification or through class discovery.”

Next Steps

Employers in New Jersey may wish to review their current sick leave and PTO policies and practices to ensure they comply with the paid leave obligations, statutory notice, and recordkeeping requirements of the ESLL.

In addition, Cano is a signal that exemptions under the ESLL will be narrowly construed and that misclassifying a workforce based on labels, rather than day-to-day job duties, can be costly. As such, employers that fail to grant the ESLL-required paid sick leave to employees in reliance on an ESLL exemption may wish to consider revisiting that decision.

Taking these steps proactively, before a claim arises, can significantly reduce legal risk and put employers in a stronger position if challenged.

Ogletree Deakins’ Morristown office will continue to monitor developments and will provide updates on the Construction, Leaves of Absence, and New Jersey blogs as new information becomes available.

Justine L. Abrams is a shareholder in Ogletree Deakins’ Morristown office.

Leslie A. Lajewski is a shareholder in Ogletree Deakins’ Morristown 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

• Washington’s Division of Occupational Safety and Health has moved to amend excavation, trenching, and shoring rules, with a focus on general protection requirements.
• The proposal would require employers to complete a written work plan for any trench excavation that requires a protective system and require a “competent person” to remain onsite any time trenching and evacuation work is being performed.
• Washington Department of Labor & Industries is holding in-person and virtual hearings to discuss the proposed language.

The proposed amendments come in response to DOSH’s inspection data, which revealed multiple fatalities and injuries related to excavation and trenching work in Washington state. Despite the existing requirement for employers to “ensure prompt and safe removal of injured employees from elevated work locations, trenches and excavations prior to commencement of work,” DOSH believes the proposed rule changes will ensure better risk analysis and reduce the likelihood of fatalities and injuries in the future.

The proposed amendments, if implemented, will make two main changes to the existing standard:

1. Written Work Plan Requirement

• The amendments would add the definition of and requirement for a “written work plan” for any trench excavation that requires protective systems (such as support systems, sloping and benching systems, and other systems that provide protection from cave-ins).
  • The written work plan, which employers may either develop on their own or use the work plan developed by the Department of Labor & Industries, would have to address appropriate risk analysis and protective systems.
  • Employers would also be required to train and instruct employees on the items in the work plan prior to permitting entry into trench excavations.
  • The work plan would also have to “be available [for] on-site for inspection” by DOSH.

• Competent Person Requirement

• The change would implement a requirement for a “competent person” to remain onsite where trenching or excavation work is performed.

Next Steps

Washington employers conducting excavation, trenching, and shoring work may want to consider reviewing the draft work plan developed by Washington’s Department of Labor & Industries and consider how their current excavation controls, protective systems, and rescue protocols align with the proposed requirements.

The Department of Labor & Industries will hold in-person public hearings in Tukwila, WA, on February 20, 2026, and in Spokane Valley, WA, on February 11, 2026. A virtual hearing will be conducted on February 12, 2026. The department is also accepting comments on the proposed amendments until February 20, 2026.

Ogletree Deakins’ Seattle office and Workplace Safety and Health Practice Group will continue to monitor developments with respect to the implementation of the amendments and its impacts, and will post updates on the Construction, Washington State, and Workplace Safety and Health blogs as additional information becomes available.

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Federal Government Likely Heading for Weekend Shutdown, but With Hope on the Horizon. At the time of this writing, the U.S. Senate has not passed legislation to fund most of the federal government beyond 11:59 p.m. (EST) this evening. Just a few days ago, Congress was on the glide path to do so, but as the Buzz noted last week, “Politics can always derail efforts at the last minute.” And this is exactly what happened in the Senate this week. Before leaving Washington, D.C., last week, the U.S. House of Representatives sent the Senate a six-bill funding package that needed to be passed to keep the government open. But part of the package included a bill funding the U.S. Department of Homeland Security (DHS), and Senate Democrats wanted to make changes to that bill following the killing of a U.S. citizen in Minneapolis this past weekend. The hopeful outcome at this time is for the passage of a revised spending package that includes the five non-controversial bills and a two-week continuing resolution of DHS funding. (The Senate is currently voting on such a spending package.) In this scenario, there will likely be a brief partial government shutdown until the House can agree on these new changes and the president signs the bill.

NLRB: New Personnel, New Processes. Now that a functioning quorum has been restored at the National Labor Relations Board (NLRB) and a general counsel, Crystal Carey, is in place, the new folks in charge are digging into the enormous backlog of cases at the agency.

• On January 28, 2026, NLRB General Counsel (GC) Carey issued a memorandum titled, “Operational Priorities to Ensure Consistent, Fair, and Timely Case Resolution Across Regions”—her first publicly released memorandum since assuming the role. Traditionally, the first memorandum issued by a newly minted GC at the Board instructs regional offices to submit to the GC’s office cases or topics that are controversial or that the new GC might want to reconsider. According to Carey’s memo, however, her “priority is to address the backlog of cases, not add to it.” Consequently, the memo further states that Carey will soon “issue guidance on operational focused topics such as case processing, settlements, and remedies all aimed at achieving consistent, fair and prompt resolution of charges across the Agency.” While the GC and the Board work to resolve the backlog, existing Board law will remain in place.

• Speaking of the case backlog, this week, the Board issued a clarification responding to media reports of changes to its internal docketing protocol. According to the clarification, under the old intake system, Board agents received new charges with “incomplete information and were required to conduct extensive follow-up before any evidence was collected or meaningful investigative steps could occur.” Under the new protocols, “essential information is collected at the time the charge is filed, … [so] … [w]hen a Board agent reviews the case for the first time, there will already be an organized body of evidence ready for review.” The Board’s clarification further states, “The purpose of the new internal protocol is to improve efficiency and reduce delays caused by assigning cases to Board agents who are already managing significant caseloads and may not be able to begin new investigative work for months.” Eric C. Stuart and Zachary V. Zagger have additional details.

EEOC Commissioners Recoup More Litigation Authority. The U.S. Equal Employment Opportunity Commission (EEOC) has approved a “Resolution Concerning the Commission’s Authority to Commence or Intervene in Litigation.” The resolution addresses an issue that has been the subject of debate at the Commission for decades: the interplay between the commissioners and the EEOC’s general counsel with regard to enforcement of federal antidiscrimination laws. Title VII of the Civil Rights Act of 1964 provides the Commission with the authority to file civil actions where an employer or labor organization has engaged in an unlawful employment practice, while empowering the Commission’s general counsel to conduct such litigation. Beginning in 1995, the Commission took several steps to delegate its statutory enforcement authority to the general counsel. This eventually led to complaints that the Commission had ceded too much of its authority to the general counsel. In early 2021, during the final days of the first Trump administration, the EEOC passed a resolution that returned much of this delegated litigation authority to the Commission. As a result of the most recent resolution, the commissioners will now vote to approve all cases, except those involving recordkeeping, consent decrees, or settlements.

Snow Way. Labor and employment attorneys are not the only stakeholders watching Congress sort through the federal government’s funding process. Washington, D.C.–based snow lovers have had a keen eye on the process, as well. Here’s why. The west front of the U.S. Capitol is a great spot for sledding in D.C.’s otherwise urban landscape. However, §16.5.20 of the United States Capitol Police’s Traffic Regulations for the United States Capitol Grounds states, “No person shall coast or slide a sled within Capitol Grounds” (though cross-country skiing or snowshoeing is allowed on the grounds “as a means for transportation”). Fortunately, Delegate Eleanor Holmes Norton (D-DC), the non-voting delegate to Congress representing the District of Columbia, has been able to insert language into the report accompanying the appropriations bill funding the legislative branch that encourages the Capitol Police to permit sledding. The language states:

Use of Grounds. As instructed in House Report 117-389, the USCP should continue to forebear enforcement of 2 U.S.C. 1963 and the Traffic Regulations for the United States Capitol Grounds when encountering snow sledders on the grounds.

This item was included in the legislation that President Donald Trump signed into law on November 12, 2025, to end last year’s federal government shutdown.

Quick Hits

• The Maine Department of Labor recently confirmed that benefit distributions will begin on May 1, 2026, for the PFML program.
• Both employers and employees contribute to the paid family and medical leave fund.

Covered workers will be entitled to take twelve weeks of paid time off for family leave, medical leave, leave to deal with the transition of a family member’s military deployment, or leave to stay safe after abuse or violence. Although the time off must occur on or after May 1, 2026, to be eligible for Maine PFML benefits, the state and its insurance provider will start accepting applications for benefits in April 2026.

Covered employers with at least one employee in Maine are required to register (a registration tutorial for employers can be found here, and frequently asked questions for employers can be found here) in the Maine Paid Leave Contributions Portal. Employers with fifteen or more employees must contribute 1 percent of wages and may deduct up to half of this contribution from employees’ wages. Employers with fewer than fifteen employees must contribute 0.5 percent of wages and may deduct the entire amount from employees’ wages.

After a covered employee takes PFML leave, the employee must be restored to the same position, or one with equivalent conditions, pay, and benefits, upon returning, if the employee has been employed for at least 120 days. Job restoration for employees who have not completed 120 days with their employers is not required under Maine’s PFML law; nevertheless, employers should carefully consider their obligations under other applicable laws prior to making decisions impacting the employment relationship. Moreover, retaliation against employees utilizing approved PFML is prohibited.

An employer may not require an employee to use other available paid time off, such as vacation days or sick days, during a PFML absence, or require an employee to exhaust all other paid time off before taking PFML. However, Maine PFML benefits may run concurrently with unpaid leave under the federal Family and Medical Leave Act (FMLA) and the Maine Family Medical Leave law when they apply. Leave taken under the federal FMLA or Maine FMLA before an employee’s Maine PFML benefits begin will count against the employee’s available twelve weeks of Maine PFML, if taken for reasons qualified under the three laws.

Notably, Maine PFML includes qualifying reasons for leave that would not be covered under the federal FMLA. Employers may wish to review their handbook language related to the use of various leave benefits to ensure compliance and limit the potential for “stacking” leave periods.

While on PFML leave, workers will continue to accrue vacation time, sick time, seniority, and service credits in the same manner as before. Additionally, employers must continue covered employees’ health insurance coverage while the employees are on PMFL leave.

Next Steps

Employers in Maine may wish to train managers to understand the law and to recognize and respond to PFML leave requests in a legally compliant manner. Employers also may wish to coordinate with their third-party payroll provider to ensure payroll withholdings are executed correctly for the PFML program. The Maine Department of Labor is responsible for handling benefit distributions.

Ogletree Deakins’ Portland, Maine, office and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence and Maine blogs as new information becomes available.

In addition, the Ogletree Deakins Client Portal tracks developments and provides real-time updates on Leaves and Maine’s employment laws, including the rules governing the PFML program. Full law summaries are available for Premium-level subscribers. Snapshots and Updates are available for all registered client users. For more information on the Client Portal or to inquire about a Client Portal subscription, please reach out to clientportal@ogletree.com.

Aimee B. Parsons is a shareholder in Ogletree Deakins’ Portland, Maine, 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

• In FY 2025, union election petitions filed by employees decreased to 2,100, marking the lowest number since 2022, yet still surpassing the first two years of the Biden administration.
• Unions achieved a high win percentage of 81.9 percent in representation elections, though the percentage reflected a slight decline from the previous year.
• Employer petitions dropped to 237, but employer petitions have been significantly higher since the NLRB’s 2023 decision regarding voluntary recognition procedures.

While there is usually some fanfare from the NLRB on the release of its annual statistics, the NLRB has quietly released its annual representation case statistics for fiscal year (FY) 2025 on its website. So, what do the latest figures tell us about labor relations in FY 2025? Here are three takeaways:

1. Number of Union Petitions Down

In FY 2025, employees/unions filed a total of 2,100 petitions for representation elections, known as “RC” petitions. Perhaps unsurprisingly, this was the fewest number of petitions filed in a fiscal year since 2022. But while a drop in union petitions may have been anticipated with President Donald Trump taking office and Republicans holding the majority in the U.S. Congress, total filings were still higher than the first two years of the Biden administration, which was seen as more union friendly. The numbers suggest that employees remain highly interested in union representation compared to the years before President Biden took office.

• Union Election Win Percentage Remains High

Unions won 81.9 percent of elections held following an RC petition in FY 2025, an increase from 79.9 percent in FY 2024, but a slight decrease from 82.8 percent in FY 2023. Still, unions continue to enjoy an astounding overall win rate in elections. The numbers show that unions continue to have a strong chance of winning representation when the question goes to an election.

• Employer Petitions Drop, but Remain Higher Than Past Years

The number of employer petitions for union elections, known as “RM” petitions, fell to 237 in FY 2025 from 489 in FY 2024. Still, the numbers for the past two fiscal years represent a significant increase from the previous high of sixty-two, going back to FY 2016. The increase is likely attributable to the continuing effect of the NLRB’s August 2023 decision that requires employers to file a petition after receiving a written demand for voluntary recognition to preserve an election. The reduction may suggest that unions have not found that decision and its change in process as advantageous as they initially hoped. Instead, unions may continue to rely predominantly on filing their own RC petition after making a written demand.

Next Steps

Despite a change in the political climate, employers may not want to sleep on labor relations in 2026, and instead continue focusing on maintaining positive employee relations. While the number of RC petitions filed by employees/unions dropped in FY 2025 from the previous four years, the numbers still suggest continued interest in organizing, particularly compared to when former President Joe Biden took office.

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

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Quick Hits

• Maine recently enacted a law requiring employers to notify employees and job applicants about employee surveillance.
• The law does not apply to cameras used in the workplace for safety and security purposes.
• The law was enacted without the governor’s signature, and it is expected to take effect in July 2026, depending on when the legislature adjourns.

In recent years, more employers have begun using technology to track employee movements and actions. This may include cameras in the workplace, GPS tracking on phones and wearable devices, keystroke monitoring, and biometric monitoring. Some employers use these tools to identify potential areas for cost savings and encourage productivity and efficiency. Others use them to effectively manage administrative tasks, including tracking mileage for employee reimbursement and monitoring sales activities. These tools tend to be more commonly used in industries such as trucking, delivery, construction, utilities, sales, and home healthcare.

Under the new Maine law, employers using surveillance must (1) inform job applicants about the surveillance during the interview process and (2) provide written notice at least once per year to all impacted employees. The law broadly defines surveillance to include all types of data collection.

Notably, L.D. 61 prohibits employers from requiring employees to install surveillance tools on their personal devices without first obtaining permission from impacted employees. The law further allows employees to decline employer requests to install tracking and data collection tools on their personal devices for surveillance purposes.  

The law also prohibits employers from using audiovisual monitoring in an employee’s residence or personal vehicle, or on the employee’s property, unless the audiovisual monitoring is required for the duties of the job. L.D. 61 does not apply to cameras installed in the workplace for security or safety purposes, or GPS trackers and other safety devices on company-owned vehicles operated by employees. It also does not apply to surveillance tools installed by an employer, patient, client, or unpaid caregiver in a setting in which employees provide personal care services.

Employers that violate this law may be subject to a fine of $100 to $500 for each violation.

Next Steps

Employers in Maine may wish to review and update their written policies and practices regarding employee surveillance to ensure compliance with state and federal privacy laws. They may wish to assess the effectiveness of the technology they are currently using to monitor workers.

Ogletree Deakins’ Portland (ME) office and Cybersecurity and Privacy Practice Group will continue to monitor developments and will provide updates on the Cybersecurity and Privacy, Maine, and Technology blogs as new information becomes available.

Aimee Blanchard Parsons is a shareholder in Ogletree Deakins’ Portland (ME) 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

• A jury in federal court recently awarded a former employee $5.5 million in her sexual harassment and retaliation case.
• A female security guard alleged that her boss sexually harassed and assaulted her, and that the company ended her employment after she complained to the company’s owner.
• Anti-harassment provisions in federal, state, and local laws may vary in scope and application.

Background

A former security guard sued C&M Defense Group, which now operates as Global Security Management Team, claiming that her supervisor, the vice president of operations at the time, subjected her to unwanted sexual comments, repeated sexual advances, and threats of physical violence after she rejected his advances in 2022. She claimed her supervisor made sexually explicit remarks and asked her to go to a strip club and a hotel with him—which she refused to do. A month later, she claimed he pushed her against a wall, groped her, and unzipped his pants at a worksite. She said he offered her financial favors and a promotion in exchange for sex. She used a recording device to record that incident.

After she reported several incidents to the company owner and provided the company with the recording she made, the company reassigned her to a different jobsite and stopped giving her hours to work. She filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). In May 2024, the EEOC issued a Letter of Determination, finding that there was reasonable cause to conclude that the company subjected the employee to a hostile work environment based on her sex and sexual orientation, and that it discharged her in retaliation for reporting harassment.

The federal lawsuit alleged that the company willfully failed to prevent or stop the harassment, and that it wrongfully retained the plaintiff’s recording device.

Antiharassment Protections

Under Title VII of the federal Civil Rights Act of 1964, it is illegal for employers with 15 or more employees to allow sexual harassment at the workplace or fail to investigate when they know, or should know, that sexual harassment has occurred. A hostile work environment requires that the harassment is severe or pervasive. It also is unlawful for employers to retaliate against a worker who reports harassment or participates in an investigation. Many states have laws requiring similar—or more stringent—protections.

Under the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, arbitration agreements cannot cover disputes involving sexual harassment or sexual assault.

In this case, to be entitled to an award of punitive damages under Title VII, the plaintiff had to prove by a preponderance of the evidence that C&M Defense Group acted with either malice or reckless indifference toward her protected rights. As instructed, the jury considered factors such as whether the company engaged in a pattern of discrimination or retaliation toward its employees, whether the company acted spitefully or malevolently, whether the company showed blatant disregard for legal obligations, and whether the company failed to investigate reports of discrimination and take corrective action.

The court told the jury that the company failed to preserve evidence, so that evidence should be assumed to be unfavorable to the company. Specifically, the evidence was texts between the company’s vice president, chief operating officer, and vice president of operations.

Next Steps

This case shows how failing to keep a workplace free of harassment and retaliation can lead to huge penalties, along with potential harm to the organization’s brand and public image. The case could be appealed to a federal circuit court.

Employers may wish to review their written policies to ensure they clearly state sexual harassment, hostile work environments, and retaliation will not be tolerated. They may wish to review all arbitration agreements to ensure they exclude claims of sexual harassment and sexual assault.

Employers should consider providing anti-harassment training to supervisors and employees, using programs that provide specific examples of what is and what is not harassment.  

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law, Diversity, Equity, and Inclusion Compliance, and Georgia blogs as new information becomes available. Ogletree Deakins recently posted a podcast entitled “Inside the Exclusive: Highly Sensitive Sexual Harassment and Assault Investigations.”

Natalie N. Turner is a shareholder in Ogletree Deakins’ Atlanta 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

• Germany’s Federal Labor Court (BAG) ruled that third-division soccer referees are not employees, reversing the Cologne Regional Labor Court’s decision and determining that the legal dispute should be heard in civil courts.
• The BAG found that the framework agreement and actual constraints on referees did not establish an employer’s right to issue instructions typical of an employment contract, emphasizing the freelance nature of the referees’ work.

The decision clarifies the employment status of third-division referees and aligns with principles from the “crowd worker decision,” but leaves open questions about the application to referees in higher leagues with VAR supervision.

Facts

The employee was a soccer referee who had been assigned to the regional league since the 2021/2022 season but now wanted to be considered for the next higher third division, called 3. Liga.

The employer was a subsidiary of the German Football Association (Deutscher Fußball-Bund (DFB)), which is responsible for appointing referees for the professional leagues of the German Football League (Bundesliga, 2. Bundesliga, and 3. Liga). It had not included the employee on the DFB referee list for the 3. Liga for the 2024/2025 season. The employee then brought an action against it before the Bonn Labor Court for payment of compensation and damages for age discrimination under Section 15 (1) and (2) of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz (AGG)).

In connection with the examination of the legal recourse to the labor courts, the Bonn Labor Court ruled that the referee was not an employee and referred the legal dispute to the civil courts. The Cologne Regional Labor Court, which was called upon to rule on this matter, affirmed the employee status of 3. Liga referees and overturned the referral decision. In doing so, it focused on the fact that referees were at least de facto bound by instructions regarding the assumption of individual match officiating duties on specific match days, which resulted, among other things, from possible disciplinary measures under the referee regulations in the event of cancellations of match officiating duties and from the employer’s monopoly position.

Further details on the facts of the case and the legal basis can be found in August 2025 article on the decision of the Cologne Regional Labor Court.

Federal Labor Court’s Opinion

The Federal Labor Court, in turn, ruled contrary to the Cologne Regional Labor Court that the referee was not an employee and that the legal dispute should therefore be heard before the Frankfurt am Main Regional Civil Court rather than the labor courts.

The framework agreement that the employee and employer would have concluded if the employee had been assigned to 3. Liga would not have established the employer’s right to issue instructions to the employee regarding his assignment to individual games, as is typical in employment contracts. Such a right to issue instructions does not arise from the framework agreement, nor does it arise from the actual constraints on referees to be available for games. An obligation to officiate certain matches as part of the referee team arises solely on a consensual basis. This is because, within the framework of deployment planning, referees are initially free to enter certain dates on which they cannot or do not wish to officiate as “exemptions” in the “DFBnet” system in advance of the season. Referees are only assigned to matches for which no exemption has been marked. And even after this so-called “preliminary assignment,” the referee can still refuse to officiate the match before the “final assignment” of the specific dates.

According to Section 11 No. 1 of the Referee Regulations, the employer is authorized to sanction repeated unjustified and reprehensible late cancellations of match assignments by referees, up to and including exclusion from the referee list. However, this only applies to match assignments that had already been agreed upon beforehand. Even if referees were concerned that the employer would no longer include them on the list of referees in the future if they made extensive use of “exemptions,” this would not be sufficient to constitute personal subordination by virtue of de facto coercion. It is inherent in freelance employment relationships that contractors do not receive follow-up assignments if they are not available on a regular basis.

Furthermore, since each individual refereeing assignment would be remunerated at the same rate and would be economically rewarding in itself, referees would not only start to “earn money” once they had taken on an increasing number of assignments. The remuneration structure therefore does not give rise to any expectation of constant availability for work, which is characteristic of an employee—unlike, for example, in the case of “atomized microjobs,” which only become worthwhile when performed multiple times (see the BAG’S so-called “crowd worker decision” of December 1, 2020, Ref: 9 AZR 102/20).

Nor does Section 7 No. 2 of the Referee Regulations, according to which referees must regularly attend training evenings and keep themselves fit through athletic training, give rise to a right of direction typical of an employment relationship. This does not take into account any specific employer interest. Rather, the client also has a legitimate interest in imparting and maintaining the knowledge necessary for successful cooperation through further training within the framework of a freelance employment relationship. The physical fitness of referees is a prerequisite for officiating games in professional leagues.

In the opinion of the Federal Labor Court, the individual agreements on the refereeing of certain matches do not constitute an employment relationship, even when viewed in conjunction with the framework agreement. On the one hand, during the soccer game, the employee was not bound by instructions in the manner typical of an employment contract. Rather, due to the nature of their task in officiating games, referees are not bound by instructions. On the other hand, the employee’s involvement in the organizational framework of the game—for example, by specifying the location and time of the game and the clothing to be worn—does not constitute a specific feature of an employment contract, but rather results from the nature of the task, i.e., officiating a soccer league game.

Conclusion

The BAG’s decision provides legal clarity with regard to the classification of the employment relationships of 3. Liga referees and counteracts inconsistent assessments depending on the regional labor court district. In addition, the decision contributes to the further concretization of the principles regarding the “de facto” subordination of employees, which the BAG developed in its “crowd worker decision” of December 1, 2020 (Ref.: 9 AZR 102/20).

It remains unclear whether this reasoning can be applied to referees in the Bundesliga and 2. Bundesliga. In the present decision, the Federal Labor Court did not have to rule on whether referees are bound by instructions during a soccer match, which could possibly result from the “supervision” of referees by a video assistant referee (VAR). Such a system is not yet in use in 3. Liga.

Ogletree Deakins’ Berlin and Munich offices and Cross-Border Practice Group will continue to monitor developments and will post updates on the Cross-Border, Germany, and Sports and Entertainment blogs as additional information becomes available.

Dr. Martin Landauer is partner in Ogletree Deakins’ Munich office.

Niklas Thiel, a law clerk in Ogletree Deakins’ Munich office, contributed to this article.

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Quick Hits

• In 2025, healthcare employers faced increasing privacy litigation and shifting regulations around healthcare privacy, including ADA compliance, federal privacy protections, and state AI and health data laws, with heightened HIPAA enforcement by HHS.
• Healthcare employers in 2025 dealt with staffing shortages and wage and hour issues, influenced by proposed FLSA changes, civil awards for worker misclassification, state court rulings on meal and rest periods, and restrictions on noncompetition provisions and H-1B visa fees.
• In 2026, healthcare staffing will continue to be an issue for employers in 2026, and states are continuing to focus on AI and privacy in the workplace, staffing, and workplace safety.

Privacy: While privacy litigation is on the rise, the regulatory landscape around healthcare privacy continues to shift, causing uncertainty for employers in the healthcare industry. Employers continued to face privacy considerations for Americans with Disabilities Act (ADA) compliance, shifting federal privacy protections for substance-abuse records and reproductive health information, and changes to state AI laws and health data laws, all while the U.S. Department of Health and Human Services (HHS) ramped up Health Insurance Portability and Accountability Act (HIPAA) enforcement.

Staffing: As the nation continues to experience staffing shortages of healthcare professionals, healthcare employers saw an increase in wage and hour considerations across both ordinary workers and workers from staffing agencies. These included proposed changes to Fair Labor Standards Act (FLSA) exemptions in home health, sizable civil awards against staffing companies for misclassification of workers, and changes in state courts to meal and rest period class actions. State laws limiting noncompetition provisions and other restrictive covenants for healthcare professionals, as well as the federal government’s $100,000 fee for H-1B visa petitions also impacted the supply of healthcare professionals.

Workplace Safety: At a time when healthcare worker safety is critically important and amid federal changes to the Occupational Safety and Health Administration’s (OSHA) authority, employers in the healthcare industry were among the highest reporters of workplace safety incidents, including continued assaults by patients against healthcare workers. Healthcare employers encountered new state laws regarding threats against workplace and medical facilities, public and legal expectations pertaining to viral exposure and vaccinations, improvements to workplace violence prevention measures in eight states, a recommendation to increase employer liability for employee sexual assault, and proposed rulemaking pertaining to COVID-19 exposure in healthcare settings.

Looking Forward to 2026

AI and Privacy: An increasing number of states continue to pass AI laws on employers. At least one state has proposed legislation that prohibits the use of discriminatory AI in employment decisions. For example, Illinois has proposed legislation limiting the use of AI in employment decisions that result in discrimination. Colorado’s Artificial Intelligence Act, currently set to become effective in the summer of 2026, also may impose restrictions on AI usage in employment, especially if the AI system is discriminatory. As privacy and AI laws continue to evolve, we anticipate seeing a related rise in privacy litigation against employers and entities using AI.

Staffing: As ongoing shortages of nurses, physicians, and other healthcare professionals continue to affect healthcare employer staffing, 2026 has seen and will continue to see a further increase in the use of both staffing agencies and in wage and hour issues with healthcare employees. In Washington and Minnesota, new state legislation will affect healthcare worker meal and rest period breaks. Continued state-level restrictions on restrictive covenants in the healthcare industry may also affect how healthcare employers can maintain their staffing levels.

Workplace Safety: In the absence of clear federal regulations on workplace safety, states continue to emphasize the importance of workplace safety for employees, especially healthcare employees.

Ogletree Deakins’ Healthcare Industry Group will continue to monitor developments and will post updates on the Cybersecurity and Privacy, Healthcare Immigration, State Developments, Unfair Competition and Trade Secrets, Wage and Hour, Workplace Investigations and Organization Assessments, Workplace Safety and Health, and Workplace Violence Protection blogs as additional information becomes available.

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