Quick Hits

• New York Governor Kathy Hochul signed Senate Bill S3460 on September 9, 2026, adding new Section 210-b to the New York Labor Law.
• The law takes effect sixty days after signing, or November 8, 2026.
• Employers must provide employees with a copy of their personnel record, at no cost, within five business days of a written request.
• Employers must notify employees within ten days of placing negative information in a personnel file and permit written rebuttals.
• Violations carry fines of $500 to $2,500, enforced by New York’s attorney general, and the statute includes an express anti-retaliation provision.
• Questions remain as to scope and enforcement, but employers should be aware of the potential for a new retaliation-based cause of action.

Background

On September 9, 2026, Governor Kathy Hochul signed Senate Bill S3460, adding new Section 210-b to the New York Labor Law. The law applies to both private- and public-sector employers and extends access rights to current and former employees alike. According to the governor’s office, New York now joins at least seventeen other states with a personnel-file access requirement.

Governor Hochul signed S3460 at the state’s annual Labor Appreciation Reception at the City University of New York’s (CUNY) School of Labor and Urban Studies, underscoring the labor-friendly legislative environment in Albany ahead of the upcoming gubernatorial election. The law takes effect on the sixtieth day after signing, or November 8, 2026.

What Counts as a ‘Personnel Record’?

The statute defines a “personnel record” broadly as “a record kept by an employer that identifies an employee, to the extent that the record is used, has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.”

That definition is not limited to a physical or single folder maintained by human resources (HR). The law specifically requires that personnel records include, without limitation, the following written information or documents prepared by the employer:

• the employee’s name, address, and date of birth;
• the employee’s job title and description;
• the employee’s rate of pay and other compensation;
• the employee’s starting date of employment;
• the employee’s job application and resume;
• all performance evaluations of the employee;
• written warnings of substandard performance;
• lists of probationary periods;
• waivers signed by the employee;
• copies of dated termination notices; and
• any other documents relating to disciplinary action.

The definition also extends to records held by third-party vendors who have a contractual agreement with the employer to keep or supply personnel records. The one limitation is that a personnel record does “not include information of a personal nature about a person other than the employee if disclosure would constitute a clearly unwarranted invasion of [that] other person’s privacy.”

Notably, the statute’s use of “without limiting the applicability or generality of the foregoing” suggests that the enumerated list is expansive. Emails, investigation notes, informal disciplinary memos, and records maintained outside a traditional HR file may qualify if they are used or could be used in connection with employment decisions. The precise boundaries of this definition will likely be shaped by future guidance or litigation.

The Five-Business-Day Clock and Limits on Requests

Once the law takes effect, an employer that receives a written request from an employee must provide a complete copy of the employee’s personnel record, at no cost, within five business days. Employers may limit employees to two requests per calendar year, but a request triggered by the placement of negative information in the file does not count toward that cap.

The right to access personnel records extends to former employees as well. The statute defines “employee” as “a person currently employed or formerly employed by an employer.” However, employers are required to retain a complete personnel record (without deletions or expungement) only from the date of hire through three years after separation. Former employees who make a request after that three-year window may find that the employer is no longer obligated to maintain the record, though the statute does not impose a deadline on the former employee’s right to make a request.

For employers with decentralized HR operations, multiple worksites, or a mix of paper and electronic recordkeeping systems, operationalizing a five-business-day turnaround may require significant resources.

Notice of Negative Information and the Right to Respond

Perhaps the most significant and ambiguous aspect of the new law is the notice-and-rebuttal requirement. The statute requires employers to notify an employee within ten days of placing in the employee’s personnel record any information that is, has been used, or may be used to negatively affect the employee’s qualifications for employment, promotion, transfer, additional compensation, or the possibility that the employee will be subject to disciplinary action.

The breadth of this language raises practical questions. A written warning or a performance improvement plan would almost certainly trigger the notice obligation. But what about a mediocre but not overtly negative performance review? Or an email from a manager documenting a performance conversation? The statute does not clearly define what it means to “negatively affect” an employee’s qualifications, and the word “may” suggests the obligation could be interpreted very broadly. These questions are likely to remain unresolved until the Attorney General’s office issues guidance or litigation tests the boundaries.

Once notice is given, the employee has the right to respond. If the employee disagrees with any information in the file, the employer and employee may mutually agree to remove or correct it. If they cannot reach agreement, the employee may submit a written statement explaining the employee’s position, which then becomes a permanent part of the personnel record. That statement must be included whenever the underlying information is transmitted to a third party, so long as the original information is retained in the file.

The law also provides employees with a remedy for false information: if an employer places information in a personnel record that the employer “knew or should have known to be false,” the employee may seek expungement through a collective bargaining agreement, other personnel procedures, or the judicial process.

Enforcement and Penalties

The statute provides that any violation “shall be punished” by a fine of between $500 to $2,500. Enforcement authority rests exclusively with the Office of the New York Attorney General.

Notably, the statute does not appear to create an express private right of action for violations of the access, notice, or response provisions. The enforcement language mirrors the structure of the Massachusetts statute, which similarly channels enforcement through the state’s attorney general rather than through individual lawsuits for statutory violations. That said, the statute does create a separate right of action for employees seeking to expunge false information from their personnel records.

Whether the absence of a broader private right of action will limit the statute’s practical enforcement remains to be seen. Under the Massachusetts model, the limited enforcement mechanism provided for criminal fines enforceable by the attorney general ultimately left a gap that the courts ultimately filled through the common law, as discussed below.

Anti-Retaliation Protections

The statute includes an express anti-retaliation provision that goes beyond its Massachusetts counterpart. Section 210-b(8) provides that no employer “shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee who exercises such employee’s rights under this section.”

The statute further defines prohibited retaliation to include, but not be limited to, “threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.”

This anti-retaliation language is significant for several reasons. First, it establishes an explicit statutory prohibition on retaliation that the Massachusetts statute does not contain (though under Massachusetts law, an employee discharged for submitting a written rebuttal in response to the placement of negative information in his personnel file can state a claim against the employer for wrongful termination in violation of public policy). Second, it sweeps broadly: the phrase “in any other manner discriminate or retaliate” could encompass a wide range of adverse employment actions, from termination and demotion to less obvious forms of retaliation such as schedule changes, reassignments, or exclusion from opportunities. Third, the immigration-specific language reflects the legislature’s awareness of vulnerable worker populations and is consistent with a trend in recent New York employment legislation.

However, the statute does not specify the enforcement mechanism for the anti-retaliation provision. It is not clear whether the “enforced by the attorney general” language in Section 210-b(7) is meant to apply to retaliation claims under Section 210-b(8), or whether the retaliation provision creates an independent basis for an employee to bring a private claim. This ambiguity is likely to generate future litigation.

What Employers Can Do Now

With an effective date of November 8, 2026, employers operating in New York should consider taking the following steps:

• Auditing existing records and storage practices. Determine what is currently maintained in personnel files, where those files reside, and whether they align with the statute’s broad definition of “personnel record.”
• Building a request-response process. Establish a clear intake process for written requests, designate responsibility for compiling records, and create a workflow that can consistently produce a complete copy within the five-business-day window.
• Developing a negative-information protocol. Create procedures for identifying when information that may negatively affect an employee is added to a file, issuing the required ten-day notice, and receiving and filing employee rebuttal statements.

Given the ambiguities in the statute’s enforcement provisions, the potential for additional retaliation claims, and the short compliance windows, employers will want to ensure that their policies, practices, and training programs are aligned with the new law.

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

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Quick Hits

• The European Commission issued guidance in August 2026 that clarifies some aspects of the EU Pay Transparency Directive, but leaves many questions unanswered.
• The guidance confirms that the directive applies to public- and private-sector employers, and that pay information does not have to be provided in job advertisements, but must be provided before a job interview.
• The guidance outlines the four key characteristics to determine equal value, and notes that others may be permissible but does not provide examples.

What Does the Guidance Confirm?

The guidance, issued in the form of frequently asked questions (FAQs), confirms that the directive’s scope applies broadly. It states that the directive applies to employers in both public and private sectors including those covered by collective agreements. It also confirms that the directive does not apply to genuinely self-employed workers and that pay information does not have to be provided in job advertisements, rather it must be provided before a job interview. This is of course, subject to implementation of the directive at a national level which may mandate that the information must be in a job posting as has been seen from some member states such as Italy.

The FAQs also address compatibility with the General Data Protection Regulation (GDPR). For example, the directive requires disclosure of average pay levels, but not of an individual’s pay data.

The guidance further states that equal pay compliance represents a “public interest” under GDPR Article 6(3) and member states have the option to put in place additional safeguards in instances where small comparator groups of pay data may reveal an individual’s pay. Article 12(3) of the directive enables member states to only disclose pay information to workers’ representatives, labour inspectorates, or equality bodies who can then inform employees whether pay discrimination has taken place. This is an area that is expected to develop as there are still concerns and criticisms from member states around a perceived incompatibility between the directive and GDPR.

There is clarification around what should be included as “pay.” Payments and benefits in cash or in kind that are available to all workers without any exception or eligibility criteria—such as laptops and/or mobile phones—do not need to be included. Equally, payments or benefits that are optional without any eligibility criteria would also not be included, such as whether a worker can choose to take a gym membership.

Areas That Remain Ambiguous

The FAQs leave areas of implementation of the directive unaddressed or ambiguous. For example, it outlines the four key characteristics to determine equal value—skills, effort, responsibility, and working conditions—and notes that additional factors may be permissible if relevant and gender-neutral yet does not expand on what is acceptable. Furthermore, the guidance does not address the practical implications for employers whose employees are not represented by trade unions.

A reference is made to market conditions as a potential factor that may affect or explain pay differences. The FAQs note that as a factor it should be “treated with caution” as it is less likely to be linked to the actual value of the job itself but does not elaborate further on this point. Although the United Kingdom is outside the scope of the directive, it will be interesting to see if the recent judgment in the case of Next Retail v Thandi & Others is mirrored elsewhere across the EU.

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

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

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

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

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Quick Hits

• Managers and supervisors who meet the FLSA’s executive duties test generally may not participate in tip pools or tip shares, even when performing tipped work, but may retain tips received solely and directly for services they personally provide.
• Nonprofit exempt employees may volunteer for their employer only if their services are freely performed, there is no expectation of pay, and the work differs from the work they are employed to perform; if these conditions are not met, they can work without additional compensation so long as their primary duty remains the performance of exempt work (and they meet the salary basis requirement).
• Employees who are relieved of duties during a sixty-minute meal period generally have a bona fide unpaid meal period even if they spend several minutes walking to and from a designated break area.

FLSA2026-13: Tips Shared With Managers and Supervisors

A server requested an opinion letter related to sharing tips with an employee whose title is “shift supervisor” and stated that the position primarily performs management duties. The employee asked whether, when the shift supervisor works a bartending shift periodically or assists positions like hosts and bussers, the supervisor can share in tips.

The WHD again reiterated the principles previously laid out in opinion letter FLSA2025-1. Without opining on whether the shift supervisor was actually a manager or supervisor, the WHD explained that a manager or supervisor who meets the executive duties test (job title is not dispositive), regardless of whether the individual meets the salary requirements in 29 C.F.R. § 541.100 and Subpart G, cannot keep employees’ tips or otherwise participate in a tip pool or tip share. This remains true even if the manager or supervisor performs nonmanagerial duties, including in a tipped occupation such as a server or bartender or alongside other employees the individual manages. The only exception to this occurs if a manager or supervisor solely and directly performs services and receives a tip from a customer. Notably, Section 3(m)(2)(B) of the Fair Labor Standards Act (FLSA) does not prohibit an employer from requiring a manager or supervisor who receives tips directly from customers to contribute some portion of those tips to eligible employees in an employer-mandated tip pooling or tip sharing arrangement. 

So, in this case with the shift supervisor, the WHD explained the shift supervisor may keep tips left by his bar customers during the period in which he is bartending since he solely and directly provided services. If, however, the shift supervisor’s tips and other bartenders’ tips are consolidated and split among all bartenders working that shift, it is not possible to attribute the tip solely to the supervisor, and therefore the supervisor is not permitted to take any portion of those tips.

The WHD provided two other examples to explain these principles. In a scenario where a manager helps servers and bussers serve customers, the manager cannot keep any tips. If instead the manager covers a few tables because a server called out sick, she may keep the tips given to her by customers at those tables for services that the manager directly and solely performed. In another scenario where a coffee shop maintains a tip jar and point-of-sale system for customer tipping, a barista, who is regularly left in charge and meets the executive duties test as a supervisor or manager, may not keep any portion of the tips the customers provide because it is not possible to attribute the tips solely to the service the employee provides.

The WHD noted the penalties associated with violation of section 3(m)(2)(B) of the FLSA, which include recovery of the tips the supervisor “kept” as well as an invalidated tip credit for affected tipped employees.

FLSA2026-12: Volunteering for Nonprofit Employer

In FLSA2026-12, a nonprofit organization that breeds, raises, and trains service dogs to assist individuals with visual impairments and veterans with post-traumatic stress disorder inquired whether their exempt employees may volunteer for the organization to provide juvenile canine socialization services at home. The WHD determined this is permissible as long as the employees do so freely and without coercion, with no contemplation of pay for the volunteer services rendered, and the volunteer services are not the same type of services the organization employs the employees to perform. Stated differently, the WHD explained “a nonprofit employee cannot be both a paid employee and a non-paid volunteer while performing the same type of work for the same employer.”

The WHD explained while this is true for both exempt and nonexempt employees, there are different considerations for exempt employees. If the nonexempt employee is performing the same work, that work is not voluntary and would be compensable time. In contrast, if the exempt employee is performing the same or similar work, and still satisfies the duties test, the employer does not owe extra compensation for this work. However, when the volunteer work qualifies as nonexempt work (in this case, the issue was an exempt trainer performing volunteer, juvenile canine socialization work, which the WHD categorized as nonexempt work), the employee’s primary duty must remain the performance of exempt work. In determining whether exempt work is the primary duty of the employee, an employee who spends more than 50 percent of his or her time performing qualifying exempt work will usually satisfy the primary duty test, but it is ultimately a qualitative fact determination.

FLSA2026-11: Meal Periods and Walking Time

A security therapy aide at a detention facility requested an opinion from the WHD regarding whether an uncompensated sixty-minute meal period for which employees spend six to fourteen minutes walking to and from the employer’s designated meal break constitutes a bona fide meal break. The employee also asserted the time traveling to and from the break area should be compensable.

Setting aside any analysis or opinion as to the terms of the collective bargaining agreement (CBA) providing for this sixty-minute meal period, the WHD explained that the remaining forty-six to fifty-four minutes subtracting travel time constitutes a bona fide meal break when there is no indication the employer requires employees to work while eating and employees are relieved from any work responsibilities during that time. Relevant authority is crystal clear that so long as the employee is relieved from duties, even “30 minutes or more is long enough for a bona fide meal period.” But even meal periods of less than thirty minutes can be bona fide and not compensable if employees have sufficient time to eat a regular meal or there is an agreement between employer and employee for a period of less than thirty minutes for a meal period. Most often though, short rest breaks of up to twenty minutes in length are compensable because they “promote the efficiency of the employee.”

With respect to the travel time to and from the break area, the WHD rejects the “complete relief from duty standard.” When employees need just a few minutes of travel time to access a break room or other location where they can eat their meal, that time is generally not compensable.

Ogletree Deakins’ Hospitality Industry Group and Wage and Hour Practice Group will continue to monitor developments and will post updates on the Hospitality and Wage and Hour blogs as additional information becomes available.

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Quick Hits

• Massachusetts’s PROTECT Act, effective August 5, 2026, requires employers that receive an I-9 notice of inspection from DHS/ICE to deliver written notice in each affected employee’s primary language within forty-eight hours of receipt.
• Employers in Massachusetts may want to prepare now by assigning responsibility for the notice process, pre-translating notice templates, mapping individual distribution methods for all employees, and proactively auditing I-9 files.
• Beyond the I-9 notice requirement, the PROTECT Act restricts state and local law enforcement participation in civil immigration enforcement, limits civil arrests on certain state property, and requires many healthcare providers to adopt a written enforcement interaction policy by October 4, 2026.

The New Rule

When an employer receives a notice of inspection (NOI) from the U.S. Department of Homeland Security (DHS)/Immigration and Customs Enforcement (ICE) for I-9 forms or other employment eligibility records, Massachusetts law now requires that employers take the following actions:

• 48-hour deadline: Written notice must be sent to employees within forty-eight hours of receiving the NOI.
• Individual delivery: Each affected employee must receive his or her own notice. A notice posted in a breakroom, on an intranet, or on a bulletin board is not enough.
• Primary-language requirement: Notice must be given in the employee’s primary language, not just English.
• Clock starts at receipt: The forty-eight-hour period begins when the employer first receives the notice of inspection.

A state-issued sample notice is available for use by employers.

Tips for Employers

Employers in Massachusetts may want to consider the following steps to comply with the PROTECT Act:

• Assigning ownership: Consider deciding today who is responsible for triggering the notice process the moment an NOI is received and establishing an actionable process.
• Pre-translating notice templates: Employers that have workforces where multiple languages are spoken may want to have translated versions of the sample notice ready in advance.
• Mapping distribution methods: Employers may want to confirm how they will individually reach every affected employee, including remote staff, employees on leave, and multisite workers.
• Auditing I-9 files proactively: A clean I-9 audit process reduces the risk of substantive violations surfacing during an inspection, separate from the notice obligation itself.

Other Parts of the PROTECT Act Impacting Employers

The I-9 notice rule is the piece most directly tied to day-to-day employer operations, but the law reaches further. Employers with on-site clinics, childcare programs, or other covered facilities should note that the act also:

• restricts the ability of state and local law enforcement to participate in civil immigration enforcement,
• limits civil arrests in certain nonpublic areas of state property, and
• requires many healthcare providers to adopt a written policy addressing civil law enforcement interactions by October 4, 2026.

Bottom Line

• The forty-eight-hour I-9 notice requirement carries real compliance risk and almost no lead time once triggered.
• Employers may want to treat this as an operational readiness issue.
• Employers may want to have the template ready, know who owns the process, and know exactly how notices will reach every affected employee.

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

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Quick Hits

• Washington State’s Immigrant Worker Protection Act requires employers to provide workers with notice of federal Form I-9 inspections and inspection results and to post a workplace rights notice.
• All Washington employers with at least one worker, including state and local government entities, are covered and must provide each notice within five business days of receiving the relevant federal notice and post the attorney general’s workplace poster.
• The rules take effect on October 1, 2026.

Covered Employers

The act covers every private or public employer that employs one or more workers in Washington, including the state, state agencies, political subdivisions, and municipal corporations.

Before a Form I-9 Inspection

Within five business days after receiving a federal agency notice of an inspection of Form I-9 records or related worker records, employers must give written notice to each worker and the worker’s authorized representative, if any. The notice to the employee must include:

• a copy of the federal notice of inspection;
• the federal agency’s name;
• the date the employer received the notice;
• the types of records sought and any other identified purposes of the inspection, to the extent known; and
• contact information for a statewide organization identified and approved by the attorney general that provides information and advocacy related to immigrant and refugee rights.

Employers are required to post and maintain the notice conspicuously on the premises where notices to workers are customarily posted through completion of the inspection. The communication to the employee must have proof of transmission, either through hand delivery, mail, email, or text message.

After a Form I-9 Inspection

Within five business days after receiving written Form I-9 inspection results, employers must provide each affected worker and the worker’s authorized representative with the following documentation:

• a copy of the federal agency’s written results;
• a written notice of the employer’s and worker’s obligations arising from the results; and
• a description of the worker’s deficiencies or other items identified in the results, the period for correcting potential deficiencies, a mutually agreed meeting date and time or options within that period and notice of the worker’s right to representation at any meeting.

Employers are required to limit all information to each individual worker and redact other workers’ personal information. The communication to the employee must have proof of transmission, either through hand delivery, mail, email, or text message.

Workplace Posting

Every Washington employer must conspicuously post and keep posted the attorney general’s workplace poster describing workers’ rights under the act.

Enforcement and Penalties

The attorney general may investigate violations and seek injunctions and damages. For each failure to provide a required notice to a worker, a court must order $500 in statutory damages payable to the attorney general, doubled for a willful violation. A worker, former worker, person injured by a violation, or organization whose membership includes any such person may bring a private action in superior court for injunctive relief and damages.

Next Steps

To prepare for the requirements taking effect on October 1, 2026, Washington employers may want to take the following steps:

• Assigning responsibility for the two notice requirements, each due within five business days, and creating a Form I-9 inspection response checklist
• Preparing notice templates and delivery procedures that preserve proof of transmission
• Training HR and managers on worker protections and reviewing verification and reverification practices for compliance with federal requirements

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

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USCIS Releases Proposal to Eliminate Sixty-Day Grace Period. Today, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule, “Eliminating the Discretionary 60-day Grace Period,” in the Federal Register. As indicated by the title, the proposal would eliminate current regulations that allow certain nonimmigrant visa holders to remain in the United States for up to sixty days after separation from employment—a grace period generally used to pursue other immigration options or seek new employment opportunities. According to the proposal’s preamble, the current “60-day discretionary grace period disconnects the alien’s lawful status from the very basis of eligibility under these employment-based nonimmigrant classifications.” USCIS further maintains that eliminating the grace period eases its administrative burden. Comments are due on or before November 10, 2026.

DOL Issues New Wage-and-Hour Opinion Letters. The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) continues to release new opinion letters to provide insight into the application of the Fair Labor Standards Act (FLSA) to real workplace situations. WHD released the following opinion letters this week:

• Meal Breaks. The first letter addresses compensability during a sixty-minute lunch break, during which employees use part of that time to walk to and from the designated break area. The letter concludes that even though employees may take up to fourteen minutes to walk to and from the break area, the remaining forty-six minutes, during which employees are relieved of all work responsibilities, are sufficient for a bona fide meal period and therefore not a compensable work break.
• Volunteering by Employees. The second letter concerns the wage-and-hour implications for employees who also freely volunteer for their nonprofit employer. In this case, the nonprofit employer breeds and trains service dogs, and the question is whether veterinarians, directors, and trainers can also serve as volunteer “puppy raisers” without additional compensation. The letter concludes that when the job duties are sufficiently different and distinct from the volunteer activities (e.g., a veterinarian providing medical care during the day and then raising and training a puppy at home at night), the volunteer time is not compensable. However, in the case of individuals employed as dog trainers, their compensable duties (e.g., training and socializing dogs) are so similar in nature to their volunteer time as puppy raisers that “the volunteer hours are part of the employment relationship and must be counted as hours worked for FLSA purposes as long as they qualify as compensable worktime under the FLSA.”
• Tip Pools and Supervisors. The situation involves a shift supervisor who sometimes takes shifts tending bar or assisting servers and waiters. The employer asks if the supervisor can share in the tip pool. The letter concludes that as long as the employee is a “supervisor” under the FLSA, “he or she is prohibited from receiving any portion of tips from other employees—even if he or she also works bartending shifts alongside other employees or assists other employees performing tipped work.” The letter notes, however, that the employee may retain tips for services that he or she “directly and solely” provided. When tips are consolidated and shared and “it is not possible to attribute the tip solely to the supervisor, the supervisor is not permitted to take any portion of those tips.”

NYC Mayor Establishes Office to Promote Union Organizing. On September 3, 2026, New York City Mayor Zohran Mamdani signed Executive Order No. 20, “Cracking Down on Worker Abuse and Establishing the Mayor’s Office of Worker Power.” The order instructs various city agencies to coordinate and share information to “ensure maximum impact in protecting workers’ rights.” These agencies are also instructed to “prioritize the investigation of employers and entities with a history of labor violations or other indicators of poor compliance with labor standards, with a particular focus on such employers that have large numbers of workers with low wages.” As part of these enforcement efforts, the order further directs agencies to “seek monetary relief for all workers who experience violations without regard to whether any such worker filed an individual complaint.” (Emphasis added.)

The order also establishes the Mayor’s Office of Worker Power. According to an accompanying press release, the Mayor’s Office of Worker Power will:

• “Convene rank-and-file workers, union leaders, worker centers, immigrant workers, gig workers and platform workers.
• Hold public hearings on significant worker issues.
• Provide referrals to organizations that support workers.
• Coordinate with City agencies to produce research on pressing issues facing workers.
• Develop policy proposals informed by workers’ experiences.
• Engage workers on emerging challenges, including new technologies, worker misclassification, immigration-based exploitation and climate risks to worker safety.
• Connect workers with information about their rights at everyday touchpoints, including workforce centers, libraries, IDNYC offices, schools and community events.”

The Mayor’s Office of Worker Power will be overseen by New York City’s Deputy Mayor for Economic Justice, Julie Su, who served as Acting Secretary of Labor in the Biden Administration. The Executive Director of the MOWP will be a former organizer for the United Auto Workers.

Teamsters Endorse Republican Senator—an FLCA Cosponsor—for Reelection. This week, a Teamsters union affiliate in Kansas endorsed Republican Senator Roger Marshall (R-KS) in his reelection bid to the U.S. Senate. Marshall currently serves on the Senate Committee on Health, Education, Labor, and Pensions, and he is a cosponsor of union-friendly bills such as the Faster Labor Contracts Act (FLCA), the Warehouse Worker Protection Act, and the Railway Safety Act. Assuming Marshall wins reelection (the last Democrat elected to a Senate seat in Kansas was George McGill in 1932), he will be one of the highest-ranking Republicans serving on the committee in the next Congress—perhaps even in line to chair the committee—depending on what happens with Susan Collins’s reelection bid and committee membership reshuffling.

September 11, 2001. Twenty-five years ago today, the U.S. House of Representatives convened for what was to be a routine day of legislative business. As news of the now-infamous terrorist attacks developed, then–Speaker of the House J. Dennis Hastert (R-IL) (second in line to assume the presidency pursuant to the Presidential Succession Act of 1947) was quickly removed to a secure location. Shortly thereafter, when it became apparent that attacks were being directed at the Washington, D.C., area, the entire House recessed and evacuated. Members of the House returned to the Capitol on the morning of September 12, 2001, to deliver speeches condemning the attacks and mourning the loss of the 2,977 victims. At approximately 1:00 a.m. on the morning of September 13, the House passed Joint Resolution 61, which condemned the attacks, vowed a “war against international terrorism,” and declared September 12, 2001, a National Day of Unity and Mourning. Five days later, on September 18, 2001, President George W. Bush signed into law the Authorization for Use of Military Force “to take action to deter and prevent acts of international terrorism against the United States.”

Quick Hits

• Female retail employees in the UK sued Next Retail Limited for paying them less than male warehouse workers for work of equal value.
• The Employment Appeal Tribunal (EAT) determined that recruiting and retention needs at warehouses were legitimate reasons for the pay differential.
• The EAT found the pay differential was a proportionate response to a legitimate aim.

The UK’s Equality Act 2010 prohibits employment discrimination based on sex, sexual orientation, pregnancy, age, race, religion, and other protected characteristics. It requires employers to give men and women equal pay for equal work. Unequal pay can be justified “if it is in pursuance of an objective which is legitimate and where the means chosen are proportionate to that objective,” the EAT explained.

Background on the Case

The claims were originally brought by 3,540 female retail sales employees working in Next’s shops. In 2018, they sued under the Equality Act 2010, alleging they were paid less than male employees in Next’s warehouses. Over the relevant time period, about 77 percent of the company’s retail sales employees were female, and about 22 percent were male, while about 47 percent of warehouse employees were female, and about 53 percent were male.

At the first hearing, the Employment Tribunal (ET) determined that the work performed by the retail sales employees was of equal value to that of the warehouse operatives, in terms of effort, skill, and decision-making. The burden of proof, therefore, shifted to Next to explain the differential in pay between the two roles.

Next argued that it paid warehouse employees more based on material factors, including business viability and resilience, retaining and recruiting warehouse workers, maintaining 24/7 operations in the warehouse, incentivizing high productivity, and incentivizing good attendance records. It said that the same commercial pressures did not exist with retail sales roles as they did with warehouse jobs because the two different roles related to separate labour markets.

The ET held that business viability, resilience, and market-related considerations were not viable justifications for setting different pay rates as they were “all about cost” and that those reasons could not, without more, provide objective justification for the pay differential.

Employment Appeal Tribunal Decision

The EAT concluded that there was no direct sex discrimination in this case, so it looked to the question of whether indirect sex discrimination occurred due to a neutral policy or practice putting a protected group at a particular disadvantage.

The EAT concluded that the ET was correct in finding that the female claimants demonstrated a particular disadvantage because of the statistical differences between the claimant and comparator groups. However, it held that the ET erred by focusing primarily on the company’s cost-saving considerations in setting different pay rates. It found the ET failed to assess whether the pay differential was a proportionate response to the genuine business need to recruit and retain warehouse staff. The proportionality determination calls for a “critical evaluation” of business practices and needs, the EAT noted.

The EAT also found that the ET erred by requiring the company “to establish separate and distinct aims for both the higher and lower levels of pay,” rather than a single aim that was the reason for the unequal pay. The EAT also dismissed the claimants’ cross-appeal.

Lessons Learned

This case illustrates that employers in the UK can point to genuine recruiting and retention concerns in specific labour markets to justify pay differential between roles that are of equal value.

The EAT held there was sufficient evidence that gender had nothing to do with the unequal pay rates in this case. Going forward, documenting pay decisions is critical, as it may assist an employer to defend equal pay litigation.

Not only is equal value a principle in UK pay equity law, but the concept of equal value is the cornerstone of the EU Pay Transparency Directive. Information and updates on the progress of the directive’s implementation across the European Union can be found using Ogletree Deakins’ Member State Implementation Tracker.

Ogletree Deakins’ Pay Equity Practice Group and the London office will continue to monitor developments and will post updates on the Cross-Border, Pay Equity, Retail, Trucking & Logistics, and United Kingdom blogs as additional information becomes available.

Daniella McGuigan is a partner in Ogletree Deakins’ London 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

• If an employee earns less than a male colleague who performs the same or equivalent work, gender-based disadvantage is presumed under German employment law.
• Employers may rebut this presumption by showing objective, gender-neutral reasons for differences in compensation.
• Upon remand of a pay equity case by the Federal Labor Court (Bundesarbeitsgericht (BAG)), the Regional Labor Court of Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg (LAG)) denied a female employee’s claim for the top salary but awarded her the difference between her pay and the median pay of the male comparator group.

On August 18, 2026 (Ref. No. 2 Sa 14/24), the Baden-Württemberg LAG issued another ruling in the case after it was remanded by the BAG (Ref. No. 8 AZR 300/24). The employee was awarded the difference between her pay and the median pay of the male comparator group, but not the pay of the highest-paid male colleague. The employer successfully rebutted the presumption of gender-based discrimination as to that colleague.

The Case—An Equal Pay Claim at Multiple Levels

The employee sued for retroactive equalization of several compensation components. She based her claim on the difference between her pay and that of a named male colleague at the same level in the hierarchy. He was the highest-paid colleague. In the alternative, she sought to have her salary adjusted to the median pay of the male comparator group.

In its October 1, 2024, decision, the LAG awarded the employee higher compensation but denied an adjustment “all the way up” to the highest-paid colleague. In the court’s view, there were not enough indications of direct discrimination at that level.

BAG—A One-to-One Comparison Is Sufficient

The BAG partially set aside that decision in its October 23, 2025, judgment. The BAG held that a presumption of gender-based disadvantage arises when an employee alleges and, if disputed, proves that a male colleague receives higher pay for the same or equivalent work. The size of the comparison group and median values do not matter. This does not mean that employers must always pay employees of another gender the highest pay in the comparator group. Different pay remains possible when objective factors unrelated to gender explain the difference.

New LAG Decision—Presumption of Discrimination Rebutted

In its ruling on remand from the BAG, the LAG distinguished between the two claims. The employer rebutted the presumption as to the named male top earner. The decisive factors were the overall situation within the male comparator group and the fact that the colleague had worked in the position for significantly longer. The employee therefore was not awarded the difference between her pay and the top salary. The LAG nevertheless ruled for the employee regarding the difference between her pay and the median pay of the male comparator group. On that issue, the employer did not rebut the presumption with gender-neutral criteria.

Takeaways

A comparison with a single colleague can trigger a presumption of gender-based pay discrimination. An employer may rebut that presumption with objective, gender-neutral reasons. The outcome therefore depends on whether differences in the individual case can be explained, for example, by the job profile, scope of responsibility, experience in the role, or specifically documented performance factors. Employers may want to analyze their compensation structures and document gender-neutral reasons for pay differences for each personnel action affecting pay. That documentation can help rebut the presumption of gender-based disadvantage later, if necessary.

Julia Kulmegies is an associate in Ogletree Deakins’ Berlin office.

Lela Salman, a law clerk in Ogletree Deakins’ Berlin office, contributed to this article.

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

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Quick Hits

• California enacted AB 2155, providing that a written arbitration agreement is unenforceable under state law to the extent it is unenforceable under the FAA.
• Arbitration agreements remain valid unless certain exemptions apply.
• The state law will take effect on January 1, 2027.

Under Assembly Bill (AB) 2155, employers cannot enforce arbitration agreements in California if the FAA would not enforce them. The law will take effect on January 1, 2027.

The FAA enforces arbitration agreements unless they are unconscionable. Separately, transportation workers engaged in interstate or international commerce are exempt from the FAA under Section 1 of the FAA. This exemption covers workers who transport goods or passengers across state lines. The exemption extends to seamen, railway workers, and similar workers who move goods across borders. Whether a workforce qualifies is fact-specific and often disputed.

An FAA exemption does not make an arbitration agreement unenforceable by itself. It means only that the FAA does not govern the agreement. State law then controls enforceability.

AB 2155 amends California Code of Civil Procedure section 1281. That section has long recognized arbitration agreements as “valid, enforceable and irrevocable,” subject to generally applicable contract defenses such as unconscionability or duress. Effective January 1, 2027, the statute adds a new subdivision. It stipulates that a “written agreement to submit to arbitration is not enforceable under this section to the extent the agreement is not enforceable under the Federal Arbitration Act.” The state legislature’s analyses describe the bill’s purpose as incorporating into the California Arbitration Act “any and all exclusions under the [FAA].” The analyses point specifically to the Section 1 transportation-worker exemption and the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA).

AB 2155’s restriction applies “to the extent” an agreement “is not enforceable under” the FAA. A court cannot find that an agreement entirely outside the FAA’s scope is unenforceable under the FAA because the FAA has no occasion to rule on such agreements at all. This new state law is triggered by a determination that an agreement fails under the FAA, not by the FAA’s mere inapplicability. Enforceability of an FAA-exempt agreement continues under the California Arbitration Act and existing California case law. No court has yet addressed how this interacts with the transportation-worker exemption.

Where the FAA does not govern an arbitration agreement, California courts assess class-action waiver enforceability under the multifactor test from Gentry v. Superior Court. The Supreme Court of California held in Iskanian v. CLS Transportation Los Angeles, LLC, that the FAA preempts Gentry only where the FAA applies. Gentry’s test does not automatically invalidate class-action waivers. The party opposing arbitration bears the burden to show that each Gentry factor favors class treatment. Employers can and regularly do defeat that showing, even for workers outside FAA coverage.

The second exclusion the state legislature identified is the EFAA. Under 9 U.S.C. § 402(a), when a person brings a sexual harassment or sexual assault case, a pre-dispute arbitration agreement is not valid or enforceable. The claimant may proceed in litigation instead.

Next Steps

Employers in California may want to review their arbitration agreements to identify any jobs subject to FAA exemptions, particularly the transportation-worker exemption. They may also want to consider whether to make arbitration agreements voluntary, rather than mandatory.

Labor Code section 432.6 prohibits conditioning employment on waiving legal forums for Labor Code violations. The FAA preempts section 432.6 for most employers. But the preemption does not apply to any transportation workers exempt from the FAA. Voluntary arbitration programs eliminate this risk by giving employees a genuine choice.

Employers may want to ensure agreements clearly identify governing law, the scope of arbitrable claims, and any limitations on representative proceedings. They also may want to monitor how courts construe AB 2155 going forward. An FAA exemption does not automatically defeat an otherwise enforceable class-action waiver. The Gentry framework remains available where applicable.

Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group will continue to monitor developments and will post updates on the Arbitration and Alternative Dispute Resolution, California, and Trucking & Logistics blogs as additional information becomes available.

Spencer C. Skeen is a shareholder in Ogletree Deakins’ San Diego office.

Katie M. Greenbaum is an associate in Ogletree Deakins’ San Diego 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

• SkillBridge provides employers with access to talented military members who are in the process of becoming civilians.
• These individuals continue to be paid by the military while placed with SkillBridge employers.
• To participate, employers can either register to serve as SkillBridge employers or work through approved intermediaries.

For employers, human resource (HR) leaders, and talent acquisition teams, SkillBridge can be a practical way to connect with military talent before service members enter the civilian workforce. This article explains what SkillBridge is, why employers choose to participate, how the program generally works, and what organizations should consider before getting started.

What Is the DoW SkillBridge Program?

SkillBridge was created in 2011 with the goal of creating a high probability (not a guarantee) of post-service employment, while giving participating employers a structured way to engage transitioning service members before they enter the civilian workforce. During the last months of active duty, eligible service members can work full-time with an approved civilian employer to learn a job, build practical skills, and explore a possible career path after the military. Since its inception, well over 50,000 service members have completed the program.

SkillBridge generally works this way:

• The participant remains on active duty in the military and continues to receive military pay and benefits.
• The participant receives approval from their military command before participating.
• The employer receives approval by DoW or works with an approved SkillBridge partner.
• The employer provides training or an internship or apprenticeship experience, not simply to fill an ordinary job opening.
• At the conclusion of the program, the employer is not required to offer the service member employment, although many employers use SkillBridge as a pathway to hire.

For service members, SkillBridge can be a great way to break into an industry and develop skills necessary for civilian employment. For employers, the program can be a practical way to efficiently train a prospective employee and get to know military talent in the workplace before deciding whether to make a permanent offer.

Why Employers Participate

Employers across sectors—from manufacturing and logistics to technology and professional services—participate in SkillBridge for a range of strategic and operational reasons:

• Access to a high-caliber talent pipeline. Transitioning service members often bring leadership experience, technical skills, security clearances, and a strong work ethic that translate directly to civilian roles.
• Reduced hiring risk. SkillBridge allows employers to assess a candidate’s fit, capabilities, and cultural alignment in the actual work environment before extending a permanent job offer.
• Lower onboarding costs. Because participants receive military pay during the program, employers typically do not bear compensation costs during the training period, reducing the financial burden of onboarding a new hire.
• Support for workforce development and veteran-hiring goals. Participation demonstrates a commitment to the military community and can support broader talent, inclusion, and community engagement priorities.
• Community and brand positioning. Organizations that actively support the military-to-civilian transition often benefit from positive brand association and community goodwill.

Getting Started

Employers interested in SkillBridge do not need to have every operational detail finalized before exploring the program. However, there are concrete steps employers must take. The DoW requires that employers either apply directly to become an approved SkillBridge industry partner or work with an existing approved partner organization that manages the application and placement logistics on the employer’s behalf. Below is a practical starting framework.

Determining Program Fit

Employers can start by identifying one or more roles where transitioning military talent could add value and where their organizations can deliver genuine training, mentoring, or hands-on experience. The opportunity must qualify as job training, an internship, or an apprenticeship under DoW standards—not just an open headcount to fill.

Choosing an Approval Path

Employers may apply through the DoW SkillBridge employer portal to become an approved industry partner, or they may partner with an approved intermediary organization that facilitates placements. The direct approval route typically involves submitting a program description, demonstrating training value, and agreeing to program terms. Working through a partner can expedite access but may require a memorandum of understanding and coordination regarding participant matching.

Building a Program Framework

The employer will want to prepare a written description of the opportunity, including its expected duration (up to 180 days), training objectives, supervision plan, and the civilian skills the participant is expected to develop. The DoW will evaluate whether the program meets SkillBridge requirements, so specificity matters.

Planning for Command Approval and Scheduling

Every service member must obtain approval from his or her military command before participating. Employers should build in timing flexibility—military obligations can require the participant’s attention, and start dates may shift based on military mission requirements. Expect some back-and-forth coordination with the service member’s installation transition office or education center.

Practical Guardrails for Employers

Employers should keep a few practical guardrails in mind. Clearly describe the training experience; use the same screening, onboarding, and workplace rules that apply to similar applicants or interns; avoid shifting program costs to participants; protect confidential information; provide appropriate supervision and safety training; and be clear that participation does not guarantee a job offer.

Takeaways for HR and Talent Teams

Employers evaluating SkillBridge for the first time may wish to consider the following tips:

• Start with roles where service members’ experience, leadership, and technical skills may translate well to civilian work.
• Treat the opportunity as training or experiential learning, with clear objectives and supervision.
• Decide whether to seek DoW approval directly or work through an approved SkillBridge partner.
• Build in time for command approval and some scheduling flexibility during the transition period.
• Use ordinary HR processes for screening, onboarding, workplace conduct, safety, confidentiality, feedback, and records.
• Be clear with participants and internal stakeholders that SkillBridge can lead to employment but does not guarantee a job offer.

Conclusion

The DoW SkillBridge program gives employers a structured way to meet, train, and evaluate transitioning service members before they enter the civilian workforce. For HR and talent acquisition teams, it can be both a recruiting tool and a practical way to support veteran hiring.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments and will provide updates on the Military Workforce, Government Contracting and Compliance, and Employment Law blogs as additional information becomes available.

Adam J. Crane, a member of Ogletree Deakins’ Military Workforce Practice Group, served as a judge advocate in the United States Marine Corps and currently serves in the United States Marine Corps Reserve as a senior litigator and preliminary hearing officer.

James A. Patton, Jr., co-chair of Ogletree Deakins’ Military Workforce Practice Group, served as an officer in the United States Army and the United States Army Reserve.

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